Me v EE ( How I sued EE for misrepresentation)
In November 2014 I was rather annoyed that suddenly my iPad was unable to access my free Deezer subscription that I have through my contract with EE for my mobile phone, especially as I had specifically asked whether that was the case when I took out the contract in-store.
Deezer said that my previous 13 months of access was a “bug” which was obviously bullshit. It was around the time that EE and Deezer ended their contractual relationship… So not a great surprise really.
In any event, I had access on my phone but not for my iPad which was important to me.
Doing what I do I was in a position to make a claim and deal with it that way.
Please find below my letter before action, which was heavily edited to form the summary for the particulars of claim that I entered into the Money Claims Online (MCOL) system.
My letter before action, send as a reply to the EE complaints department that had written to me in response to my complaint and also to EE’s registered address, was not answered, and they stated on the phone that they had not received it some 6 weeks after it being sent. I doubt that is the case, of course.
So I sent to the registered address a further copy of the letter before action along with a print-out of the claim form, so that EE would have an understanding of my grievance.
They sent an acknowledgement of service advising they were intending to defend the claim, then before the deadline is up, they wrote and said they were paying my claim “for purely commercial reasons”. Of course. EE admitted no liability whatsoever. Good on them!
In any case, I had the amount I claimed for (11x months of Deezer plus interest) plus court fee in my bank account shortly after the letter, so of course withdrew the claim online.
If you are in a similar situation as me and would like to issue against them for the withdrawal of the service, please feel free to use my below letter before action. Of course you will need to edit it to suit your circumstances. Don’t adopt my experience as your own.
If you have any questions, please feel free to ask. I may be able to help, I may not.
Good luck!
EE Limited
Trident Place
Mosquito Way
Hatfield
Hertfordshire
AL10 9BW
Dear Sirs,
Re: Joshua Baxendale’s claim for misrepresentation and breach of contract – Misselling of the Deezer service at point of sale on mobile phone contract
I am Joshua Baxendale of BLANK and I represent myself in relation to my claim against you, EE Ltd for misrepresentation and breach of contract. This relates to the statement at the point of sale by your sale staff confirming that Deezer mobile subscription would be included for the duration of the full 24 month plan.
I refer to my letter of complaint dated the BLANK and your subsequent response dated the BLANK. Please find copies enclosed.
This letter is being sent to you in accordance with the Practice Direction on Pre-Action Conduct (the PDPAC) contained in the CPR. In particular, we refer you to paragraph 4 of the PDPAC concerning the court’s powers to impose sanctions for failing to comply with its provisions. Ignoring this letter may lead to our client commencing proceedings against you and may increase your liability for costs.
MISREPRESENTATION
On or about the BLANK, you, by means of one of your sales staff at EE Western Road, Brighton represented to me that I would have access to the full Deezer mobile package for the 24 month duration of my mobile phone contract. Relying on that promise and statement, I duly entered into the contract with yourselves.
During the sales exchange – I specifically asked if I could use the Deezer subscription on both the device I was purchasing from EE – a BLANK – and my iPad that I previously owned. I was advised that I was getting the full Deezer mobile package – so yes I could. I was able to access Deezer on my iPad for approximately 14 months after the contract date.
I was happy with that response mostly because of the high cost of the monthly charges was offset with by access to unlimited music on both the BLANK and iPad. This representation was made with the intention of inducing me to enter into a contract with you.
In reliance on and induced by this representation, I entered into a contract with you on or about the BLANK for the providing of a mobile phone, listed above, and access to the EE phone network with various usage options in exchange for £ BLANK per month for 24 months. The representation was an implied term of the contract. Pursuant to the contract, on or about the BLANK I paid you the amount of £42, recurring monthly by direct debit.
In fact the representation was false and Deezer withdrew the iPad access to Deezer on or around the 17th of November 2014 in breach of the contract.
Deezer have since confirmed to me that I should never had access to their service on my iPad in any case.
Further, I contend that you made the representation knowing that it was false, without any genuine belief that it was true, or recklessly not caring if it was true or false. During a telephone call with level two technical support regarding this issue, it was confirmed to me that I was “misinformed” when I took out the contract. I have a telephone note of the conversation.
As a result of these matters, I have suffered loss.
I seek recession of the mobile phone contract and damages. That is, termination of the contract at an agreed date, that is no later than 28 days of the date of this letter.
I have calculated the amount due on the basis of the difference required to be spent with Deezer to fulfil an equivalent service. Therefore, at the date of this letter the amount due is £110 plus interest. I have calculated the amount of interest due on the basis of being 8% from the date that Deezer access on my iPad stopped, namely the 17th of November 2014. Therefore, at the date of this letter the amount of interest due is £0.58. The total amount due from you to our client is therefore £110.58 Interest continues to accrue at the daily rate of 8% per annum.
