A picture agency which sent photographers to David Walliams’ house when news of his divorce broke is not a news publisher and so cannot recover additional liabilities following the settlement of an action brought by the entertainer, the Senior Costs Judge has ruled.
Mr Walliams and his former wife, Lara Stone, commenced proceedings against Flynet Pictures and others claiming an injunction under the Protection from Harassment Act 1997.
It followed an incident outside the family home, during which the couple alleged that “a group of 20 to 30 photographers ran at [Mr Walliams] in the street, taking photographs and shouting questions”, recorded Master Gordon-Saker.
Flynet contended that its two photographers did not move any closer to Mr Walliams than about 20 metres and did not behave aggressively or shout.
The claim was settled on a confidential basis and under the Tomlin order, Flynet was entitled to its costs, part of them on the indemnity basis.
Flynet instructed City firm Kingsley Napley under a conditional fee agreement which provided for a success fee of 75%, and it bought an after-the-event insurance policy with a premium of £10,600.
The only question before the master was whether Flynet was a news publisher. If so, the continuing LASPO exemption for publication and privacy proceedings meant it could recover the success fee and premium from the claimants.
The definition of publication and privacy proceedings under the relevant LASPO commencement order includes “harassment, where the defendant is a news publisher”.
Master Gordon-Saker ruled: “It seems to me that to fall within the definition there must be a connection between the alleged harassment and the defendant’s status as a news publisher. In carrying out the acts alleged, the defendant must be acting in its capacity as a news publisher.
“That follows from the use of the word ‘where’. Clearly it cannot have been the intention that proceedings arising from acts of harassment unconnected with the defendant’s role as a news publisher would fall within the definition…
“It seems to me that the acts complained of were carried out by [Flynet] in its capacity as a picture agency and not in its capacity as a publisher of a website containing news or information about or comment on current affairs. Accordingly, these were not proceedings for harassment where the defendant is a news publisher and [Flynet] cannot recover any additional liabilities from the claimants.”
In case he was wrong on this, the master considered whether Flynet was a news publisher. This turned on whether it published a website containing either news or information about or comment on current affairs. Most of Flynet’s work concerned celebrities.
Master Gordon-Saker concluded that photographs Flynet published on its own website “may illustrate news or current affairs but are not, in themselves, news or comment on current affairs”.
Further, its YouTube channel was not a website – YouTube itself was the publisher of the website on which Flynet was merely a contributor of content.
The judge added: “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 [Flynet’s] YouTube channel which could properly be described as news or current affairs… but the preponderance of the videos listed and referred to in the evidence can fairly be described as ‘celebrity tittle-tattle’. The substance of [Flynet’s] YouTube channel is not news or current affairs, it is gossip about celebrities.”