The short Easter legal term ended on 24 May 2018. The legal vacation is only 8 days, with the Trinity legal term beginning on 5 June 2018 and ending on 31 July 2018. Inforrm will not be taking a “Whitsun break” and will carrying on posting this week.
The most important news of the week was the coming into force on 25 May 2018 the of the General Data Protection Regulation came. This was implemented into domestic legislation by the much debated Data Protection Act 2018 [pdf], The ICO’s press release can be found here and comments from the Commissioner Elizabeth Denham here.
A number of controversial “Leveson” amendments to the Data Protection Bill were extensively debated. These amendments were not passed as part of the Bill. Steven Barnett considered the influence of the press on the decision here. A number of victims of press abuse have been granted leave to pursue a judicial review action on the basis the Government’s failure to implement Leveson Two.
In an attempt to persuade Tory Rebels to vote against the Leveson 2 amendments, the government added an amendment 62BC which provides that the Secretary of State mandate a review of press regulators alternative dispute resolution procedures, Brian Cathcart considers this in an INFORRM post.
Professor Lionel Bently of the University of Cambridge has explored proposals EU press publishers right in a post on the IP Kat Blog. This commentary is much welcomed considering the widespread impact such a right may have and the corresponding academic debate that it has stimulated.
PR Week considers how the GDPR provides claimants with greater rights to data protection and privacy and how these grounds maybe utilized more by claimants as opposed to defamation actions.
The Pussycat Dolls are bringing a lawsuit against the Daily Mail’s parent company following the Mail Online publishing an article describing the band as a “prostitution ring” by former member Kaya Jones.
The Transparency Project Blog has published a speech given by the Chair of the Project Lucy Reed at the Bloomsbury Family Law Conference. The speech explores the importance of transparency and its practical application to privacy and publicity matters in proceedings involving children.
In the wake of the recent BBC drama about Jeremy Thorpe, the Sun on Sunday has a piece about his barrister, George Carman QC.
Internet and Social Media
The LSE Media Policy Project Blog has a post considering the relationship between publishers of content and platforms. The article notes the imbalance engendered by the accessibility oligopolistic high-powered platforms provide to an increasingly fragmented array of publishers. Market forces and the implications of technology need to be quantified before any reasonable attempt at resolution may be made – the problems must be identified before solutions may be considered.
The Blog also analyses how to promote internet transparency and accountability, particularly via the establishing a research-based “Internet Commission” by a number of leading academics.
On the IP Kat Blog Eleonora Rosati highlights 5 key principles of EU law which are engaged in cases involving intermediaries and intellectual property.
The Guardian considers the responsibility of social media platforms for hosting violent videos whereas the Financial Times highlights the ability of platforms to assist in fighting corruption.
Privacy and Data Protection
Privacy international used the implementation to facilitate transparency, sending a series of letters to data focused companies requesting information on their data processing activities and safeguards. In a contextual post the organisation also analyses the methods by which data companies can accrue personal data.
Mischon de Reya has a series of articles on GDPR compliance ranging from the volume of emails received by users, frequent questions and the implications for domain name owner search engine Whois. Privacy Europe offers a similar summary here.
The IAPP offers a centralised hub of information here, a podcast for post May 25 2018 and a summary of technology which can assist in compliance.
The LSE Media Policy Project Blog has explored the impact of the GDPR on children.
Stanford’s Cyberlaw Blog notes that, following the Cambridge Analytica controversy, the need for a GDPR comparable piece of legislation is being speculated by data protection and technology professionals in the US. The article cautions against an overly reactive approach to data protection regulation, noting that many provisions of a pseudo-GDPR conflict with US laws in relation to competition, expression and trade therefore mandating a more nuanced approach that considers the distinctions of US law.
The Cearta Blog has a post entitled “New politics and the digital age of consent” which examines the provisions of the Irish Data Protection Bill, in particular the provisions which relate to consent to data processing.
The University of Greenwich has been fined £120,000 following a security breach which left over 20,000 staff and students personal data, including 3,500 individuals’ sensitive personal data, at risk of exploitation following the failure to close a microsite which was subsequently targeted by cyber attackers.
Bayswater Medical Centre has been fined £35,000 for failing to correctly secure or destroy sensitive information left in a former GP surgery for 18 months.
A former recruitment consultant has been fined £355 for taking details of 272 individuals from a previous employer which he then utilized in launching his own company.
Stanford’s Cyberlaw blog considers the damage done to the FBI’s credibility following the agencies provision of grossly inflated figures for the number of smartphones that were rendered inaccessible due to encryption in 2017. The figures were generated by a contractor which made a number of procedural errors resulting in the discrepancy. The article considers the significance of this error in the context of the “Apple vs FBI”, where in 2017 the FBI petitioned outside vendors for assistance in unlocking the San Bernardino shooters iPhone, as well as general encryption policy.
