Mark Stephens
Time was, that we were all libel lawyers. More recently we became libel and privacy lawyers. Now, with the democratisation of the means of publication, we are truly international media lawyers. We deal daily with threats from different legal regimes around the world as our media can now be received electronically virtually anywhere on the planet.
Time was, that media consisted of those that purchased ink by the barrel or electricity by the sub-station. They were nationally based. Few papers travelled between states, and reputations almost never did. In Kroch v Rossell,1 the Court of Appeal set aside orders for leave to serve out of jurisdiction in two libel actions against a French and Belgian newspaper, each of which sold a very small number of copies within the jurisdiction. Although in recent years the case has received attention in relation to the very limited circulation of the foreign newspapers in question, one ground on which it was decided was that the claims had no substance because the claimant had no significant connection with or reputation to protect in this jurisdiction. This is apparent from the judgment of Slesser LJ (with whom Scott LJ agreed):
I quite agree with Mr Slade that, if there were evidence in a particular case that a person had a reputation in this country to be defamed, or was known here, or traded here, or had professional or social connections, it might be that the circulation of a very few copies might do him very serious or irreparable harm. It is certainly an element to be taken into consideration. The mere fact by itself of a very small circulation, even in a foreign tongue, would not necessarily preclude him from saying that among the people of that nation who read that paper in this country, he would suffer grievously in reputation; but the difficulty with which Mr Slade finds himself confronted is that there is absolutely no evidence from his own client’s affidavits, that he has any reputation in, or, indeed, any associations with, this country at all. …
In this case, there is no evidence whatever that this gentleman, Mr Kroch, knows anybody in this country at all, or has any interest in it.2
Kroch v Rossell has been repeatedly followed and held to establish that a libel claim will be regarded as without substance where the claimant has no significant connection with or reputation to protect in this country.
Due to the democratisation of the means of publication, anyone can publish anything, everywhere, simultaneously, and national courts have increasingly been struggling with how to respond to Mark Twain’s observation that: ‘A lie can travel half way around the world while the truth is putting on its shoes.’
This has been made more complex with the growth of privacy law and the increasing volume of and complex detail in the nature of information provided to journalists (and others) as a foundation for publication.
It is trite to say, but should be noted, that law has always responded to societal changes. In the days of Kroch v Rossell, most libel litigants had a national reputation, the newspapers that covered them were nationally based and the disputes were addressed in the litigants’ national courts where they had both reputations and connections.
Foreign service broadcasts generated few cases. The advent of both international broadcast via satellite television and more cosmopolitan lifestyles led to an increasing number of international libel claims, with competing jurisdictions for dispute resolution where the claimant had both reputation in and connections to more than one jurisdiction. Kroch v Rossell was reviewed in the modern context in Chadha and Osicom Technologies Ltd v Dow Jones & Co. Inc.,3 which was decided between the decisions of the Court of Appeal and House of Lords in Berezovsky.4 In Chadha, the Court of Appeal refused to allow service out of jurisdiction where the claimant had not established sufficient connections with and a sufficient reputation to protect in this country. Roch LJ, with whom Otton and Pill LJJ agreed, stated that ‘the onus of showing that the plaintiff has sufficient connections with, and a sufficient reputation to protect in this country is on the plaintiff’.5
In each of Kroch, Berezovsky and Chadha, the alleged libels were published in foreign newspapers with limited circulations in this jurisdiction, and leave to serve out of jurisdiction was required. However, the rule that a libel claim is not a real and substantial tort unless the claimant can establish a significant connection with this jurisdiction and a reputation to protect here was also applied in an application to stay proceedings brought by a foreign claimant against an English newspaper. In Oraro v Observer,6 which is discussed by Hirst LJ in the Court of Appeal judgment in Berezovsky and by Roch LJ in Chadha, Drake J applied the rule to a claim by a Kenyan lawyer against the Observer newspaper. In Berezovsky, Hirst LJ summarised Oraro as follows:7
Finally, Mr Robertson referred to Oraro v The Observer (unreported 10 April 1992) where Drake J set aside service under Ord 11 in a libel action by the plaintiff, who was a Kenyan lawyer; the action related to a series of events surrounding the death of a Kenyan citizen, on which there had been a Kenyan judicial commission of inquiry lasting upwards of a year. The plaintiff, as Drake J held, had only a minimal connection with England, leading the judge to conclude that the damage to the plaintiff’s reputation occurred substantially in Kenya, and that there was no likelihood that he suffered significant damage in this country. The case was thus very similar to Kroch v Rossell, save that of course the main place of publication of the Observer was England not Kenya, where a small number of copies were delivered and confiscated by the authorities, thus, as the judge said, exciting unusual interest in the article. Drake J held that the forum conveniens was Kenya and set aside the service of the writ.
