Keep your contacts on your own kit

Keep your contacts on your on pc/mac and create the list with your own software.

That's the best advice following a court action against a journalist who has been told to hand over his contact list to his ex-employer.

Junior Isles' contacts are the property of his ex-employer PennWell. Isles walked out of PennWell at the end of last year and launched a rival. PennWell went after him and two colleagues for their contacts. It's our property, the publisher said.

The High Court agreed. The list was created and administered on PennWell kit with PennWell software. Hence it is PennWell's property, the Court says.

So make sure you keep it on your property, whether it be electronically or on paper. Buy your own address book, Rolodex or Filofax if you don't like the electronic stuff. And use your own biro.

Goole tangled up in libel

Fate has dealt another blow to Google following the Viacom copyright action. This time it may be hit by the UK libel laws, that chilling tangle of case law and statute which only the English and Welsh legal system could invent.

Dotworlds, a UK-based Internet service company, may sue Google in the UK courts for the material the Google search engine delivers to searchers who seek more information on dotworlds.net.

Dotworlds' director, Brian Retkin, claims some of the material is defamatory. He says he has asked Google not to deliver it up to searchers. But their discussions, he says, have been fruitless as the material keeps appearing. Hence the threat of libel.

Not our problem, says Google. We are not the publisher, just the innocent distributor. That is a valid defence under English and Welsh libel. But only as long as they really are the innocent distributor.

Once the distributor has been informed that the subject of the material considers it libellous of them, then the distributor stops being innocent and becomes the publisher. If they keep distributing it. And Google is keeping distributing the material Retkin objects to.

It is even worse, says Retkin. The material would probably never have been seen because it comes from obscure sites. It's the power of Google which makes it readily available to the wide world.

Retkin and Google have been here before. They had a similar spat at the end of 2005. Google was too slow to delete items then, Retkin then said; so he threatened an action. But did not follow through.

Now he's come back for another go.

Will he or won't he go the whole hog this time?

The only legal issue which such a case would clear up is: what is a reasonable time and process for a distributor to use to take material down once it has been notified that the subject considers it libellous?

Behind all of this there is, however, a problem. The old problem of the balance of free speech and the right to guard a reputation. I already think that the balance in England and Wales is too much in favour of the reputation side.

But this raises a deeper issue. Who is the distributor to judge? Many will be extra cautious and take the material down., especially if they see that Google with all of its legal riches is willing to do so. So, without any judgement on the actual content of the material, down it comes.

Many publishers already act like this. They don't want the hassle. They don't dispute cases. They just fold. They know the odds are stacked against them. So the stranglehold of libel gets tighter.

Here's hoping that Google fights.

Hug an Appeal Court Judge today

Some days you just want to give those Court of Appeal judges a great big hug. This is one of those days.

Those lovely judges have backed up a fair comment defence for a review of an opera in the Evening Standard. The composer, Keith Burstein, took to his lawyers over a review of his opera “Manifest Destiny”.

The review said “I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult.”

Burstein had argued that this accused him of being “a sympathizer with terrorise courses” and that he “actively promotes such belief in his artistic work.”

The High Court had given him the verdict and damages. Now the Court of Appeal has overturned that judgement. The ruling says the words are plainly comment and that no reasonable jury could treat them as a statement of fact.

We should not forget that comment can be “pungent and offensive.” And that the “fair” in “fair comment” does not mean you have to be fair, in the sense of being “just, unbiased, equitable, legitimate, in accordance with rules,” as the OED says.

It means “it is fair to comment”, you are allowed to comment.

Burstein has to give back the damages he won in the earlier round and pay the Evening Standard's costs.

Now that's fair.

If only those judges had been around for the Liberace case in 1959.

F**k Off, S**t and P**t, all in the same story


I love English and Welsh libel. For one, I earn part of my living training journalists and publishers in its pitfalls. For another it throws up such weird cases.

The latest is the MP, Martyn Jones, who was accused of telling a security guard to F**k Off, twice.

The MP, said the Mail on Sunday (MoS), had been challenged by a security guard at Portcullis House. “You should know who I am”, he is said to have told the guard.

Despite the evidence of the guard, the MP has just won £5,000 in damages. The Court believed his version of events in which he swore, “I don't give a s**t who you are, you should know who MPs are.”

MoS went for the high ground defence: justification. The defence claimed the story was true and would prove it. The guard gave his evidence backing up the MoS story.

Justification is always a risky business. Who will the court believe? An MP who has represented Clwyd South for 20 years or a Metropolitan Police security officer? The MP has it.

A small incident between a man wearing a bow tie trying to enter his office building and a security guard on May 10 last year takes up valuable court time and results in damages of just £5,000.

