23 April 2024
Slander (IT): Amanda Knox returns to court over slander allegation
Amanda Knox, who was once at the centre of the headline-generating murder trial, is once again in court, accused of slander.
In 2007, Knox, along with her ex-boyfriend, Raffaele Sollecito, was convicted of the murdering Meredith Kercher. Kercher was found dead in the flat she shared with Knox and Sollecito.
Knox and Sollecito were acquitted by Italy’s highest court in 2015. The court found there had been ‘stunning flaws’ in the investigation leading to their convictions. However, the court concluded that Knox was guilty of falsely accusing her boss, Patrick Lumumba, of the murder. The charge incurred a 3-year sentence, served concurrently during the four years she spent in prison for murder.
Knox had previously sought for the slander conviction to be dropped on the basis of a 2019 European Court of Human Rights decision which found that her Article 6 rights (the right to a fair and public hearing) had been violated after she was interviewed by the police without an official translator or lawyer present. However, the slander conviction was ordered to be retried in October 2023.
The new trial focusses on Knox’s handwritten notes in which she recanted the accusation against Lumumba. It is the only evidence the court can rely on following a ruling that notes written by the police which contained the accusation were inadmissible.
There are substantial differences between the law of defamation in Italy and in England. Since the coming into force of the Defamation Act 2013, defamation cases in England are very rarely heard with jurors, whereas Knox’s case is being heard by 2 judges and 8 jurors. In addition, whilst Knox faces a criminal prosecution in Italy, criminal libel has long been abolished in England.
Libel (USA): Netflix film No Limit did not accuse Pipin Ferreras of murder
The 2022 Netflix film No Limit tells a story “inspired by real events” about a couple, Pascal Gautier and Roxana Aubrey, who are free divers. In the film, Roxana dies when a diving record attempt goes wrong, with the implication that Pascal sabotaged her equipment. The film includes the standard disclaimer that it is a work of fiction and “any resemblance with reality is coincidental”.
Francisco “Pipin” Ferreras is not mentioned in the movie, but he sued Netflix for defamation in March 2023. In real life, his wife Audrey Mestre drowned during a free dive in 2002. Ferreras was supervising the dive and faced criticism over his safety practices. Her death was found to be accidental in subsequent reports.
Ferreras alleged that Netflix, “…made a deliberate decision for dramatic purposes to defame Ferreras by showing in the Film that he murdered Audrey by intentionally sabotaging the equipment that should have brought her back to the surface…”. He argued there are a number of “striking similarities” between the film and real life (save for the accusation that Ferreras deliberately killed Audrey) and said the film seeks to present itself as fictional, “…but a photograph of Audrey with her name and a reference of her death appear at the end of the Film”.
In November 2023, Netflix filed a motion to throw out the claim and, on 9 April 2024, Judge Bruce G. Iwasaki granted this motion. The judge held that the diver could not prove the film was about him. The writer-director of the film, David M. Rosenthal, said, “…the film was not intended to depict any particular person…” He said he did not know the real cause of Mestre’s death and he included the tribute to honour her, not to indicate that the film showed her life story.
He also argued that the ending of the film was “intentionally vague” so the viewer could decide what happened. While the judge disagreed with this, saying there was no ambiguity about Pascal’s blame, he did hold that the character of Pascal was not Ferreras and so the film was not defamatory. The Judge held that the parallels between the film and Ferreras’ life were likely to be common to any freediving film and he found differences, saying the abusive and controlling relationship shown in the film bore no relationship to Ferreras’ account of his marriage. Ferreras’ attorney, Alexander Rufus- Isaacs, said Ferreras would appeal.
In England and Wales to succeed in a defamation action, the claimant must prove that the defendant published words which referred to the claimant. This is often clear cut because the person is explicitly named, however fictional works provide examples where this is not always the case. ABBAS has many years’ experience advising on defamation and other legal and regulatory issues in dramas and films based on or inspired by real life people and events. If you need such advice, please contact us here.
Protection of Sources (USA): Veteran journalist held in contempt over source protection
Catherine Herridge, an investigative journalist, has been held in civil contempt by a US federal judge. The case arises from a series of articles written by Herridge about Yanping Chen, a Chinese American scientist who had been investigated by the FBI.
Chen has brought a claim against the US government for allegedly leaking her personal information to ‘smear her reputation and damage her livelihood’. To that end, Chen obtained a court order requiring Herridge to disclose her sources which Herridge has refused to do.
