The media news this week was dominated by the release of the long awaited White Paper, A BBC for the future: a broadcaster of distinction [pdf] . The BBC will face external regulation for the first time in its history.
The reforms will replace the governing body, the BBC Trust, with a new board of up to 14 people, of which the government will name six members. External regulation will be handed to Ofcom. The government also said the BBC must become more distinctive and avoid aping its commercial rivals.
Despite fears however, many suggested that the BBC seems to have emerged relatively unscathed from the government’s “major overhaul”. Roy Greenslade described the changes as “largely sensible and reasonable”
The Media Reform Coalition was more pessimistic, arguing that “almost every threat uttered by Whittingdale is alive and well in the small print”. It warns that a BBC with reduced power will be less able to stand up to Governments intent on bringing it to heel. Steve Barnett made similar points on Inforrm.
Damian Tambini, writing for the Media Policy Project Blog, picked up on concept of ‘distinctiveness’, arguing that this detail might pose a long term threat to the BBC by forcing it away from popular market oriented programming. This is also picked up by Gunn Enli, who argues that the Nordic model demonstrates why the ‘distinctiveness’ downgrades the debate.
Others argue that it is the lack of detail in the White Paper that might threaten the BBC, suggesting that the organisation’s independence could still be compromised.
Associated Newspapers, who publish the Daily Mail, was fined £40,000 for publishing information which might have identified a sexual assault complainant who claimed that he was sexually abused by a variety of high-profile political figures.
The story, which was headlined: “Nick – victim or fantasist?”, was accompanied by a pixelated photo of him and some personal details. Although no one identified “Nick” as a result of the article, it included details which had the potential to do so. The company admitted two offences under the Sexual Offences (Amendment) Act which prohibits the revealing of the identity of anyone who has complained to police about being the victim of a sexual assault.
HoldTheFrontPage discusses what happens to lifelong anonymity in cases where allegations are later dropped, or where the accused has been cleared at trial.
Sun crime reporter Anthony France, the only journalist to have been convicted under Operation Elveden after a trial, has passed the first stage of having his conviction overturned by the Court of Appeal. Roy Greenslade welcomed the news, but warned that he will have to wait longer to clear his name.
A council spent £12,000 attempting to ban the media from reporting the death of a baby, it was revealed by a regional newspaper. Cumbria County Council initially claimed the legal costs were £780. The Cumbria-based North West Evening Mail has used the Freedom of Information Act to reveal the true figure.
Social media regulation and user safety have been brought to the forefront of global news after a teenage girl live streamed her own suicide on Periscope. A 19 year-old girl used the live stream social media app to broadcast herself taking her own life when she reportedly jumped under a train at a station. The Twitter-owned app has been plagued with disturbing content being streamed on its platform including assaults, deaths and rapes.
Should it be against the law to share tragic images on social media? The Kernel discusses the issues here.
Judges should treat the use of technology to embarrass or humiliate victims as an aggravating factor when considering sentencing, under new draft proposal guidelines published this week. Children and teenagers who film or photograph sex crimes before posting them on social media could soon receive more severe punishments following proposals put forward by the Sentencing Council, which advises courts on penalties.
Social media manipulation is an increasingly common form of extortion, according to a Brookings Institute Report. Last month, the U.S. Department of Justice said in a report that “sextortion is by far the most significantly growing threat to children”.
Facebook have admitted that its “trending topics” feature is edited by journalists and have been accused of “routinely suppressing conservative news”. Jake Leigh-Howarth discusses the potentially dangerous implications of this here.
However, Facebook has denied being involved in the deletion of the page of Zed Books, who had their page removed without warning after publishing articles that criticised the Turkish government and discussed the outlawed (in Turkey) Kurdistan Workers party.
Data Protection and Data Privacy
IP addresses are personal data and data protection law should apply to them, according to the Advocate General of the Court of Justice of the EU. The opinion was issued in Patrick Breyer v. Federal Republic of Germany, a case which was referred to the CJEU by Germany’s Supreme Court in 2014.
Data protection issues are particularly challenging in the employment context. CMS Cameron McKenna’s Rob Briggs discusses recent developments here.
A London HIV clinic that released confidential data on 781 of its patients has been fined £180,000. The clinic sent an email with all patient email addresses in the ‘To’ field, rather than the ‘Bcc’ field. The ICO said the breach was “likely to have caused substantial distress” to those who were included on the list.
Now that it has become legislation, the GDPR continues to attract comments. We draw attention to the following:
- The UK might use legislative flexibility to enact something that could be described as “GDPR lite” according to The Register.
- Companies across Europe will need to appoint over 28,000 new data protection officers (DPOs) ahead of the enforcement of new regulations in 2018, according to a new study.
