We noted last week that there has been a 40% increase in issued defamation cases in 2017. The reasons for this increase are unclear. There was a piece on the Out-law.com website suggesting that the growing use of social media could be a factor in the increase in claims.
Furthermore, the present statistics do not show the number of data protection or privacy cases issued in the Royal Courts of Justice so it is not possible to form an overall view of level of media litigation in England and Wales. It is possible that, in the future, figures will be available for the number of cases issued in the new Media and Communications List which would provide a fuller (although not complete) picture.
The broadcaster ARY Network Limited has settled libel proceedings brought by well-known Pakistani businessman, Mian Mohammed Mansha. ARY agreed to pay damages of £75,000 and costs of £200,000. The case had been due to be tried over 4 days, commencing on 11 June 2018.
The Brett Wilson Media Law Blog has considered whether a reasonable expectation of privacy is applicable in relation to a spent conviction, illustrated by the recent case of XKF v BBC  EWHC 1560 (QB).
The Department of Justice’s Report on the search and seizure of electronic devices has been cited by the Motherboard in an article considering the application of exigent circumstances to justify the unlocking of Iphones without a warrant. “Exigent circumstances” are exceptional circumstances which are fact sensitive and need to be considered carefully in order to justify a derogation from searches having to be subject to a warrant. Motherboard considers how the iOS12’s USB Restricted Mode is unlikely, in and of itself, to qualify as an exigent circumstance.
Harvard’s Cyberlaw Clinic has noted recent efforts of the Ethics and Governance of Artificial Intelligence Initiative, which has recently considered the human rights implications of the application of AI. Also analysing the application of AI the LSE Media Policy Project Blog has considered its use in media to drive “intelligent news”.
The Transparency Project Blog has a post analysing the recent “civil partnership case”, R v Secretary of State for International Development  UKSC 32. The Blog also considers misreporting and inaccuracy in the portrayal of the case by the media.
Internet and Social Media
The Electoral Commission has urged political ads on social media to be more transparent. The BBC has coverage.
The Guardian has a review of a new book, “Anti-Social Media: How Facebook Disconnects Us and Undermines Democracy” by Siva Vaidhyanathan describing it as an “excellent critique”.
The Times has a comment [£] from Danny Stone on how to reduce the harm caused by social media without encroaching on free speech rights.
The Globe and Mail considers the accessibility and audience provided by social media in conjunction with the perils of sharing personal data on platforms.
USA today has noted how social media companies may reach critical mass and become “too big to succeed”.
Data Privacy and Data Protection
The Brett Wilson Media law blog has a post entitled “Ticketmaster customer data leak could lead to GDPR claims”.
Mischon de Reya’s Data Matters blog has considered the implications of HMRC’s Voice ID system amassing over 5.1m voiceprints, classified under the GDPR as biometric data.
The ICO has confirmed that it is investigating Ticketmaster for a leak of customer data said to have compromised as many as 40,000 customers’ personal data within the UK. The Brett Wilson Media Law Blog has considered how the leak could lead to claims under the GDPR. The BBC also has coverage.
The DMCS has consulted on data protection fee exemptions.
The ICO has taken enforcement action against two firms who have conducted over 50,000 nuisance calls.
A large number of human rights organisations have filed complaints against EU member states citing non-compliance with mass-surveillance rulings, among them is Privacy International, Liberty and the Open Rights Group.
In a comment from UN privacy expert Joseph Cannataci the Register notes how the UK has developed a surveillance regime which has appropriate level of oversight.
Newspapers Journalism and Regulation
The Press Gazette reports on how a local reporter has won a case allowing him to disclose the name of a couple charged with child neglect.
Reach, publisher of the Daily Mirror, has added £7.5m to its pot of funds for settling phone hacking cases bringing the total amount set aside to £70.5m, the Press Gazette reports.
Brian Cathcart has considered the status of IPSO in a post on Hacked Off, critiquing the regulator following comments by the Culture Secretary Matt Hancock seeking to affirm the effectiveness of the press regulator.
IPSO has published a second blog in conjunction with Samaritans advocating best practice in reporting the highly sensitive matter of the suicide of young people.
IPSO has published three resolution statements and series of rulings from the Complaints Committee:
- Resolution statement 00062-18 Two individuals v Sunday Express, resolved via IPSO mediation
- Resolution Statement 02180-18 Flynn v Belfast Telegraph, resolved via IPSO mediation
- Resolution Statement 03553-18 Appleby v Daily Mail, resolved via IPSO mediation
- 02869-18 Lamb v shieldsgazette.com, no breach of the ISPO Code
- 20796-17 A woman v The Argus (Brighton), no breach of the IPSO Code
Statements in Open Court and Apologies
Last Week in the Courts
On 27 June 2018, the Court of Appeal (Newey and Coulson LJJ) handed down judgment in the case of Lisle-Mainwaring v Associated Newspapers Ltd  EWCA Civ 1470.
On 28 June 2018 there was a trial of a preliminary issue in the case of Morgan v Associated Newspapers before Nicklin J. An ex tempore judgment was given. The judge determined the meaning of a published article and found that the defamatory sting was opinion rather than fact.
