19 March 2021

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In this issue of ZOOM-IN Brief, Lady Colin Campbell sues the Mirror for defamation; The Mail on Sunday ordered to publish a front page statement referring to Meghan’s copyright victory; whilst ITV removes ‘misleading headlines’ from Oprah with Meghan and Harry, following complaints.

CREDIT: NEIL SPENCE/Alamy
CREDIT: NEIL SPENCE/Alamy
Lady C in the English libel courts

Defamation – Court decides meaning of Mirror article referring to Lady Colin Campbell

On 18 November 2019, in the aftermath of Prince Andrew’s sensational Newsnight interview with Emily Maitlis, Lady Colin Campbell appeared on a breakfast TV programme to discuss the car crash interview.

In a column in the Mirror written by Darren Lewis, headlined “A glimpse into the sordid world of entitled elite”, the newspaper reported on her appearance, saying:

“Then, remarkably, Lady Colin Campbell left us all open-mouthed on Monday when she appeared on Breakfast TV to defend Epstein’s right to rape children.”

“He was procuring 14-year-old prostitutes,” she said. “They were not minors, they were prostitutes, there is a difference.”

Lady C argued that the article had the meaning, and would be understood by readers, that she “…had appeared on national television for the specific purpose of defending Jeffrey Epstein’s right to rape children and had done so”, a charge she denies.

The Mirror rejected the claim, arguing that the words published meant that she “.. appeared to defend Jeffrey Epstein’s right to rape children when she drew a remarkable and untenable distinction between procuring 14-year-old prostitutes and procuring minors for sexual intercourse.”

It pleaded a Defence to the effect that this allegation i.e. their version of how the article would be understood, was true.

The Court directed that the meaning of the article should be determined as a preliminary issue, along with whether the words were statements of fact or opinion.

Noting an ambiguity in the words complained of as to whether “to defend” was an infinitive of purpose, or an infinitive governed by the verb “appeared”, the Court resolved this in a way closer to the meaning put forward by Lady C.

The Court’s findings were that the words complained of: (1) assert as fact: “Lady Colin Campbell appeared on a breakfast television programme. She did so to defend the rape of children by Epstein. Her defence was that the children had been 14-year-old prostitutes rather than minors.” (2) express the opinion: “This is a shocking thing to say. Her comments are an exemplar of the sordid world of the entitled elite.”

The article which gave rise to this claim (appended to the judgment) focused on Prince Andrew and Boris Johnson and only referred to the claimant in passing towards its conclusion. Nevertheless it has given rise to what appears to be a viable defamation claim. This illustrates the continuing importance of pre-publication advice on libel risks for the media.

The case continues. zoom-in will report on any developments.

Copyright – Judge orders front page statement in Duchess of Sussex case

The Judge in the case brought by the Duchess of Sussex, Meghan Markle, against The Mail on Sunday over its publication of a letter to her father has ordered the newspaper to publish a Statement on its front page referring to her victory in her copyright claim, following his decision to grant her summary judgment.

Although such orders have previously been made in Intellectual Property disputes, this is an unprecedented remedy in the context of a media law claim against a newspaper.

The Judge had previously found that the Duchess was entitled to summary judgment on liability for misuse of private information and on the issues of subsistence and infringement of copyright as a result of the publication of the letter, though some issues relating to copyright remain to be tried.

The claimant and the defendant newspaper group, Associated Newspapers Limited (“ANL”), disputed how the remaining issues in the action should be dealt with, and what remedies should be granted to the Duchess at this stage, resulting in a further hearing and decision by the Court.

The Duchess said that she was willing to accept only nominal damages for misuse of private information on the conditions that an order was made for an account of profits for copyright infringement, and that there should be no successful appeal against the Judge’s decision.

The Judge made procedural orders to progress the litigation, including to deal with the remaining issues as to copyright ownership and the profits to which the Duchess was entitled.

He granted a declaration to the effect that ANL had misused her private information and infringed her copyright in the Letter and a final injunction to restrain misuse of private information.

