Law and Media Round Up – 16 July 2018

16 07 2018

On Wednesday 18 July 2018, Mr Justice Mann will hand down his eagerly awaited reserved judgment the case of Sir Cliff Richard v BBC.  This was heard on in April and May 2018 over a period of thirteen days.

We had a case preview   and reports of the proceedings on each day of the trial.  The judgment will provide important clarification as to the limits which the law of privacy places n the reporting of police investigations.

The Government has published its much-awaited White Paper on “The Future of the Relationship between the United Kingdom and the European Union”. Page 73 considers data protection implications, advocating the current “Adequacy Decision” as a basis for ensuring the continued uninhibited exchange of data. Pinsent Masons’ OutLaw Blog considers the proposals. IPKat has an extensive analysis of the IP implications of the White Paper.

Jeremy Wright MP has been appointed as Secretary of State for Digital, Culture, Media and Sport following Matt Hancock’s appointment as Health Secretary. The Press Gazette considers the implications of the appointment.

Pakistan’s Ministry of Information Technology and Telecommunication has released a draft Personal Data Protection Bill, a highly progressive development in individual’s data protection rights, which is currently open for public comment. The Bill reflects a framework of drafting and an approach to data protection, categorising data as “personal data” and “sensitive personal data”, advocated by the GDPR, likely in an attempt to harmonise the countries regime. Among others, the Bill covers rights to data access, correction, consent, confidentiality, retention and the establishment of a Commission for Personal Data Protection. Harvard’s Cyberlaw Clinic has coverage of this significant move.

In light of the reduction of her award of damages to $600,000 from $3.5m Rebel Wilson has lodged an appeal with the High Court to restore the original ruling of Judge John Dixon and the corresponding award of damages. The issue around quantum is one of causation- how can the defamatory allegations made by Bauer show to be the main operative cause of Wilson’s loss of future film opportunities? In reducing Wilson’s award the Court of Appeal stated that Judge Dixon had given too much weight to the upward trajectory of Wilson’s career and that economic loss had to be proved by the cancellation of a project. The Guardian and New Zealand Herald have insightful coverage.  

Following our previous weeks’ coverage of Mr Justice Nicklin’s ruling in the case of Morgan v Associated Newspapers Limited [2018] EWHC 1725 (QB), Himsworth’s Legal, solicitors for the Claimant, have issued a press release on the matter.

Internet and Social Media

Sky news has noted growing concerns of UK lawmakers for the establishment of independent internet regulation in the UK.

A German Federal court has ruled that a social media account can be inherited, the IAPP has coverage.

The Guardian has noted the security concerns arising from Facebook categorising and labelling user interests following the site allegedly labelling over 65,000 Russian users as interested in “treason”.

In a matter which has wide-ranging implications Russia is allegedly close to completing the establishment of an alternative system to the Domain Name System, the New York Magazine reports. In a similarly illustrative post Variety considers how China’s internet operates differently due to the economic and technological players in the market.

Norton Rose Fulbright’s Social Media Bulletin has a post considering best practices which licencing trademarks following a case in which involved the use of a trademark on social media was held to be a contractual dispute.

In the US, the House Judiciary Committee has announced it will hold a hearing on 17 July on Facebook, Google, and Twitter: Examining the Content Filtering Practices of Social Media Giants.”

Data Privacy and Data Protection                  

Via the Mishcon de Reya Blog the Estate Agent Today has reposted an extensive article on ensuring GDPR compliance.

Information age has considered the vulnerability of the NHS to cyber-attacks citing the WannaCry incident and suggests how these issues may be resolved.

ICO

The ICO is fining Facebook £500,000 for data protection breaches arising from its relationship with Cambridge Analytica. The ruling comes following recent guidance provided by the ICO into the application of data analytics to political campaigns. The Brett Wilson Media Law Blog has coverage.

Surveillance

Strasbourg Observers has analysed the case of Centrum för Rättvisa v. Sweden. The case considered the lawfulness of the interception of communications by the Swedish Foreign Intelligence via the practice of signals intelligence, a judgment which affirms the organisations compliance with article 8 and has broad applicability to other national security organisations. Notably, the case affirmed the exhaustive requirements mandated by the Court which set a highly prescriptive threshold for lawful surveillance in ensuring compliance with the right to respect of individuals’ private lives.   

The lawyers for Joaquin “El Chapo” Guzman are seeking to supress evidence used in his trial stemming from a spyware app “FlexiSPY”. The app in question functions similarly to a wire but in the form of an application on the installed device. With law enforcement seeking to enter data harvested by the app into evidence the question arises as to the means for which the app was installed, as it can only be installed manually, and the use of such data by law enforcement. The Vice has analysis of the latest developments in the case.

Newspapers Journalism and Regulation

As part of the Google News Initiative YouTube has announced a $25m investment in efforts to “support the future of news in online video”.

LSE’s Media Policy Project Blog has posted audio of its event “Digital Dominance” which considers issues such as media pluralism in the technological age, freedom of expression and the ineffectual regulation of technological giants. The Blog has also posted on the matter of fake news and its impact on critical literacy.

IPSO

IPSO has posted its latest blog- “IPSO Blog: Could potential changes to EU’s Audio Visual Media Services Directive impact future regulation?”

Rulings

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

Statements in Open Court and Apologies

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

Last Week in the Courts

On 6 July 2018, Patten LJ granted the defendant permission to cross-appeal on liability in the case of Ali v Channel 5.  The trial judge, Arnold J, had already granted the claimant permission to appeal on quantum.  The “hear-by” date is 1 April 2019.

