Lara Stone and David Williams (known as David Walliams) -v- Flynet Pictures UK Limited [2017] EWHC B3 (Costs), Judgment 2 February 2017

Additional liabilities can only be claimed as costs of harassment proceedings where the defendant publisher was acting in its capacity as a ‘news publisher’ at the time of publication. Publication of ‘celebrity tittle-tattle’ is not  what a news publisher does, it if not news or information about or comments on current affairs.

A comedian and his former wife brought proceedings for harassment against the second defendant, a photographic agency.  Photographers sent by the agency had taken pictures of an incident outside the claimants’ home, and that later appeared in The Sun, MailOnline, the Daily Star and in Now! Magazine.  The proceedings were concluded by way of a Tomlin Order pursuant to which the second defendant was entitled to costs.

The second defendant’s bill of costs included claims for additional liabilities – a success fee and the cost of ATE cover.  

Sections 44 and 46 of LASPO, which came into effect on 1 April 2013, provide that inter partes costs can no longer include additional liabilities.  Sections 44 and 46 were brought into force by articles 3 (a) and 3 (c) LASPO (Commencement No. 5 and Savings Provision Order 2013), which provides exemptions inter alia in relation to ‘publication and privacy proceedings’. Article 1 of Commencement Order No. 5 provides that ‘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.  A ‘News publisher’ is a  person that publishes a newspaper, magazine or website containing news information about or comments on current affairs

The second defendant’s witness described it as a ‘global media agency and publishing platform’, engaged in the business of journalism, drone services, online content and media services – was ‘news publisher’.

The principal issue in this case was whether the proceeding for harassment were brought ‘where’ the second defendant was a news publisher. The judge found that the acts in issue were carried out with a view to providing photographs for other media outlets covering the story and there was no suggestion that the second defendant had intended to publish photographs on its own website. Therefore, the action issue were carried out by the second in its capacity as a photographic agency and not as a news publisher.

The judge went on to consider whether the second defendant was a news publisher at the relevant time (addressing an argument advanced by counsel). The judge found that whilst the second was the publisher of content that appeared on its YouTube channel that did not make it the publisher of the website; further given that the large majority of the content was ‘celebrity tittle-tattle’ and not related to news or current affairs, it was not a news publisher.

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