Herridge had attempted to have the order quashed, relying on her qualified First Amendment reporter’s privilege. However, the judge concluded that Chen’s interest in knowing the sources outweighed Herridge’s right to shield her source, notwithstanding the importance of the freedom of the press and the ‘critical role’ confidential sources play in journalists’ work.
Herridge has been ordered to pay a fine of $800 per day until she reveals her source. However, the fine will not go into immediate effect in order to give her time to appeal. Herridge has since testified to the US House Judiciary Committee on the topic of protecting journalists’ sources.
In the UK, journalists have an ethical duty to protect their sources. That duty can be found in the various codes of conduct that journalists and editors are bound by. Usually, journalists can avail themselves of the shield provided by section 10 of the Contempt of Court Act 1981, which precludes a court from ordering a journalist to reveal the source of their information unless, ‘…it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security’. There are also other statutory provisions which journalists can rely on, such as section 11 of the Police and Criminal Evidence Act 1984 – known as ‘PACE’ - which can allow a journalist to avoid being forced to disclose material which is held in confidence.
Freedom of Speech (UK): Anti-SLAPP Bill: what is it and where do we stand today?
In a factsheet updated in 2023, the Government described SLAPPs (“Strategic Lawsuits Against Public Participation”) as legal actions typically brought by corporations or individuals with the intention of harassing, intimidating and financially or psychologically exhausting opponents via improper use of the legal system. The Government wrote that at their heart SLAPPs, “…fundamentally undermine freedom of speech and the rule of law”.
While the Government’s position on SLAPPs now seems well-established, the path towards implementing an anti-SLAPP Bill has not always been smooth. In July 2022, the Government publicly committed to addressing SLAPPs in their government response to call for evidence, calling them a “growing threat to freedom of speech and a free press”. Then in June 2023, the Government amended the Economic Crime and Corporate Transparency Bill to make it harder to use litigation to prevent coverage of economic crimes. This was, the Government said, “the first step in cracking down on SLAPPs”. However, in a letter to the Government in September 2023, editors, lawyers, and reporters made it clear that, in terms of cracking down on SLAPPs, this amendment did not go far enough. They stressed that a standalone anti-SLAPP bill was required. Following this, a standalone bill (a Private Members’ Bill brought by Labour MP Wayne David) had its first reading on 6 December 2023 and is now at the Committee stage in the House of Commons.
The debate has not, however, ended there. On 10 April 2024, more than 60 editors, writers, lawyers, academics and publishers signed another letter to the Justice Secretary urging that the Bill is amended to stop it becoming, “ineffective, inaccessible, and ultimately redundant”. One of the desired amendments centres around the definition of a SLAPP in the Bill and the requirement of the courts to make a subjective judgment on the Claimant’s intent in order to determine whether the action is a SLAPP. The letter argues that an objective test should be added to the bill instead to “give SLAPP targets greater certainty, while also providing the clarity courts need to effectively apply the new mechanism”. The letter also requested that the definition of “public interest” be refined to demonstrate the “breadth and diversity of public interest reporting”. Following this letter, there has been more online debate about the merits of the amendments and the merits of the Bill itself. It will be interesting to see how the Government responds.
Libel (UK): Panorama - meaning determined in Mohammed Amersi’s defamation claim against BBC
A trial of preliminary issues of meaning and related matters has concluded in Mohammed Amersi’s claim against the BBC. Amersi, a businessman and donor to the Conservative Party, has brought a defamation claim against the BBC arising from a Panorama episode and article published on the BBC website in October 2021. Both featured Amersi in coverage relating to the Panorama Papers.
The High Court has now ruled that the meaning of the article and the broadcast was the same: “There are strong grounds for suspecting that, during his work for Telia, Mr Amersi had been involved in deals on its behalf which he knew or should have known were corrupt, or involved corrupt payments”. Telia is a Swedish multinational telecommunications company.
It is now common for the meaning of a publication to be determined at an early stage of defamation proceedings, usually before the defendant finalises their defence. It allows the parties to narrow the issues and can encourage settlement. When determining the single natural and ordinary meaning of a publication, a judge will ask what the hypothetical reasonable reader would have understood the words to mean. Various principles apply in that process, such as avoiding over-elaborate and overly literal analysis, and rejecting strained or forced meanings.
zoom-in will continue to follow the case so it can report on future developments.
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