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Law Column: 2017 begins with a media law bang!


The first law column of 2017 is a medley of news – but hopefully, readers will find the variety to be as interesting as ever.

The last fortnight has seen media law news dominated by the consultation on section 40, which closed last week. Much has been written about the consultation, and most regional and local papers have explained to their readers the dangers it poses to their future operations and the public’s right to know.

It’s been reported that there have been 140,000 individual responses to the consultation, whilst one Hacked Off supporter claims that a petition signed by 130,000 people has been lodged calling for Part 2 of the Leveson Inquiry to be commenced.

But has all this effort been in vain? I only ask because two phone hacking victims and a news website are seeking a Judicial Review of the decision to hold the consultation in the first place. They are arguing that the consultation is misleading and unbalanced in fundamental ways which render it unfair; that it omits and/or misstates relevant information; and it fails to acknowledge past Government promises.

To progress the application, the claimants have to obtain permission from a Judge, who will make his/her decision based on the written arguments only. It has been reported that the Judge’s decision is likely to be made within the next few weeks.

If permission is given, then the case will be heard by the High Court, probably in the first half of 2017. If permission is not given, then the application fails at this early stage, and the ball then returns to the government’s court (excuse the pun!).

Moving on, online journalists will be aware of “the innocent publisher’s” defence contained in Regulation 19 of eCommerce Regulations. Essentially, a web publisher has no responsibility for the content of user generated content if it did not know about the offending post, exercised no editorial control, and disabled the offending words as soon as reasonably practicable upon becoming aware of them.

So far so good. After all, the terms of Regulation 19 are well known, But the reason for raising it now is that last week, a judgment from the High Court in Northern Ireland was published.

Facebook was sued by a plaintiff known as J20, and the Judge held that Facebook’s Regulation 19 defence failed. This case was decided very much on its own facts, and as Facebook operates in a way which is quite different from the press, you may think it is a one-off.

But what stood out for me was this: although the Judge accepted that J20 had been extremely vague as to the basis of his complaint, he held that an online publisher “cannot simply turn a blind eye to complaints and say that a complainant has failed to properly categorise the legal basis of that complaint”.

I’m not aware that any court in any of the UK’s three separate legal systems has ever before decided that a defendant has an obligation to assist a complainant in this way. Certainly, I have always argued that a defendant has no obligation either to guess a complaint’s case or to help him get it right legally.

This judgment could have far reaching implications for journalists in NI. Whether the law in England and Wales, and Scotland, will follow suit, only time will tell. But even if this decision remains applicable to NI only, it’s yet another indication of the legal difficulties that journalists and publishers in that part of the UK have to face every day.

And finally, the Supreme Court is hearing an appeal today and tomorrow in the case of PNM against The Times and the Oxford Mail. The facts are complex, but essentially, it’s a case involving postponement orders made under section 4(2) of the Contempt of Court Act, and the balancing exercise that has to be undertaken between an individual’s Article 8 rights (privacy) and open justice.

One eminent QC has described the case as a difficult one which is likely to produce a definitive restatement of the principles which apply when a party to criminal cases is seeking to depart from the principles of open justice.

So I can safely predict that we can expect a hear a lot more about PNM as soon as the Justices have made their decision and the judgment is made public.

You know the proverb: “may we live in interesting times”. 2017 looks set to be very interesting indeed – though in all honesty, I would quite like the next 12 months to be as dull as possible.

Happy New Year!