On Friday 13 April 2018 Warby J handed down public and private judgments in two “right to be forgotten” cases: NT1 and NT2 v Google (public judgment  EWHC 799 (QB)). There was also a “Press Summary” [pdf] of the judgment.
NT1 failed in his delisting claim whilst NT2 succeeded. NT1 was granted permission to appeal. There was no application for permission to appeal by Google in NT2.
The NT2 case was the first “delisting order” made by an English court and was, perhaps understandably, the focus of most of the media reporting (for example, the BBC and the Guardian). There was a piece on the case on the Register – from the only reporter to provide full coverage of the trial. There was also an Inforrm news item and one on the 5RB website. We will have a case comment shortly.
A number of blogs have comments on the case including
- Google lose ‘right to be forgotten’ case in UK High Court, SearchEngineLand
- NT1 and NT2: Forgetting past misdemeanors, Information Law Blog
- NT1+NT2 = Blogging to the Power of A Million (Words), Panopticon
The other big story in the Courts last week was the trial in the case of Sir Cliff Richard v BBC which began on Thursday 12 April 2018 before Mann J in the Chancery Division. There was an Inforrm Case Preview and reports on the first and second days of the trial. The trial has been the subject of wall to wall media coverage. The BBC Legal Correspondent has an interesting piece entitled “Cliff Richard case ‘likely to have massive implications’”.
Mark Zuckerberg’s appearance before the Congressional Committees this week gained significant scrutiny as US House and Senate members struggled to understand the scope of the social media giant’s data coverage and the regulatory implications which stemmed from this:
- The LSE Media Policy Project Blog notes how the powers of the Committees themselves to implement the significant regulatory changes required is limited, however, the first step to meaningful change is the debate which they facilitate.
- Press Gazette analyses the comments made by Zuckerberg regarding Facebook’s re-assessment of data harvesting committed by third party applications on the platform.
- The Guardian considers the scrutiny in the context of the upcoming GDPR and Facebook’s promotion of what it dubs a surveillance economy.
- CNBC notes the social media response to Zuckerberg’s testimony.
- Emily Bell has a Guardian blog piece “Why the politicians must set their sights on Facebook.”
Protocol 16 to the European Convention will enter into force on 1 August 2018. The Protocol allows the highest national courts of Member States to pose questions to the Court on the interpretation and application of Convention rights in pending cases. The Protocol provides an interim procedure for consulting the Court which is likely to assist in resolving preliminary matters before the Court.
Internet and Social Media
The LSE Media Policy and Project blog considers the nebulous concept of “Slacktivism”– political campaigning via social media to generate influence.
NPR has a debate stimulating post on the ability of social media to promote social responsibility, considering whether social media giants such as Facebook and YouTube are effectively meeting their moral obligations to users.
Data Privacy and Data Protection
The Guardian has a thought-provoking post which considers commuters data privacy rights and the issues surrounding the use of Oyster cards.
The regulator’s April newsletter can be found here. Alongside the typical sector, enforcement and event focus the newsletter considers the updates to its GDPR guide and Cambridge Analytica investigation.
The ICO has released the Information Commissioner, Elizabeth Denham’s script from the Data Protection Practitioners’ Conference 2018. Headlines include a summary of the regulators investigation into Cambridge Analytica, the evolving challenges of data protection regulation, GDPR resources, enforcement and public interest matters.
The regulator has also posted Elizabeth Denham’s speech at the National Cyber Security Centre’s CYBERUK 2018 event. This focuses on the development of a cyber security community emphasising a degree of self-regulation and accountability.
Newspapers Journalism and Regulation
The Press Gazette has a piece about Carol Cadwalladr’s “data harvesting scoop” in which she says that “working with other news outlets gave us ‘strength .in numbers”.
Journalism.co.uk has a piece entitled “What journalists can do to hold algorithms to account”.
IPSO has rejected a complaint by Alex Salmond concerning a report in the Herald about his appearance on Russia today. Hold the Front Page has a piece suggesting that this had prompted a row over the definition of “fake news”.