Internet cases has considered a Pennsylvania court case which found that the police do not have to make details of how they monitor social media available to the public. Disclosure of police intelligence gathering methods was prohibited on the basis that the disclosure was reasonably likely to threaten public safety or public protection activities.
Newspapers, Journalism and Regulation
The Guardian and BBC have settled with the law firm Appleby following the firms’ attempt to force the disclosure of documents which formed the basis of their Paradise Papers reports via a breach of confidence action.
The Daily Mail has partially paid journalist Kate Maltby’s preparatory legal costs as a gesture of goodwill over an article which described her as “one very pushy lady”.
The LSE Media Policy Project Blog has considered the challenges posed by fake news– particularly critiquing where responsibility lies for education, evaluation and regulation.
An IPSO complaint bought by Katie Hopkins over a Mirror headline which claimed that she was detained abroad due to allegations of drug use, has succeeded on grounds of inaccuracy.
Media outlet Evolve Politics has been ordered by Impress to pay damages in the sum of £900 to Sky News broadcaster Jonny Gould following publishing an article alleging that Gould attended a Presidents Club dinner.
IPSO has published a series of rulings and three Resolution Statements from the Complaints Committee:
- Resolution Statement 18923-17 Dixon v The Sun, resolved via IPSO mediation
- Resolution Statement 20931-17 Dixon v Sun.co.uk, resolved via IPSO mediation
- Resolution Statement – 00918-18 Dixon v Mail Online, resolved via ISPO mediation
- 00916-18 The Scottish Government v The Scottish Daily Express, no breach of Principle 1 (Accuracy) after investigation
- 01009-18 Dalton v The Scottish Sun, no breach of Principle 1 (Accuracy) after investigation
- 01059-18 Lennox v The Times, no breach of Principle 1 (Accuracy) after investigation
- 01104-18 Hopkins v Mirror.co.uk, breach of Principle 1 (Accuracy)
- 16830-17 Warwickshire Police v Daily Mail, breach of Principle 2 (Privacy)
Statements in Open Court and Apologies
There were no statements in open court last week.
Last Week in the Courts
On 21 to 23 May 2018 Warby J heard an application for permission to serve a representative action out of the jurisdiction in the case of Lloyd v Google. Judgment was reserved. The hearing was widely reported, including pieces in the Guardian, the Independent, Wired, and the Register.
On 22 May 2018 Nicklin J heard a preliminary issue on meaning in the case of Gideon Falter v Gilad Atzmon concerning an article on the defendant’s website entitled “Antisemitism is merely a business plan”. He found that the article bore a defamatory meaning. There was a report in Jewish News.
On 23 May 2018 there was an assessment of damages in the IPEC before District Judge Hart in the case of Robert Grahn T/A Euroluftbilde.De v Express Newspapers
On 24 May 2018, Warby J handed down judgment in the case of Sube v News Group Newspapers  EWHC 1234 (QB).
On the same day Chief Master Marsh handed down judgment in the case of Various Claimants v MGN Limited  EWHC 1244 (Ch), dealing with various costs issues in the 2nd Wave of the Mirror Newspapers Hacking Litigation.
On the same day the Court of Appeal heard an application for permission to appeal on a specific disclosure issue in the harassment case of Lisle-Mainwaring v Associated Newspapers. The application was dismissed with reasons to be given later.
On 25 May 2018, Chief Master Marsh handed down judgment in the case of Mezvinsky v Associated Newspapers  EWHC 1261 (Ch) dismissing an application by the Daily Mail for the transfer of a misuse of private information case from the Business List (ChD) to the Media and Communications Lists in the Queen’s Bench Division.
- Webinar: Morrison & Forster’s Data Protection Masterclass, Tuesday 19 June 2018, 12:00pm – 1:00pm.
Please let us know if there are any media and law events which you would like us to list.
Media Law in Other Jurisdictions
The Guardian reports on the trial of the libel claim brought by the Wagner family against Alan Jones and journalist Nick Cater.
Lexology has piece on how post-publication fact finding cannot be used to justify a defence of qualified privilege following the recent case of Rush v Daily Telegraph.
Former MP Sophie Mirabella has been awarded the entirety of her costs in her defamation case against the Benalla Ensign.
The Calgary Herald reports that the Alberta Court of Appeals has increased the costs payable to former TV journalist Arthur Kent after his successful libel claim against Postmedia.
