Analysis of Media Cases - Case Study Example

1(i). It is likely that Davies & Jones could obtain an interim injunction from the court to avoid further publication of un ised photographs. The claim has legal justifications, which will be discussed during this assignment and will include principles laid down within previous case law and current UK & EU Statute. The courts must consider which principles should be applied to the circumstances suffered by Davies & Jones against Sporting Sunday and whether they are appropriate to be invoked in acquiring an interim injunction. The claimants can obtain an injunction by stating that Sporting Sunday has breached the law of confidence by its disclosure of private information, an act, which according to Lord Nicholls,1 constitutes an 'invasion of privacy.' In granting an injunction, the judges have to consider whether the claim is reasonable or subject to the restrictions of the law. In addition, with the incorporation of the Human Rights Act of 1998 set forth in Articles 8 & 10 of the European Convention on Human Rights (ECHR), concerning the 'tort of privacy' (although a merely 'implied' principle and a little more defined in the previous decades) the courts must also decide what is 'proportionate' and necessary, or if the injunction requires a 'social need' with regards protection of privacy.2 What is interesting to note here is that other countries encompassed by the European Union have interpreted this principle akin to the law of privacy. The German courts for instance declared that the statute serves to "ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control the use of one's own image"3 It is clear that the two main foundations of the court's issuance of an injunction are the breach of the law of confidence and the principles of tort of 'privacy' (though still unspecified) as enshrined in UK's Human Rights Act of 1998 and the ECHR. Based on the principles of the law of confidence, the court, in the case of Prince Albert v Strange (1849) 1 Mac & G 25, granted Prince Albert an injunction barring the defendant from distributing a catalogue of the Prince's etchings as the material was obtained by the Dependant through 'breach of trust, confidence or contract'.4 It has to be remembered that Sporting Sunday has acquired material 'confidential in nature'5, reminiscent in the case of Coco v A N Clark (Engineers) Ltd [1969] RPC 41). The material was apparently not 'something which is public property' or constitutes a 'public knowledge'. 6An important requirement in application of this principle, provides that, 'there had to be an unauthorised use of the information' detrimental to the 'confider.' 7 Clearly, the publication of the 'unflattering' and 'imprudent' photographs of the couple, Jones & Davies is detrimental to the claimants as they are popular public figures. This contention is cemented in the case of Venables & Thompson v New Group Newspapers Ltd and others8 when Dame Butler-Sloss granted injunctions 'against the whole world' barring the disclosure of information which could have led to the recognition of the killers of James Bulger. The court decided that the 'disclosure of the information in question might lead to grave, possibly fatal, consequences for the claimants.'9 The primary importance of this decision is that information or personal data cannot be divulged, regardless of the circumstances. The courts must decide if non-disclosure of information threatens public safety. Based on the aforementioned principles, the circumstance surrounding the case of Davies & Jones and the publication of their photographs are not matters of public importance or public interest. In the case of A v B [2003] QB 195 10 the court bestowed an interim injunction which barred a newspaper from disclosing the claimants sexual liaison with a woman to whom the claimant was not married. The injunction was given based on the consideration that the information was, in nature, confidential and subjected under the principles stipulated in Article 8 of the ECHR. Public interest was also absent so as to oblige the publication of the information that could safeguard the right to freedom of expression of the defendant.11 In the case of Douglas v Hello!, Lord Woolf CJ, introduced stating that 'the application for interim injunctions have to be considered in the context of articles 8 & 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.12 These provisions have afforded new constriction with which the court could base its action with regards breach of confidence 'whether a person is entitled to have his privacy protected by the court or whether the restriction of freedom of expression which such protection involves cannot be justified.'13 This was an amendment of the court's past approach, which requires public authorities to 'act in a way which is incompatible with a Convention right.'14 The absorption of the rights afforded by Articles 8 & 10 of the Convention gave 'new breadth and strength' to the action put forward by the courts so that it could conform to the obligations