RELEVANT DOCUMENTS
I enclose copies of the following documents that are relevant to this matter:
- Letter of complaint dated BLANK.
- Response from EE dated BLANK. This response was inadequate, did not respond to majority of points.
In accordance with the PDPAC, please provide to us within 14 days copies of the following documents, which we believe are relevant to this matter and are likely to be in your control:
- Original signed terms and contracts.
This is not purported to be an exhaustive list of documents relevant to this matter. Please confirm that you will take proper and appropriate steps to ensure no relevant documents, including electronic documents that are in your control, are altered, lost, destroyed or disposed of.
ALTERNATIVE DISPUTE RESOLUTION
I anticipate that negotiation will be an appropriate form of ADR. However, given the apparent failure by Customer Relations to read the complete letter of complaint or respond to all points, this may be difficult.
ACTION REQUIRED
Payment of the full amount due should be remitted to the following account within 14 days of the date of this letter:
Sort Code: BLANK
Account number: BLANK
If you do not consider the amount set out in this letter to be due to our client, an acknowledgement to this letter should be provided within 14 days of receipt, namely by the BLANK. Your full response to this letter should be provided no later than 21 days after the date of this letter, namely by the BLANK.
In the absence of a full response by that date, I will issue and serve proceedings without further notice.
I reserve all its rights, including the right to commence proceedings against you (without further reference to you should that prove necessary) for misrepresentation and breach of contract and to seek an order for rescission and damages plus interest and costs.
As set out above, ignoring this letter may lead to our client starting proceedings against you and may increase your liability for costs.
I await hearing from you.
Yours faithfully,
Josh Baxendale
As an interesting aside – EE do not appear to have a copy of my written contract. The call centre say the shop has it. The shop says the call centre has it. Would have liked to push them further on this – but I’ve got other things to do.
Enjoy!
Was the White Radio Leeds interview1 with Massimo Cellino libelous?
This morning when the Guardian was reporting on the imminent outcome of the Football League’s hearing into Massimo Cellino’s appeal against the decision to prevent him from taking a 75% share in Leeds United (or whatever holding company is currently the owner), called it a “potentially libelous interview”. Since then, it appears that the article has been amended to call it an “inflammatory” interview instead. 2
Calling it libellous in the first place may have also been libellous!
I’m going to skip around a basic description of libel law as, well, there are far better people than me who have explained what it is, and specifically what it’s updates were by the Defamation Act 2013.3
So – what did Cellino say that could be libellous?
Unfortunately due to the nature of libel law – in that repeating a libellous claim can itself be a libellous act – means as a risk-averse lawyer, I will not repeat the claims.
But when he insults David Haigh and GFH Capital themselves – calling them various names as a good latin-blooded football owner would be expected to do – he would not generally be libelling either DH personally or GHF as a company. And I can cite myself on this matter – https://thelawofsurfing.wordpress.com/2011/04/12/why-is-dickhead-not-libellous/
It’s the allegations as to dishonesty and untruthfulness that could be more damaging. To allege dishonesty is a serious thing, and something that a bank and a Chief Executive would likely take seriously. Richard Sharpe’s linked-to blog above is a good idea to see what any claimant would have to prove in order to succeed.
If I was GFH or DH, would I consider suing? Probably not. It would be terrible PR, to get an outlet of LUFC fans against the owners in an open way. The vitriol felt towards Ken Bates was incredible – and totally deserved – but it’s a position few people would be happy putting themselves in. They would certainly need an exit strategy, as Bates had, and perhaps as GFH have!
Also to consider is the old maxim – “never sue a man of straw”. You’ll never get the damages you seek (still limited to around £220,000 I believe) and although you may make them bankrupt (which could be your aim); it’s likely the libellous material would have been published thousands of times online and be more popular than ever (see Spycatcher, Lola by the Kinks or anything else reported to be “banned” and it’s subsequent rise in popularity). You would also get hammered in costs in doing so. Which again, may be ok to do if the claimant fancies the fight enough.
One only has to hope that it’s not started in the name of Leeds United as the action against Melvin Levi was. The Club had to foot the bill for that, remember?45 And it could conceivable be started in the name of the Club if DH and GFH were vindictive enough, as it could be argued that the Club’s reputation has been damaged and the undefined “large financial loss” has happened.
Although not getting Cellino’s millions would likely fall in that bracket.
If any of the potentially-libelled parties wanted to start proceedings, I’d certainly love to get those instructions, and a good case could likely be argued on the scant facts that are available, but I’d also be confident if I were to get instructions to defend the claim. There is a lot of wriggle room. Not to mention that the things Cellino said are both opinion and have a very large public interest, especially to the fans of Leeds who are still one of the most-supported teams in the UK.