- The FieldFisher Privacy, Security and Information Blog has released a guide to becoming GDPR ready, available here.
- The Cambridge Network discusses the implications of the change here.
- Finextra also discusses the impacts and implications, stressing that focused and effective preparation must begin now.
Surveillance and Information Gathering
Privacy campaigners have launched a poster campaign and petition against the Investigatory Powers Bill. The campaign, set up by the Don’t Spy On Us coalition, features posters of Russian President Vladimir Putin and Chinese Premier Xi Jingping.
Jim Killock explains the campaign for the New Statesman, arguing that the Bill would give government “sweeping powers” to intrude into the private lives of ordinary citizens.
Freedom of Information
The Panopticon blog has published some transparency related updates which will have a potential impact on (a) the engagement of exemptions under FOIA and the EIR, and (b) the public interest balance. They are available here.
The Oxford University Press blog has released an article discussing the Freedom of Information Act. suggesting that it is “here to stay”.
Statements in Open Court and Apologies
There were two statements in open court this week, both in the Mirror Phone Hacking Litigation. First, there was a statement in the case of Hoppen v MGN Ltd [pdf] and second there was one in the case of Hilary Perrin v MGN Ltd [pdf].
Newspapers Journalism and Regulation
Former Guardian editor Alan Rusbridger has made the decision not to return as chairman of the Scott Trust. He has reportedly bowed to pressure from current Guardian editor Katharine Viner, who appears to have opposed him returning to the role.
Last week in the Courts
On 9 May 2016, Langstaff J handed down judgment in the case of Oyston v Reed ( EWHC 1067 (QB)). This was an assessment of damages after judgment was entered in default. Damages were assessed in the sum of £30,000 in respect of a website publication. There was a news stories about the award on the BBC website.
On 10 May 2016, HHJ Moloney QC heard applications in the cases of Ghuman v Ghuman and Hussain v Feeney.
On Thursday 12 May 2016, Warby J heard a PTR in the case of Economou v de Freitas. Judgment was reserved.
On the same day Mann J heard an application in the Third Wave of the News Group Newspapers phone hacking litigation.
The same judge then heard a two statements in open court and a CMC in the Second Wave of the Mirror Group phone hacking litigation. The CMC continued on Friday 13 May 2016 and will continue on 16 May 2016.
On 13 May 2016, Sir David Eady heard an application in the case of Otuo v Morley.
On the same day HHJ Moloney QC heard an application in the case of Royal Brompton & Harefield NHS Trust & anr v Shaikh.
Please let us know if there are any events you would like to be included on this list by email: firstname.lastname@example.org.
Media Law in Other Jurisdictions
Three journalists who criticized an Abu Dhabi TV network have received a three-month suspended prison sentence for slander. The journalists, appearing on Dubai Sports, criticized Abu Dhabi Sports for monopolizing the broadcast of the Arabian Gulf Cup soccer tournament.
In the case of Hardie v Herald and Weekly Times  VSCA 103, the Court of Appeal of Victoria dismissed an appeal on liability in respect of an allegation that the plaintiff was a brothel madam and increased the damages from Aus$90,000 to $250,000.
In the case of Stone v Moore  SASCFC 50 allowed the defendant’s appeal against a judgment dismissing an action for libel and awarded damages of Aus$2,000. The claim was brought by a woman in her 70s against her brother concerning his criticisms of her treatment of their mother.
In the case of Shea v News Ltd (No.2)  WASC 146 Kenneth Martin J considered a number of issues arising in a libel claim brought by plaintiffs who were children at the time of the publications complained of.
A Supreme Court of Queensland committee has released a report recommending a pilot program for the broadcasting of some sentencing remarks and appeal hearings. The report was the result of eight months of deliberations by five Supreme Court justices.
The CEO of Overstock.com, Patrick Bryne, has been ordered to pay nearly $1M after being found guilty of libel. It was ruled that Bryne had libeled Altaf Nazerali, referring to the Vancouver businessman as “a criminal, arms dealer, drug dealer, terrorist, fraud artist, gangster, mobster, member of the Mafia, dishonest, dangerous and not to be trusted”.
Criminal defamation is constitutionally valid, a two-judge bench of the Supreme Court has found. The court pronounced its verdict on petitions by Congress vice-president Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal and BJP leader Subramanian Swamy challenging the constitutional validity of sections 499 and 500 of the Indian Penal Code providing for criminal defamation. “Defaming a person amounts to an offence against society and the government is entitled to lodge a case against a person under criminal defamation law,” the Supreme Court said Friday.
The ruling has been criticised by some. Former attorney general Soli J Sorabjee described the judgement as “disappointing”, arguing that criminal defamation can be “misused to stifle free speech”.