In the recent decision of the Supreme Court in VTB Capital plc v Nutritek International Corp.,8 Lord Mance JSC (with whom Lord Neuberger PSC and Lord Wilson JSC agreed) conducted a detailed review of the authorities relating to service out of the jurisdiction and forum conveniens in tort cases. In the course of this review, Lord Mance explained the different outcomes in Kroch and Berezovsky as follows:
[16] Kroch v Rossell [1937] 1 All ER 725 was a case in which a foreigner describing himself as ‘a gentlemen of no occupation’ claimed that he had been libelled in Le Soir, a publication with a daily circulation in Paris of about a million and a half, and in London of well under 50. He failed to establish any English reputation or connection, save temporary presence here to start the proceedings. Not surprisingly, the Court of Appeal thought that any breach here was technical and of no substance. It described the principles governing permission as requiring an examination of the circumstances to identify where the action should be better tried, in terms which foreshadowed Lord Goff’s approach in The Spiliada.
[17] Berezovsky v Michaels was concerned with an alleged libel of a Russian businessman in a magazine with sales of 785,000 in the USA, 1,900 in England and 13 in Russia. But, in contrast with the position in Kroch’s case, the claimant had significant connections with and reputation to protect in England. On the basis that the English tort was a separate one, for the pursuit of which England was prima facie the appropriate forum on the approach taken in The Albaforth, the majority in the House upheld the Court of Appeal’s conclusion that England was the appropriate forum for its pursuit.
This approach (without the depth of analysis) had been adopted by the Australian High Court in Dow Jones & Co. Inc. v Gutnik,9 a case which effectively opened the way for Internet libel actions. A little-known fact is that the author of the original article took his case under the right of individuals to petition the UN (changing its name in the process to Alpert v Australia), and it was settled before a decision could be rendered.
Justice Kirby in the High Court of Australia, whilst agreeing with the majority, described the decision as ‘counter-intuitive’. The international differences in free speech protection are certainly not limited to the differences between US and Australian, or indeed Commonwealth law. Justice Kirby also noted in his concurrence in Gutnik that the rest of the world ‘does not share the American, as others see it, obsession with free speech’. This disparity in views leads to varying levels of protection of speech and varying methods of dealing with speech that is deemed unacceptable. Some countries have very low protection for speech, and many make certain speech a criminal matter. In addition, many repressive governments aggressively prosecute anyone making statements critical of the government. For example, it is still a criminal offence in many African states to speak ill of any government official. These criminal offences were once thought a relic of the colonial oppressors, but seem to have been adopted with alacrity by modern rulers as a similar method of chilling free speech and criticism of government actors.
These societal developments of wider publication, broader reputations and a generally more cosmopolitan approach to world affairs have led defence lawyers to consider the laws of many states pre-publication. Cross-border publication and international reputations have led to claimants arbi-traging between jurisdictions to seek nationally based vindications, with London being dubbed ‘the libel capital of the world’ – an epithet first coined by Geoffrey Robertson QC. London’s renown for its benign legal regime for claimants led lawyers to encourage foreigners to sue for redress in London.
The challenge for the English judiciary was to provide a global remedy. Increasingly it rose to meet this challenge until confronted by US academic, Dr Rachel Ehrenfeld, who declined to come to the UK to meet her accusers, but rather offered to meet them in her home court in New York, an offer which was declined. This led to President Obama’s Speech Act 2012, which precludes US courts enforcing libel awards which do not meet US protections of speech.
Nonetheless, London had become the natural place for everyone to sue for libel, with judgments enforced in most other countries of the world. Anxious for business, ingenious claimant lawyers developed new lines of media business for litigants, such as privacy. Gavin Millar QC gives an exemplary exposition as to how and why this developed and became part of the law.10 Such privacy claims, as amplified by experienced claimant lawyer, Amber Melville-Brown,11 demonstrate how cases that might previously have been framed as libel claims are now framed as privacy claims, opening the way to prior restraint (injunction). This remedy is available to those making allegations of breach of privacy, but not to those making libel claims. Max Mosley, former president of the Fédération Internationale de l’Automobile (FIA), brought claims in London framed in privacy and on similar facts in Germany framed in libel, thus cannily affording him a range of remedies.