IPSO has also rejected a complaint against a Sunday Times column that said the Second Severn Crossing linked “rain sodden” Wales with the “first world”.
IPSO has released guidance on reporting on faith issues, promoting best practice on handling matters with due sensitivity.
IPSO has published a series of rulings and two Resolution Statements from the Complaints Committee:
- Resolution Statement 01577-18 Chiariello v Mail Online– Resolved through IPSO Mediation engaging provisions 1 (Accuracy), 2 (Privacy), 3 (Harassment) and 9 (Reporting of Crime)
- Resolution Statement 00850-18 Bellamy v The Sunday Times– Resolved through IPSO Mediation engaging provision 1 (Accuracy)
- 20838-17 Collins v thesun.co.uk– No breach of provision 2 (Privacy), after investigation
- Resolution Statement 02282-18 Kler v Hull Daily Mail– Resolved through IPSO Mediation engaging provision 1 (Accuracy)
- 19084-17 Stephenson Wright v Manchester Evening News– Breach of provision 1 (Accuracy)
- 20114-17 Salmond & Ahmed-Sheikh v The Herald– No breach of provision 1 (Accuracy) after investigation
- 20177-17 O’Connell v The Sunday Times– No breach of provisions 1 (Accuracy) and 12 (Discrimination) after investigation
- 20437-17 Stephenson Wright v Rochdale Observer– Breach of provision 1 (Accuracy) after investigation
Statements in Open Court and Apologies
There were no statements in open court last week.
Last Week in the Courts
On 11 April 2018 Nicklin J heard an application in the case of PML v Persons Unknown.
On the same day Arnold J granted the claimants in the case of Ali v Channel 5 permission to appeal on quantum. The defendant was refused permission to appeal on liability.
On the same day Newey LJ granted permission to appeal in the case of Various Claimants v MGN but did not order expedition.
As already mentioned, the trial in the case of Sir Cliff Richard v BBC began on Thursday 12 April 2018 before Mann J. The trial continued on the afternoon of 12 April 2018.
On 12 April 2018 Nicklin J handed down judgment in the case of NPV v QEL  EWHC 703 (QB). This was originally given in private on 28 March 2018.
On 12 April 2018 the Court of Appeal granted permission to appeal in the case of The Queen on the application of the News Media Association v The Press Recognition Panel. The hear by date is 1 February 2019.
On Friday 13 April 2018 Warby J handed down judgment in the cases of NT1 and NT2 v Google LLC.
- Joining The Circle: capturing the zeitgeist of ‘Big Tech’ companies, social media speech and privacy, Inner Temple, London, Wednesday 23 May 2018.
Media Law in Other Jurisdictions
In the case of Wilson v Bauer Media (Costs)  VSC 161 John Dixon J ordered the defendant to pay the plaintiff’s costs on an indemnity basis. The court dismissed the plaintiff’s application for an order for the payment of a gross sum and other relief. There were reports of the decision on the BBC and Guardian websites.
In the case of Pinksterboer v Coumi  SADC 25, the District Court awarded compensatory damages of Aus$42,500 in respect of three publications made in the context of an “escalating neighbour dispute”.
In an article in the Sydney Morning Herald Mark Pearson thoughtfully considers the reformation of Australian defamation law to better suit the typical claimant in the Australian Courts: the ordinary person.
Michael Geist notes the importance of robust data rules in modern trade agreements. Geist has also considered the issue of over-using website blocking and the accessibility and regulatory issues which stem from the practice.
In the case of Jonathan Lu v Paul Chan Mo-Po  HKCFA 11, the Court of Final Appeal ordered a retrial on the issue of malice. The judgment was given by Lord Reed NPJ. The defendant are the Financial Secretary and his wife and the case is brought by two students and their father over an allegation of cheating in a test. There is a report in the South China Morning Post.
TV9 Telugu has been criticised for its coverage of women’s issues specifically that of senior police officer Sunitha Reddy’s divorce by academic Padmaja Shaw. A response to the criticism was made by Haseena Shaik.
