Does ISPO’s Editors Code need to be reformed to protect the relatives of the accused? – Freyja McLoughlin

The British press has been described as a ‘watchdog’ when it comes to protecting the public, and arguably this function is of upmost importance when reporting on criminal cases and their developments. The wide spread reporting of Wayne Couzins brutal kidnap, rape and murder of Sarah Everard, and most shockingly his abuse of his role as an officer in the Met Police to carry out such an atrocity has dominated headlines this Autumn. It is of vital importance that this case was given such a high level of exposure; because with such exposure and public outrage, organisations are forced to address institutional problems – and hopefully prevent such monstrosities occurring again.

However when there is such widespread coverage of an accused; because that is what they are before they have been convicted, no matter how compelling the evidence or the story, the risk of Contempt of Court is always lurking. In Couzins case, the Attorney General, Rt Hon Michael Ellis QC MP, recognised that the reporting was spiralling and subsequently published a statement saying,

‘it can amount to contempt of court to publish information relating to untested and unconnected allegations against the suspect and matters adverse to his character, the admissibility of which a Judge in due course may need to determine’. Contempt proceedings did not become an issue in Couzins case ultimately, however it is a useful prop to demonstrate how heavy the reporting was.

ISPO’s, Editors Code of Practice is one tool which is designed to present press reporting over-stepping the line and amounting to contempt. However ISPO is also, as its website declares, designed ‘To support those who feel wronged by the press and to uphold the highest professional standards in the UK press’. This article will therefore be focusing on if these ‘missions’ of ISPO still appear effective when focusing on the coverage of Couzins wife, Elena Couzins. As well as examining if the ISPO Editors’ Code of Practice sufficiently protects the privacy rights of family members of the accused. It is highly unlikely that family member coverage of an accused could amount to contempt under the Act, however perhaps under the veins of ISPO such prejudicial reporting, although not amounting to contempt, could be prevented.

The Editors’ Code of Practice is applicable to all signatory newspapers, which raises the first question as to its enforcement potential. Questions have been raised that ISPO are reluctant to enforce hefty fines or regulate stringently out of fear that newspapers will simply abstain from joining the organisation. Such a view was articulated by Brain Cathcart, when he stated that ISPO appear to ‘bend over backwards to avoid finding breaches of the code’ and this view point is embodied by the fact after ISPO has never, in its 7 years of existence, used its powers of investigation or issued a single fine. ISPO therefore doesn’t appear to be acting as a sufficient deterrent in any case, including when considering the privacy of the relatives of the accused; is a body which has never issued a fine really going to appear a serious threat to multi million pound newspapers? The statistics echo such a response, off the 9,766 complaints and enquires made to ISPO in 2019, 55 were upheld, a shockingly small number.  The second concern, which this article shall be focusing on is that the Clause’s themselves being interpreted too narrowly and thus failing to protect the public adequately; again this is echoed in the statistics, in 2019 of the 8,891 complaints which didn’t warrant a possible breach, 2,617 of these failed because they didn’t satisfy any criteria for raising a breach. This therefore suggests the threshold needed to qualify as a potential breach is higher than the public would expect it to be. The exception of public interest, which applies in 9 out of the 16 clauses adds another level of protection between the press and an infringement of a Clause. These factors combine mean ISPO appears the opposite of it what it declared itself to be in 2014, ‘the toughest press regulator in the Western World’.

One article in particular in Couzins case is surely the manifestation of everything ISPO is designed to prevent, with extracts including ‘what happened to his [Couzins] and children and where are they now?’. What follows from this questioning title is a detailed life story of Couzins wife, with loaded comments surrounding her English language skills, ‘She didn’t speak very good english’ and personal details surrounding their children and how they met. ISPO clearly states it does not cover issues of ‘taste and decency’ due to the infringement of editorial freedom it would result in, and perhaps this title would immediately be described as one of ‘bad taste’. However this article will be outlining how this article could also be perhaps be disputed, through Article 2, Privacy.