I’m not even going to get into the area of whether or not it was legal for White Leeds Radio to record a conversation without permission. I’ve always thought it wasn’t a good idea – let alone if it was your intention to publish it and it was achieved by guile. I have to admire the balls on the guy – to ring up Levi and Cellino and not be honest that they are calling with the express intention to publish the conversation. It’s not something that a person bound by the same Code of Conduct as I would be comfortable to do (I hope!).
In conclusion – there isn’t one. The horrible lawyers response – “it depends” would apply here. It would be so difficult to say yes or no and to give an equivocal answer. A few more hours of research would be needed in order to determine a better one. However as said above, both sides would probably have a case.
But it will all settle outside of Court in any case, so you know… whatever.
MOT? Certainly.
About Me: I am a Leeds United and Brighton and Hove Albion fan who is passionate about football, both in the game itself and the way it is run, regulated, and every little thing in between that.
And yes, I can support two clubs. And the answer to the next question is – I hope for a home win for the first game and then for a win for whoever is closer to the play-offs the second.
2http://www.theguardian.com/football/2014/mar/31/leeds-united-takeover-appeal-monday-massimo-cellino
Is volunteering to take part in a Distributed Denial of Service Attack (DDoS) a valid form of legal protest?
For a few years since studying Internet Law as part of my law degree I have always wondered if volunteering to take part in a DDoS attack by downloading software as a political statement is protected by Article 10 of the European Convention on Human Rights (ECHR).
As is normal when looking at laws applied online, there often needs to be a real-world parallel drawn. I wrote a mini-dissertation on this subject and will probably publish on here soon enough. In this case, the right to peaceful protest, granted under the rule of law is a good place to start.
A person has the right to peacefully protest in the UK. This was acknowledged by Nicolas Price QC when sentencing Francis Fernie, who threw sticks at Police outside the Fortnum & Mason occupancy/protest in March 2011[1]. Anti-war marches were attended by nearly a million people in 2003, and not deemed illegal. Anti-cuts marches have also happened since then, and mostly people who committed offences while on the march (assault, criminal damage etc.) were arrested and charged. (I am talking generally; this is not an article about Police behaviour at demonstrations).
After the occupation of Fortnum, Police then arrested and charged the 150 odd members of the group with Aggravated Tresspass, contrary to s.68(1) of the Criminal Justice and Public Order Act 1994[2], which was an offence designed to curtail fox hunt disruptors. In July 2008, the CPS said that charges against 109 protestors were being dropped as prosecution was not ‘in the public interest’.[3]
So there was a line drawn in the sand between prosecutions. A person who threw placard sticks at Police was treated differently to people who occupied a shop peacefully. Specifically keeping in mind the words of Judge Price, perhaps the peaceful protestors had exercised their right to protest.
It is important to note that prosecutions of some protestors did continue, and that dropping prosecution of an act does not make it legal nor confirm a defence. But if it is treated like the DPP’s advice on assisted suicide and helping those ill to travel abroad, then it’s not too far a jump to say that the behaviour is nearly condoned.
So currently there is an act, of peaceful occupation, that is seemingly tolerated by the CPS. Right. Good. That’s real world. But how does this translate online? Well, the act of occupying a place that impairs it’s operation online is effectively a DDoS attack.
Ok, but is a DDoS attack actually illegal? Yes. Yes it is. Section 3 of the Computer Misuse Act 1990 makes it illegal to without authorisation to impair the operation of any computer. The maximum sentence for this is TEN YEARS in prison. This is longer than for Theft and various drug possession offences[4].
Now extrapolate the real-world defences and justification to online.
Let’s imagine a website as a ‘place’ which isn’t a fair leap. This is how it is used in common language, one ‘leaves site x’ and then ‘Logs In’ to another. This is the common parlance which we use regarding websites.
We also have to put a ‘person’ in that place, disrupting it’s activities. In the case of a DDoS attack, the person is replaced by their bandwidth and their requests for information from that server.
The person also needs to have in their mind some type of political endeavour for Article 10 to start to apply. That is the freedom of expression. Disrupting for disruption’s sake is not really an expression of anything. When applying this to those downloading freely Anonymous’s LOIC or DDoS program, then the person needs to be aware of the target, and each individual target. If the controller of the botnet targets PayPal after the withdrawal of services to Wikileaks, and each Activist downloads the program to attack PayPal, then fine. But the same person’s bandwidth, without their consent, should not be used to attack for instance, Visa. It would be the equivalent of dragging while asleep the Fortnum & Masons protestors to Selfridges. Although the sentiment may be the same, the execution and effects are very different and it now becomes disruption for disruption’s sake. Not likely to be protected.