set forth by the articles.15 One of the authoritative considerations regarding breach of confidence was laid down during the deliberations of the case of Campbell v. MGN, House of Lords. The model Naomi Campbell filed a claim citing breach of confidence against the Mirror newspaper disclosing in a story that Campbell was a drug addict. The article was backed by photographs, covertly taken, of Campbell in front of an edifice alleged by the newspaper as a setting of Campbell's Narcotics Anonymous' meetings. Although the model did not seek claim for the contention of the Mirror that she was a drug addict, Campbell complained that the Mirror disclosed information about her meetings and this accordingly was a breach of confidence evident in the photographs. According to Campbell, the photographs were private information the newspaper had no right in publishing.16. The court decided that the information of the model's treatment with Narcotics Anonymous was private information which if used by any publication would tantamount to breach of confidence (Gill, 2006). Moreover, The courts mainly base its consideration in granting a 'relief', including remedy or court order, or even an injunction on Section 12 of the Human Rights Acts of 1998. However, the court must be 'satisfied' with the arguments of the applicants who should 'establish that publication should not be allowed' (Section 12, par 3, HRA, 1998). The Convention on Human Rights also stands as the courts primary foundation with regards legal provisions on freedom of expression. The material to be published and 'has been published' should be accessible to the public, and as the Act firmly state, should be in the interest of the public (section 12, par 4a and b). These stipulations on the act has been applied by the court in the Cream Holdings case17 where the claimant Cream Holdings LTD. Sought injunction of the publication of the alleged 'stolen' information by its former employee Ms. Banerjee who when she was dismissed, gave the information to another publication. Ms. Banerjee claimed that the information she divulged and copied contained details of Cream Holdings illegal activities. According to the courts decision of the case, although there is no single stringent standard which 'govern all applications' for interim injunction, Section 12 of the HRA, specifically paragraph 3 must be satisfied in order for any application for interim relief be afforded to the claimants. Convention rights have also been mentioned by the court as its foundation. Still, the general process of the court is to make its proceedings 'slow'. The provisions on Section 12 of the HRA, however, 'this interpretation achieves the purpose underlying section 12(3). 18 Hence, the publication of the photographs of Jones & Davies by Sporting Sunday constitutes breach of confidence as the pictures were taken without consent, through underhand means and were 'detrimental' to the claimants, also causing emotional 'distress' on Miss Jones. Interim injunctions can be afforded to the couple guided by the principles used by courts set forth in the case of Douglas v. Hello. This case set precedence on issues of the privacy of a celebrity and 'public' person. The case is similar in its scope, nature and circumstances therefore Davies & Jones could base their claim. In the Douglas case for instance, the couple invoked their right to privacy when another magazine, Hello, took pictures of their wedding and published them as spoilers even though OK was given the rights to the event (Thomson, 2006). The decision of the House of Lords in the case of Douglas v. Hello! brought forward the essence of the tort of the breach of confidence. The essence was captured in a speech by Lord Nicholls where he contends that the law imposes a 'duty of confidence' every time an individual obtains information, which to his best knowledge is confidential in nature. Any information about a person's private circumstances should not be deemed or referred to as 'confidential.' For him, the 'more natural description is that such information is private.' 19 Sporting Sunday has committed breach of confidence if we base our understanding of this offence on court decisions, resolved cases and the contentions brought forth by the House of Lords. This apparent breach of confidence is enough justification for the court to issue interim injunction against further publication of the photographs of Jones & Davies taken without consent and care. (ii). It is not legally possible for unknown third parties or intruders to publish photographs taken at the engagement party of Davies & Jones. In the judgment of Douglas v Hello!, the judge contends that privacy involves of the 'inclusion only of the invited and the exclusion of others.' The judge argues that the wedding was 'private' as it was a 'socially pleasant event.'20 It is clear that in the events that transpired during the party, only the WAGS Magazine photographer, after bestowing the magazine exclusive rights, was given access through 'chips and identification' so as to ensure