Tesco - Guardian libel case moves forward

from today's Guardian - and of relevance to the Thai cases as well:

Tesco tax avoidance schemes can form part of libel case, judge rules

Company told to decide on offer of Guardian apology
· Refused leave to appeal and told to pay costs

• David Leigh
• The Guardian,
• Wednesday July 30 2008
• Article history

Details of elaborate offshore corporation tax avoidance schemes operated by Tesco were yesterday allowed to be introduced into evidence in a libel case the supermarket chain is bringing against the Guardian.

In a preliminary high court hearing, Mr Justice Eady ruled that the paper could file evidence of Tesco's tax avoidance by means of specially created partnerships and holding companies in Switzerland and Luxembourg. One such Tesco scheme was outlawed by the government in this year's budget legislation. The two schemes are alleged to have avoided up to £30m a year in UK tax on Tesco profits.

Tesco has so far refused to accept an apology from the Guardian for errors in an earlier article about the retailers' tax tactics, and has accused the paper and its editor of telling deliberate lies. The paper wrongly said that Tesco was avoiding up to £1bn in a corporation tax avoidance scheme involving windfall profits on sale and leaseback of its UK stores.

Eady also ruled that Tesco must decide by September 15 whether to accept the Guardian's offer of an apology and damages. He ordered a stay on a parallel claim by Tesco against the Guardian and its editor claiming "malicious falsehood". The judge refused Tesco permission to appeal and awarded costs against the company.

Lawyers for Tesco yesterday unsuccessfully argued that the fresh allegations about Tesco tax avoidance were irrelevant. Adrienne Page QC said Tesco did engage in what she called "low level tax planning, tax avoidance" but what the company objected to, she said, was the Guardian's false claim of "massive" avoidance and "plundering the Treasury".

She said the corporation tax avoidance claims and other avoidance by Tesco of up to £63m tax on its land deals, were "a drop in the ocean" compared to the millions spent by Tesco on charitable donations and its computers for schools vouchers. Tesco paid hundreds of millions in corporation tax, and was a major taxpayer compared with some other UK firms.

Tax avoidance was a "grey area", she claimed, and it was now usual to divide companies' avoidance tactics into "aggressive" and "non-aggressive" tax planning behaviour. Tesco "does not engage in highly aggressive tax avoidance".

Eady said he would allow the evidence of the Swiss and Luxembourg schemes, first disclosed in Private Eye, to be introduced into the case for the time being. Andrew Caldecott QC, for the Guardian, had argued it would not be fair to take any decision "in blinkers" on the amount of any damages to be received by Tesco, and claimed that evidence of other corporation tax avoidance schemes Tesco was operating at the time, covered the same ground as the original libel.

The judge also ordered the Tesco board to make a final decision within the next six weeks on whether they intended to push ahead with allegations of dishonesty against the paper and its editor, or whether they were prepared to accept the Guardian's "offer of amends".

Tesco claimed that the wording of the law allowed them neither to accept or reject the offer, and that they could go ahead with a full-scale libel trial regardless. The judge said the 1996 "Offer of Amends" special regime had been introduced by parliament to assist journalists who had made a mistake and were "over a barrel". "It enables them to climb off the barrel". This was a classic case for using the procedure, designed by parliament to achieve a speedy and inexpensive outcome. It was not legitimate, he said, for Tesco to hold up a decision indefinitely whether to accept the offer or not. "It is a tough choice for claimants sometimes, but so it was meant to be."

He ordered Tesco to decide by September 15 whether to accept the Guardian's offer of an apology and suitable damages, or whether to attempt to prove in court that the paper had been deliberately dishonest. Eady also ordered a stay on a parallel claim by Tesco against the Guardian and its editor for "malicious falsehood".

He said the lawyers in the case might wish to press on with the claim "no doubt at great expense", but it would be for no better reason than to establish malice for its own sake. The claim only appeared to serve tactical purposes, and it was inconsistent to keep open the possibility of accepting an offer of amends while going ahead with such a claim. "It is no part of the court's purpose to punish or humiliate the other party, or provide an opportunity for public relations purposes." He added that nowadays "litigation is no longer regarded as a game for lawyers". It was instead, he said, to be "aimed at achieving justice between the parties".

Tesco were refused permission to appeal the rulings and costs were awarded against them. It is open to the supermarket to apply direct to the court of appeal later this year.

Facts and opinions: Kita v. Poland

Kita v. Poland, decided a few days ago by the European Court of Human Rights, further elucidates the statement of fact vs. statement of opinion dichotomy that bedevils so many domestic courts. The following paragraphs are interesting:

"

42. Turning to the facts of the instant case, the Court notes that the applicant had clearly written and distributed the impugned article in the course of an ongoing election campaign. The targets of the applicant's criticism were the president and named members of the City Council Board.