The Duchess relied on both an EU Directive and domestic court rules in support of her application for ANL to publish a statement concerning the result on its front page, and a more detailed Notice on the inside pages explaining the outcome of her copyright claim.

Recital 27 of the relevant Directive says that the policy objectives behind the court ordering dissemination of its decision are that, “…To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases.”

The Duchess argued that the order sought would (1) act as a deterrent to future infringers and (2) contribute to public awareness, and in particular awareness among readers of The Mail on Sunday and MailOnline (which had also published the Letter).

The Defendant argued that the remedy was “intended more as a species of punishment or retribution”, and that this inference could be drawn because of what it called the “invasive nature of the remedy itself and the lack of any proper justification put forward for the making of the Order”.

The Judge analysed the availability of remedies of this kind in media cases, where, he said “discursive remedies” of this kind had so far been unusual, although in defamation a court has jurisdiction to order publication of a summary of its judgment under s 12 of the Defamation Act 2013.

Since the Duchess limited the wording of the Statement to the outcome of the copyright claim, the Judge held that he had the power to make an order and that it was appropriate in the circumstances of the case to do so.

The precise format in which the Statement is to be published has not yet been decided by the Court, but it will appear on the front page of the Mail on Sunday, with the accompanying and more detailed Notice appearing on page 3.

Regulators already have powers to order the media to publish information about the outcome of complaints: Ofcom can make a direction to broadcast a correction or a statement of its findings and, as the Judge noted, the IPSO Code says that a publication “must report fairly and accurately the outcome of an action for defamation to which it has been a party”.

This order, however, is one which sees the Court intervene directly in the form and content of what an unsuccessful defendant should publish, and, as some commentators have already noted, an outcome of this kind will be a key goal for claimant lawyers in the future.

Regulation – ITV removes headlines shown in Meghan and Harry interview

Broadcaster ITV has removed four of the newspaper headlines shown during the interview by Oprah Winfrey with the Duke and Duchess of Sussex, Prince Harry and Meghan Markle, following a complaint from the publisher of the Daily Mail.

The headlines were displayed during the programme as evidence of tabloid racism in the UK, and three of them were taken from newspapers published by Associated Newspapers Limited (“ANL”)

ANL has since complained to both ITV, which carried the interview in this country, and to CBS, the US network which originally broadcast the interview, with ITV agreeing to remove the headlines from its catch-up service.

The interview contained a montage of newspaper headlines which purported to illustrate the couple’s treatment by the UK press.

However, shortly after the interview was broadcast, The Daily Telegraph reported that a third of the headlines highlighted were from non-UK gossip magazines, including American and Australian supermarket tabloids.

The newspaper also found that headlines which were used to allege racial bias by the UK press were in fact reports exposing racial slurs made by others.

ANL wrote to CBS to complain, referring to what it called “the deliberate distortion and doctoring of newspaper headlines in the misleading montage of British newspapers broadcast in ‘Oprah with Meghan and Harry’.”

Its letter went on to say that “Many of the headlines have been either taken out of context or deliberately edited and displayed as supporting evidence for the programme’s claim that the Duchess of Sussex was subjected to racist coverage by the British press.

“This editing was not made apparent to viewers and, as a result, this section of the programme is both seriously inaccurate and misleading.”

ANL identified the “most egregious” example as being the use of the headline: “Meghan’s seed will taint our Royal Family” which it noted was in fact a report of the suspension from UKIP of someone over this and other racist texts about Meghan.

ITV agreed to remove four misleading headlines from the version of the two-hour interview on ITV Player.

In the US, Oprah Winfrey’s production company, Harpo Productions, issued a statement to Variety defending its journalism.

It said: “Prince Harry and Meghan, the Duke and Duchess of Sussex, shared in the interview their personal story. We stand by the broadcast in its entirety.”

The contrasting responses of the two broadcasters highlight the difference between the highly regulated environment in this country, where Ofcom requires broadcasters to ensure accuracy and fairness, and the more relaxed approach taken to television content in the US.

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