What Trouble Is On the Horizon
From Ad IDEM / CMLA
Ad IDEM Conference, Toronto
2nd – 3rd November 2007
What trouble is on the horizon? International developments
Alistair Bonnington
In-house Counsel
BBC Scotland, Glasgow
Working for the oldest radio and television broadcaster in the world, you might expect that the BBC has only peripheral involvement with the new world of cyberspace. In fact, this is far from the truth. The BBC has the largest web presence in the United Kingdom – indeed, it has one of the largest Web presences in the world. We employ an enormous number of online journalists, who inevitably are those who can get material out first into the public domain, even before the numerous BBC radio stations, some of which, particularly Radio Five Live, broadcast news almost continuously.
There was a recent dramatic example of this when, in June, a terrorist attack took place at Glasgow Airport. This consisted in an Indian engineer and a young Iraqi doctor employed at a hospital in Paisley, which is situated near the Airport, driving a jeep loaded with gas canisters and petrol into the terminal building on a particularly busy Saturday. Thankfully, the terminal frontage managed to resist the impact from the heavy jeep, which was well ablaze by the time it struck, and the only death was that of the engineer who died from his burns five weeks after the incident. The two men were physically manhandled by airport staff, including a baggage-handler called Jon Smeaton, who has become something of a celebrity in the UK. A lot of this was captured on film by a Hungarian man due to fly out to Budapest that day. BBC Scotland discovered the existence of this man’s footage, purchased it for exclusive use and began to run it both on television and on our webpages. That was 48 hours after the event.
But to revert to the first few hours after the event, BBC Scotland’s webpages gave a full narration of the crime, accompanied by some video footage. We decided to take the risk of a finding of contempt from the Scottish courts, which legally was a strong possibility because the two men were now in police custody and so arrested – one of the trigger mechanisms which makes UK contempt law “active”.
Jurisdiction
It is accepted by the UK courts that a person can sue for defamation wherever publication takes place and that the ability to access material in the UK from an Internet connection is enough for “publication”. It seems to me that the same must be true for the developing privacy law. The law of pre-trial publicity (contempt of court) will be treated in exactly the same way, although we must bear in mind that the test laid down by Section 4 of that Act is “a substantial risk of serious prejudice”. So, if material is, for example, on a US website (which presumably is seldom accessed by the UK citizens who will make up the jury and those who are witnesses in the case), then that test is unlikely to be satisfied and contempt will not have been committed.
In the European dimension, the Rome II Treaty was originally going to mean that in defamation cases it would have been possible for an individual who claimed his/her reputation had been damaged anywhere in Europe to forum shop and choose where to sue. However, after strong representations from the Fleet Street Lawyers in London, who act for UK newspapers and broadcasters and other media companies, the European Union agreed to exempt defamation from the Treaty.
As always with jurisdictional issues, there is a question of enforceability. It may be possible to get an injunction, or indeed an award of damages, against a media company on the basis that the Internet can obtain their material in the UK and therefore proceedings can be raised in a UK court. However, that does not mean that the defendant company has any assets in the UK or that an injunction order could be served on them – except perhaps by advertisement. Injunctions Moving on to injunctions then, as we have noted elsewhere, the UK courts have become increasing sympathetic towards those who claim that their rights under Article 8 of the European Convention on Human Rights (viz. the right to privacy) and will not be slow to grant in injunction (in Scotland, interdict) to prevent a continuing wrong. In my experience, the UK courts are particularly sympathetic to cases involving children or what we now seem to call “vulnerable adults”, which very often in this context encompasses those who are suffering from some sort of mental disorder or are simply of low intelligence.
A recent case decided in the English High Court of Justice in The Strand, London, dealt with the classic question for those of us involved in this area of practice of Article 8 (privacy) v Article 10 (freedom of speech). Mr Justice Stanley Burnton on 15th August 2007 refused injunctive relief to the son of the President of the Republic of Congo to prevent the defenders, Global Witness Ltd, from publishing information about that man and his company’s dealings on their website. To some extent, the case depended on the interpretation of s12(3) of the Human Rights Act 1998 which is now in effect ruled by the House of Lords Judgment in Cream Holdings Ltd v Banerjee. But as is always the case, in my opinion, the facts tend to be as important, if not more important, than the law. The publication on the website maintained by Global Witness Ltd was about the suspicious amounts of money changing hands amongst the claimant and various companies. As we all know, corruption in African countries amongst politicians and high-ranking officials is a major problem and I cannot believe from what the Judge said in his Opinion that these were not major considerations in him coming to the view that publication should be allowed and so an interim injunction refused.