It is clear that the Woolf reforms, attempts a few years ago to speed up civil cases, have failed in this one.

No doubt Jones feels vindicated. The security guard humiliated. The MoS angry. Only the lawyers really won. Both Jones and MoS employed QCs to represent them in the three-day hearing. With QCs charging something in the region of £4,000 a day, that's quite a bill.

I may love the libel law because it gives me income and entertainment. But it does need a thorough overhaul in its procedures. What Jones did not have to do was to prove that he had been damaged by the MoS story. No claimant has to. It is assumed. But as the old core of libel was damage to reputation, surely that is what the claimant should have to prove.

Who thought any less of a bow-tie wearing 60-year old backbench MP because it was reported that he told a security guard to F**k Off twice? The good people of Clwyd South must be very sensitive if they through any the less of him. As for the rest of us, who cares?

As the case was going on, a blogger called Jones a “pompous arrogant p**t”. That is worth another £2,000 to Jones, I would have thought.

Harry, William, their Mum and privacy

Channel Four 1; The Princes:0


It was good to see that Channel Four did not buckle under the open pressure Princes Harry and William exerted over the documentary about Diana's death.

The whole affair had some quaint sidelines to it. Not the least of them was having a senior aide view the documentary and then write on their behalf what their reaction would have been if they had seen it. The aide complained that Channel Four would not release a tape of the documentary for them to see. Yet the aide was able to trot along to Channel Four's offices to see it. Would that be too much to ask of the Princes if they really wanted to judge it?

Good chance of an injunction
The most welcome part of it was that the Princes did not reach for their lawyers. With the way that privacy law is developing in England and Wales, they might have had a good change of gaining a pre-broadcast injunction, at the least.

Their action could have been triggered by Article 8 of the Human Rights convention now in UK law as a result of the 1998 Human Rights Act.

Article 8, headed Right to respect for private and family life says: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

There are two paragraphs in the letter sent to Channel Four which focus on the issue of privacy:

“These photographs, regardless of the fact that they do not actually show the Princess's features, are redolent with the atmosphere and tragedy of the closing moments of her life.

“As such, they will cause acute distress if they are shown to a public audience, not just for themselves, but also on their mother's behalf, in the sense of intruding upon the privacy and dignity of her last minutes.”

There's that word again: privacy.

I doubt that this is the end of the issue. The documentary is broadcast. But in future I expect them to move more swiftly for their lawyers. It will set a very unhealthy precedent for UK media. But I suspect that they have an unhealthy attitude to freedom of expression already.

Dad's done it
After all, their old man has used the law to squash further publication of his diaries. Diaries in which he made very derogatory remarks about foreign leaders, among others. And diaries which he had circulated himself to a select band. But not for us to see what our next monarch really thinks.

What does “respect” mean?
As for the boys, it all hinges on the word “respect” in Article 8. I can't find a definition of respect in the standard legal dictionaries I've got access to. If somebody else can find a definition, please tell me. It will, surely have to be defined somewhere in case law.

The full text of the letter from Clarence House.

Why did it take them so long? The PCC ruling and Ruth Kelly

I suppose it was decorum which made the Press Complaints Commission deliberate so long over Ruth Kelly’s objection to a Mirror article. She complained to the PCC about an article published on January 8th. It said she had sent her child with learning difficulties to a private school. This was an unnecessary intrusion into the child’s ability to attend its new school, she said. It therefore breached the PCC’s code clause 6, she claimed.

Only on March 15th did the PCC reply. Its decision: “Not upheld.” In other words, no go Ruth.

It really was a bit of a no-brainer. A cabinet minister with previous responsibility for schools should have her decisions about her children’s schooling matched against her public policies.

The complaint was all part of the Labour Government’s steady pressure on the press. The Government wants to extend privacy to be as wide as it is in, for example, France. One of its first acts was to introduce the Human Rights Act. This includes an explicit privacy clause.

Some judges have taken this as a cue to develop a fully-blown privacy law through judgements such as against the Mirror, again, over the Naomi Campbell story.

The recent libel case brought by Sir Martin Sorrell was twinned with an action for breach of privacy. We’ll see more and more of this.

We won’t see the Government letting up either. But any plans to make the role of the PCC official and to create the equivalent of an Ofcom will be ditched by any serious politician.

If they want to cosy up to the likes of Murdoch they will not think of making the PCC anything but what it is: voluntary and run by the press for the press.

Because, strange to say, you get very little “invasion” of the “privacy” of press tycoons. They, after all, have powerful weapons with which to answer back.

But for ex-press tycoons, the rules are different. As “Lord” Conrad Black is now finding out.

The full PCC decision.

And the article Kelly found so offensive.

The PCC code.