To continue the metaphor, the bandwidth of activists online has disrupted the operation of a website. The protestors have disrupted the operation of the shop by their presence.
The real-world scenario and the online scenario have been and will likely to continue to be treated very differently by the Police and the courts. Why? It is cheaper for a Government for DDoS attacks to be a form of protest as they do not have the clean-up process afterwards nor do they have to pay Police overtime when managing the protest. There are no dramatic pictures in a newspaper – merely a 404 error on a monitor.
This allowance of one’s bandwidth to be used for a DDoS attack, which is a peaceful way of protesting, I argue, should be protected by Article 10 as a freedom of expression of political views in the same way a protest march is.
Perhaps if the Coalition’s promised peaceful protest laws were drafted[5] then there could be a different argument to take, rather than relying on patchy ‘rules of law’ for a written-in-stone right to protest. Oh well. It is the first thing they have not delivered on, after all…
[1] “It has been long established in this country that citizens have the right to demonstrate and march in favour or against particular causes. Such a rule has been described by the courts as a hallmark of our democratic society,” – http://www.guardian.co.uk/world/2011/jul/08/anti-cuts-protest-fernie-sentence
[4] Argued by me that this should be changed and why https://thelawofsurfing.wordpress.com/2011/03/13/can-i-amend-the-computer-misuse-act-please/
Twitter: Will blocking Tweets turn the volume up or off?
Does a growing Twitter turn the volume up or off?
Twitter. What can it do for you? Some people use it to vent about their lives; some used it to brag about theft during the London riots (and then face a huge public backlash); some may pick up girls on it and during the Arab spring a year ago, it contributed to the downfall of decade-old dictatorships.
Last week, Twitter announced that it now had the ability to block individual tweets in individual countries, rather than their current ability to block a tweet world-wide. Theoretically this means that a Chinese national could tweet ‘capitalism is the way forward’, which then would be blocked in China (after a request from someone, presumably the government), but not in the rest of the world.
It is seen as part of Twitter’s aim to move into more countries around the world, not all of which have free speech protection. So it sides itself with governments and companies in it’s target market in order to pave the way for it’s expansion.
So is this a good thing? Well, I think that anybody would be hard-pressed to argue that blocking a tweet in one country is better than deleting it internationally. But one presumes that blocking internationally is a very hard thing to do – and consequently less gets blocked. If it was country-specific, it could be quicker.
Twitter has said that to maintain transparency, they will use the same tactic that Google does when removing tweets – that is posting the requests on chillingeffects.org, an EFF-run website.
But is has faced criticism from a large number of it’s users, including several in countries where it was partly responsible for regime change. It is likely that the Egyptian government would have said that tweets urging people to Tahir Square were illegal, and so would have been deleted. The uprisings may not have happened, and that is a scary thought.
Google recently took on the Chinese government with regards to filtering it’s search results, so there is old ground with regards to country v tech giant to look over. Google initially drew a lot of flak when it agrees to filter results, but won plaudits when it decided to route most of the traffic via Hong Kong (less restriction) more recently.
Could Twitter go down the same path? It needs to grow, especially if it wants to get to the $100 billion IPO rumours that are floating around about Facebook currently, but then would that be losing it’s soul and it’s attractiveness? Some may argue that Facebook already has. It’s not the cutting edge any more, it’s the place where you have to deny friend requests from your parents.
Twitter should be applauded for trying to stick closer to the laws of different countries, obviously. But it then raises the question of if those laws are unjust in the first place, should they be obeyed? And then, who decides that?
Tattoo Westlife on Louis Walsh’s Head and Take That on Gary’s or How I Learnt To Stop Worrying And Love The X-Factor.
Ah, so, X-Factor is courting more controversy. But it seems that this one may well not be part of the leviathan PR machine that seems to keep a TV show in the news every day of the week.
Tulisia Contostavlos is a judge on the show. She launched a celebrity perfume last month: it’s called ‘The Female Boss’. She has a tattoo on her right forearm saying the same. She apparently has a ‘signature pose’ (who was the last person to have one of them? Brucie? Atlas?), where she shows off her tattoo at the beginning of each show. I am sure you can see where this is going. Perhaps it was only a matter of time before people did start tattooing brands upon themselves, and this, being maybe a mantra of hers, is not as bad as myself getting Nike put on my forehead. But still, come on.