In the context of copyright, I have had quite a lot of cases recently involving what I think can be called nothing other than theft of BBC material by other websites. For example, BBC Scotland has certain rights to football matches. The agreement with the Scottish football leagues is that copyright will remain the property of these football leagues, with the BBC obtaining a licence to broadcast them on TV on a number of occasions, and also on the BBC Scotland website. However, what is happening is that some websites are taking the footage from BBC sites, “embedding” it, and showing it as their own. So far I have not had to take any interdict proceedings. The threat of proceedings has always been enough to make them agree to carry a link to the BBC site where the user can obtain the football match video in a legitimate acknolwedged way. Liability for anonymous speech The law here has been straightforward for many years – the publisher has liability for anonymous speech. In Scotland, nearly 100 years ago, we had the case of Ritchie v Scotsman Publications, which involved the insertion of a birth notice in The Scotsman newspaper – an innocuous enough announcement you may think. However, the anonymous individual who had paid for this announcement in the classified advertisements of The Scotsman had not been a well-wisher to the family. In fact, Mr & Mrs X had only been married for a few months. Can you imagine anything more scandalous in the douce town of Edinburgh than for a lady to be delivered of a child under nine months from the date of the marriage! Naturally, she sued to restore her reputation in order that she could go to Jenners tea-room and hold her head high. The Scotsman were held to be entirely liable for the anonymous insertion by the Scottish court.
In the modern Internet world, the consequences of that principle is that ISPs will be liable for the contents of their websites. We already have the Dr Laurence Godfrey case in the UK concerning that.
In a recent case, the issue was about the necessity of revelation of the identity of the source of defamatory postings on a website. The case of Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB) concerned a campaign of vilification (according to the claimants) run against them by contributors to a football website. In this case, the judge did make an order compelling the defendants to reveal the identity of the people making certain of the postings on the website. However, it was clear that he took great care to consider the phraseology used by each of the “posters” in quite some detail. I think one might pause to ask if it is only in the UK that the pathetic, sad ravings of demented football fans (who presumably have no friends) can be the subject matter of litigation in the High Court. One hopes that more mature legal systems have a somewhat more dismissive approach to proceedings brought on such de minimis matters.
User-generated content
Increasingly, our so-called “video journalists” bring back to the Newsroom user-generated content, which we use as part of a report. An enormous amount of this material was used in reporting the terrorist attacks on the London tube. As we know, nowadays mobile phones have the facility to take short video clips and this can be readily transferred into the possession of broadcast journalists for use. The same happened in the UK when there was an explosion at the Elf Oil Terminal in England. I have made reference above to the use of the Hungarian gentleman’s film of the Glasgow Airport terrorist attack.
I have little doubt that in law there is a risk here for the broadcaster. The publisher does not really know the full story of the provenance of this material. There have been some very “near things” when spoof material has been supplied to the BBC by young folk who think it is funny/idiots, and I have no doubt we will broadcast something which is completely false at some point. BBC lawyers will be alert to the possibility of these things and hopefully journalists are too.
Regarding the question of editing, I can see no objection to this. The footage very often has passages where nothing happens: it is therefore difficult to see who normal professional editing should not take place. The question of alteration, however, I think is a different matter. I think if you are accepting the provenance of the material you have been given, which you must be to broadcast it at all, then the only alteration you could make is to enhance the quality of the material in some technical way.
Electronic archives: a “publication”, and a basis for contempt
There is a decision on this by Lord Osbourne which is quite clear. If material can be obtained from a website, then that material is published under the Contempt of Court Act and accordingly can found the basis for a finding of contempt against the media. However, in the notorious case with which Lord Osbourne was dealing, it was interesting to note that he did not feel that on the facts there was a contempt. Lord Osbourne was dealing with the case against William Beggs for the murder of Barry Wallace. This was known as “the Limbs in the Loch” case because after Barry Wallace disappeared in Kilmarnock in Ayrshire near Christmas-time a few years ago, bits of his body were found in different parts of Scotland. His head was found on a beach at Barassie near Troon in Ayrshire and his legs were found in Loch Lomond. Media attention quickly focused on a local man, who had committed a very similar homosexual murder some years ago in England. Although convicted by an English jury, he had been acquitted on appeal. In this particular case, the media seemed to move more quickly than Kilmarnock police, who took some considerable time to decide that Beggs was probably the guilty man and obtain a warrant for the arrest of Beggs. In the interim, all sorts of lurid detail about Beggs came out in the Scottish newspapers and broadcast media. All of this was perfectly legitimate because the Contempt of Court Act did not apply at that point to the case – as I have said before, the trigger mechanisms are a granting of an arrest warrant or arrest itself.