Clause 2 states

i) Everyone is entitled to respect for their private and family life, home, physical and mental health, and correspondence, including digital communications.

ii) Editors will be expected to justify intrusions into any individual’s private life without consent. In considering an individual’s reasonable expectation of privacy, account will be taken of the complainant’s own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.

iii) It is unacceptable to photograph individuals, without their consent, in public or private places where there is a reasonable expectation of privacy.

The first factor that is immediately apparent when considering Clause 2 is that it is marked with ‘The Public Interest’ exception.  Public Interest within the code is interpreted in a broad manner, and has the effect of allowing infringements of clauses such as ‘Privacy’ or ‘Reporting on Suicide’, if it is in the public interest to do so. It is indisputable that there was a public interest in the Couzin case. In the regular manner of there being a  genuine public interest in freedom of expression itself [bullet point 2], which prevents such atrocities being hidden away, and also in disclosure of an organisation failure [bullet point 1(4)], which seems particularly relevant given the criticism of the met policies toxic masculine culture. Yet it is surely arguable that there is no public interest in reporting extensively upon Couzins wife, she was not a threat to public safety, her existence was not a miscarriage of justice and her marriage wasn’t contributing to public debate in an constructive manner. The press are highly likely, if forced to justify themselves, to argue that Elena’s arrest for assisting an offender creates a public interest; and there is no denying that it adds weight to their argument. Yet Elena was released with no charge and hence had no involvement in the crime; following on from this, ZXC V Bloomberg confirmed that individuals have a realistic expectation of privacy pre charge, which was the exact status of any potential proceedings against Elena. The press are well aware that ‘gossip sells’, and what better sick gossip than a women’s husband of 15 years committing one of Britains most horrific crimes. It can therefore certainly be argued that ISPO are defending the press’s ability to print stories that sell well, rather than protecting individuals who are at the receiving end of the press’s glare.

And the principles of Murray V Express Newspaper indicate the law is heavily in favour of ISPO’s viewpoint; indicating Elena Couzins would not be successful in bringing her case to court. In Murray, J.K Rowling’s son was photographed with a long camera lense whilst being pushed down the street, much similar to the press photograph, which accompanied almost every article of Elena, of her walking down the street outside her house. In Murray’s case, the court ruled against the claimant, and presented their judgment in the following manner:

‘on my understanding of the law including Von Hannover there remains an area of innocuous conduct in a public place which does not raise a reasonable expectation of privacy and secondly, that even if the ECtHR in Von Hannover has extended the scope of protection into areas which conflict with the principles and decision in Campbell, I am bound to follow Campbell in preference.’

Both Campbell and Von Hannover respectively create the precedent that there can be no expectation of privacy in public places, especially when considering a ‘High profile individual’. An interesting angle when considering these cases in the voluntary nature of the ‘celebrity’ in questions, a princess and a model. And although J.K Rowling, an author, could be brought in this category, her son could not, and thus it is highly doubtful the court would move away from this precedent when considering Elena’s non consensual profile.

The case of Jones V Mail Online in 2019 was one of the few which resulted in a ruling against the newspaper; it was found publishing videos a crime season which included images of a dead body was sufficient to qualify as an intrusion into the family grief and shock. This therefore appears to be offering some level of protection to family’s, although it is the victims family rather than accused. However, the case was upheld under Clause 4, which requires publications not to break news of a death to immediate family, rather than Clause 2. This therefore suggests what ISPO objected to was the death being revealed by the newspaper, rather than the images and impact it had on the family. Thus even a positive ruling for the complaints does not appear to demonstrate IPSO taking a compassionate and protective step for the well being of the family.