The Economic Times of India has a post considering the potential impact of the GDPR on the countries IT industry.
The Irish Times reports that Labour Senator Aodhán Ó Riordáin has apologised for a tweet he posted in the wake of the Belfast rape trial and has said it was not designed to suggest the men involved were guilty.
Barrister Mr O Floinn has commenced defamation proceedings against Health Minister Simon Harris and Fine Gael Senator Catherine Noone following a series of tweets made by the politicians following his appearance on an RTE radio programme focusing on issues around the referendum.
The Moscow Times has reported that the Russian legislature has passed laws which permit authorities to block websites that publish defamatory information against public figures. This raises questions regarding whether such laws constitute a failure to safeguard freedom of expression and whether they could be misused for political purposes, including to censor criticism.
The case of Mavrix Photographs v. LiveJournal the Ninth Circuit has ruled on LiveJournal’s liability for Safe Harbour under section 512(c) DCMA. The case involved six issues as to LiveJournal’s Safe Harbour eligibility in a claim by Mavrix Photographs for copyright infringement following LiveJournal’s use of their photos.
The much anticipated Microsoft Ireland case, regarding the US Governments ability to request user data on a cross jurisdictional basis, looks to have lost significance given the legislative changes being implemented by the Clarifying Lawful Overseas Use of Data Act (CLOUD Act). Stanford’s Cyberlaw blog has coverage.
The defamation lawsuit against President Trump by Summer Zevros continues, Lexology has coverage of the legal complexities the case engages.
A lawyer for former FBI Director Andrew McCabe has made a statement that the former security official may be filing a defamation complaint against the US President Trump. The Guardian and Daily Mail have coverage.
Research and Resources
- The Monsanto Lecture: Online Defamation, Legal Concepts, and the Good Samaritan, Valparaiso University Law Review, Vol. 51, No. 1, 2016, Fordham Law Legal Studies Research Paper No. 3155248, Benjamin C. Zipursky.#
- The UN Should Adopt Data Protection Convention 108 as a Global Treaty: Submission on ‘The Right to Privacyin the Digital Age’ to the UN High Commissioner for Human Rights, to the Human Rights Council, and to the Special Rapporteur on the Right to Privacy, Graham Greenleaf, University of New South Wales, Faculty of Law.
- Four Principles for Digital Expression (You Won’t Believe #3!), U of Maryland Legal Studies Research Paper No. 2018-15, Danielle Keats Citronand Neil M. Richards, University of Maryland Francis King Carey School of Law and Washington University in St. Louis – School of Law.
- Remediating Social Media: Why Layers Still Matter for Internet Policy, Boston University Journal of Science and Technology Law, Forthcoming, Annemarie Bridy, University of Idaho.
- Inciting Terrorism on the Internet: The Limits ofTolerating Intolerance, Incitement to Terrorism (A. Bayefsky & L. Blank, eds, Brill 2018), Amos N. Guiora, University of Utah – S.J. Quinney College of Law.
- Can Cyber Harassment Laws Encourage Online Speech?, Urs Gasser, Robert Faris, Amar Ashar, and Nikki Bourassa. (eds.), Perspectives on Harmful Speech Online, Berkman Klein Center Research Publication No. 2017-08, Harvard University, Jon Penney, University of Oxford – Oxford Internet Institute.
Next Week in the Courts
The trial in the case of Sir Cliff Richard v BBC will continue before Mann J for the whole of this week.
On 16 April 2018 the trial in the case of Monir v Wood will begin before Nicklin J. It is listed for 4 days.
On 17 April 2018, the Court of Appeal (Longmore, Ryder and Sharp LJJ) will hear the appeal in the case of Economou v Freitas. The appeal is against the judgment of Warby J handed down on 27 July 2016, dismissing the claimant’s libel claim (see our case comment). It is listed for two days.
On the same day the Administrative Court will hear the judicial review application in the case of R (on the application of Coulter) v IPSO
We are not aware of any outstanding reserved judgments in media law cases.
This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law