Ireland’s data protection regime is facing scrutiny once again, as judges at Europe’s highest court are to adjudicate on a case passed to them by an Irish court. Critics have raised concerns about the DPC’s commitment to meeting its mandate of securing citizens’ rights to privacy, and ensure they have access to data held on them.
Businessman Denis O’Brien is suing former Fianna Fáil TD for Galway East Colm Keaveney. O’Brien is suing Keaveney for defamation after the proposed text of a speech by the politician was circulated to a public relations company.
The High Court has dismissed an application by Datuk Seri Najib Tun Razak and his wife to determine their libel suit against a Taiping MP without going for full trial. The couple claimed that the DAP politician posted defamatory words about them on his Facebook page.
New Zealand’s privacy regime is weaker than many of its international counterparts, according to the UN rapporteur on the right to privacy, Joe Cannataci. The commissioner should have powers to impose fines on the likes of Facebook and Google, as European privacy regulators have done for personal information breaches.
Controversial blogger Cameron Slater can now be named as the accused in a hacking case, after his name suppression expired. Slater has been accused of paying an associate to hack Labour-linked blog The Standard.
Former Sinn Fein MLA Phil Flanagan could face further legal action after announcing that he cannot pay £50,000 libel damages to UUP MP Tom Elliott. Flanagan, who is now unemployed, also said he would not be asking Sinn Fein to help cover the costs.
Lawyer Alastair Duncan QC has urged judges to overturn a decision to award £200,000 to Tommy Sheridan following his defamation victory over the News of the World. He told judges that it was “essential to justice” that the August 2006 award be “set aside”.
A Seoul court has dismissed a lawsuit filed by a local politician against President Park Geun-hye. Hwang Sun filed the defamation suit after President Park criticised a talk show she hosted as being pro North Korean.
A former CEO has been awarded more than $5 million in compensation in a libel lawsuit brought against the Trinidad Express. Singh, through his attorney Prakash Deonarine, filed the lawsuit in relation to two investigative stories which suggested some wrongdoing on his part which resulted in his resignation.
The lawyer who successfully sued Gawker Media over Hulk Hogan’s sex tape has sued the online publisher again. Charles Harder brought a libel suit on behalf of Shiva Ayyadurai, a man who has gone on a years-long campaign trying to convince the world that he invented e-mail. Ayyadurai now demands $35 million from Gawker and a public retraction of the 2012 articles which accuse Ayyadurai of lying.
Research and Resources
- If These Canadians Lived in the United States, How Would They Protect Their Privacy? The Functional Equivalence of Privacy Redress Mechanisms in Canada and the US 2016 Privacy Law Scholars Conference, George Washington University, June 2-3, 2016, Priscilla M. Regan, Colin Bennett and Robin Bayley, George Mason University – Department of Public & International Affairs, University of Victoria and Linden Consulting.
- Remembering and Forgetting – Protecting Privacy Rights in the Digital Age (2015) 1(3) European Data Protection Review pp.164-177, Stephen Allen
- Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power, Theoretical Inquiries in Law, Forthcoming, U of Maryland Legal Studies Research Paper No. 2016-24, Frank A. Pasquale III, University of Maryland Francis King Carey School of Law.
- When Does Cultural Satire Cross the Line in the Global Human Rights Regime? ‘Charlie Hebdo Controversy’ Discussion and Its Implication for a New Paradigm of the Bounds of Freedom of Expression , Kwang Hyuk Yoo, University of Iowa College of Law.
- Sextortion: The Problem and Solutions, Benjamin Wittes, Cody M Poplin, Quinta Jurecic, Clara Spera, Lawfare.
Next Week in the Courts
On 16 May 2016 Warby J will hear an application in the oft adjourned case of Barron v Collins – the libel claim by three Labour MPs against a UKIP MEP. The purpose of the hearing is to assess compensation under an offer of amends.
On the same day Sir David Eady will hear a PTR in the case of Bloor v Beresford.
As already mentioned, the CMC in the Second Wave of the Mirror Phone Hacking litigation will continue before Mann J.
On 17 May 2016, there will be an application in the case of Monks v National Westminster Bank plc.
On 19 May 2016, there will be a PTR in the case of Ali-Khan v Galloway
The following reserved judgments in media law cases are outstanding:
CG v Facebook Ireland Limited, heard 4 and 5 April 2016 (Morgan LCJ, Gillen and Weatherup LJJ)(Northern Ireland Court of Appeal)
PJS v News Group Newspapers, heard 21 April 2016 (UK Supreme Court)
Economou v De Freitas, heard 12 May 2016 (Warby J)
This week’s round up was compiled by Tessa Evans who is a researcher and journalist.