So what does this mean? X-Factor is on ITV, not the BBC, so why the noise about the blatant plug? Well, in the UK, we used to have rules preventing product placement in ‘actual’ TV content (ie outside the adverts). But this year, we relaxed those rules, along with the rest of the EU, and in the UK we must display a small logo at the re-start of each show that uses product placement. So, could ITV just whack a little logo at the start of the show and let her get on with it? Probably, yes. But then perhaps other brands on the show would want more coverage, on the judges body parts. X-Factor has already been in trouble for something similar last season with the promotion of singles from Micky Bubbles and someoneeslseicantremember.
The thing is, X-Factor is always in trouble it seems. Rhianna wore shoes with a naughty word on them at the weekend. There are claims the show is rigged, that it is no longer a singing contest (was it ever?) and many other huge crimes against humanity.
But it is a HUGE show. How many others can you name as big and as commercially viable as it? Top Gear? Stricly Come Dancing? 2004-era Big Brother? So what does Ofcom do? It either has to pull the reins in on one of the superstars – something that reminds me of the outcry when Usain Bolt was disqualified for one false start – or treat it as just the same as the rest? We all know what the answer to that question is, but then it raises another: why hasn’t Ofcom taken serious action against the show when it routinely flouts the rules?
Yet, the X-Factor is what it is. If we want excellent singing, we should watch opera and if we want glamour, sequins, backing dancers and emotional soundtracks, we watch the X-Factor. It is unashamedly all over the place, big, bold as brass and mad. And that what makes people love it.
So what is the solution for this particular conundrum? The papers suggest Tulisia won’t be able to do her pose at the start of the show. But that would draw more attention to it again, thereby defeating Ofcom’s objective. So maybe X-Factor does have such a good PR company that it double-guesses the regulators to get a win-win situation. Can anyone get me their phone number?
As a final word – it seems that viewing figures are dropping for this season, with advertisers wanting their money back. Maybe product placement will be more prevalent next year, as it always has been in American Idol?
Also – The Guardian has an entire section of their website dedicated to the X-Factor. I’m scared for humanity.
The Culture, Media and Sport Committee released its report into football governance in the Summer. It seems that the FA have now been set a deadline to implement the reforms, February 2012. So what are the reforms likely to be?
Points 1-5 are all about restructuring of the FA’s Board. This seems to be a desire to change the way that the different levels (grassroots all the way up to EPL) are represented. Part of the idea is bringing some decision-making departments that were ‘bunkered’ away into the main fold of the organisation, but they stop short of advising more than 10 members to the board – in favour of it being more stream-lined that way. The FA Council also has advised reforms that aim to make it like ‘Football’s Parliament’ although what circle of hell that would be I’m not sure.
One of the key aspects of the reforms – the debt in the modern game is discussed next. The report acknowledges the exponential growth and improvement that has happened since the 1980’s (*cough* the PL *cough*); yet also acknowledges that while serviced debt is not always a bad thing, non-serviced debt is toxic, especially when combined with mad things like the Football Creditors Rule.
The report, stating the obvious, that the financial rewards of The Premiership and European Football (CL, not perhaps UEFA) are such a golden carrot that clubs spend up to the hilt to stay in the Premiership and clubs in the Championship spend up to the hilt to get there. This is where the problem lies. All that money, borrowed against not a whole lot, can go arse over tit with alarming alacrity. One often wondered how clubs like Middlesbrough competed at the top when the average capacity in the Championship is under half (at around 16,000). That is how a club derives most of their income in the Championship and it certainly remains vital in the PL (look at QPR’s ticket price hike and subsequent reversal).
And it is that income that forms the cornerstone of UEFA’s Financial Fair Play Policy (Michel Platini, j’taime). Clubs, on a sliding scale for the next few seasons, cannot spent more than they earn. So things like matchday revenue will become even more vital, especially for those clubs who are held up by rich owners, perhaps without the fanbase that a ‘big club’ enjoys (sorry Wigan…).
This is what forms conclusions 16 and 17 – thanking the Football League for adopting a version of the Financial Fair Play rules (in principal). Excellent news for clubs like Leeds United, bad news for Leicester (I would love to know if they spend more than any PL club).
Talking of Leeds United, however, a club especially close to my heart, point 23 attacks the opaque club ownership that can often allow the owners of clubs to walk away unscathed after decimating a club’s reputation, league position and fanbase. We all know the trials and tribulations of Ken Bates in charge(???) of Leeds for the past few years, and how long that saga will rumble on and to what result it will deliver will be unknown for many months to come I believe.
This all brings us to the Football Creditors Rule. Which allows a club, when in administration, to only pay 100% of it’s debts to football-related parties (players, other clubs). It means local business often lose out on vast sums of money for them that might be paltry to a top player’s salary. They can sometimes only get a few pence in the pound of what they are owed.
