The New World (page 240)

In a judgment handed down today, the New Zealand Court of Appeal rejected an attempt by Mike Hosking, a former TV presenter, to prevent a women’s magazine from publishing photos of his twin daughters. Hosking and his estranged wife, Marie, had appealed against a High Court decision allowing New Idea to publish photographs taken by Simon Runting in an Auckland street. The Hoskings said they feared the twins might be kidnapped if photos were published.

Despite ruling in favour of Hosking on the facts, a majority of the court came down in favour of a privacy law.

Justice Gault, president of the court, and Justice Blanchard said at paragraph 148:

We think the case for a right of action for breach of privacy by giving publicity to private and personal information is made out. We take that view, in summary, because:
· it is essentially the position reached in the United Kingdom under the breach of confidence cause of action…
· it will allow the law to develop with a direct focus on the legitimate protection of privacy, without the need to be related to issues of trust and confidence.

Justice Tipping said at paragraph 247:

The result in substantive terms of recognising a separate tort is not significantly different from the extended form of the breach of confidence cause of action as it is being developed in the United Kingdom. What is at stake is really a matter of legal method rather than substantive outcome. It cannot logically be held that one method is an unjustified limit on freedom of expression whereas another is not. New Zealand Courts have, to a greater or lesser extent, already espoused a separate tort to protect privacy interests. I am not persuaded there is any good reason to put the clock back and confine our law to a method of analysis which does not fit the true nature or the realities of the cause of action.

But Justice Anderson said at paragraph 271:

I think we should not lose sight of the fact that this litigation came into being to prevent the publication of photographs of people in a public street. It is quite unlike the situation of Mr Peck in that there was nothing in the least personally embarrassing or distressing about the material which might be published. We have held, unanimously, that there was no right in anyone to prevent publication, but in the process the majority has declared that there is a new civil liability for publishing facts about a person. In my respectful view, this new liability, created in a sidewind, is amorphous, unnecessary, a disproportionate response to rare, almost hypothetical circumstances and falls manifestly short of justifying its limitation on the right to freedom of expression affirmed by the New Zealand Bill of Rights Act.

Conditional fee agreements (page 216)

For an example of a CFA, see my article in The Daily Telegraph today.

Ken Macdonald (page viii)

The new Director of Public Prosecutions gave his first media briefing in February 2004. Asked about his convictions as a student for possessing and procuring cannabis, Ken Macdonald said they would have no bearing at all on the policy of the Crown Prosecution Service’s towards drug prosecutions.
“I take a straightforward prosecutor’s view,” he said. Parliament makes the law and we apply that law to our work. If you’re asking me whether my view of these issues is affected by my experience 34 years ago, the answer is ‘no’.”

Douglas v Hello!: costs (page 83)

In January 2004, Mr Justice Lindsay ordered Hello! to pay most of the clamants’ legal costs. The Douglases and OK! were awarded 75 per cent of their costs in the liability trial and 85 per cent of the costs of the November hearing that decided the size of their damages.

The judge pointed our that Hello!’s conduct had “fallen well short of what is to be expected and in some respects was downright deceitful or misleading.” He concluded: “I have no doubt but that... the winners of the Liability Hearing, in substance and reality, were the Claimants.”
However, Hello! was granted permission to appeal.

After Reynolds (page 190)

Ruling in January 2004 in the case of Jameel v Wall Street Journal, Mr Justice Eady clarified the principles of “Reynolds privilege”.

He said: “It can thus be readily appreciated that the defence exists ultimately not to afford journalists a special privilege, or a degree of protection which is not available to other citizens, but to protect the public itself in respect of allegations of which it would be wrong to deprive us. Because it can on occasion afford such protection to allegations of the gravest and most damaging kind, and which may though false remain uncorrected when the defence is upheld, it is tolerably plain that it can only be sustained after the closest and most rigorous scrutiny — primarily, of course, by the application of Lord Nicholls’ ten tests.”

Maintaining a narrow view of qualified privilege, Mr Justice Eady acknowledged that “enterprising and investigative journalism should be viewed as fundamentally important from the public point of view in a democratic society” He accepted that courts “must pay due regard to the perishability and ephemeral nature of some news material”.

But then, he concluded, the need for the public to be kept up to date is not to be confused with the quite understandable need of editors and journalists to obtain a scoop or to publish ahead of their rival newspapers. That is why claims of urgency on the part of journalists need to be carefully scrutinised and measured against the true entitlement of the general public, which is to be kept up to date with accurate and responsibly researched information.”

Harrods v Dow Jones (page 207)

Despite Mr Justice Eady’s plea, Harrods went ahead with its libel claim against Dow Jones — and lost. The case was thrown out by a jury in February 2004 and Harrods was ordered to pay Dow Jones’s costs, which were expected to be nearly £200,000.

“I was not concerned with winning damages in this case,” Al Fayed said afterwards. “I simply wanted the Wall Street Journal to accept its comparison was unwarranted and to apologise to me and to Harrods.”

Privacy in Germany (page 231)

Part of this section is based on an article written by Nadine Kari for Farrer & Co's client newsletter.

Janette Martin (page 233)

Janette Martin agreed to settle her case for £4,000 (plus costs) in February 2004. As a result, the British Government avoided the adverse judment that might have forced its hand.

The full judgment can be read here.

Criminal voyeurism (page 245)

The Sexual Offences Act 2003 takes effect on 1 May 2004. See the Home Office website. This extract from the Home Office Circular explains how the voyeurism law is intended to work.