In conclusion, it appears ISPO take a very stringent and narrow approach when considering rulings against the press, and cases which involve the accused’s relatives bear no exception to this rule. ISPO, at its core, appears to reflect the view of the court and protect the public interest and the need for freedom of expression, rather than individuals privacy or well being. It therefore seems a stretch for them to declare they ‘support those who feel wronged by the press’; as they rarely believe any wrong has occurred. If this is right depends on ones perspective; however it seems harsh in cases such as Elena Couzin’s where no role has been played in the crimes committed, yet you are constantly considered alongside them.

This article was written and submitted to TTP and is published with permission and thanks to the author, Freyja McLoughlin.

Top 10 Defamation Cases 2021: a selection – Suneet Sharma

Inforrm reported on a large number of defamation cases from around the world in 2020.  Following my widely read posts on 2017,  2018,  2019 and 2020 defamation cases, this is my personal selection of the most legally and factually interesting cases from England, Australia and Canada from the past year.

Please add, by way of comments, cases from other jurisdictions which you think should be added.

  1. Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27

The controversial finding of the majority of the High Court of Australia that news organisations were publishers of third-party comments on their Facebook pages.

Mr Voller brought defamation proceedings against a series of media organisations alleging that each of the applicants became a publisher of any third party comment on its Facebook once it was posted an read by another user. He was successful at first instance and the successive appeals against the finding was rejected.  The position was summarised as follows

“each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments” [105].

Inforrm had a post about the decision.

The Australian Government are already proposing to reverse the effect of this decision by statute – see the Inforrm post here.

  1. Lachaux v Independent Print Limited [2021] EWHC 1797 (QB)

In the latest instalment in the long running saga of the Lachaux libel litigation, Mr Justice Nicklin dismissed the Defendants’ public interest defence and ordered the publishers of The Independent, The i and the Evening Standard newspapers to pay £120,000 in libel damages to aerospace engineer Bruno Lachaux. The defendants falsely alleged he had, amongst other things, been violent, abusive and controlling towards his ex-wife, that he had callously and without justification taken their son away from her, and that he had falsely accused his ex-wife of abducting their son.

The Judge provided important commentary on the standards to be upheld by defendants seeking to establish the public interest defence to what would otherwise be considered defamatory coverage.  He said:

I have no hesitation in finding that it was not in the public interest to publish [Articles], which contained allegations that were seriously defamatory of the Claimant, without having given him an opportunity to respond to them. The decision not to contact the Claimant was not a result of any careful editorial consideration, it was a mistake …journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed the publication would be in the public interest, but also how and with whom this was established at the time…

Informm had a case comment as did, 5RB.

The saga has not yet concluded.  The defendants have been granted permission to appeal and their appeal will be heard by the Court of Appeal on 12 April 2022.

3. Hijazi v Yaxley-Lennon[2021] EWHC 2008 (QB)

A case concerning a short altercation between two pupils on the playing field of Almondbury Community School in Huddersfield. A video was taken of the incident which subsequently “went viral”, just after the perpetrator of the altercation was expelled from school. He later received a caution for common assault for the incident.

On 28 and 29 November 2018 Mr Yaxley-Lennon used his Facebook account to post two videos of himself giving his opinion on the incident. He suggested, contrary to narratives emerging from media coverage of the altercation, that some of the sympathy toward Mr Hijazi (the claimant) were undeserved as he had committed similar violence.

Both videos were found to be defamatory of Mr Hijazi

In finding for the claimant after the substantive trial, Mr Justice Nicklin stated:

“The Defendant’s allegations against the Claimant were very serious and were published widely. The Defendant has admitted that their publication has caused serious harm to the Claimant’s reputation. The consequences to the Claimant have been particularly severe. Although it was media attention on the Viral Video that first propelled the Claimant (and Bailey McLaren) into the glare of publicity, overwhelmingly that coverage (rightly) portrayed the Claimant as the victim in the Playing Field Incident. The Defendant’s contribution to this media frenzy was a deliberate effort to portray the Claimant as being, far from an innocent victim, but in fact a violent aggressor. Worse, the language used in the First and Second Videos was calculated to inflame the situation. As was entirely predictable, the Claimant then became the target of abuse which ultimately led to him and his family having to leave their home, and the Claimant to have to abandon his education. The Defendant is responsible for this harm, some of the scars of which, particularly the impact on the Claimant’s education, are likely last for many years, if not a lifetime.”