These are some of the more major recommendations for reforms, although there are others. What will the future hold for this? It seems that after February, we will know. The threat is that if the FA don’t sort it, legislation will. Will that be a desirable outcome? God knows. All I can offer is that although it is an important issue, and perhaps a wonderful mirror to hold up to the rest of the country’s finances, the Government surely have more important things to do, like taking your mate away on business, throwing confidential documents in a bin or making things up…
Twitter Gaffes
It seems that Chris Huhne has been the latest person in the public eye to make a gaffe on twitter, passing on a story to a journalist and then asking nicely that his fingerprints don’t go near it. It is especially amusing as it criticises a colleague in cabinet, Theresa May (who has her own problems telling apart ratio decidendi and obita dicta).
It is the latest in a long line of twitter gaffes, and it seems that politicians make the best ones. Anthony Weiner tweeted a picture of his… weiner to a female follower, forgetting that only DM’s are private (same mistake Chris Huhne made!). Where as showbiz (ugh, I used that word) celebrities generally just involve boobies, it always seems much more frustrating when a serious politician does it. They have further to fall.
It seems that the BBC might have the answer, in their short video that gives advice to celebrities.
When will they learn? Well to be perfectly honest, I hope they don’t as it’s brilliantly funny when they fail miserably on it.
Who is a fit and proper person?
Over at the Inforrm blog, there is a great piece on the ‘fit and proper’ ownership test in the Ofcom code. It outlines that in many areas of UK regulation, like pensions and HM Revenue and Customs, there also exists a ‘fit and proper person test’. Like the Ofcom test, all are without definition. The test has certainly come to the fore of the argument over phone hacking lately, and it would be interesting to see if it is ever used in a proper argument levelled at News Corp. Is it a real test? Or a hangover from the competition regulation of the 1980’s?
It reminded me of an article I read in Private Eye over a year ago when Richard Desmond had tabled a bid for Channel 5. Eye mentioned that the fit and proper test existed, and then read out a litany of complaints, findings and fines that have been levelled at the Express Newspapers group, the pornographic TV channels that Desmond owns and himself. The article asked how can a person who has been fined by Ofcom himself then go on to own a televisions channel (and a terrestrial one at that – it has much higher obligations on the licence than a digital channel).
I then came across this Guardian article featuring some complaints made to Ofcom about Channel 5 showing sexually ambiguous adverts before the watershed.
It would have been fascinating to read the complaints (I shall now go searching!) and see whether it was the nature of the adverts (They are a little… naughty, while at the same time being perfectly innocent. Oh we all love innuendo!) or the fact that it was homosexual activity being advertised, ie did Mary Whitehouse write all the complaints?
In any case – it does seem that the fit and proper test is not even a factor being considered, taking into account Desmond’s history. Although it is worth pointing out that he has funded a paediatric eye hospital; so perhaps if there was no hospital, no licence. But since he did good, too, then it’s all ok!
Blagging Databases: Future Targets
I haven’t written a blog post in a long time and since the Notw stuff has all blown up again, I think it is time for one.
The ‘news’ that Milly Dowlers phone was ‘hacked’ did not surprise me. Neither did any of the the other victims of it. I had heard rumblings about similar targets months ago, in one report here or a blog there. What was so surprising was that it took Tom Watson MP on TV to make it national news. As soon as he said it, the cat was truly out of the bag. It is most likely with the consultation period on the BSkyB takeover nearing it’s end that served as a pressure cooker on the story, causing it to come to a head, also.
The initial inquiry managed to prove the PCC inept at cleaning out their own house, as their report pretty much asked very nicely that newspapers include a reminder of the PCC editorial code in their employment contracts. The information commission’s report seemed to want the PCC to go further, but had little power to persuade them to do that. The ICO’s report also gave a ‘blaggers guide’ as part of their evidence, explaining how to hack a mobile phone, utility bill information or whatever. It was just all about blagging, a skill as old as time that relies on the weakest part of any security system – the human element.
Those reports, combined with the Police’s useless investigation thankfully only pacified certain people for so long.
But the easy accessibility of these databases was a red flare of danger to many people. So where else may your details be kept that nefarious journo’s have access to?
The Joseph Rowntree Foundation’s report on the ‘Database State’ will make grim reading for anyone worried. It finds that ‘a quarter of all 46 databases across major government departments are almost certainly illegal under human rights law’. Did you ever suspect that? There are problems in many, not just to their accessibility but also to the information they hold. There are some pretty established databases like the national fingerprint one (one of the few OK ones), and then the more evil ones like ONSET, a database calculating when and which children are likely to offend in the future.
Please give it a little skim, but don’t blame me for the nightmares!
How to reform the PCC
This is an essay I wrote for my Media, Entertainment and Sport module, arguing about reform of an aspect of the law on privacy.