43. It is certainly true that the article at issue reflected a rather critical approach to the work of the local politicians. In this respect the Court reiterates that in a democratic society, public authorities and their representatives expose themselves in principle to the permanent scrutiny of citizens and that everyone must be able to draw public attention to situations that they consider unlawful provided that they do so in good faith (see Kwiecień v. Poland, no. 51744/99, § 54, ECHR 2007-).

44. As regards the categorisation of the applicant's statements the Court observes that the Polish courts unreservedly qualified all of them as statements which lacked any factual basis without examining the question whether they could be considered to be value judgments.

45. While it is true that some of these statements, such as “the municipality had received subsidies from the State for transport of children to schools” or “the employees of the municipal educational institutions had not received special allowances” could be considered statements which lacked a sufficient factual basis, the Court notes that the thrust of the applicant's article was to cast doubt on the suitability of the local politicians for public office. It related to issues of public interest and concerned specific acts of the local municipal councillors carried out in the exercise of their public mandate. The Court further considers that the article also included statements which could reasonably be considered value judgments, such as “H. O. had not acted to the benefit of the school employees” or “teachers did not claim the allowance as they were afraid of losing their jobs”.

In the circumstances of the present case it does not seem that the applicant acted in bad faith. Having regard to the above the Court considers that the applicant's statements formed part of a debate on matters of public interest.

46. In any event, the Court would observe that the distinction between statements of fact and value judgments is of less significance in a case such as the present, where the impugned statements were made in the course of a lively political debate at local level, and where the members of the community should enjoy a wide freedom to criticise the actions of a local authority, even where the statements made may lack a clear basis in fact (see Lombardo and Others v. Malta, no. 7333/06, § 60, 24 April 2007).

47. As regards the reasons adduced by the domestic courts to justify the interference the Court observes that they have failed to recognise that the present case involved a conflict between the right to freedom of expression and the protection of the reputation and the rights of others and so did not carry out the relevant balancing exercise (see, mutatis mutandis, Keller v. Hungary (dec.), no. 33352/02, 4 April 2006). Nor did they give any consideration to the fact that the limits of acceptable criticism of the members of the City Council Board – W.M., H.O. and K.S. were wider than in relation to a private individual.

48. Furthermore, the Court notes that in none of their decisions did the domestic courts quote passages from the applicant's article or particular statements that he had made but merely considered the general meaning of his article (see paragraphs 17 and 21 above)."

Hatfill v. New York Times: Times wins libel suit launched by army scientist

On the AP wire this morning:

Court rules for NY Times in anthrax libel case

By LARRY O'DELL – 11 hours ago

RICHMOND, Va. (AP) — A former Army scientist who sued The New York Times for libel is a public figure who failed to prove that columns linking him to the deadly 2001 anthrax attacks were malicious, a federal appeals court ruled Monday.

A three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously affirmed a lower court's dismissal of Steven J. Hatfill's lawsuit. Hatfill claimed a series of columns by Nicholas Kristof falsely implicated him as the culprit in anthrax mailings that killed five people and sickened 17 just weeks after the Sept. 11 terrorist attacks.

The court said Hatfill, who worked at the Army's infectious diseases laboratory at Ft. Detrick, Md., from 1997 to 1999, had inserted himself into the national debate about bioterrorism years before the anthrax attacks. Hatfill advised the government, gave public speeches, participated in panels and was interviewed by the press.

"Through these media, Dr. Hatfill voluntarily thrust himself into the debate," Judge Paul V. Niemeyer wrote. "He cannot remove himself now to assume a favorable litigation posture."

A 1964 U.S. Supreme Court ruling, Times v. Sullivan, established the "actual malice" standard for public officials and public figures suing for libel. The appeals court cited that case in its ruling.

"We're obviously delighted with the court's decision," said David McCraw, assistant general counsel for The New York Times. "We think it's an important reaffirmation of Times v. Sullivan, which is intended to encourage vigorous discussion of public events."

Hatfill's attorney, Lee Levine, did not immediately return telephone messages seeking comment.

Kristof's columns criticized the FBI for what he viewed as a lackadaisical investigation of the mailing of anthrax to members of Congress and to news organizations in New York and Florida. Then-Attorney General John Ashcroft publicly identified Hatfill as a "person of interest" in the investigation.

The court noted that an FBI search of Hatfill's apartment was televised live, and that other media outlets besides The New York Times named him as a suspect in the anthrax attacks. Only then did Kristof refer to Hatfill by name in his columns, the appeals court said.

Joining Niemeyer in the opinion were Judge M. Blane Michael and visiting Judge C. Arlen Beam of the 8th U.S. Circuit Court of Appeals.

Last month, the Justice Department agreed to pay Hatfill $5.8 million to settle a lawsuit claiming officials violated his privacy rights by speaking with reporters about the case.