that no intruder could get in. The taking of the photographs during the party involved 'trespass and deceit' amidst the security precautions that the claimants had set to prevent trespassers from taking unauthorised pictures of the couple. It would also be considered ethically wrong if not illicit, if the photographer who took the pictures for Sporting Sunday had knowledge that the exclusive contracts to take photos were given to WAGS weekly.21 In the courts' decisions on previous cases regarding the taking of photos by a third party unauthorised to do so, the court asserts that photographs be given 'special consideration' when discussing privacy. Judges argue that photographs are not just means to convey data but they also allow an individual to 'act as a spectator' resulting to, in some instances, voyeurism. The court, in its decision to the case filed by Douglas & Jones against the Hello magazine, states that a photograph is 'particularly intrusive' when the issue put forth is the issue of the invasion of privacy. In addition, not only does the issue of photography discussed in courts, various media regulatory organisations set standards of ethical practice to be followed by photographers. It is clear that during the party, these ethical media codes were not followed. In the case of (85) Theakston v MGN22, although the court refused to award the claimant an injunction which could restrain the publication of a record of the claimants verbal activities, it bestowed the claimant an injunction to bar the publication of the photographs related to the activities because 'the publication of photographs without [one's] consent could still constitute and intrusion' of the private life of an individual just as it is 'peculiarly humiliating and damaging.' The same ruling was put forward in the case of D v L [2004] EMLR 123 where Judge Waller LJ asserted that the 'court may restrain the publication of an improperly obtained photograph'.24 This contention was further cemented in von Hannover v Germany, in which the ECtHR claims that even though individuals were bestowed freedom of expression and this freedom is likewise bestowed on the publication of photographs, care must be practiced so as not to injure the rights and reputation of others. The ruling declares that photographs, which include very private or 'intimate' data about a person, should not be published. This is said to be true of tabloids which print pictures often taken in a 'climate of continual harassment' often bordering on intrusion and persecution. Hence, it is illegal, ethically wrong and improbable for a third person to publish photos of Davies & Jones on the night of their engagement. (iii). There are various legal actions that WAGS Weekly, Davies & Jones can use to obtain compensation for the losses incurred when the photographs of the claimants' engagement party were published by Sporting Sunday. The circumstances surrounding the party were similar to those transpiring during the wedding of Michael Douglas and Catherine Zeta Jones, a case that set a precedent on future claims from which we can draw parallels. The same applies for the legal actions utilised by the claimants in the Douglas case. One legal argument WAGS Weekly, Jay Jones & Tyne Davies, can employ in seeking compensation is a claim based on economic torts. Note that this same claim was forwarded in Douglas v. Hello. The judges in this case were unable to determine whether OK!, the publication that the Douglas's bestowed exclusive rights to print their photos, could make a claim of compensation on the damages incurred for breach of confidence (Thomson, 2006). The judges decided that compensation must be considered based on the three principles formulated by the court. These include unlawful interference with the business of another company, in this case a publication, conspiracy to injure the publication by unlawful means, and 'conspiracy to injure [another company] with the predominant purpose of doing so. 25 The principles of conspiracy to injure, classified as 'conspiracy to injure by lawful means and conspiracy to injure by unlawful means.'26 The court defines the lawful conspiracy to injure, 'an individual proves that they have incurred losses as a consequence of the defendant's or another individual's action to harm the claimant'. It appears that the predominant objective of this action is to harm the claimant. In the unlawful conspiracy to injure, the claimant should offer substantial evidence to prove that one has incurred losses or damage as a consequence of an 'unlawful action' by the defendant or another individual.27 Further elucidations of this principle were offered by Lord Bridge on the case of Lonrho Plc v Fayed28 in which he stated that conspirators operate under the primary objective, which is to injure the claimant. The said deed cannot be done if an individual acts in isolation. These 'concerted' actions are bases to deem the deeds as 'illegal and tortuous'29 especially when the 'conspirators' primary intent is apparently to inflict injury or to harm the