Essentially, I outline why the PCC has failed, and what we can do in it’s place.
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The law surrounding privacy in the UK is complex and is derived from many sources. It is also liable to great controversy and publicity: most likely because the media have a high stake in its regulation and application. Any reform would have to take into account the conflicting ideals and laws and extrapolate a workable outcome that helps to grant individuals protection over personal matters while not hampering the right to free speech.
UK common law has held that there is no tort of invasion of privacy, even at the lament of the courts1 and this has since be affirmed even in the light of the Human Rights Act 1998 (HRA).2 So is privacy protected at all?
In equity, there exists a claim for a breach of confidence. Megarry J in Coco v. AN Clark (Engineers) Ltd3 gave the classic definition and at the time, it was thought that any successful claim for a breach of confidence would have to establish a pre-existing relationship between the parties. This has now been swept aside by Lord Goff in AG v Guardian Newspapers Ltd No.24 when he described situations where private information can accidentally come into another’s hands, and still be liable to claim if it is published. Traditionally this claim was used to protect trade and industrial secrets but has been used in recent years by public figures to protect personal information.5
In the case of Campbell v MGN Ltd6 the use of private information relating to individuals changed, and moved away from trade information towards of a claim of ‘misuse of private information’. Lord Nicholls stated ‘a duty of confidence’ and confidential information did not sit comfortably, and so the essence is of a tort of misuse of private information. 7
In Campbell the court diverted from a breach of confidence and into a new area of misuse of private information that according to Pinto ‘move[d] English jurisprudence more in line with the way the European Court of Human Rights analyses cases.‘8
There now exists a two-part test as to whether there is a misuse of private information: i) is the information private, as in likely to be protected by Article 8? Then ii) Should Article 8 yield to Article 10 on balance? This was what Buxton LJ asked in McKennitt v Ash.9
Neither Article has precedence over the other,10 and both are qualified. Judgements have to be made on a case-by-case basis.
Our current system operated by the courts awarding damages against parties who publish private information results in retrospective control of the media. One problem with this is cost. Cost has always been a large problem in these actions, both for the claimant and the defendant.11 Costs is one area many parties argue is in need of reform. Cases for breach of privacy and defamation can have astronomical figures associated with them.12 This prevents access to justice for everyone but the well heeled. If even Max Mosley makes a loss of £30,000 then what for the man on the Clapham Omnibus? The actual law seems settled on privacy actions now that cases should be decided on their facts. Do privacy actions still need to be decided by the courts?
The print media publishes most private information stories in the UK. One could point to the looser Editor’s Codes the regulatory body impose. Print media is regulated by the Press Complaints Commission (PCC). The PCC is a self-regulatory body that responds and adjudicates on complaints made by the members of the public. However, it has regularly faced criticism that it ‘lacks teeth’13 in its remedies and investigations. It has been under increased fire since the phone-hacking scandal resurfaced14 and it is hard to see how it will emerge with much integrity remaining. Jonathan Coad argues vehemently15 against it, supporting a private members bill16 which aimed to ensure that when a newspaper had published inaccuracies, corrections received due prominence. This involved the setting up for a statutory body to oversee the complaints.
To find an area that needs reform, it is important to look at where media is heading in the future. A continuing trend one can point to is media convergence. With the advent of Digital Terrestrial Television, IPTV and online video, it is now hard to point to a media outlet and state under whose authority they lie. Should Ofcom regulate print media’s websites instead of the PCC? Are newspapers allowed to broadcast video under the PCC’s rules or Ofcom’s? This is where the necessary area of privacy reform lies: in the regulation of the newspapers.
The law itself seems to have sailed into clear water in as much as decisions on a case-by-case basis can do, and now the prohibitive aspect of the law is cost. Most comes from anything around the courts. So how are other professions regulated without the courts? Regulatory bodies. Many regulatory bodies in in the UK oversee important aspects of our society like the General Medical Council or the Employment Tribunals Service. These can be said to be trusted even more after the Woolf reforms which promoted alternative dispute resolution.
The author argues that the PCC should be abolished and it’s regulatory duties be carried out by Ofcom.
Any regulation of the press would need to take into account the differences between print and broadcast media. A person can receive broadcast material passively. Although the passive nature of broadcast could be argued to have diminished recently by the increase in plurality by digital radio and digital television: broadcast media comes to a person whether they act to continue receiving it or not. With the print media, a person has to actively purchase a newspaper, read each article. This vital distinction would have to be taken into account by any regulatory body and would mean that the broadcast media would still be held to a higher standard than the print.
