28 Jan 29 January 2021
In this issue of zoom-in brief …. Rachel Riley successfully strikes out defences to her libel claim; Ofcom rejects a privacy complaint against Channel 5; and the Duchess of Sussex seeks summary judgment against the Mail on Sunday.
TV presenter and Countdown mathematician Rachel Riley has succeeded in her libel claim against journalist and campaigner Michael Sivier, over an article he published on his website headlined: “Serial abuser Rachel Riley to receive ‘extra protection’ – on grounds that she is receiving abuse”. Ms Riley applied to have the defence struck out, saying Mr Sivier had pleaded no reasonable grounds for defending the claim and had no realistic prospect of success. The judge agreed and struck out the defences of truth, honest opinion and publication on a matter of public interest.
Mr Sivier said his allegations were based on a Twitter exchange Ms Riley had had with a 16 year old girl over the issue of anti-Semitism in the Labour Party under the leadership of Jeremy Corbyn.
At a previous hearing a judge found the article meant that Ms Riley had engaged upon, supported and encouraged a campaign of online abuse and harassment of a 16-year-old girl, conduct which has also incited her followers to make death threats towards her; and that Ms Riley was a serial abuser who had acted hypocritically, irresponsibly and obscenely.
The judge found the exchange between Ms Riley and the girl to be civil and a ‘straightforward, rational and respectful exchange of views’. Ms Riley also published two further Twitter threads on the topic, which she had tweeted in response to a false account of the exchange which said she had bullied the girl. The judge found Mr Sivier’s reliance on these later tweets ‘verges on the perverse’. The proposition that Ms Riley was responsible for tweets by some of her Twitter followers towards the girl because she failed to discourage or condemn them was unsustainable.
Mr Sivier’s defence of truth was struck out. As the defence of honest opinion relies on the facts upon which the opinion was based being true, this defence also failed. As did the defence of publication on a matter of public interest, there could be no reasonable belief in the public interest in publishing untrue and unsustainable allegations without clear explanation and justification. Whilst Ms Riley will still need to show that the defamatory allegations caused serious harm to her reputation, all of the substantive defences to her claim have been struck out without the need for a trial.
A privacy complaint brought on behalf of a man called Keiron Watkins – who was sentenced to 18 months in jail for assaulting his wife – has been rejected by Ofcom.
The complaint related to police interview footage of Mr Watkins broadcast by Channel 5 in a February 2019 documentary about domestic violence called The Abused. The programme followed the stories of two domestic violence victims, including Mr Watkins’ wife, and used the footage of Mr Watkins to show how he had initially denied the abuse to police.
The police had sought permission from Mr Watkins to share the footage with the programme makers. He refused and the police ultimately decided it was still in the public interest to do so.
Mr Watkins’ solicitors then complained to Ofcom about the inclusion of the footage in the programme but Ofcom agreed – finding that although Mr Watkins had a legitimate expectation of privacy in the circumstances, that did not outweigh the public interest in this case.
When considering whether Mr Watkins’ privacy rights were engaged, Ofcom concluded that he “may not have fully comprehended during the police interviews that this footage could be obtained by the programme makers for inclusion in a television programme”, even though the police had cautioned him that anything he said during the interview could be used against him.
Ofcom also noted that “involvement in police investigations is often not a matter of public record until a person has been charged with a criminal offence” – and found that the fact the interview took place in a room (as opposed to a public area of the station) and such recordings are often only released after they have been used in court were also relevant considerations.
Ofcom went on to find however that there was a specific public interest in the use of the footage in this case because it illustrated the investigation process in cases of domestic abuse and how police respond to allegations – and the potential difficulties in obtaining evidence to charge and convict the perpetrator – and it was limited to what was necessary for this narrative.
This decision is a helpful reminder that while suspects will often have a reasonable expectation of privacy when engaging with police, there can still be scope for programme makers to obtain and use material from police investigations, such as interview footage, in appropriate circumstances.
Last week a two-day hearing between the Duchess of Sussex and the Mail on Sunday’s owner, Associated Newspapers Ltd (ANL), was held to decide whether the judge could deliver a ‘summary judgment’ now without the need for a full-scale trial later in the year.
The case arises from the publication by the Mail on Sunday of substantial extracts from a letter from the Duchess to her father, Thomas Markle, written shortly before her marriage to Prince Harry in 2018. Lawyers for the Duchess say ANL has “no prospect” of defending her privacy and copyright claim and describe the publication of her father’s letter as a “a triple-barrelled invasion of her privacy rights”.
However, ANL claims Meghan wrote the letter “with a view to it being disclosed publicly at some future point” in order “to defend her against charges of being an uncaring or unloving daughter”. The publisher’s lawyers argue the case is “wholly unsuitable for summary judgment.”
Meghan’s lawyers argued broadly that, regarding the privacy element of the case, the judge had everything he needed to know to make a decision – notably that the letter was a private one and that the newspaper had published large parts of it – was beyond reasonable dispute.
The newspaper’s defence alleges that Meghan wrote the letter with the intention of it being made public as part of a media strategy agreed with Kensington Palace.
They say their story was part of Thomas Markle’s right to freedom of expression after an article in People magazine in which Meghan’s friends criticised him and referred to the letter.
Meghan is also suing for copyright infringement. The Duchess’ counsel said in effect that Associated had no defence at all and that the arguments it put forward were ‘legally heretical’ and ‘nonsensical’.
The newspaper, however, claims a press officer wrote sections of the letter, alleging that former press secretary Jason Knauf “and/or others in the Kensington Palace communications team contributed to the writing of the letter” meaning Meghan is not the sole copyright holder and cannot sue without the involvement of the royal family’s PR.
At the time of writing, it is hard to know which way the judge will go, the possibilities include the judge ruling in favour of the Duchess on both main parts of the claim (privacy and copyright) or finding in her favour on one part of the claim only. Or he might dismiss the application completely in which case the whole matter would go to full trial in the autumn.
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