The surprise vote in favour of Brexit in the UK’s “advisory referendum” has repercussions which legal and political commentators have barely begun to work through. Over the past 43 years, the English legal and regulatory system has become increasingly integrated with the EU and, as the House of Lords EU Select Committee made clear in May, disentanglement will not be straightforward.
As a matter of strict legality the UK has a choice when to initiate the withdrawal process – under Article 50 of the Lisbon Treaty. At present it appears that the Government wishes to take no action until October whilst, understandably, the EU wants to start immediately and political pressure is likely to be applied.
Withdrawal from the EU removes an obstacle to withdrawal from the Council of the Europe and the removal of enforceable human rights from domestic law. This course is favoured by Theresa May – the “stop Boris” candidate for Prime Minister. Its potential impact on media law is uncertain – it might turn out to leave the law of privacy intact.
For media and information lawyers the most important legal issue arising out of withdrawal is the fate of the Data Protection Act 1998 (and its Euro-replacement, the General Data Protection Regulation). This has already been the subject of a number of blog posts (see below). The consensus is that, if the UK wishes to continue trading with the EU it will need to maintain a data protection regime which accords with the GDPR. In short, that nothing will change.
The role played by the media in the Leave victory has been controversial. The overwhelming pro-Brexit press characteristically failed in its “duty” to scrutinise the promises of the campaign. Nick Cohen reminds us of journalistic mendacity and the fact that the leading Brexiteers, Michael Gove and Boris Johnson, are journalists turned politicians.
The UN Special Rapporteur on freedom of expression has issued his 2016 Report on the promotion and protection of the right to freedom of opinion and expression [pdf]. This report marks the launch of a new project exploring issues at the intersection of State action, the private sector and freedom of expression in a digital age. The report provides an overview of the regulatory ecosystem that underpins the Internet and trends in State and private action that implicate freedom of expression online.
On 8 June 2016, Stephens J gave a judgment in Board of Governors of Campbell College v Independent News and Media ( NIQB 51). He held that, in Northern Ireland, an application to make a statement in open court could be made by issuing a summons (in England an “application notice”) and that it was not necessary to issue a writ of summons (in England a “claim form”).
The Socially Aware blog has a round up of stories on Livestreaming, guidance for judges on social media use and a number of other topics.
Data Protection and Data Privacy
The withdrawal of the UK from the EU has obvious implications for data protection. However, as the ICO pointed in a press statement last week, the Data Protection Act 1998 remains the law of the land and
if the UK wants to trade with the Single Market on equal terms we would have to prove ‘adequacy’ – in other words UK data protection standards would have to be equivalent to the EU’s General Data Protection Regulation framework starting in 2018.
Many blogs, law firms and others have commented on the Brexit and data protection issue, in including
- “Brexit and the Future of Data Protection”, Anya Proops, Panopticon
- “What does Brexit mean for data protection?” Nick Graham, Privacy and Cybersecurity Law.
- “Brexit and data protection: What does it mean for you?” Phil Lee, Privacy, Security and Information Law.
- “UK Votes to Leave the EU: Data Protection Standards Unlikely to Be Affected”. Hunton Williams, Privacy and Information Security Law Blog.
- “Brexit: Data protection and cyber security law implications”, James Mullock and Simon Shooter, Bird & Bird.
The Register has a post entitled “Mandarins plotted to water down EU data protection regs” which indicates that HMRC was hoping to put in place “exemptions” from GDPR.
Statements in Open Court and Apologies
In a Statement in Open Court read before Warby J on 20 June 2016, pro-Brexit campaigner and former MP George Galloway has apologise and agreed to pay costs and damages to his former aide Aisha Ali-Khan. The statement can be found here. There were news reports in the Independent, the Standard and in Private Eye.
Newspapers Journalism and Regulation
Friday’s newspapers struggled to reflect the “breathtaking nature” of the Brexit vote. Roy Greenslade has a post looking at the various front pages. We had a post about the role of newspapers in the vote.
According to a poll conducted by the Electoral Reform Society, 34% of the public believed that the BBC’s coverage was the key source of news for the EU referendum. There was post about the poll on the Greenslade blog.
Roy Greenslade has an interesting post entitled “Should governments bail out newsprint newspapers?”
The Zelo Street blog has a piece on Louise Mensch and the referendum result: “Don’t Menshn Brexit, Stupid”
Last week in the Courts
The trial in Economou v De Freitas continued on 20 and 22 June 2016 before Warby J. Judgment was reserved.
The trial in Ghuman v Ghuman continued before Dingemans J on 20 and 21 June 2016 and judgment was, again, reserved.
