CELEBRITY TITTLE TATTLE IS NOT NEWS: A DECISION AS TO COSTS
The case of Stone -v- Flynet Pictures Limited  EWHC B3 (Costs) is likely to attract the headlines because the second claimant was David Walliams. It is also likely to attract the pun writers ( Litigation Futures has already done “Costs Judge says No”). Master Gordon-Saker considered a discrete point relating to additional liabilities.
- The second defendant was not a “news publisher” and not entitled to recover additional liabilities from the claimants.
The claimants brought an action against the second defendant photographic agency under the Protection from Harassment Act 1997. The claim was settled under a Tomlin order under which the second defendant was entitled to its costs.
THE ISSUE IN RELATION TO COSTS: WAS THE SECOND DEFENDANT ENTITLED TO AN ADDITIONAL LIABILITY?
Additional liabilities still apply to “publication and privacy” proceedings.
Section 44 of LASPO was brought into force on 1st April 2013 by article 3(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 5 and Saving Provision) Order 2013. However Article 4 provided that article 3(a) did not apply to, inter alia, “publication and privacy proceedings”. The effect of this is that the original wording of s.58A(6) continues to apply to publication and privacy proceedings and that a costs order made in such proceedings may make provision for the payment of fees under a conditional fee agreement, including success fees.
“publication and privacy proceedings” means proceedings for – (a) defamation;
(b) malicious falsehood;
(c) breach of confidence involving publication to the general public;
(d) misuse of private information; or
(e) harassment, where the defendant is a news publisher.
“news publisher” means a person who publishes a newspaper, magazine or website containing news or information about or comment on current affairs;
The second defendant had entered into a conditional fee agreement and paid a premium. The issue was whether these were recoverable from the claimants.
WAS THE SECOND DEFENDANT A “NEWS PUBLISHER”?
To recover the additional liabilities the second defendant had to establish that it was a “news publisher”. Part of the claimants’ case was that the second defendant had deliberately changed the focus of its site after the event in order to appear to be a news publisher.
I accept Mr Bennett’s submission that, to fall within the definition, the defendant must be a news publisher at the time of the acts alleged to constitute harassment. Becoming a news publisher after those acts would obviously not be sufficient. Again, that is apparent from the use of the word “where”. In case I am wrong on the question of nexus, the next question is therefore: Was the Second Defendant a news publisher on 4thMarch 2015?
Neither “news” nor “current affairs” are defined in the commencement order. Mr Bennett drew my attention to the definition of “news-related material” in s.42 of the Crime and Courts Act 2013, namely: “(a) news or information about current affairs, (b) opinion about matters relating to the news or current affairs, or (c) gossip about celebrities, other public figures or other persons in the news”. That would seem to suggest that gossip about celebrities, etc., is neither news nor current affairs.
It is not in issue that at the material time the Second Defendant published the website: http://www.fameflynet.biz/uk. Copies of pages from that website are exhibited at DH3A and DH3B to Mr Hayward’s third witness statement. Insofar as it is accessible to somebody who is not a subscriber, the website describes the work of the Second Defendant. There is also a ticker tape of rolling headlines across the top of the homepage. These are hyperlinks to twitter feeds. At the hearing Mr Hayward explained that subscribers could log in through the website to access the photographs which had been uploaded. It seems to me that none of this content amounts to “news or information about or comment on current affairs”. The corporate content about the Second Defendant is not news or current affairs. Photographs may illustrate news or current affairs but are not, in themselves, news or comment on current affairs. Hyperlinks may lead to other websites which contain news or comment on current affairs but are not, in themselves news or comment on current affairs.
In my view the Second Defendant’s YouTube channel is not itself a “website”. The YouTube terms of service, exhibited to Mr Double’s witness statement refer to “the YouTube website” and to “contributors of Content”. On the face of it, it seems to me that YouTube is the publisher of the website on which the Second Defendant is merely a contributor of content. That the Second Defendant uploaded videos on to the YouTube website does not I think make it a publisher of the website; although it would be a publisher of the content that it had uploaded.
It also seems to me that stories about the comings and goings of celebrities are neither “news” nor “comment on current affairs”. There is some content on the Second Defendant’s YouTube channel which could properly be described as news or current affairs (that listed in paragraph 26 of Mr Double’s witness statement) but the preponderance of the videos listed and referred to in the evidence can fairly be described as “celebrity tittle-tattle”. The substance of the Second Defendant’s YouTube channel is not news or current affairs, it is gossip about celebrities.