In and around 2010 through to 2011, my feeling was that the tide was heading in a favourable direction for publishers.
There seemed to be ongoing commitment to libel reform, Lord Justice Jackson’s review into the costs of litigation recommended sweeping reforms to the Conditional Fee Agreement regime, and, in the course of last year, the trend of super-injunctions received scrutiny and public and parliamentary opposition in a way it had not before.
More recently it has been hard to escape the conclusion that the tide was turning: the Leveson Inquiry is ongoing and, whilst its outcome is uncertain, many are expecting the outcome to increase the scrutiny and pressure on journalists.
Within the proceedings of the Inquiry, there are high-profile voices calling for increasing restrictions on the Press and increased emphasis on the rights to privacy of the individual.
The Inquiry and related phone and email hacking allegations will undoubtedly have far-reaching implications even on those parts of the publishing industry who have never been implicated in the scandal. At the same time, libel reform and reform of the legal costs system are both progressing slowly.
So in this climate, three recent Court decisions are cause for optimism.
In the first case a businessman, Nathaniel Rothschild, was unsuccessful in his claim for libel based on an article in the Daily Mail in May 2010.
The article reported that in 2005 Mr Rothschild flew Lord Mandelson, then EU Trade Commissioner, to a dinner in Moscow which was being held to close a transaction between two aluminium companies.
The Mail accepted that Lord Mandelson’s attendance at the dinner was not related to the closing of the aluminium deal, but defended the article by arguing that the wider circumstances of the trip to Russia demonstrated that the ‘general sting’ of the article was true (i.e. that Mr Rothschild had behaved inappropriately by taking Lord Mandelson on that trip, exposing him to accusations of a conflict of interest).
The defence of justification succeeded. From a legal perspective, this case is significant as it reaffirms that papers will be allowed a margin of appreciation in publishing inaccurate specific allegations in the context of true assertions of general wrongdoing. Significantly, the trial took place before Mr Justice Tugenhadt alone; there was no jury.
Then, in the course of the last week, the European Court of Human Rights made two decisions in favour of press freedom in the reporting of the private lives of celebrities in the cases of Axel Springer v Germany and Von Hannover v Germany.
In the Axel Springer case, a publishing company challenged an injunction banning the publication of a story about the arrest of a prominent television actor for drugs offences. The European Court allowed that challenge.
In the course of balancing the actor’s right to privacy under Article 8 of the European Convention on Human Rights against the rights of the publisher under Article 10, the Court took into account that the actor played a police officer in a popular drama and was therefore a “public figure”, the public interest in the reporting of crime, and the fact that the actor had given interviews to the press about his private life, concluding that he therefore had a lower expectation of privacy.
In the Von Hannover case, Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover, complained about the German courts’ refusal to grant an injunction banning the publication of photographs taken of them on a skiing holiday, which they believed had been taken without their consent.
Again balancing the competing rights, the Court ruled that the publication of the photograph did not infringe the Claimants’ right to privacy, taking into account that the photograph was published in the context of an article about the poor health of Princess Caroline’s father, the late Prince Rainier of Monaco, and concluding that the photograph did therefore “to some degree contribute to a debate of general interest”. The European Court therefore upheld the German Federal Court’s decision to allow the publication of the photograph.
The combination of these three decisions provides a timely piece of evidence for the Press in their attempts to demonstrate to the Leveson Inquiry that the question of the balance between privacy and freedom of expression is not one-sided.
They should also provide some practical reassurance for journalists when dealing with high profile public figures.