On 7 November 2017 the first meeting of the Media and Communications List User Group took place at the Royal Courts of Justice. Warby J was in the chair and welcomed a large group of Court users including solicitors, inhouse lawyers, barristers and NGOs.
Dingemans, Jay, Julian Knowles and Nicklin JJ were also present along with Senior Master Fontaine, Sir David Eady, Sir Michael Tugendhat and representatives of QB Listing and the MoJ. There was a wide ranging discussion and it was decided to constitute a “Users Group Committee” which will meet in the New Year.
The Committee stage of the Data Protection Bill continued on Monday 6 November 2017 in the House of Lords and will resume on 13 November 2017. The House considered a series of amendments – the transcript of the debate is available as Parts One, Two and Three. The House has reached amendment 42 (a total of 189 have been proposed so far).
In particular, the House considered amendments to Schedule 2, paragraph 24 – the “Journalistic Exemption” – from 87C onwards. These amendments are in line with the recommendations in the Leveson Report on data protection. The Society of Editors has said that the amendments must be rejected – apparently having failed to appreciate that they in fact maintain the journalistic exemption. The News Media Association highlights the speech of Lord Black against the amendments – failing to note the preponderance of speeches in favour.
There have been a number of complaints about a privacy injunction which prevents publication of information identifying a billionaire accused of rape in the United Kingdom. For example, the Mail has as story Unmasked in the US, billionaire in rape case we cannot name for legal reasons despite his lawyer confirming he was arrested. There is also an item on the Society of Editors website.
It appears that the case was RJH v News Group Newspapers, apparently granted on 21 June 2017 and reported in the Sun at the time. The case has not been the subject of any public judgment and, as it apparently continues in force, it seems that the newspaper has agreed to its continuation and not made any application to discharge.
The Law Society Gazette has a piece on the recent decision in Optical Express v Associated Newspapers, Libel claimants face costs penalty for late acceptance of Part 36 offer.
The Hold the Front Page Law Column has a post entitled “Reporting the latest sex scandals”
It is reported that the mother of a 14 year old boy who sent a naked photograph over social media has obtained permission to seek a judicial review of the decision by the police record the matter on the police national computer.
On 9 November 2017 Online Publication Claims: A Practical Guide, was published by Matrix Chambers. We have published a number of extracts from the book and will continue to do so over the next few weeks. Copies can be purchased for (the editors tell us), the very reasonable price of £34.99 from Amazon.
Internet and Social Media
In a decision under the Uniform Domain Name Dispute Resolution Policy (UDRP) a panel has found that respondent did not register and use the domain name pco.com in bad faith and has refused to transfer the domain to the complainant. There is a note about the case on the Internetcases blog.
The Labour Party has said that action needs to be taken after it was disclosed that the police and tried and failed to get hate blogs taken down by WordPress.
UNESCO has published a reported entitled “What if we all governed the Internet?: Advancing multistakeholder participation in Internet governance”. There is a post about the report on the LSE Media Policy Project blog by its author Anri van der Spuy.
Data Privacy and Data Protection
The CMS UK Datonomy Blog has a post entitled “What next for international data transfers?” commenting on the decision of the Irish High Court to make a preliminary references to the CJEU on the validity of three Commission decisions that apply to transatlantic data transfers.
A charity worker who sent spreadsheets containing the information of vulnerable clients to his personal email address has been prosecuted for breach of section 55 of the Data Protection Act 1998. The ICO has warned people working with sensitive personal information that they must obey strict privacy rules.
The fieldfisher Privacy, Security and Information Law blog has a post entitled “Re-Consenting to marketing under GDPR?” which considers the question as to whether fresh consents are needed for marketing databases.
The Migrant Rights Network has issued judicial review proceedings against the Memorandum of Understanding between the Department of Health and the Home Office which allows the sharing of migrant data. It is seeking funding via the Crowd Justice site.
On 7 November 2017 the Court of Human Rights held a hearing in the joined cases of Big Brother Watch and Others v. the United Kingdom, Bureau of Investigative Journalism and Alice Ross v. the United Kingdom and 10 Human Rights Organisations and Others v. the United Kingdom. The Court’s Press Release is here and the Webcast of the hearing can be watched here. Privacy International has a blog post dealing with the background to the case of 10 Human Rights Organisations v UK
Newspapers Journalism and Regulation
Last week saw a party to celebrate Paul Dacre’s 25 years as editor of the Daily Mail – attended by a host of establishment figures, including Prime Minister Theresa May. This was not a universally popular anniversary. Zelo Street’s piece was entitled “Theresa May Grovels Before Dacre”.
