May 2016

Welcome to ZOOM-IN brief, a quick round up of some recent media law and regulatory decisions that we think you might be interested in. This week, we look at the refusal of the Supreme Court to lift the privacy injunction preventing a married celebrity from being identified as having had extra-marital sex and two very royal IPSO decisions about accuracy. Enjoy!

Celebrity threesome injunction row continues

The Supreme Court has upheld an injunction granted to a married celebrity to prevent a Sunday tabloid reporting that he had a threesome with another couple, even though his identity has been reported in the US, Scotland and on social media.

The first judge to hear the case (in January) refused to grant the injunction, saying the story would correct the misleading impression of the married couple being in a committed relationship. However, on appeal, the couple argued that the image they have presented was not one of monogamy but one of commitment, which does not necessarily entail monogamy – they stated that they are in an open relationship and happy with this. The Court of Appeal agreed which was also concerned about the impact reporting would have on the couple’s children, who were likely to experience harassment in the playground or online.

After this ruling, the American press named the man, as have individuals on social media (illegally), but the English press remained unable to do so for fear of being in contempt (a criminal offence). The man has also been named in Scotland, where the injunction does not apply. The High Court’s jurisdiction is England and Wales only – Scotland is a separate jurisdiction where both law and procedure differ. An order can be effective in Scotland if it is registered as a foreign judgment, but this applies only to final orders, made following a trial, not ‘interim orders’ such as this which are sought to protect a party’s identity until the matter is resolved at trial. It appears that the celebrity in this case did not seek a separate injunction in Scotland to protect his identity.

In the light of all the reporting of his name, the Court of Appeal looked at the matter again in April, and decided that the injunction should be lifted, as the court judged that the man was now not likely to obtain a permanent injunction at any future trial to prevent reporting. Circumstances had changed such that knowledge of the identity of the man was now so widespread that confidentiality had been lost and much of the harm the injunction sought to prevent had already occurred. The Court of Appeal judges considered it inappropriate for the court to ban people from saying that which is common knowledge, but continued the injunction temporarily to allow the man to appeal to the Supreme Court.

On 19 May, the Supreme Court, by a majority of 4-1, disagreed with the Court of Appeal, allowed the appeal and continued the injunction until trial.

The majority of the judges were satisfied that publication should not be allowed pending a full trial of the matter. The Court of Appeal had got it wrong in saying that freedom of expression rights weighed more heavily than privacy rights – both have equal weight. The Supreme Court found that there was no public interest in ‘kiss and tell’ stories, however famous the individuals involved. Publication would infringe the privacy rights of the man, his partner and their children.

The Supreme Court took into account the provisions of the IPSO Code (IPSO being the press regulation body to which the Sun on Sunday is signed up), which requires a newspaper to show an exceptional public interest in order to override the normally paramount interests of children. Although there has been publicity, the question is whether the injunction still serves a useful purpose. If the injunction was lifted the Court said there would be extensive coverage in the Sun on Sunday, likely in other newspapers and unrestricted coverage on the internet, all of which would amount to additional infringement of, and intrusion into, the privacy rights of the man, his partner and their children. The Court held that damages after publication would be no real redress, and an injunction was the only remedy of any value to prevent further intrusion.

The furore is reminiscent of the row over the injunction obtained by Ryan Giggs to prevent reporting of details of a sexual relationship between him and Imogen Thomas (a former Big Brother contestant). He was widely named on social media, and ultimately by an MP in Parliament, where the disclosure was protected by Parliamentary privilege. The courts continued to refuse to discharge the interim injunction despite all the publicity, saying the injunction continued to protect the family from intrusion. However, the matter was never finally decided as the case was struck out on procedural grounds, and accordingly Giggs can be named in connection with the story.

With this case, the Supreme Court has decided that, even in the internet era where the England & Wales court cannot stop publication overseas, an injunction to prevent reporting of private matters is still a valuable remedy which can and should be granted to prevent intrusion into people’s private lives.

Of particular concern for the tabloid press will be the Supreme Court’s finding that there is no public interest in kiss and tell stories. Unless the person has some public role on which the infidelity may impact, or a story corrects a misleading impression, it seems likely that interim injunctions will be available to those facing potential stories about their sex/romantic lives; and the argument that there is a public interest in exposing, commenting on and/or criticising their actions has been rejected. Five years after the demise of the News of the World, is this the final nail in the coffin for the ‘kiss and tell’?

“Queen backs Brexit” headline misleading, IPSO rules

The Sun has been found to have breached clause 1 of the IPSO Code relating to ‘Accuracy’ with its headline, “Queen backs Brexit”.