There was an Inforrm Case Comment

4.  Abramovich v Harpercollins Publishers Ltd & Anor [2021] EWHC 3154 (QB)

Chelsea FC owner Roman Abramovich succeeded at a preliminary issue trial on meaning. Mrs Justice Tipples found that all nine of the meanings of allegations relating to Abramovich’s purchase of Chelsea FC “on the directions of President Putin and the Kremlin” were defamatory.

The case concerned a claim of defamation against Catherine Belton and publisher Harper Collins of allegations made in the her book, Putin’s People: How the KGB Took Back Russia and Then Took On The West.

5.   Vardy v Rooney [2021] EWHC 1888 (QB) Inforrm Case Comment

Known as the “Wagatha Christie litigation” this concerned a claim of defamation brought by Rebekah Vardy against Coleen Rooney. The case stems from series of statements published by the defendant on her public Instagram account. Mr Justice Warby, previously found that the statements meant:

Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.

This part of the litigation concerns the claimants attempts to strike out and claim summary judgment. A number of paragraphs of the Amended Defence were struck out in relation to allegations of the claimants’ publicity seeking behaviour.

  1. Nettle v Cruse [2021] FCA 93

Sydney based plastic surgeon Dr Nettle refused to operate on Ms Cruse. Cruse posted comments which were highly defamatory of Dr Nettle throughout 2018. This included creating a website in the URL of Dr Nettle’s name. Allegations ranged from failing to keep records confidential to performing unauthorised surgeries. The court found in Dr Nettles favour concluding:

“Dr Nettle has proved that he was defamed by Ms Cruse in four publications in 2018.  Judgment will be entered for Dr Nettle with damages payable by Ms Cruse assessed at $450,000.  Injunctions restraining Ms Cruse from republishing the four impugned publications, or the imputations which have been found to be conveyed by them, will be made permanent.  Ms Cruse will also be ordered to pay Dr Nettle’s costs of the proceeding.”             

  1. Webb v Jones [2021] EWHC 1618 (QB)

A libel claim arising from Facebook postings. The claimant failed to comply with the pre-action protocol and failed to provide particulars of publication context in her pleading until three months after service of the Claim Form.  The defendant’s application for strike out in this case was successful.  The case provides useful guidance on the procedural niceties of conducting a libel claim. Inforrm has a case comment. 

  1. Corbyn v Millett [2021] EWCA Civ 567

The respondent issued defamation proceedings against Jeremy Corbyn in respect of an interview he gave on the Andrew Marr Show in which he had referred to people in the audience as “Zionists” who “don’t understand English irony”.  Saini J held that this made a defamatory allegation of fact.  Mr Corbyn, appealed.  Warby LJ held that the judge did not err in finding that the words ‘disruptive’ and ‘abusive’ were statements of fact?  The appellant was “presenting viewers with a factual narrative”.  He also held that the Judge’s approach to  ‘bare comment’ had been correct and there was no error of law in the finding that imputation were defamatory at common law?

  1. Greenstein v Campaign Against Antisemitism [2021] EWCA Civ 1006

A libel claim against the Campaign Against Antisemitism after the Campaign referred to Greenstein in a series of five articles published on its website. The appeal was against an order striking out particulars of malice and judgment entered into in favour of the Campaign. In upholding the first instance decision, Dingemans LJ reiterated the principles to finding malice from Horrocks v Lowe [1975] AC 135.

  1. Chak v Levant2021 ABQB 946

Rebel Media founder Ezra Levant, was ordered to pay damages of $60,000, following Leonard J finding he defamed a political science professor and former Liberal candidate during a 2014 Sun News broadcast. Levant claimed Farhan Chak “shot up” a nightclub when he was 19 years old.