The Press Gazette reports that Impress is investigating an article in the Canary that claimed that Laura Kuenssberg was to speak at the Conservative Party conference.
The Press Gazette reports that it is likely that IPSO will exempt overseas content on Mail Online and other member websites from complying with Editors’ Code.
Statements in Open Court and Apologies
There were no statements in open court last week.
Last Week in the Courts
The trial in Serafin v Malkiewicz continued before Jay J on 6, 7, 8 and 9 November 2017. Judgment was reserved.
The case of Jake Wallis Simons v Craig Murray due to be heard on 7 November 2017 was settled.
On 7 November 2017 the Court of Appeal handed down judgment in the important costs case of BNM v MGN Ltd  EWCA Civ 1767. The Court held that the new proportionality rules contained in the CPR 44.3(2) and 44.3(5) did not apply to success fees and ATE insurance premiums. Assessment in such cases should be carried out under the old CPR 44.4(2)
On the same day Warby J heard an application for default judgment in the case of Pirtek (UK) Ltd v Jackson. Judgment was handed down on 9 November 2017  EWHC 2834 (QB).
On 9 November 2017 HHJ Moloney QC handed down judgment in the case of David v Hosany, heard 20, 21 and 24 July 2017.
2 December 2017, Media Democracy Festival, Clore Management Centre, Malet Street, London WC1
5 December 2017, The Family Court : Should privacy trump accountability?, The Station, Silver Street, Bristol, BS1 2AG
26 February 2018, “Global Internet and Jurisdiction Conference,” Ottowa, Canada.
Please let us know if there are any media and law events which you would like us to list.
Media Law in Other Jurisdictions
In the case of Vaa v Barakat  NSWDC 300 the NSW District Court (Gibson DCJ) dismissed an action for defamation against a business owner who had posted a photo of her with the word “Thief!”. There was a report of the case in the Sydney Morning Herald.
The Guardian reports that cricketer Chris Gayle is seeking to sell the story of his recent defamation victory over Fairfax media for Aus$420,000.
ABC reports that pensioner Marion Collier is suing the NSW Country Women’s Association after being sacked as branch secretary, alleging she was falsely accused of defrauding the branch of $10.
The Courier Mail has an opinion piece by Karen Brooks entitled “Stop using ‘freedom of speech’ as an excuse to spout hate”.
In the case of Paderewski v. Skorski, 2017 ONSC 6594 J R Henderson J awarded defamation damages of Can$10,000 to the plaintiff arising out of defamatory website publications concerning alleged financial irregularities at an old people’s home.
In the case of Lalli v Athwal, 2017 BCSC 1931 Blok J awarded the plaintiff Can$20,000 defamation damages in respect of false reports to the police.
It is reported that the long running defamation claim brought against Prime Minister Justin Trudeau and Canada’s ambassador to the U.S. by a would-be Liberal candidate Caroline Innes and her former-MP husband Tony Ianno, has been settled on confidential terms.
A French court has dismissed a defamation action by the government of Azerbaijan against two French journalists Elise Lucet and Laurent Richard who were accused the government by referring to it as a “dictatorship”.
The Irish Examiner reports that Ryanair has been ordered by the High Court to disclose documents which Channel 4 and an independent production company say they need to defend a defamation action by the airline.
The Independent has a report on the event “Freedom of Speech: Where Journalism and the Law Collide” which took place at Trinity College Dublin on 6 November 2017.
The Times of Malta reports that former Kirkop mayor Mario Salerno has lost a libel case he had instituted against Il-Mument after a magistrate ruled that facts reported by the Sunday newspaper were basically correct.
Research and Resources
- How Google Perceives Customer Privacy, Cyber, E-Commerce, Political and Regulatory Compliance Risks, Lawrence J. Trautman, Western Carolina University
- Transatlantic Data Privacy, 106 Georgetown Law Journal 115 (2017), Paul M. Schwartzand Karl-Nikolaus Peifer.
- Internet as a Public Space for Freedom of Expression: Myth or Reality?, Sara G Abbasi, Independent.
Next Week in the Courts
There will be a trial of a preliminary issue as to serious harm and defamatory tendency in the case of Hope not Hate v Farage on 16 November 2017 before Warby J.
The following reserved judgments after public hearings in media law cases are outstanding:
Washington-Carty v Fisher, heard 14 July 2017 (HHJ Moloney QC)
Mark Lewis Law v Taylor Hampton, heard 25-27 and 30-31 October 2017 (Moulder J).
Serafin v Malkiewicz heard 30-31 October and 1-3 and 6-9 November 2017 (Jay J).