claimant in order to safeguard their own self vested interests.30 WAGS Weekly can therefore seek compensation from Sporting Sunday as it is evident that the photographer did not act alone but acted 'concertedly' with the aid of Sporting Sunday which published the pictures in its magazine. It could be said based on the aforementioned facts that Sporting Sunday and the photographer who intruded into the engagement party of Davies & Jones are co-conspirators of an unlawful interference against the business of WAGS Weekly. The primary purpose of Sporting Sunday's spoiler issue was in fact to 'spoil' the legitimate business of WAGS Weekly. Thus, Sporting Sunday is liable as to the injury done to WAGS weekly arising from conspiracy to harm the magazine by unlawful means.31 This legal responsibility also results in liability for a tort as a result of 'unlawful interference with economic and other interests.' 32 Using the test on intention to injure or harm another party, the court would consider the arguments from either party,33 which on the facts discussed appears that Sporting Sunday has the 'intention to injure' the claimants. The first of these tests state that the 'intention to cause economic harm to the claimant is an end in itself.'34 The fact that the magazine published the photos of the couple even with the knowledge that this could harm WAGS Weekly is evidently an intention to injure. Second, the intent was crucial in achieving 'some ulterior motive'35 which will result to economic damage to the claimant.36 In addition, Sporting Sunday had previous knowledge that its actions can cause harm, yet it still acted 'indifferently'. Thus, the action could constitute intention to injure.37 Unfortunately, the court in its previous proceedings failed to shed more light on the issue and it is still very complex for the claimant to illustrate and foresee 'reasonably'38 that an action by the defendant could lead to economic harm. This is brought about by the contention that someone in breach of the intention to injure requires 'actual knowledge' of the 'reasonably foreseeable' loss or damage to the claimant as consequence of one's act. Hence, the holder of 'actual knowledge' who could reasonably foresee the consequential damage must be identified39 and in the case of Jones & Davies and WAGS Weekly, it must be proven in the courts that Sporting Sunday and the photographer have actual knowledge of the harmful consequences of their actions. Sporting Sunday could use this argument to counter the claims of WAGS weekly and Davies & Jones. In fact, in the case of Douglas v Hello!, the court had to depend on the state of mind of the editors of Hello! during the deliberation of the case. The judge for instance described the intentions and state of mind of the Third Defendant, Senor Junco, a shareholder of Hello magazine.40 The findings of the judge implied that 41 even though the management of Hello magazine had previous knowledge of the harm it could inflict to the claimant,42 the judge found that the 'relevant intent' 'had not been found' while asserting that the defendant acted 'out of self interest' yet there was 'no intention to injure by unlawful means, because there was no intent to injure at all.'43 The judge concluded further that Senor Sanchez Junco did not have any intent to harm the Douglas's to avenge for his not getting the exclusive rights to cover the wedding ceremony. The same conclusion was applicable with regards the claim of OK! Magazine.44 If we examine this argument closely, the judgement of the court clearly declared that no 'specific' aim to inflict economic harm to OK! Magazine was evident. In their appeal, the claimants contend that it was erroneous not to hold Hello magazine liable or to assert that the magazine did not have 'subjective intent' which could probably cause harm to OK magazine. Nevertheless, the judges had heard all the evidences necessary to support their contentions on the issue. Oral proof and an enormous amount of evidence have been presented to the courts before judgment was made and thus, it seems probable that the court did not see any proof of the intention to harm the claimant out of self-interest, economic gain or cause the other harm against its business.45 This shows that OK magazine did not satisfy the court in its intent of claim. Similarly, the management of Sporting Sunday could make parallel claims as long as they could satisfy the aforementioned tests aimed at evaluating the intention of the defendant and to assess 'subjective knowledge' of the gravity of economic detriments to WAGS Weekly magazine. If, for instance, Sporting Sunday, claims that they realised their actions 'might' result to economic harm and its deeds constitute 'indifference,' questions will still arise whether, under the law, these actions and state of mind are ample to comprise 'intention to injure' as implied and stated under the tort of unlawful interference.46 The burden of proof must now lie on the claimants to offer evidence that the intention to injure was premeditated by the defendant and