It turned out that Beggs had gone to Holland and there were then lengthy extradition proceedings to bring him back to Scotland. When he came back to Scotland, a plea-in-bar of trial was made by his Counsel on the basis that he could not get a fair trial due to the prejudicial pre-trial publicity against Beggs – particularly in reference to his English conviction. It was demonstrated to the court by defence Counsel that it was still possible to obtain material from Scottish newspapers and broadcasters from their website archives. Lord Osbourne accepted that this was publication and that therefore he had to apply the test under the Contempt of Court Act to the particular facts. However, in this case he decided that there was not a “substantial risk of serious prejudice”. He did so, as I understand it, because he thought it unlikely that many people would access this material. I must say, in the Internet age I am not terribly sure that this is a reasonable approach to take. Increasingly, young people go to the Internet for information as a first port of call. Many now read newspapers on the Internet as opposed to buying them from the newsagents. I would have thought it highly likely that jurors, upon being empanelled, would take the first opportunity when at home to put the name of the accused person into their computer and find out what they could about the man. I know they are told not to do things like that, but we all know that it is highly likely they will do some sort of personal research.
Andrew Caldicott QC, one of the senior media silks in London, has given an opinion to the effect that Lord Osbourne was wrong and that when the opportunity arises there should be an attempt by the Fleet Street Lawyers in London to obtain a more favourable judgment to the media in the English courts. That day is yet to come.
In the Scots case HMA v Angus Robertson Sinclair, the court considered a plea in bar of trial raised by Sinclair against his prosecution for the rape and murder of two young women in what has become known as “The World’s End murder case” stemming from the fact that the two women were “picked up” by two men in October 1977 from the World’s End pub in the Royal Mile in Edinburgh. In short, the question for the court is, would it be oppressive for the accused person to have to stand trial against a background of enormous speculation about the World’s End murders for many years. In particular, since May 2004, there was evidence that there had been 1,300,000 hits on a website which indicated that the accused person was guilty of the murder. In addition, a book entitled “Scotland’s Killers from Manuel to Mitchell” had been published by an idiot journalist called Ron Mackay at the end of 2005 in which he clearly said that Sinclair had committed the World’s End murders. The Scottish High Court had cases cited to them from Scotland, but in addition made reference to English, New Zealand and Canadian authorities (R v Sherratt 1991 1SCR 509). In fact, that last case was cited on the basis of a distinction between Canadian criminal procedure and Scots criminal procedure. Here, as I understand it, jury vetting is allowed. We have set our face firmly against jury vetting in the UK. The three “peremptory challenges” I had to jurors when a young defence lawyer no longer exists.
As they had done before in such cases as Stuurman v HMA 1980 JC 111, the court in this case took the view that as long as instructions given by the Judge to the jurors and witnesses would cure any possible unfairness which might arise to the accused person as a result of prior publicity, then the plea in bar of trial should be rejected. I have always argued that in accepting this argument in the plea in bar of trial context, the Scots courts are guilty of double standards. That is because they do not accept this argument when considering the question of contempt of court against the media. My argument is that, when looking as to whether or not the test of “substantial risk of serious prejudice” as laid down by s2 of the Contempt of Court Act 1981 is satisfied, the court must logically look at the directions the trial court can give to jurors and witnesses to ascertain if a “substantial risk” has been created. However, my pleas have got nowhere!
Sinclair proceeded to trial but was not found guilty of anything, due to the fact that the Crown’s evidence was so poor that the trial judge, Lord Clarke, would not even let the case go to the jury. He received opprobrium for this in the Scottish Parliament and the Scottish Lord Advocate made a long explanation to the Parliament of why the Crown thought the case should have been allowed to go forward to the jury. This raised the constitutional problem within Scotland of there then being a spat in the shape of public letters written between our chief judge, the Lord Justice-General of the High Court Lord Hamilton, and the Lord Advocate.