The Editors’ Code requires that headlines, given their prominence and potential to mislead, must be sufficiently supported by the contents of the story, so a publication may breach clause 1 where the headline lacks a sufficient basis in the text.

The original “Queen backs Brexit” headline appeared below a smaller headline, saying “Exclusive: bombshell claim over Europe vote”. One of the sources said they had witnessed a “bust-up” between the Queen and pro-EU former Deputy Prime Minister Nick Clegg in 2011 which it said left “no room for doubt about her passionate feelings over Europe”. The complainant said the Queen was unable to comment on the accuracy of the reports of the alleged conversations which formed the basis for the article as, by convention, the Monarch does not comment on private conversations. However, the newspaper should not have taken a ‘no comment’ response from the Queen’s spokesperson as supporting the truth of the article; neither could it rely on Mr Clegg’s comment that he could not recall such a conversation having taken place, as suggesting its source’s account was accurate.

Reporting its decision, IPSO said the article itself did not breach the Editor’s Code of Practice, as there was no evidence of a failure to take care over its accuracy, given that under royal convention the Queen doesn’t publicly comment on private conversations, but “the headline went much further than a claim about what the Queen might think”. IPSO found that, “…It was a factual assertion that the Queen had expressed a position in the referendum debate, and there was nothing in the headline, or the manner in which it was presented on the newspaper’s front page, to suggest that this was conjecture, hyperbole, or was not to be read literally.”

This is a high profile example of a new rule in action. The rule about headlines having to be supported by the text of articles only came into force last year when it was inserted into the Editors’ Code, along with a number of other amendments, following Lord Justice Leveson’s recommendations after the ‘Leveson Inquiry’. The decision is interesting also in that can be contrasted with established defamation law principles, whereby a headline and main article would usually be considered together, meaning that the content of the main body of an article can work to neutralise the meaning of a headline which otherwise, on its own, might be capable of being libellous.

Daily Star in Prince Harry ‘accuracy’ breach

A complaint by Prince Harry that the Daily Star breached Clause 1 (Accuracy), Clause 2 (Opportunity to reply) and Clause 3 (Privacy) of the Editors’ Code of Practice in an article headlined “Harry and Pippa in ‘secret romance’” has been partially upheld for inaccuracy. The article said that a US magazine had claimed that Prince Harry and Pippa Middleton had been involved in a “secret romance”. It stated that the pair “first snogged” at the royal wedding in 2011 and that they had been “caught in the act” by their older siblings. The article concluded by stating that “Clarence House declined to comment last night”. Prince Harry complained that the Daily Star had published claims that were “completely untrue” and had failed in its duty to independently corroborate the facts. He claimed that the ‘fictitious’ story had intruded into his private life without any public interest justification and the online article had fueled the publicity of the claims.

In its defence, the newspaper said that the article had been removed from its website when it received his complaint and it offered its assurances that the claims would not be repeated. It had also circulated a notice to staff and placed a warning in its cuttings file. The newspaper did not otherwise seek to defend the publication.

IPSO ruled that The Daily Star had breached Clause 1 by failing in its duty to publish accurate information. IPSO found that while the Daily Star had not stated that the US magazine’s claims were true, the article had not questioned their authenticity. It also noted that the newspaper had never sought to verify the story with Clarence House, and made no attempt to print a correction.
IPSO ruled that although the prince’s privacy rights were engaged (regardless of the truth of the claims), given the extent to which the story was already in the public domain his privacy (Clause 3) had not been breached. Prince Harry also complained that he had not had an opportunity to reply to the published inaccuracies (Clause 2). IPSO ruled that there was no breach of this clause as he had only requested removal of the piece not an opportunity to reply.
Prince Harry had also complained about similar articles appearing in the Daily Mail print and online editions, but no complaint was upheld. The most significant difference between reports in the Mail and the Daily Star were that the Mail was skeptical of the claims. The Mail articles attached no credence to the story and made it clear that the photo shown (which Harry complained was doctored to make him appear semi naked) was part of the US magazine’s cover. For this reason the Mail articles were not found to be inaccurate or misleading, as the reader was left in no doubt that the US Magazines claims were to be taken with a pinch of salt.

The decisions show that content providers will be held responsible for the content that they publish and cannot avoid their ‘accuracy’ obligations simply by attributing stories to third parties. In addition, even though in this case IPSO found there was no unwarranted infringement of privacy, because of the extent of prior publication of the story, the complaints are a reminder that stories can infringe privacy even where claims are untrue. What matters is the nature of the claims, and whether they impinge on privacy issues, not their truth or falsity.