On 9 July 2018, the Supreme Court granted permission to appeal in the case of Stocker v Stocker.  The grounds of appeal [pdf] to the Supreme Court identified two arguable points of law of general public importance: Firstly, the admissibility, treatment and weight to be given to external material relating to the usage of the words complained of or equivalent words; and secondly, the standard of appellate review on a determination of meaning.  The Supreme Court’s order can be found here [pdf].  There is a news item on David Price QC’s website.

On the same day Nicol J heard 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 [£].  The claimant’s application for an order for the trial of a preliminary issue was dismissed.  A summary of the judgment is available on Lawtel [£].

On 11 July 2018 Nicola Davies J heard an application in the case of Piepenbrock v London School of Economics.

On the same day Deputy Master Leslie heard an application in the case of Onwude v Clare Dyer, Fiona Goodlee & The British Medical Journal.  The case an article in the BMJ on 22 December 2018.  The Claim Form and Particulars of Claim are available on Lawtel [£]

Events

Media Law in Other Jurisdictions

Africa

Privacy International has commented on Africa’s Convention on Cyber Security and Personal Data Protection and considers the adequacy of the various African regions in protecting individuals privacy and data.

Australia

Actor Rebel Wilson is seeking permission to appeal to the High Court of Australia against the decision of the Court of Appeal in Victoria reducing her record damages award.

The Social Media Law Bulletin has noted the introduction of the so called “fame tax” imposed on those commercialising their image rights, typically on social media platforms such as Instagram.

The Press Gazette reports on actor Geoffrey Rush pulling out of a recent stage play in order to focus on his defamation action against the Sydney Daily Telegraph.

Brazil

The Brazilian Federal Senate has approved the Data Protection Bill of Law, a Bill which uses the GDPR as a framework. The Bill is expected to be signed into law by the President shortly. The Hunton Andrews Kurth Blog has coverage. The Brazilian Report Blog has coverage.

Canada

In the case of Lascaris v. B’nai Brith Canada, 2018 ONSC 3068 the Ontario Superior Court of Justice dismissed a libel action based on a tweet on the grounds that it was a “strategic lawsuit against public participation”.  The plaintiff had failed to meet the burden under  s. 137.1(3) of the Courts of Justice Act, R.S.O. 1990 of showing that there was no valid defence.

Michael Geist has noted the high volume of lawsuits which are leveraged by movie producers against individuals, a matter which has recently received scrutiny from the Canadian Standing Committee on Industry, Science and Technology.

Geist has also posted commentary he provided at the IAPP’s Canadian Privacy Symposium 2018, advocating for an updated privacy statue tackling issues of enforcement, consent and the regulation of big data.

Czech Republic

The Czech Defamation Law site has a post considering the privacy and data protection implications of drones such as the liability of drone owners for rights infringements.

Hong Kong

The Court of Final Appeal handed down judgment in the remarkable case of Chang Wa Shan v Esther Chan Pui Kwan [2018] HKCFA 29.  There is a press summary here. The majority upheld the decision of the Court of Appeal on absolute privilege (see the 5RB case comment on this decision) however the Court held that the innuendo meanings were not established so the slander claim failed and the appeal was allowed.

India

The Supreme Court has recently questioned a Ministry of Information and Broadcasting proposal to establish a Social Media Communications Hub which could serve as a means for the government to monitor WhatsApp messages, Indian Television reports as does the Hoot. First Post provides in-depth analysis.

The Hindu has reported on defamation charges against activist Medha Patkar by Khadi and Village Industries Commission Chairman V.K. Saxena.

Ireland

Following Ireland’s recent referendum on abortion rights LSE’s Media Policy Project Blog has noted the opportunity which was provided to the government to quantify and defend from digital threats throughout the process.

New Zealand

Stuff has an interesting analysis of the defence of honest opinion in instances of an employer-employee relationship, such as arising from comments made as part of appraisals. The article highlights that the defence is applicable as a matter of degree; comments which are made maliciously, recklessly or without reasonable foundation are unlikely to qualify.

Scotland

A blogger has bought a defamation action, seeking £25,000 in damages, against former Scottish Labour leader Kezia Dugdale following him being accused of a homophobic comment.  The trial began on Thursday 12 July 2018.

Thailand

A TV reporter has been arrested for his use of a drone to film the rescue of young boys trapped in a cave, the Press Gazette reports.

United States

The Volokh Conspiracy has a post about the case of Sindi v. El-Moslimany [pdf] which holds that most anti-libel injunctions are unconstitutional.

The IAPP has a post considering the implications of the new US data protection and security law- the Clarifying Lawful Overseas Use of Data Act.

The Blog Law Online blog has a post entitled “Source secrecy in the modern era”.

Microsoft has recent lobbied the Government to regulate the use of facial recognition software.

The Harvard Business Review has considered the implications of California’s latest data protection laws, as has the New York Law Journal [£].

Research and Resources

Data Privacy and Data Protection

Surveillance

The Case for Surveillance, Lawrence Rosenthal, Chapman University, The Dale E. Fowler School of Law

Initial Reactions to Carpenter v. United States, Orin S. Kerr, University of Southern California Gould School of Law

Next Week in the Courts 

On 16 July 2018, the libel trial in the case of Piepenbrock v London School of Economics will begin before Nicola Davies J.The case is listed for 10 days.

Judgments

The following reserved judgments after public hearings in media law cases are outstanding:

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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