In the case of Magno v Balita 2018 ONSC 3230 the Ontario Superior Court of Justice granted summary judgment in a defamation claim arising out of the publication of 35 articles, in print and online, in which they referred to plaintiff as (among other things) an arrogant gasbag, a shameless bully, a habitual liar and a fraudster. No arguable defences being available judgment was entered in the sum of $300,000 with punitive damages of $110,000.
In the case of Hall v Razutis 2018 BSC 841 Young J awarded damages of $7,500 in respect of online publications after a summary trial.
Michael Geist’s Blog is in the midst of conducting an in-depth review into Canadian copyright law, reflecting that of the Standing Committee on Industry, Science and Technology. The Committee is conducting extensive investigations for its five year statutory review of the Copyright Act:
- Canadian Copyright, Fair Dealing and Education, Part One: Making Sense of the Spending
- Canadian Copyright, Fair Dealing and Education, Part Two: The Declining Value of the Access Copyright Licence
- Canadian Copyright, Fair Dealing and Education, Part Three: Exploring the Impact of Site Licensing at Canadian Universities
- Canadian Copyright, Fair Dealing and Education, Part Four: Fixing Fair Dealing for the Digital Age
Meanwhile, the Hugh Stephens Blog notes that FairPlay Canada Answers its Critics and Restates its case. He describes the Reply as a “thorough, reasoned and well-documented rebuttal” of the criticisms of opponents.
The Cobrapost has conducted a second instalment of a “sting operation 136” developed to expose corruption in Indian media outlets. The operation involves a Cobrapost reporter who, masquerading as a Hindutva propagator, engaged a number of Indian media outlets to post alleged Hindutva content for money, the Hoot considers the outcome and implications.
The Bar of Ireland held a conference in Malaga entitled “Defamation Nation”. There is a report in the Independent of a call by NewsBrands (representing national newspapers) calling for the abolition of juries in defamation actions. There is also a report on the conference in the Irish Times.
In a judgment in case of Peta v Minister of Law [pdf] handed down on 22 May 2018 The Constitutional Court has declared that the law of criminal defamation is inconsistent with the constitution. The ruling operates retrospectively. There was a post about the decision on the CPJ website.
Trinidad and Tobago
Newsday reports that a libel claim by a retired police inspector against one of his juniors has been dismissed. The Judge said that junior officers should be willing to report concerns about the actions of their superiors.
In a significant finding a New York court has ruled that, in blocking users on twitter from his Presidential Twitter account, Donald Trump is infringing Twitter users First Amendment rights. The ruling also has significance for other politicians operating Twitter accounts.
Internet cases notes that a defendant’s privacy rights were taken into account in a case of BitTorrent copyright infringement. The U.S. District Court for the District of Minnesota, in granting Strike 3 Holdings to the right to subpoena Comcast to find the identity of the account holder, considered that the defendant’s right to privacy in name and address were outweighed by Strike 3’s likely claim for copyright infringement.
US President Donald Trump has requested that the defamation lawsuit against him by Summer Zervos be delayed due to his immunity from being sued whilst in presidential office.
Arizona has amended its data breach notification laws to mandate that subjects of a data protection breach are notified with 45 days of a breach occurring.
The US copyright dispute which developed in relation to the selfie of the monkey has been examined in another post from the Socially Aware blog, which notes that Cónde Nast Entertainment has recently acquired the rights to the David Slater, the owner of the camera which was used to take the photo.
Research and Resources
- Reynolds V Times Newspapers, Hilary Young, University of New Brunswick
- Rebel Wilson’s Pitch Perfect Defamation Victory, David Rolph, University of Sydney Law School and Michael Douglas, University of Western Australia School of Law
Data Privacy and Data Protection
- Course Correction—Data Breach as Invasion of Privacy, Jordan Elias, Independent
- The Powers and Weaknesses of Online Privacy Legislative Protection: Based on Introduction and Analysis of the U.S. Children’s Online Privacy Protection Act 1998, Yuan Qiong Hu, University of London (SOAS)
- Unfolding the New-Born Right to Data Portability: Four Gateways to Data Subject Control, Helena Ursic, Yale Law School
Next Week in the Courts
There are no media law cases listed this week which is the Whitsun Legal Vacation.
The following reserved judgments after public hearings in a media law cases are outstanding:
Sir Cliff Richard v BBC, heard 12 to 13, 16 to 20, 23-26 April and 8 and 9 May 2018 (Mann J)
Economou v Freitas, heard 17 and 18 April 2018 (Lewison, Ryder and Sharp LJJ)
TLT v Home Office, heard 17 May 2018 (Gross, Macfarlane and Coulson LJJ)
Lloyd v Google, heard 21 to 23 May 2018 (Warby J)
Lisle-Mainwaring v Associated Newspapers,, heard 24 May 2018 (Newey and Coulson LJJ).
This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law