Ofcom argues that it approaches complaints regarding privacy from a different standpoint from the PCC:17 in that Ofcom has to take privacy into account as a starting point as per their fairness and privacy procedures but the PCC allows privacy intrusions if the Editor can justify it18 or there are public interest justifications. The two bodies approach privacy from two very different standpoints. These two standpoints need to be closer together, as there is so much crossover between stories and outlets, the older distinctions have faded away.
Ofcom mentioned the increase of media convergence at paragraph 49-51 of its report.19 It stated that it was pleased the PCC had chosen to regulate print media websites but was unsure where the law stood in relation to live streaming at the time. This and other points of convergence have led to a blurring of the lines between the remit of the PCC and Ofcom. It leaves uncertainty for a complainant, in that if they feel their privacy is breached, they are likely to have two varying outcomes depending on which regulator was contacted. This uncertainty and overlap should not exist.
The regulation of the press by this new body should be free for the complainant, not award damages but fine instead and require an apology given equal prominence in the publication to the original story. This would underline that breached privacy is priceless, not profitable.
Arguments that are likely to come against any area of media reform that involves bringing the PCC under Ofcom would be likely to revolve around claims that the freedom of the press is at risk, with the Government controlling the stories and that it is a waste of public funds to pay people to do what is already done for free.
The first argument would be likely to cite the MP expenses scandal as a story that perhaps wouldn’t have broken if the Government were in charge of the media. But it is important to work out that this story had a high public interest – public money was being used for fraud. Even though the information was private, the money was not and any misappropriation of public funds would be likely to satisfy a public interest defence. This story would still have broken, because there is no need for prior notification and as the cat would be out of the bag, following the presumption against prior restraint, the importance of the story would have been hard to ignore.
With regards to the public money argument, the extra funds needed could just be diverted from the papers that currently fund the PCC as a form of tax. It would also save money in freeing up of court time from injunction and privacy hearings.
The law of privacy is fairly settled after Campbell, which adapted privacy law to the ECHR. The main problem with the area that all sides agree on is cost. To cut cost, the legal bills must be cut. To do this without hindering free speech involves a changing of the regulatory system to allow for publication but ensure adequate redress is made if a breach of privacy occurs. Although bringing the regulation of the press under a public body could be highly controversial to some, most likely those in the media, it seems that the PCC has lost the trust placed in it by the public. It either needs to work very hard to regain that trust or accept it has failed to regulate the press sufficiently and impartially and work alongside the Government in establishing a fair system that works. Allowing for increased media convergence in any area of reform is key to enable the new system to function in the future; so bringing it under the wing of Ofcom would be the best way forward. In the future it will be hard to differentiate between different types of media and so any independent news print regulatory body would fall by the wayside.
The trade off between cost and freedom of speech can be overcome if the law is taken as settled. There is nothing in the proposed reforms that prevents judicial review, and so the public body would still be subject to scrutiny. Ofcom adopting the PCC’s role will be the best way to reduce costs. The press may have to accept that it needs tighter regulation to bring back trust the public has lost in it20 and move forward to a more informed society that trusts its newspapers.
5Barrymore v News Group Newspapers Ltd. [1997] FSR 600 and HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776.
8 Timothy Pinto, ‘Tiptoeing along the catwalk between Articles 8 and 10: Naomi Campbell v Mirror Group Newspapers Limited’ Ent LR (2004) 15(7) 199, 202.
11 M Mosley, ‘The protection of privacy’ (lecture, University of East Anglia, 2 March 2010), <http://www.uea.ac.uk/law/News/ml10032011> accessed 15th March 2011. His bill for Mosley v News Group Newspapers Ltd. [2008] EWHC 1777 (QB) was £510,000 yet received a total award of £480,000.
12University of Oxford, ‘A Comparative Study of Costs in Defamation Proceedings Across Europe’ <http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/defamationreport.pdf> accessed 15th March 2011.
13Matthew Bell, ‘The Tory peer who wants to convince us the PCC has teeth’ London, 22nd November 2009 <http://www.independent.co.uk/news/media/press/the-tory-peer-who-wants-to-convince-us-the-pcc-has-teeth-1825265.html> accessed 15th March 2011.
14Andrew Grice, ‘We failed on phone hacking, admits chair of press watchdog’ London, 4th February 2011 <http://www.independent.co.uk/news/media/press/we-failed-on-phone-hacking-admits-chair-of-press-watchdog-2203840.html> accessed 15th March 2011.
15Jonothan Coad ‘The Press Complaints Commission – are we safe in its hands?’ Ent LR (2005) 16(7) 167
20 Natalie Hart, ‘Who do you trust?’ (YouGov Poll, 23rd September 2010) <http://today.yougov.co.uk/life/who-do-you-trust> accessed 15th March 2011
The Law Of Surfing (The Internet) 