There’s A Breath of Legal Fresh Air Blustering Across the European Media Landscape

Philip M. Stone September 15, 2010 - Follow on Twitter

The 17 judges of the European Court of Human Rights have ruled unanimously in favor of journalists protecting their sources in a Dutch case; in the UK the judge who almost single-handedly has written privacy case law that greatly favors the private affairs of celebrities over the media’s right to publish is being replaced; and Le Monde, France’s most prestigious newspaper, says it is suing “an unnamed person or persons” for ordering the domestic intelligence agency to investigate one of its journalist’s sources That’s fresh media air sweeping across Europe!

The Dutch case is important because a lower court had specifically ruled that in balancing the rights of journalists versus the need of police to obtain evidence to investigate a crime that the police won. But the new ruling specifically now tells Europe that in such cases there must be “an independent assessment as to whether the interest of the criminal investigation overrode the public interest in the protection of journalistic sources,” and in the Netherlands, as with other European countries, there is no such apparatus in place.

The Dutch Justice Minister is to present a new Bill to Parliament within a few weeks on protecting journalists’ sources and a spokeswoman said a reaction to the court’s decision will be included in a report accompanying the legislation.

But while the media may cheer this particular court decision it probably won’t be near as fortunate with another decision expected soon from the same court concerning the right of privacy over the right to publish. The court has previously ruled that we all are entitled to privacy when “off duty” and it is said to be fast-tracking the UK’s Max Mosley case so it can reinforce that ruling. Then Formula 1 President Max Mosley in 2008 successfully sued for invasion of privacy against Murdoch’s tabloid News of the World for writing about various Mosley sex orgies. The judge said those orgies were no one’s business but Mosley’s and awarded him £60,000 and court costs said to have been around £1 million. Mosley has now taken his case to that European Court asking for a ruling forcing the media to tell targets they are the subject of an upcoming expose, giving them time to apply for pre-publication injunctions.

The former British Labor government and now the new Conservative-Liberal Democratic coalition government have said they want to reform the UK’s libel law and they believe privacy law should come from Parliament and not the courts. So it is of a major note that the High Court judge who got most of the libel and privacy trials and the requests for pre-publishing injunctions is to be replaced by a judge who the media believe is more favorable to their cause.

Judge Eady, the judge who ruled in the Mosley case, has served two terms of three years each as the senior libel and privacy judge, but come October 1 he is moving to a new position to be replaced by Mr. Justice Tugendhat who based on past rulings seems to more evenly balance privacy with publishing than did Eady.

For instance, there is the celebrated case of former England football captain John Terry who had gotten a gag order to prevent the media from reporting on an extra-marital affair but it was Tugendhat who ruled against a further request for a so-called Super Injunction request that prohibits even telling that an injunction had been granted. The judge ruled the request “was not necessary or proportional.”

One of Tugendhat’s last cases as a barrister before becoming a judge in 2003 was to successfully represent Michael Douglas and Catherine Zeta Jones in their lawsuit against Hello Magazine for printing unauthorized pictures taken at their wedding when they had signed an exclusive deal with rival OK magazine.

The Brits don’t overly criticize judges too much, but Eady was an exception and in an outspoken speech in March he hit back. "The media have nowhere to vent their frustrations other than through personal abuse of the particular judge who happens to have made the decision. It has become fashionable to label judges not as independent but rather as 'unaccountable', and as hostile to freedom of speech." He added that since Parliament had not passed privacy law it was up to the courts to make case law with each new ruling.

And then across the English Channel (or as the French prefer, The Channel), Le Monde has gone on the attack accusing President Sarkozy of setting loose the French domestic intelligence service to find out the source of very embarrassing leaks concerning L’Oreal heiress Liliane Bettencourt and alleged illegal donations given to Sarkozy’s 2007 Presidential election campaign. The scandal is huge in France.

Police say a senior official has been implicated but Sarkozy’s office, “totally denies the accusations by Le Monde and the presidency adds that it never gave any instructions to any service at.” That doesn’t say the intelligence service didn’t actually investigate – it actually admits it did -- the statement just says the President didn’t order it. 

In a front page story, Le Monde had bannered, “The Élysée Broke The Law On Protecting Press Sources” and editor Sylvie Kauffmann wrote, “The counter-espionage service was used to find the source of one of our reporters.”

In a strange twist of fate Le Monde is actually using a law that Sarkozy’s presidency reinforced and on which he said at the time, “Any self-respecting journalist does not divulge his sources. We all need to understand this, and we all need to accept it.” In an editorial Le Monde wrote, “The law is absolutely clear. The confidentiality of journalists’ sources is protected in the exercise of their mission to inform the public.”

No doubt Sarkozy is even angrier that he failed in his attempt in June to stop Le Monde being sold to three businessmen with ties to the political opposition. ftm wrote at the time, “The last thing Sarkozy needs is for Le Monde to change its political center editorial stand to well left of center.” There’s no doubt the Bettencourt scandal won’t help Sarkozy’s 2012 reelection bid.

See also in ftm Knowledge

The Privacy Issue

The privacy issue touches every aspect of media. From consumer protection and the rights of individuals to news coverage privacy is hotly debated. New media and old media stumble and the courts decide. ftm offers views from every side of the Privacy Issue. 37 pages. PDF (April 2010)

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