Law and Media Round Up – 9 July 2018

9 07 2018

On Thursday 5 July 2018 the European Parliament voted on long debated changes to copyright law enshrined in the Copyright Directive which had recently been approved by Parliament’s committee on legal affairs.

In rejecting the proposed by 318 to 278 the controversial amendments engaged by Articles 11 and 13, which seek to impose what has been called a ‘link tax’ on intermediaries and enhance intermediary liability for hosting copyright-infringing material, have been sent back to the drawing board for further consideration and debate by Parliament. This matter has received coverage from the Independent, Press Gazette, CNBC, Publishing Perspectives and Business Insider.

The 5RB website reports on the settlement of the libel claim brought by Mian Mansha against ARY Network Limited.

The judgment of Nicol J in the case of Euroeco Fuels (Poland) Ltd & Ors v Szczecin And Swinoujscie Seaports Authority SA & Ors [2018] EWHC 1081 (QB). The Court declined jurisdiction to hear the claim under Article 30 of the Recast Brussels Regulation.  The claimant has sought permission to appeal.

In the recent judgment ML and WW v Germany ([2018] ECHR 554, french only) the Fifth Section of the ECHR has dismissed a ‘right to be forgotten’ application in respect of the publication of a historical murder conviction by the media. There was an INFORRM case comment from Hugh Tomlinson QC and Aidan Wills. The Press Gazette also has coverage.

Amid the upcoming trail of six individuals linked to the Hillsborough disaster Attorney General Jeremy Wright QC has issued a media advisory notice advising journalists and media outlets exercise caution and discretion in their reporting of the matter.

The case of Zipporah Lisle-Mainwaring v Associated Newspapers Limited [2018] EWCA Civ 1470 provides guidance on the process and timeliness of making an appeal. The case considered, as a matter of fact, whether permission to appeal had been validly granted, if not whether permission should be granted and whether the substance of any appeal was made out. Brett Wilson’s Media Law Blog has considered the case at length.

At EU level ECHR blog editor Antoine Buyse has published an article in the Human Rights Law Review entitled ‘Human Rights Courts as Norm-Brokers’. The article considers at length the historical approach of the Court to establishing ‘norms’ in the protection of fundamental human rights as well as analysing the underpinning judicial reasoning and approach to making such judgments.

Internet and Social Media

Norton Rose’s Social Media Law Bulletin provides a useful summary of the application of the GDPR and e-Privacy Regulation to social media this week. The post highlights the need to be aware of the e-Privacy Regulation and the additional regulatory burden this would impose come 2019.

The Brand Protection Blog has posted on the commoditisation efforts of social media influencers, their impact and the regulatory implications under Australian laws.

The Independent has used a recent study to highlight seemingly increasing public frustration with ‘overly complicated’ internet, social media and phone security measures.

Data Privacy and Data Protection

The European Parliament has issued a non-binding resolution to the EU Commission to suspend the EU-US privacy shield. The basis for the resolution is that US authorities do not currently have adequate provisions for a data transfer mechanism that complies with EU data protection laws. Such a significant move brings the future of the US CLOUD Act, which makes many controversial changes to data protection law on national security grounds, into doubt. The Hunton Andrews Kurth Blog has coverage.

The Panopticon Blog has analysed the case of DB v GMC [2018] EWCA Civ 1497, a case which illustrates best practice in managing mixed personal data.

The Brett Wilson Media Blog has noted that the case against Her Honour Judge Karen Holt has been dismissed. Ms Holt was charged under the Computer Misuse Act 1990 for inappropriately accessing the Court’s Digital Case Management System.

Amid Brexit negotiations the Committee for Exiting the European Union has suggested that the UK continue to accept the jurisdiction of the Court of Justice to ensure the effective harmonisation of data protection, among other, laws. Pinsent Masons blog Out-Law has coverage.

The Economic Times, in an insightful article, highlights data privacy provisions in the government’s decision to move forward with the approval of the DNA Technology (Use and Application Regulation Bill 2018.

BBC News has posted an article seeking to demystify the ways in which large technology companies use harvested personal data. Guardian has a similarly practically-focused article

Given the ever increasing data-driven nature of business and economy the Media Policy Project of LSE has highlighted concerns around the biases and discriminatory elements which could arise as a result of progress in data processing practices.

The IAPP has a post on how to comply with subject access requests post-GDPR.

ICO

The ICO’s Grants Programme has launched a second round of funding to assist in research establishing innovative privacy solutions. Grants maybe awarded in the sum of £20,000-£100,000.

A firm in South Wales has been fined £60,000 by the ICO for allowing its telephone lines to be used to send spam texts.

A company which failed to register with the ICO and comply with a resulting Information Notice has been prosecuted.

