17 July 2020

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In this issue of zoom-in brief, Roy Moore’s case against Sacha Baron Cohen gets the go ahead to proceed;Our Cops in the North fairness and privacy complaint is not upheld by Ofcom; Sydney’s Daily Telegraph loses its appeal in Geoffrey Rush defamation case; and Channel 5’s Police Interceptors found not in breach by Ofcom.

Editorial credit: Featureflash Photo Agency / Shutterstock.com
Editorial credit: Featureflash Photo Agency / Shutterstock.com
Sacha Baron Cohen

Defamation (US) – Roy Moore case against Sacha Baron Cohen proceeds

A $95m defamation case brought by former US Senate candidate Roy Moore against comedian Sacha Baron Cohen will proceed, a New York court has ruled. Moore and his wife are suing Cohen, Showtime and CBS over a segment on Cohen’s TV show ‘Who is America?’ which was broadcast in 2018. In it Cohen, who was pretending to be an Israeli counter-terrorism expert named ErranMorad, demonstrated a ‘device’ that it was said could detect paedophiles. It beeped every time Cohen put it near Moore. Moore sued claiming the programme portrayed him as a sex offender and a paedophile, and that he had ‘suffered extreme emotional distress’ as a result.

When Moore became a Republican candidate for the Senate in Alabama in 2017, multiple women accused him of making unwanted advances or of sexual assault when he was in his thirties and they were in their teens, with the youngest being 14. Moore denied the allegations.

Mr Moore says that he told producers in advance that he would sue if the show aired, but it was nonetheless broadcast. The lawsuit also suggests that Moore did sign a release before being interviewed, but that he claims it was fraudulently obtained.

Mr Cohen has filed a motion to have the lawsuit dismissed, but this was denied by the judge, and the case will move on to the next stage, where evidence will be filed.

Unlike in England & Wales, in the US, where the claimant is a ‘public figure’, they cannot succeed in a defamation claim unless they can show that the publisher acted with actual malice. This means that they knew the allegations were false, or recklessly disregarded the truth. As such defamation claimants face a harder task in the US if they are public figures, as Moore is.

The First Amendment also provides powerful protection for free speech, and the United States’ Supreme Court has held that public figures cannot recover damages for distress, where it was caused by a caricature, parody, or satire of the public figure that a reasonable person would not have interpreted as factual.

Both these free speech protections are likely to play a part in this case as it moves forward.

Regulation - Our Cops in the North fairness and privacy complaint not upheld by Ofcom

Ofcom has not upheld a fairness and privacy complaint made in relation to an episode of the BBC’s Our Cops in the North.

The programme followed police officers investigating an incident in which a 70 year old man was robbed at knife-point in his own home. The complaint was made by Ms K on behalf of herself, her daughter, and Mr M. Mr M pleaded guilty to aggravated burglary in relation to the incident the police were investigating, and was sentenced to 7 years 8 months in prison.

The programme filmed and broadcast footage of Ms K’s home being searched by the police, because Mr M was associated with that address. It showed the inside of the home and personal items such as handbags and toys. It also showed CCTV footage of Mr M, his driving licence and footage of him at the custody desk of a police station.

Ms K complained about both the filming and broadcast of the footage. It was not in dispute that neither she nor Mr M had consented to the filming. The programme as broadcast did not identify the property. Ms K and her daughter were not named or identified in the programme. Nor was there any suggestion that they knew about Mr M’s actions. Mr M was identified.

Ofcom found that Ms K and her daughter did have a legitimate expectation of privacy in relation to the filming and broadcast of the footage of their home. However, this was outweighed by the BBC and public’s right to freedom of expression and the public interest in the filming and broadcast of the programme. There is a public interest in broadcasting programmes that highlight the effects of crimes on victims and demonstrate the work of the police in searching for and obtaining evidence. As such their privacy was not unwarrantably infringed and there had been no breach of the Code.

In relation to Mr M, again Ofcom did find that he had a legitimate expectation of privacy in relation to the footage. In terms of the broadcast this was limited as by that time Mr M had been convicted of a criminal offence in relation to the events which featured in the programme. His privacy had not been unwarrantably infringed, as it was outweighed by the public interest and freedom of expression.

This is a useful example of three individuals, including a child, who were in different scenarios in relation to a programme following police officers in their work. Ofcom did not uphold any of the complaints.

Defamation (Aus): Newspaper loses Geoffrey Rush appeal

The Sydney Daily Telegraph has lost its appeal in the record defamation case brought by actor Geoffrey Rush. Rush brought his claim over allegations that he had behaved inappropriately towards actress Eryn Norvill, who was his co-star in a production of King Lear in 2015.

Ms Norvill gave evidence at the trial, but the court found that the publisher had not proved that the allegations were substantially true.The appeal court upheld this finding.  As in England & Wales, in Australian defamation cases the burden of proof is on the Defendant.

The appeal court also upheld the record damages award of A$2.9m (£1.57m). This was made up of: $850,000 of non-economic loss including aggravated damages, $1,060,773 of past economic loss, $919,678 of future economic loss and $42,302 of interest. The newspaper had argued that the damages were “manifestly excessive” and contested the claim that it would take two years for Mr Rush’s earning capacity to return to normal, but the appeal court disagreed

Regulation – Channel 5’s Police Interceptors not in breach of Ofcom code

Ofcom has found that an episode of Police Interceptors that included footage of Police questioning a man who was later convicted of drink driving did not breach the Code because there was a substantial public interest in making and broadcasting the programme in the circumstances.

The episode, broadcast on Channel 5 In October last year included footage of Yorkshire Police stopping and questioning a man called Sabeel Nawaz who then underwent a breathalyser test in the back of a police car before being taken to the police station for a second test. He was later convicted of drink driving, banned for 14 months, and had to pay £235 in fines and costs.

Mr Nawaz complained to Ofcom that his privacy was unwarrantably infringed by the making and broadcast of the programme because he was shown without his consent being arrested for driving under the influence of alcohol. Mr Nawaz said that he could “not afford to be seen drinking” because it was against his religion and that the broadcast of the programme had “severely tarnished” his reputation.

Ofcom decided that although Mr Nawaz had a legitimate expectation of privacy in the police car and at the police station – and had not consented to the filming – the programme did not breach the Code because there was a substantial public interest in the circumstances

In particular, Ofcom noted in its decision that there is substantial public interest in the work of the police being examined in broadcast programmes and in showing the varied and often difficult incidents experienced by police officers in their work. Ofcom considered that there was a genuine public interest in the making of this programme and that these programmes can help to develop the public’s understanding of the range of situations dealt with by the police, including drink driving, and of the dangers and consequences of illegal and potentially dangerous conduct.

The decision is a welcome reminder, and similar to the decision above, that even when a person’s privacy rights are engaged and they do not consent to being filmed, there is still cope to collect and use footage in such cases in programmes that feature the work of the police and expose criminality.

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