This book contains important contributions giving perspectives, from judge, claimant, defendant, NGO and even the editor’s chair, on the evolution of libel and privacy and how the law seeks to balance one against the other. As can be seen, the balance is an increasingly dynamic one to be struck with ever more care, whilst weighing up an ever greater number of factors.
Following Gutnik and its progeny, the limitations on free speech through libel and privacy laws have developed to the point of uneasy equilibrium. The challenge for the future is how nationally based news organisations cope with the threat of claimants emanating from increasingly diverse jurisdictions. Sophisticated claimants no longer arbitrage just for an easy libel or privacy win in London. Increasingly, the motives of large corporate and government claimants are about sources and clamping down on leakers.
The ugliness in the newsgathering process has always been the dirty little secret of the media. Until recently, society, i.e. government and specific movements, has been prepared to pay for that secret in return for the media playing its role as the watchdog in society. The media checks the power of organisations by bringing attention to events and actions it believes are unethical or harmful to society. This gives the public the ability to make an informed choice to support a company, government or political party, or its rivals. As both profits and political influence are derived from the public, the media is very powerful. One can see the impact of a media call-out with Egypt’s constitution, which was rejected by the people following media campaigns. Conversely, a classic case of poorly targeted media power was the Space Shuttle Challenger disaster in 1986, where the media was perceived as having put pressure on the US administration and NASA to launch the Shuttle as quickly as possible.
The watchdog role of the media in society works well whilst the media is well funded for reliable investigations. The media diaspora resulting from online communications has led us to a position where the media is underfunded – and in many cases rapidly going down the financial plughole. Bloggers and a whole spectrum of online information providers have led to a debate as to what or who constitutes the media.
Reasonable people may differ as to whether they believe, for example, that WikiLeaks is a journalistic endeavour. Why does this matter? Some want journalists and media organisations to have special protections from, for example, revealing sources. The jumping-off point for this was New York Times Co. v United States,12 a landmark decision by the United States Supreme Court on the First Amendment to the US Bill of Rights. The ruling made it possible for the New York Times and Washington Post to publish the then classified Pentagon Papers without risk of government censorship or punishment. This was all the more remarkable given that the documents had been stolen, were classified and their revelations highly embarrassing to the government of the day.
WikiLeaks is certainly a publisher, by virtue of what it does. To the extent that it edits and contextualises (admittedly to a limited degree), it also carries out further journalistic functions. Many would deny Julian Assange and the workers at WikiLeaks the epithet ‘journalists’ (although some are members of journalistic associations and professional organisations). However, is there any doubt, had WikiLeaks published the modern-day equivalent of Daniel Ellsberg’s Pentagon Papers, that it would have been prosecuted in America?
There are a number of reasons for this development:
• With technology, the quantity of information that is leaked has risen significantly. Time was when a journalist was slipped a couple of dogeared photocopies; now a couple of discs of raw data are not at all unusual. Indeed we now have a new form of journalist – the data journalist.
• Publishers have increasing global reach – from the smallest blogger to the New York Times or the BBC.
• Publication is not confined to national legal systems, meaning that the old system of D-Notices or informal censorship – the quiet call from government to editor – can no longer take place effectively.
• Information and gossip travel so much more quickly with the advent of social media.
• Faced with the futility of attempting to regulate publications – particularly on social media – companies and states are increasingly turning to the tracking and criminalising of sources to discourage leaking.
There has been a degree of focus on how the news media obtains its information, whether it is legal or, indeed, in breach of law. Newsgathering has never been pretty. Journalists invariably rely on whistle-blowers or those with an axe to grind – a reason to breach their obligations of confidence, privacy or fidelity – in order to gather information.
It is to encourage the free-flow of information between sources and journalists that society has provided protections against the disclosure of confidential sources. The European Court of Human Rights in William Goodwin v UK13 emphasised the importance of the freedom of expression. The Court restated how it constitutes one of the essential foundations of a democratic society. The protection of journalistic sources was one of the basic conditions of press freedoms:
Without such protection, sources could be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press could be undermined …
Because of the importance for press freedom in a democracy of protecting journalistic sources and the effect an order of source disclosure would have on the exercise of this freedom, the measure could not be compatible with the European Convention on Human Rights (ECHR) unless it was justified by an overriding requirement in the public interest.