Surveillance

BBC News has reported that a programmer who allegedly tried to sell stolen surveillance tools worth $50m has been charged in Israel.

Following a CIA venture capital fund taking interest in biometric face-scanning technology the Toronto Star considers the implications of the invasive application of technology driven surveillance tools.

Newspapers Journalism and Regulation

Via an INFORRM post Hugh Tomlinson QC has considered the ongoing debate regarding the effective regulation of the press, scrutinising recent comments made by the Times in an editorial addressing the need for an established ‘independent regulator with teeth’.

In an INFORRM post Tim Gospill evaluates the decisions of the Leveson Inquiry, the failure to implement subsequent proposals and the shortcomings of implemented proposals.  Laura Basu also considers the failure to effectively regulate the press and the resulting misconduct which proliferates in a post entitled ‘Five causes of media amnesia’.

The use of diverse business models to promote and safeguard independence and editorial integrity has been a matter which has long been discussed given the prominence of conglomerates in the industry. With its co-operative business model The Bristol Cable has been highlighted by LSE’s Media Policy and Project Blog as such a source of local news.

The News Media Association has called for competition reform amidst concerns over the dominance of internet giants Google and Facebook in the ad market. The Press Gazette has analysis of the request.

IPSO

Rulings

IPSO has published five resolution statements and series of rulings from the Complaints Committee:

Statements in Open Court and Apologies

On 2 July 2018 was a statement in open court in the case of Falter v Atzmon.  The statement is reported in the Jewish Chronicle.  Mr Atzmon wrote about the case on his blog.

Last Week in the Courts

On 3 to 5 July 2018, Nicklin J heard the remainder of the trial in Monir v Wood.  Judgment was reserved.

On 4 July 2018, Nicklin J heard an application in the case of BVC v EWF.

On 6 July 2018 Nicklin J handed down judgment in the case of Morgan v Associated Newspapers Limited [2018] EWHC 1725 (QB).  The Judge held, despite his earlier finding that the defamatory sting of the article was “opinion”, the serious harm threshold was met.

Events

Media Law in Other Jurisdictions

Australia

The Daily Telegraph is in talks with Geoffery Rush prior to the trial in his defamation case against the newspaper, the Sydney Morning Herald and 9news reports.

Canada

Michael Geist has analysed Canada’s recently published IP strategy which is applicable for the next five years. The Strategy broadly focuses on IP awareness, education advice and tools for growth underpinned by an extensive legislative strategy.

In a recent government memo, noted by Michael Geist, the spending power of online-streaming platform Netflix has been revealed with suggestions that the media outlet outspends Canada’s own private broadcasters on the production of Canadian-facing English scripted programming.

In a post on Lexology Dentons considers the impact of the Canadian Supreme Court case of Haaretz.con v Goldhar, which addressed matters of jurisdiction in defamation claims.

India

The Hoot has noted the increased use of Sec 353 of the Indian Penal Code, the charge of obstructing public servants on duty, to stem protest. The article considers the increasing tension the incarceration of individuals under Sec 353 is creating with free speech rights and whether such sustained and aggressive police action can be justified.

Kenya

The Kenyan Government is currently seeking to establish a data protection framework in a new Data Protection Bill, a matter which has been considered by Hunton Andrews Kurth.

New Zealand

The defamation case between politicians Jordan Williams and Colin Craig is set to be heard in the Supreme Court of New Zealand. The case stems from the allegations that Mr Craig defamed Mr Williams in statements provided at a news conference and a series of leaflets to 1.6m households in July 2015. Radio New Zealand provides a succinct background to the case, including the previous finding of the Court of Appeal in reducing the $1.3m damages awarded to Mr Williams.

The New Zealand Herald has coverage of the defamation action bought by former policewoman Melissa Jean Opai against her former manager and the police, alleging that defamatory remarks were made in a number of internal documents. The case has been transferred from the High to the Employment Court due to the degree of compensation being claimed.

Scotland

Scottish Legal News has an analysis of proposed amendments by the Scottish Law Commission to Scottish defamation law by Rosie Walker.

United States

The Iowa Supreme Court has ruled that warrantless automobile searches by the police are not permissible, contrary to the federal decision by the US Supreme Court.

Research and Resources

Data Privacy and Data Protection

Defamation

Surveillance

Next Week in the Courts 

On Monday 9 July 2018 there will be a statement in open court in the case of Dean v Curran before Nicol J.

On the same day the same judge will hear an application in the case of Reay v Beamont.  This is the case of the comedian who is being sued by her ex-husband over statements made in her show. The Claim and Particulars of Claim are available on Lawtel [£].

Judgments

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)

Monir v Wood, heard 16 to 19 April and 3 to 5 July 2018 (Nicklin J)

This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law.


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