On the Net:

• Hatfill v. The New York Times: http://pacer.ca4.uscourts.gov/opinion.pdf/071124.P.pdf

Federal free speech protection bills proposed to accompany New York's Libel Terrorism Act

Joe Lieberman and Arlen Specter have introduced legislation in the Senate to protect US-based publishers from (the enforcement of) foreign libel judgments. A direct response to the Rachel Ehrenfeld case, the Free Speech Protection Act of 2008 would be the federal equivalent of New York's "Libel Terrorism Protection Act", which was signed into law May 1 of this year. There is a parallel House Bill, sponsored by Rep. Pete King (R., N.Y.) and co-sponsored by Rep. Anthony Weiner.

These are excellent initiatives; even better would be if the UK courts would stop handing down judgments like the one against Rachel Ehrenfeld. The current Mosley case is very troubling in this sense - not because it is an example of good journalism, but because if the News of the World loses - which it certainly will - the judgment will have ramifications way beyond that particular 'bastion of journalism'.

Irish Constitution Committee recommends removal of blasphemy and sedition references in constitution

As reported in the Irish Times, the Oireachtas Joint Committee on the Constitution has published a report on freedom of expression in which it recommends that constitutional references to blasphemy and sedition as a restriction on free speech should be removed. Good stuff. Unfortunately, the chair of the Committee said, "given the development in case law and the jurisprudence which has emerged on freedom of expression since 1996, the Committee is of the view that amendment is not immediately necessary but recommends that change be made when an appropriate opportunity presents." So that will probably take a while.

Hungarian constitutional court strikes down hate speech law

From the Budapest Times:

Tuesday, 08 July 2008
‘Amendments would restrict freedom of expression to unacceptable degree'

The spectre of the Holocaust was invoked last week when controversial legislation criminalising hate speech was thrown out by the Constitutional Court.

The court last Monday rejected two amendments to Hungary’s laws on inflammatory public discourse that would have made ‘hate speech’ a criminal offence punishable by up to two years in prison.

In the wake of a perceived rise in open attacks on minority groups by extremists, the government last autumn brought in legislation on hate speech. It aimed to restrict public speech that denigrates and foments prejudice against minority groups on the grounds of religion, ethnicity or sexuality.

The amendments tightening the law were passed by parliament in November 2007 and February this year, but referred to the court by President László Sólyom, who felt the stricter rules on public discourse might be unconstitutional.


Freedom versus dignity

The Constitutional Court ruled last Monday that the amendments were indeed unconstitutional. Péter Feldmayer, president of the Federation of Hungarian Jewish Communities (MAZSIHISZ), said that the human right to dignity is paramount. Criticising the court’s decision, he said the court now appears to consider freedom of speech to be of equal importance. Feldmayer did, however, agree that the legislation struck down last Monday was flawed.

Others reacted more angrily to the court’s decision. Socialist MP Tamás Suchman, one of the authors of the controversial legislation that would criminalise hate speech, last Wednesday visited the president of the court, Mihály Bihari.


Auschwitz diary presented

Suchman gave Bihári a copy of the diary his mother kept in the ghetto in the southern Hungarian town of Kaposvár and continued at Auschwitz. Speaking after the meeting, Suchman said the timing of the court’s decision was a slap in the face for those commemorating “the 600,000 who were deported and murdered” in the closing days of the Second World War.

Suchman said that legal regulation is needed because there is little chance at the moment in Hungary of a broad alliance across the political, religious and social spectrum.

He acknowledged as a positive exception the move by the Fidesz mayor of the southern town of Hódmezővásárhely, who recently banned the far-right Magyar Gárda from holding rallies there.

President László Sólyom had referred the two amendments to the Constitutional Court in the wake of concerns expressed by civil liberties groups. The chairman of the Hungarian Civil Liberties Union (TASZ), Balázs Dénes, said in February: “It limits the basic right to freedom of speech in an unprecedented way.”


In the clauses

The new clauses would have widened the scope of people offended by purveyors of hate speech to take legal action, as well as putting peddlars of inflammatory rhetoric at risk of imprisonment.

The first amendment enabled a person to bring a civil action against a speaker even if the hate speech was not aimed directly at the plaintiff, but rather the ethnic or social group to which he or she belongs.

The second made hate speech a criminal offence punishable by a prison sentence of up to two years. The latter was voted through mainly by backbench Socialist MPs without the support of the cabinet after opposition Fidesz MPs had left the chamber.


Unacceptable restriction

In handing down its ruling, the court stated that only natural persons are entitled to have their human dignity protected by legislation, and that it cannot be applied to broader communities or groups. The court decided that both of the amendments would restrict freedom of expression to an unacceptable degree.