Here, the injunction notice which had been circulated to the press generally had prevented dissemination of the confidential information. Reducing the threat of damage would have three benefits to the company in question: revealing the source; obtaining compensation; and exposing a disloyal employee. They were held to be insufficient in outweighing the public interest in the protection of Mr Goodwin’s source.
Recognising the importance of openness, we have freedom of information laws and also protections for whistle-blowers. European courts must now have regard to the Strasbourg case law which insists on a special degree of protection for whistle-blowers under Article 10 of the ECHR.14
Both whistle-blowers and confidential sources have been given a special place in society so as to assist the media in acting as a check and watchdog on abuses of power. They clearly have a vital role to play in the flow of information into society at large. However, we are now at a stage where the media and its commentators are trying to feed into these special protections given to suppliers of information an assessment of whether they are ‘good’ or ‘bad’ whistle-blowers/sources. This development must be the first warning sign of an erosion of protections for suppliers of information.
There has been an upsurge in media litigation calculated to identify sources. These may be libel claims, which cannot be successfully defended unless the source is disclosed, or confidentiality and privacy claims, which can only be defended by a nascent public interest defence such as applied in a far-sighted decision of Stanley Burnton J in (1) Long Beach Ltd (2) Denis Christel Sassou Nguesso v Global Witness Ltd.15
This upsurge has had a more international focus than libel because many countries, including the US, have significantly less well-developed protections for sources of information. This is perhaps best exemplified by the US Pulitzer Prize-winning journalist, James Risen, who had his sources exposed in the Wen Ho Lee case, a Los Alamos Chinese-American computer scientist, who was prosecuted for 59 offences of mishandling classified information.
In the summer of 2013, Pvt. Bradley Manning (now known as Chelsea Manning) was jailed for 35 years for leaking and Edward Snowden charged with espionage and the theft of government property. These recent developments have led media lawyers to add to their growing list of considerations the question of ethical journalism and the extent to which news organisations are obliged to protect their sources. Alan Rusbridger, editor of the Guardian, found himself and his lawyers confronted with just this question.
Snowden was a confidential source for six days, the last four of which saw the Guardian publish four scoops based on his documents. So for those six days, the Guardian treated him as a confidential source. He then chose to go public, revealing his identity in a video published on the Guardian website. Media lawyers had, not for the first time, to consider extradition and immigration issues.
On the other side of the planet, William Akel, New Zealand’s foremost media lawyer, is also wrestling with just these issues – in a slightly different context – advising Kim Dotcom, the founder of online file-sharing website Megaupload, on the US-led investigation and the US Government’s extradition charges against him.
Increasingly, freedom of speech is being curtailed in the name of privacy and confidentiality. Each will come to his or her own conclusion as to where the right balance should be struck, and this balance is debated freely in this volume. There is likely no empirically ‘right’ answer, as reasonable people can and will differ on where the balance is correctly struck. That said, the balance is struck based on information which is being weighed in the legal scales of competing interests. The real trick against such a dynamic environment and subtly differing legal systems is to ensure that a complete and correct basket of elements is put up for judicial consideration in each case. This volume will assist in considering what should be brought up for such consideration.
1 Kroch v Rossell et Compagnie Societe des Personnes a Responsibility Limitee; Kroch v Societe en Commandite par Actions le Petit Parisien [1937] 1 All ER 725, CA.
2 Ibid. p. 729.
3 [1999] EMLR 724.
4 Berezovsky v Forbes Inc. (No. 1) [1999] EMLR 278, CA, and on appeal to the House of Lords, Berezovsky v Michaels [2000] 1 WLR 1004.
5 Chadha (n. 3) p. 732.
6 10 April 1992.
7 Berezovsky v Forbes Inc. (n. 4) at pp. 297–8.
8 [2013] 2 WLR 398.
9 [2002] HCA 56.
10 See Chapter 6.
11 See Chapter 5.
12 403 US 713 (1971).
13 (1996) 22 EHRR 123.
14 See Guja v Moldova, App. No. 14277/04 [2008] ECHR 144 at [74]-[78] and Heinisch v Germany, App. No. 28274/08 (2011) 32 BHRC 252 at [62]-[70].
15 [2007] EWHC 1980 (QB).