this intention constituted unlawful means.47 In these circumstances, the claimants must do their best to put a strong case before the court. Still, the claimants can resort to the principles stipulated under the tort of interference with contractual rights. This tort provides that 'interference' involves the direct provocation of a third party to 'break his or her contract with the claimant' which does involve unlawful methods.48 This is well exemplified in the case of South Wales Miners' Federation v Glamorgan Coal Company in which the House of Lords clarified that 'malice in the form of ill will,' was not the exact requirement for this particular tort.49 Moreover in the case of Thomson v Deakin, the defendants allegedly thwarted a supplier from carrying out its contract to the claimant by the defendants' persuasion of the supplier to withdraw its services.50 The court decided that the actions constituted breach of the tort of contract and declared that the defendants' actions showed that they had purported to do damage to the claimant. These principles were reinforced by the Court of Appeal in the case of Torquay Hotel Ltd v Cousins51, in which the court observed that 'the interference must be deliberate and the individual must have the knowledge of the contract or ignored his knowledge of it and 'intended to interfere with it.'52 The same verdict was declared in the case of Mercur Island Shipping Corporation v Laughton53 when the union members interfered indirectly in the sailing of a ship resulting to the non-performance of duty of the claimant ship-owners.54 Lord Diplock asserted on this case that the defendants intended to induce breach of contract as they had prior knowledge that the ship was about to sail and thus if they thwarted it from sailing, the union members could apply pressure in the ship supposedly diminishing the earnings of the claimants. It could therefore be said that the tort on intention is related to the tort of unlawful interference, which could be used to seek awards for compensation. The case of Mogul Steamship Co Ltd v McGregor, Gow & Co illustrates this disagreement when the ship-owners claimed damage as a result of being 'shut down' from the lucrative business after the defendants started a conspiracy against the claimants.55 Bowen LJ, declared that no individual can 'justify' infliction of harm or damage to another's business through 'fraud or misrepresentation.' It is important to note that in the cases and principles mentioned, the law has been hesitant to enforce liability in tort when the purported claim to economic harm cannot be shown clearly and has been evidently aimed at the claimant.56 Economic torts require similar requisites and justifications. In understanding inducement for instance, it should be remembered that the use of unlawful methods should be 'directed against a third party' where the methods used were to intentionally 'damage a particular individual' and in fact, evidently damaging him as a consequence.57 It appears the principles considered here in seeking claims and compensations demonstrate the essence of the aforesaid torts. In the failure of an entity for instance to perform one's contract, a series of contractual breaches would ensue as a result.58 Based on these principles, the claim for compensation by the claimant, WAGS Weekly and the couple, Davies & Jones, will further be justified and strengthened. However, the court must decide if the defendant, Sporting Sunday, is liable of intending to injure its rival magazine as well as the couple. Aside from invoking the tort for economic interference, the claimants can also seek compensation citing breach of confidence. As mentioned previously, it is apparent that Sporting Sunday has violated principles with regard breach in confidence. It can be remembered that this claim has legal precedence based on the Spycatcher cases in which legal provisions on obligation of confidence have been strengthened in 'The Spycatcher cases. In these series of cases, a former agent of the British Security Service wrote memoirs which he titled 'Spycatcher.' The memoir allegedly contained charges of malpractice and illegal demeanour within the ranks of the service. The book was about to be published when the British government filed an injunction to the courts on the grounds that the author obtained the data included in the book was under an obligation of confidence. As a result, the court issued an interim injunction restraining the publication of the information while the proceedings were pending. Newspapers were consequently restrained from publication of the information through various injunctions. However, the newspapers the Observer and the Guardian published brief information which carried the some details of the contents from the manuscript of the unpublished memoir. The court issued an injunction against the two newspapers citing breach of confidence.59 However, after the book has been published in other countries, it has lost its 'confidential character' as the primary aim of the injunction is to preserve confidence for the 'promotion of the efficiency and reputation' of the British Security Service. 