The trial in TLT and others v Secretary of State for the Home Department began on Monday 20 June 2016 and was completed on 23 June, with judgment being given on 24 June 2016. Mitting J awarded a total of £39,500 to 6 asylum seekers. We had a news item about the case.
On 22 June 2016, Sir David Eady heard applications in the case of Richardson v Google UK Ltd.
On 23 June 2016 Sir David Eady heard an application in the case of Callaghan v Express Newspapers.
5 September 2016, “Conference5RB“, at at IET Savoy Place, Savoy Place, London WC2R 0BL, and will deal with current issues in defamation, privacy, Data Protection, harassment, reporting restrictions and contempt issues.
Please let us know if there are any events you would like to be included on this list by email: email@example.com.
Media Law in Other Jurisdictions
In the case of Kelly v Levick  QMC 11 a Queensland court has awarded a woman Aus$100,000 against her ex-husband who had accused her on Facebook of being a “thieving, lying, money crazed bitch”. There is a report of the case in the Daily Mail.
A jury in Halifax Nova Scotia has awarded Can$1.4 million defamation damages to cardiologist Gabrielle Horne after it found the Nova Scotia Health Authority took actions that damaged her reputation and research career. There is a news report in the Financial Post.
A judge in Nova Scotia has ordered Facebook to release users’ names in a potential defamation cases. There is a report in the Toronto Star.
The Kenya Star reports that the current and former CEOs of the telecoms company Safaricom have sued blogger Cyprian Nyakundi for defamation over articles in which he said the telecommunications giant is exploiting Kenyans.
Oswald Lutepo – serving 11 years in prison after being convicted of conspiracy to defraud – is bringing a libel action against the Sunday Times over a claim that he was granted conjugal rights and had sexual intercourse with a woman believed to be his wife.
The Malaysian Resources Corporation Bhd has settled its libel suit with the owner of the defunct online news portal The Malaysian Insider and its news editor after they agreed to apologise over the publication of defamatory articles on the Light Rail Transit 3 (LRT 3) project.
Malta Today is appealing an order that pay €2,000 damages to Alan Camilleri of Malta Enterprises.
The Malta Independent on Sunday has successfully defended a libel claim by Arlette Baldacchino concerning her involvement in a far right website.
The Belfast News Letter has unveiled David McNarry UKIP’s leader in Northern Ireland, as responsible for using the Northern Irish Assembly’s publicly-funded libel insurance to pay a bill owed to its former political editor, the late Liam Clarke. There is a report on Hold the Front Page.
Actress Han Ye-Seul has commenced harassment proceeding against an anonymous individual who has been attacking her online.
It is reported that Jesse Ventura is planning to appeal the decision by the 8th Circuit Court of Appeals which, last week, overturned the US$1.8 million jury verdict in his favour in 20014.
Research and Resources
- MsLods’ Law+tech Round up, 24 June 2016.
- Right to Be Forgotten and Public Registers. A Request to the European Court of Justice for a Preliminary Ruling, EDPL – European Data Protection Law Review, 2016/2 (Forthcoming), Alessandro Mantelero, Polytechnic University of Turin – Department of Production Systems and Business Economics (DISPEA).
- Australians’ ‘Right’ to Be Bigoted: Protecting Minorities’ Rights from the Tyranny of the Majority, Brooklyn Journal of International Law, Vol. 41, No. 2, 2016, Jill Rudge.
- The Press and the Law: Some Issues in Defamation Litigation Involving Media Coverage of Legal Affairs and Proceedings, Southwestern Law Journal, Vol. 43, No. 4, 1990, Lackland H. Bloom Jr, Southern Methodist University – Dedman School of Law.
- Reconsidering Constitutional Protection for Health Information Privacy,18(3) University of Pennsylvania Journal of Constitutional Law 975 (2016), Wendy K. Mariner, Boston University School of Law.
- Death and Privacy in the Digital Age, North Carolina Law Review, Vol. 94, No. 927, 2016, Natalie M Banta.
- Civil Society and Cybersurveillance, Andrew McCanse Wright, Savannah Law School
Next Week in the Courts
The libel trial in the case of Begg v BBC will begin on Monday 27 June 2016 before Haddon-Cave J, with a time estimate of 5 to 6 days.
On 30 June and 1 July 2016 there will be an application in the case of David v Hosany.
On 6 July 2016, the Court of Appeal will give judgment in the case of Cartier International AG & Others v British Sky Broadcasting Limited
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)
Simpson v Mirror Group Newspapers, heard, 24 May 2016 (Laws, King and Lindblom LJJ).
Ghuman v Ghuman, heard 13-17, 20-21 June 2016 (Dingemans J).
Economou v De Freitas, heard 13-17, 20, 22 June 2016 (Warby J).