In this context, it may be worth noting a recent English case R v Jay David Marshall and Robert John Crump [2007] EWCA Crim 35, in which the convicted defendants appealed against their convictions on the basis that the jury had conducted its own research and considered extraneous material after they had retired. What happened here was that, after the jury had returned their verdicts and the trial was over and done with, printed material was found in the jury room that contained information from various websites including the Crown Prosecution Service, a criminal solicitor’s practice and the Home Office. However, the Appeal Court took the view that it was impossible to know how many jurors had been shown the additional material – it might have been one juror or all of them. But the High Court noted that the information on the printouts was largely available in the public domain and was information to which any person had legitimate access. The Appeal Court came to the decision that the convictions were safe and the appeal must fail. They distinguished an earlier case, R v Karakaya (Adem) (2005) EWCA Crim 346, (2005 2 Cr App R5, in doing so.
Hidden cameras
Internally, the BBC requires approval at a fairly senior level for the use of hidden cameras. Due to the development of the law of privacy, it is highly likely that a well-funded individual or organization will try to plead privacy in court as a means of preventing the material gained by surreptitious recording from seeing the light of day. We have experienced this on a number of occasions recently in Scotland. The most recent case was one where an investigatory journalist was employed by a call centre in Glasgow. RHL Ltd, which was owned largely by David Murray, who owns the famous Rangers Football Club in Glasgow, is a very successful business. However, the reporter discovered that there were certain lax practices within RHL which could result in information regarding their clients (particularly banks) falling into the hands of third parties. There were particular concerns about organised criminal gangs obtaining financial information about individuals’ banks which they then used to “skim” money from the relevant accounts. When the reporter had compiled her material, partly dependent on the support of concealed filming and recording, RHL were approached for comment on what had been discovered. They were made aware of the fact that there were secret recordings backing up what BBC Scotland was going to say in the programme. They went to court to endeavour to obtain an interdict against the BBC from broadcasting the programme based on the law of confidentiality/law of privacy. In response, the BBC argued public interest in the material being broadcast, particularly as it explained to the public how criminal gangs were being so successful in this particular nefarious endeavour. The judge decided in favour of BBC Scotland after a couple of hearings and the programme was broadcast.
Access to electronic evidence in court
There is a disparity as between the approach taken by the English courts and the Scots courts, or, to be more correct, the English DPP and Scottish Lord Advocate/Crown Agent to this matter. These electronic pieces of evidence are increasingly common. As we have observed above, often CTT footage, photographs or videos taken with mobile phones, are used in court. It is a very useful source from which to compile what the law requires newspapers and broadcasters to compile when reporting court cases, namely a “fair and accurate report of the proceedings”. In short, in England, you will normally as a newspaper broadcaster obtain this material from the Crown. In Scotland, you will not. That is because the Scots Crown has accepted the defence objections that, although the jury have seen the material in court, it is wrong they should see it for a second time on TV! I must say the reasoning here is beyond me and I am trying to make representations on behalf of the Scottish Media Lawyers' Society to the Crown Office in Edinburgh to have this rather stone-age attitude altered. However, for the moment, we are in this rather anomalous position whereby the Crown in Scotland use the Contempt of Court Act 1981 as justification for their refusal to release this material to the media, while in England, under the same legislation, the material is supplied to the media.
Cameras in the English and Scottish courts: update
You may have noticed last week the announcement that the Lord Chancellor, Jack Straw, is going to go ahead with the televising of the new Supreme Court in London, which is really the old House of Lords in a new building. A successful experiment was conducted in recent months in the English Court of Appeal with fixed cameras. The judges, led by the amazingly-named Mr Justice Igor Judge (possibly named after the butler in “Count Duckula”??).
Sadly, there has been no progress whatsoever in Scotland. There is currently a review being undertaken by the Lord Justice-Clerk, who is our second most senior judge in Scotland. The background being that television was allowed in the Scottish courts from August 1992 but hardly any TV films have been made due to the fact that the Scots rules promulgated by Lord Hope in 1992 require permissions from not only the judge and the lawyers, but also from the parties, witnesses and jurors (if there is a jury) as well. This absurd system seems to be set up to frustrate television in the courts. I doubt in Scotland we will get anywhere until there is legislation. That is not impossible these days, with the Scottish Parliament, because we have this unusual situation in Scotland of an SNP, ie Nationalist, Government, which is in a minority. It therefore cannot put through the legislation it wants. It can only get through things which have support from other political parties. It really does not have enough work to do by way of legislative programme over the coming years. It may be grateful for some politically-neutral material to progress through the various stages of a Bill in the Scottish Parliament.