On 29 June 2018 Nicklin J handed down judgment on the interim injunction application in the case of R (Taveta Investments) v Pricewaterhousecoopers LLP  EWHC 1662 (Admin).
- IAPP, Web Conference: Privacy and Goodwill, 17 July 2018
Media Law in Other Jurisdictions
In the case of Bauer Media Pty Ltd v Wilson (No 3)  VSCA 164 actor Rebel Wilson was ordered to pay back A$4.1 million plus interest to Bauer Media following a decision of the Victoria Court of Appeal to reduce her damages award. The Court refused to disturb the award of indemnity costs made in Ms Wilson’s favour by the first instance judge.
Actor Craig McLachlan who is suing ABC and Fairfax media for defamation is seeking to ensure that documents filed in his defence are not disclosed to the media.
ABC News reports that Fairfax has been criticised by the judge in the Chau Chak Wing defamation case for using MP’s comments as proof that allegations of bribery were true.
The Chairman of the Parliamentary intelligence committee has suggested that defamation laws might be weaponised in the service of authoritarian states that sought to dampen free speech in Australia. In response, the Attorney General has said that a review of defamation law will need to consider the national security risks of the current regime.
The Californian Assembly has conducted its first committee hearing on SB 822 Communications: broadband Internet access service, a bill focused on restoring net neutrality protections following the FCC’s vote to eliminate such safeguards in December 2017. In the hearing the Committee removed some significant protections to net neutrality from the bill including bans on charging websites fees for access to an ISP’s customers. The Stanford Cyberlaw Blog provides analysis as to the lacuna’s in the protection of net neutrality that have been created, drawing from the resulting committee report.
Mondaq has published a piece by Michael Statham on the Supreme Court’s Haaretz.com v Goldhar: “Libel Tourism and Forum Shopping”.
France has adopted data protection laws consistent with the GDPR. Out-law.com has coverage.
GhanaWeb reports that the General Overseer of the Glorious Wave Church, Prophet Badu Kobi, has sued controversial radio owner and CEO of Oxy FM, Alfred Kwame Larbi aka DJ Oxygen for defamation. He also sued media firms, Rainbow Radio and Ghanaweb.
The Sunday Times reports that former Rugby player, Mike Gibson, has recovered libel damages from the publisher of a book entitled When Lions Roared. A statement in open court was read in the High Court in Belfast. There was also a report on the BBC website.
The Norweigian Consumer Council has published a report which considered how social media applications prompt users to share their personal data, a concern which has been highlighted and unpacked by Privacy International.
The IPKat Blog has noted that a request for an injunction against torrent sites has come before the Swedish Patents and Market Court.
Trinidad and Tobago
Global Voices has a piece entitled “Will Trinidad and Tobago’s cybercrime bill stifle media expression?”
Suzan DelBene, a former Microsoft executive, has drafted a new Privacy Bill the Online Transparency & Personal Data Control Act, Broadcasting & Cable has coverage.
The Financial Times has highlighted the need for the US to introduce data protection laws adapted to 21st Century data use and align with those of the GDPR.
Research and Resources
Data Privacy and Data Protection
- Breves Notas Sobre a Ressignificação Da Privacidade (Brief Notes on the Ressignification of Privacy), Erick Lucena, UFAL and Marcos Ehrhardt Júnior, Universidade Federal de Pernambuco
- Publishing Privacy Logs to Facilitate Transparency and Accountability, Reza Samavi, McMaster University – Department of Computing and Software and Mariano Consens, University of Toronto – Department of Mechanical and Industrial Engineering
- Privacy or Transparency? A New Balancing of Interests for the ‘Right to Be Forgotten’ of Personal Data Published in Public Registers, Oreste Pollicino, Bocconi University – Department of Law and Giovanni De Gregorio, University of Milano Bicocca – Constitutional Law, Students
- At the Privacy Vanguard: California’s Electronic Communications PrivacyAct (CalECPA), Susan Freiwald, University of San Francisco School of Law
- Model(ing) Privacy: Empirical Approaches to Privacy Law & Governance, Lindsey Barrett and Georgetown University – Institute for Public Representation
- Convention 108+ and the Data Protection Framework of the EU (Speaking Notes for Conference Presentation), Graham Greenleaf, University of New South Wales, Faculty of Law
- Digital Surveillance and Preventive Policing, Manuel A. Utset, Florida State University College of Law
Next Week in the Courts
On 2 July 2018 there will be a statement in open court in the case of Falter v Atzmon. The case is discussed in an article in Jewish News.
On 3 and 4 July 2018, the part heard trial of Monir v Wood will conclude before Nicklin J. There was a 5RB news report on the trial when it began in April 2018.
The following reserved judgments after public hearings in 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)
Lloyd v Google LLC, heard 21 to 23 May 2018 (Warby J)
Bokhova v Times Newspapers, heard 8 June 2018 (Nicklin J)
Otuo v Watch Tower and Bible and Tract Society, heard 7 and 15 June 2018 (HHJ Parkes QC)
Seventy Thirty Ltd v Burki, heard 18 to 22 June 2018 (HHJ Parkes QC)
Stunt v Associated Newspapers, heard 19 and 20 June 2018 (Master of the Rolls, Mcfarlane and Sharp LJJ)
This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law.