60 The preservation of this confidence however was a local issue and even if the courts in the UK restrain the publication of the magazine containing confidential information, it does not have any legal jurisdiction over other countries to impose such injunction. This judgement has been fortified by the court amidst the claim of the British government that the publication of the information constitutes threat to its national security. The claimant might have lost their case as the appeal was dismissed by the court, but the courts issuance of interim injunction on the basis that the defendants, including the newspapers, had breached confidence, set forth an unambiguous decision setting forth the practice that in cases where confidence is met and all requirements were satisfied, interim injunctions and compensations can be sought for. (iv). In assessing the quantum of damages awarded to Davies & Jones, and WAGS Weekly, the courts must assess issues of liability incurred by Sporting Sunday after it printed spoiler photographs. The damage suffered by WAGS Weekly should have evaluated not only the profits lost as a consequence of Sporting Sunday's spoiler but other considerations as well. The court, in its judgment in the case of the Douglas had considered not only the profits lost by OK! from the unauthorised photograph but also the subsequent publication of the photographs in other magazines, along with circumstances surrounding the case.61 The judges opined that the losses suffered by OK! Magazine after Hello! had published unauthorised printings were 'sufficiently consequentional upon the breach and sufficiently foreseeable to make Hello! Ltd liable'62 The court awarded the Douglas's 3,750 each 'as general damages for mental distress' and an additional 7000 for furthers costs and expenses as well as the 'disruption' caused by the selection of photographs suitable for publication.63 The judge refused to assess the damages incurred by the Douglas's based on the notional licence fee, used normally in copyright and patent cases. At first the award for loss of profit amounting to 1,026,706 had been afforded to OK! magazine as a consequence of their loss of profit but was later overturned in the Court of Appeal. On the issue of costs for obtaining an interim injunction, the court ruled there should be no order issued with regards the cost and payment for the hearing. The court added that the couple should have acquired an injunction at the beginning, as there was no public interest involved in these circumstances. In the light of the rulings of the court in Naomi Campbell and Princess Caroline's cases, in the European Court of Human Rights, summary judgment of the Douglas case should have been brought at the beginning and it should not have reached the Court of Appeal. Individuals and claimants will also be able to succeed easily in obtaining an injunction. However, the magazine will not be included as a 'party to the claim' even if they have bought the rights to take photographs (Gill, 2006). What is important to note here is that, in the case of Douglas v Hello!, the judges took particular attention to the behaviour of Hello which procured 'untruthful and misleading' letters. The severe criticisms thrown on the misconduct of Hello magazine had a great impact on the judges' decisions on the awards and damages afforded to the claimants. It is also apparent that the claimants in this case came out victorious in the liability hearings as well as in the various issues they have brought forth in the court. The judge aptly considered the realities of the issue and made judgments he considered fair and appropriate and ruled that the defendants should pay about 75% of the cost of all the damages incurred based on the 'indemnity' costs as a result of Hello magazine's misconduct revealed during the court proceedings. The indemnity cost refers to the higher percentage of the standard cost imposed by the court as a form of punishment to a misconduct. This for the judge was an apt penalty for the defendant and in the end the judge bestowed 85% of the total cost for the proceedings on quantum as award to the claimant, which would also be evaluated on the standard basis (Coad, 2004). It is interesting to note however, that in deciding for awards for the cost of damages, the court considers modest proportions of the cost as in the case of McKennit v Ash where a Canadian folksinger64 claimed for damages when her friend, the defendant, wrote a book which depicts the singers private life, her sexual relationships, vulnerabilities and other complaints which according to the singer constituted an act of invasion on her privacy. Although the claimant won the case, the court merely awarded her 5000 as cost of damages (Kidner, 2006). We can expect that the court will also be modest in its consideration of costs and damages in the case of Davies & Jones and Wags Weekly if it files a case against Sporting Sunday. Words: 4314 Read More