American Bar Association
Forum on Communications Law
Report from London
Edward J. Davis and Bruce E.H. Johnson
When the American Bar Association convened in London for the second half of the 2000 Annual Meeting, "Common Law, Common Bond," the Forum on Communications Law contributed to the trans-Atlantic exchange by sponsoring a program entitled "Privacy, Paparazzi, and the Press" in Westminster Central Hall on July 18, 2000. Cosponsored by the Media Law and Defamation Torts Committee of the Section on Tort and Insurance Law and organized by Jim Borelli of Media/Professional Insurance, the program brought together a panel of distinguished English and American lawyers and jurists to consider newsgathering and broadcast issues. The program provided a rare opportunity for an audience of almost a hundred attorneys and journalists from Europe and the United States to compare principles of English and American law, to discuss the possible effects of England's steps toward harmony with European Community laws, and to observe the approaches that English and American lawyers take in counseling media clients about newsgathering and in representing or opposing them in litigation.
Professor Rodney Smolla of the University of Richmond moderated the program and set the stage for a series of demonstrations based on a hypothetical fact situation that he devised, which would have seemed familiar to Jacqueline Susann. The hypothetical placed the fictitious Anglo-American television newsmagazine Inside Story in the position of receiving confidential information from a security guard/ chauffeur about his employers, a young movie star and her elderly husband, a film producer in Hollywood. The information concerned the producer's terminal illness, his assisted-suicide pact with his wife, and her ongoing affair with a British actor. The guard had obtained audio and video recordings of telephone conversations between the star and her husband's doctor about lethal doses of morphine; intimate conversations between the star and her husband about his desire to die quietly; and sexual encounters that the star enjoyed on both sides of the Atlantic with her lover and with the security guard himself, who had previously been her lover. Did we mention that there was also a will?
Laurie Flynn of the Guardian newspaper played the role of the producer and reporter for Inside Story. The audience listened in as he consulted with David J. Bodney of Steptoe & Johnson LLP in Phoenix and Mark Stephens of Finers Stephens Innocent of London on the legal risks that might attend the pursuit and broadcast of a story based on the guard's revelations. Flynn and his counselors discussed ways to minimize those risks by carefully structuring the investigation and shaping the ultimate broadcast. They tested the defense of public interest (against a claim of breach of confidence in England) and weighed the possibility that an injunction would be sought to prevent the broadcast in England, while an action for damages for invasion of privacy might be more likely to prevail in the United States.
Professor Smolla then moved the action ahead to the hypothetical broadcast, which was aired after the producer's death. The program segment featured hidden-camera footage that the guard had provided of his employers in their bedroom saying their final good-byes on the night that the producer died. There was no footage of assisted suicide and no explicit claim that the star hastened her husband's death, but there were sufficient juicy, suggestive details for a claim of defamation by implication (in the United States) or by innuendo (in England) to be mounted.
The movie star, played by Michele Smolla (braving risk to her reputation), then consulted American and English counsel to discuss her options for suit. John Walsh of Carter, Ledyard and Milburn in New York and Keith Schilling of London's Schilling & Lom outlined possible claims sounding in defamation, invasion of privacy (in the United States), breach of confidence (in England), and breach of the duty of loyalty (in the United States), as well as the damages and defenses available in each jurisdiction and other advantages and drawbacks of suing in England or the United States.
Sir Michael Davies, a retired judge of the High Court who assigned defamation cases as keeper of the Libel List, then presided over a mock trial under English law of the movie star's claims. James Price, QC (Queen's Counsel), represented the plaintiff and Gavin Miller, QC, represented the defendant. The plaintiff and the reporter were gently examined and rigorously cross-examined, displaying talents for mischievous improvisation that rivaled the oratorical skills of their barristers. After closing arguments, the jury, consisting of the audience, applauded all of the participants and rendered a majority verdict in favor of the plaintiff.
Former High Court judge Sir Oliver Popplewell and solicitor David Hooper of Biddle & Co. then joined the panel for a discussion of some of the issues raised by the demonstrations. Questions of conflicts of laws were aired, especially in light of the contrast between claims (and potentially substantial damage awards) for invasion of privacy in many states in the United States and the narrower equitable claim of breach of confidence available in England, which could permit a prior restraint but not aggravated or exemplary damages.
Potential obstacles to defamation claims and defenses on both sides of the Atlantic were also discussed. These included problems in establishing libel by implication or innuendo, public figure status (in the United States), and violations of the press code and aggravated damages for the way that the information was obtained (in England), along with the possible consequences of using intercepted communications in civil case for the show and in the civil or criminal proceedings for the security guard.
There was also spirited speculation about the impact of the Human Rights Act of 1998, which goes into effect in England in October 2000 and is expected to influence the development of the equitable wrong of breach of confidence and perhaps lead to the recognition of a privacy claim. The Human Rights Act enjoins public authorities (such as courts) to interpret and apply laws and regulations in accordance with the positive obligation to ensure that the basic human right to respect for private and family life (as enshrined in article 8 of the European Community Convention of Human Rights) is secured, except as may be necessary to protect other freedoms (such as freedom of expression). It was suggested that the Act may have the effect of adding teeth to decisions of the media's self-regulating bodies, the Press Complaints Commission and the Broadcasting Standards Commission. Neither commission can award compensation or impose prior restraints, but their decisions may be appealed to the courts, which could decide to do so. Lawyers and journalists in England, and American attorneys with clients whose work is seen there, are eager to see how courts will balance the interests in privacy and freedom of expression as the Act goes into effect.
The discussion resumed on September 25-26, 2000, when the Libel Defense Resource Center's London Conference 2000 reconvened British, American, and other media lawyers to consider recent developments in English law and practice and to discuss the imminent incorporation of the European Convention on Human Rights. Media lawyers around the world continue watching with interest to see whether English libel and privacy law continues to evolve as rapidly as it has been doing of late.