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Media Law round-up: House of Lords under fire as f

A top publisher has criticised the House of Lords for ducking its “constitutional duty” to clarify rapidly developing privacy law.

Associated Newspapers’ allegation comes as a leading academic told a media conference that discrepancies in privacy law meant the law lords would probably have to iron out the issues at some stage, on an appeal.

Associated slated the law lords’ refusal to hear its appeal against a Court of Appeal ruling that publication of parts of Prince Charles’ journal about the hand-over of Hong Kong to China breached his confidence and privacy, and there was insufficient public interest to justify publication.

It followed the law lords’ earlier refusal to hear an appeal by author Niema Ash, who was found liable for infringing the privacy of folk-singer Loreena McKennitt in a book.

Associated said: “It is most regrettable that the House of Lords has, for a second time, failed in its constitutional duty to examine whether this represents a threat to free speech.”

Meanwhile, Durham University law professor Gavin Phillipson told a privacy law conference there was an apparent contradiction between the House of Lords’ relatively narrow interpretation of a celebrity’s zone of privacy in the successful claim brought by supermodel Naomi Campbell, and the far wider ambit of privacy adopted by the European Court of Human Rights in the successful claim brought by Princess Caroline of Monaco.

Professor Phillipson said that in the McKennitt case, the Court of Appeal appeared to apply a confusing mixture of the narrower approach taken by the law lords in Campbell and the wider approach of the Strasbourg court in Princess Caroline’s case.

For now, however, the House of Lords seems reluctant to revisit this important issue.

Freedom of expression also suffered a set-back in the courts as Justice Secretary Lord Falconer shelved plans to allow media access to family court hearings. Consultation with court users and other stakeholders had revealed strong opposition to greater media access. There are moves, however, to improve information given to parties using these courts.

Lord Falconer said we need to “concentrate on improving the information coming out of family courts, rather than on who can go in”.

The media are taking comfort from the slightly sunnier climate anticipated in contempt law after the Attorney-General announced a general review of pre-trial publicity and its impact on juries.

He called for more dialogue between his office and the media via a contempt advisory forum, adding that there should perhaps be “more, but controlled, information to the public” in cases where there is a strong public interest in a freer flow of information, pre-trial.

As to defamation, a recent libel claim against the British Medical Journal is noteworthy for the level of damages awarded. The Journal was ordered to pay £100,000 damages to Dr Matthias Rath after publishing an article which falsely claimed he was to blame for the death of a young boy suffering from bone cancer.

The award was reportedly a record under the Offer of Amends procedure, which generally entitles a libel defendant to a 50 per cent reduction in damages – signifying that the court considered this libel would otherwise have been worth about £200,000, which is the recommended ceiling for libel damages.