Reference:  EWHC 2829 (QB)
Court: High Court, Queen's Bench Division
Judge: Eady J
Date of judgment: 6 Oct 2010
Summary: Libel - privacy - limitation period - publication - abuse of process
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Appearances: David Hirst (Defendant)
Instructing Solicitors: Foot Anstey for Mirror Group; Rhiannon James MGN in-house advisor
The Claimant came to notoriety in 2006 when she was charged with blackmailing a female immigration judge and stealing video tapes from a male immigration judge. Her convictions were overturned in 2007. In the interim the claimant was imprisoned at Holloway prison. Mirror Group Newspapers published two articles about the claimant in October 2006. The first was a comment piece on the claimant’s then recent trial and imprisonment. This was published on 1 October 2006. On 8 October 2006 a second article was published which reported the claimant’s presence at HMP Holloway and was accompanied by two photographs taken from range showing the claimant openly walking in the prison yard, accompanied by prison officers. In relation to the first article the claimant issued a claim form on 17 May 2010 advancing a libel claim. She complained that the descriptions of herself as a ‘scrubber in every sense’ and a ‘cleaner-cum-slapper’ were defamatory. The claim related to the hard copy publication of the newspaper and online publication until 21 May 2009. On 10 June 2010 the claimant issued a privacy claim in relation to the photograph published with the second article, in the hard copy edition. The Defendant issued applications for summary judgment on the basis that both claims were time-barred, and to set aside a default judgment obtained in the libel action. In the case of the libel claim the Defendant contended that evidence of publication was limited to publication by a third party journalism aggregator website. The Defendant argued that the claimant had no reasonable expectation of privacy. The Defendant applied for a general civil restraint order, and referred in its limitation argument in the privacy claim to a remarkably similar claim on the same facts that the claimant had brought in 2009 against the Ministry of Justice, in which a 1 year limitation period was applied by a District Judge. No application to disapply the limitation period was made.
Whether the defamation and/or privacy claims were time barred.
Whether there was any evidence of publication by the Defendant.
Whether the claimant had a reasonable expectation of privacy.
Granting the applications,
1. In circumstances that the Defendant’s own website had not published the defamation claim article since 2008, hard copy and online copy limitation periods had expired. On the claimant’s case there was a publication window of just 4 days within the limitation period in which the article appeared to have been available via a third party website for which the defendant was not responsible and in relation to which no evidence of publication to third parties was offered.
2. The nature of the activity undertaken by the claimant in the photograph was central to the question of whether there was a reasonable expectation of privacy. The activity was innocuous and non-intrusive. The claimant was simply walking in the prison yard when a photograph was taken from long range. No information about the claimant that was not already in the public domain was conveyed by the photograph, nor any embarassing information. There was no reasonable expectation of privacy connected with the information that the claimant was in a prison, or at all. Little turned on the fact that there was evidence of the claimant’s contempt for the Article 8 rights of others.
3. It was not necessary to decide that the privacy claim was time-barred.
The Judge was invited to follow a District Judge in an earlier privacy claim brought by the claimant in the County Court on the same facts against the Ministry of Justice and decide that a period of one year’s limitation period applied to privacy claims, on the basis that equity may adopt an analogous limitation period from the law—in this case, the period of one year from defamation. The Judge was able to decide the privacy case on less controversial grounds, holding that there was no reasonable expectation of privacy in all the circumstances. The dismissal of the libel claim is a fresh reminder of the necessity of demonstrating publication to third parties of online material. The case also highlights how internet archival material may be targeted by an individual who has been cleared subsequently of any wrongdoing but isolates publications concerning one-time alleged misdemeanour. In this case the newspaper had prominently reported the overturning of the claimant’s conviction, but this may not always be so.