“In a free and democratic society the expression of extreme and exclusive opinion does not endanger the foundations and operations of society, because by expressing such views, the discriminator confines itself to the periphery,” the court said in its ruling.

The original bill on hate speech was passed last October as the government sought to address a perceived increase in activity by right-wing extremists. The most high-profile example was the creation of the Magyar Gárda (Hungarian Guard), a uniformed group set up by the extreme nationalist Jobbik party.


Open season on Jews & Gypsies

Socialist MPs Gergely Bárándy and Tamás Suchman, the sponsors of the amendment bills, immediately voiced their disappointment at the court’s decision. At a press conference Bárándy said the ruling means it is now possible to “denigrate Jews and Gypsies publicly and with impunity”. Suchman said that the move would reassure those who “even if they are not neo-fascists… still represent extreme right-wing beliefs that the whole of civilised Europe opposes.”

The Socialist MPs pledged to resubmit legislation to curb hate speech to parliament as many times as are necessary until it is voted through.

The main opposition party in Hungary, the centre-right Fidesz, had rejected the amendments all along. Fidesz MP Róbert Répássy, speaking to the news agency MTI, merely characterised the affair as evidence that the Socialists “repeatedly abuse their powers as legislators”.


Outrage out front

The issue of the influence of extremists on Hungarian society has been thrown into sharp focus since autumn 2006 and a series of anti-government demonstrations. Protests began as a genuine expression of public outrage at government austerity measures and the leak of a tape on which Prime Minister Ferenc Gyurcsány acknowledged his party had systematically lied about the parlous state of national finances to secure re-election. However, far-right groups – fired up by a degree of public sympathy in adversity that has since waned considerably – began to play a more prominent role in protests and riots.

The setting up by the extremist party Jobbik of Magyar Gárda helped far-right groups, which have no representation in parliament, to attract a great deal of media coverage. The group’s activities – such as inflammatory rhetoric at gatherings and numerous marches through Roma villages against “Gypsy criminality” – have sparked outrage, primarily among Jewish groups and representatives of the Roma community that makes up some 7% of Hungary’s population.


Gárda on trial

The trial of the Magyar Gárda dragged on last Monday at Budapest City Court, amidst a strong police presence. Some fifty uniformed members of the controversial organisation held a vigil outside the courthouse.

No verdict was reached as more and more witnesses appeared to speak in defence of the Gárda. Frustration at the slow pace of the trial prompted one of the prosecuting parties, the legal counsel for the Federation of Hungarian Jewish Communities, Oszkár Egri, to comment: “There could be 32 filibusters who could read the complete works of Balzac to drag things out and stop us reaching a decision in the case.”

The move to disband the Gárda was initiated by the Budapest prosecutor’s office, which claims the group, which was officially registered as a cultural organisation, is guilty of infringing the rights of Roma citizens. The trial will continue on 1 September.

Bad news for Romania good news bill

Bad news for Romania's good news bill: it has been declared unconstitutional by the Romanian constitutional court. In a refreshing victory for common sense, particularly bearing in mind that this is the same court that declared decriminalising defamation unconstitutional, the Court ruled that the bill violates broadcasters' right to freedom of expression.

Google streetview in London

Cycling home the other day, I noticed not one but two Google Streetview cars prowling the Trinity Road area in south London. Or maybe it was the same one twice. Anyway, I smiled and struck a pose for the camera.










The Times has an interesting piece on what I think can be rightfully called this 'phenomenon'. Wonder how they'll go about anonymising the data.

House of Lords rules on Freedom of Information case

The House of Lords has ruled on the first case before it involving the Freedom of Information Act: Common Services Agency (Appellants) v. Scottish Information Commissioner (Respondent) (Scotland). The decision concerned a request in 2005 by a Green Party researcher for data showing the incidence of childhood leukaemia at ward level in Dumfries and Galloway. The Commissioner ordered release of this statistical data in 'barnardised' form – a method for disguising statistical information to prevent identification. The Court of Session upheld the Commissioner's decision on appeal, after which the CSA took their case to the House of Lords.

The Lords ruled to allow the appeal and have remitted the decision back to the Commissioner, to establish whether or not the statistical information can be released without the risk of identifying individuals.

Good and bad must be equal on Romanian TV

And this fresh in from lala-land, the Romanian Senate has apparently adopted a law requiring broadcasters to transmit equal portions of good and bad news. Apparently because negative news has an "extraordinarily harmful and irreversible impact on health." Well, there you go...

Canada supreme court affirms fair comment, to consider 'public interest' defence

In a rare case (in Canada anyway), the Supreme Court in WIC Radio Ltd. v. Simpson has reaffirmed the fair comment defence to libel. For reasons that are frankly beyond me, the Court of Appeal of British Columbia had denied the defence.

Also on the Supreme Court docket, Cusson v. Quan, in which it will be asked to confirm a 'public interest' defence.