Prior to the start of the Michaelmas legal term on 1 October 2018 we have collated some of the most significant developments over the previous two months. “Law and Media Round Ups” will commence as normal from next week.There has been significant of scrutiny of media regulation by the Government with a focus the internet, “fake news” and digital media:

  • There has been speculation regarding the Government’s plans to establish an independent internet regulator following an article by Buzzfeed News. Via INFORRM Jonny Shipp has highlighted the key factors that should be considered when approaching internet governance. However, the BBC reported that the Department for Digital Culture, Media and Sport (“DCMS”) has stated that it has no comment on the matter at this time.
  • In its Interim White Paper published in July the DCMS announced that it would seek to legislate further on internet regulation to tackle the dissemination of misinformation and disinformation. However, the White Paper placed onus on utilizing established broadcasting and communications regulator Ofcom, developing its role in the regulation of online content.
  • By way of response Ofcom has conducted a review of harmful content online, as well as a joint review with the ICO, into the public’s perceptions of such content. The Press Gazette has commentary, as does the Guardian and INFORRM.
  • The Government has published its response to the consultation on the regulation of Digital Service Providers (“DSP”). The consultation came in the wake of the Network and Information Systems Regulations 2018, which sets standards for security and incident reporting measures that must be implemented by DSP’s. The Government’s response highlights the ICO’s role to provide guidance on the implementation and sufficiency of such measures. Guidance is expected from the ICO imminently. Mishcon de Reya’s Data Matters blog has provided useful context on this matter.
  • The Cairncross Review’s call for evidence closed on 14 September 2018. The review examines the overall state of the domestic news market, its financial sustainability, the role of digital advertising and social media. Julian Petley considered the position in an INFORRM post. The review is currently seeking input from EU governments.

Protocol 16 has been implemented by the ECHR as of 1 August 2018. The Protocol sets out a framework by which the highest authority courts of member states may as the court to give advisory opinions on matters involving the application of ECHR rights.

Judgments

There have been a number of media law judgments handed down during the Summer Vacation:

  • SWS v Department of Work and Pensions (No 2) [2018] EWHC 2282 (QB), Warby J has provided a succinct summary of the legal principles applying to claimant’s requests for anonymity. The claimant was unsuccessful in their application to make a statement in open court and requested anonymity in respect of the application itself, which was refused.
  • Piritek (UK) v Robert Jackson [2018] EWHC 2030 (QB), Nicklin J imposed a 20 weeks’ sentence suspended for the period of two years against a defendant who, in continually breaching an injunction restraining him from publishing defamatory remarks about the Claimant, was found in contempt of court.
  • On 31 July 2018 Nicklin J handed down judgment in Bokova v Associated Newspapers [2018] EWHC 2032 (QB) dimissing most of the claimant’s attempt to strike out a defence of truth. He did, however, strike out the defendant’s Lucas-Box meanings on the ground that “advancing Lucas-Box meanings that are at variance with the actual meaning found by the Court is wrong in principle”.
  • On 15 August 2015 HHJ Parkes QC handed down judgment in the curious libel and misrepresentation case of Burki v Seventy Thirty Ltd [2018] EWHC 2151 (QB). The judge gave judgment for the claimant on her misrepresentation claim of £13,100 and judgment of the defendant on its libel counterclaim of £5,000. We had a post about the judgment and there was a report in the Guardian. The Judge will hand down judgment on costs on 17 September 2018.

Statement in Open Court

On 21 September 2018 there was a statement in open court before Nicklin J in the case of John v News Group Newspapers. The Sun on Sunday agreed to pay “significant libel damages” to Sir Elton John and David Furnish over an allegation that their dog inflicted “Freddie Kreuger-like injuries” on a child.  There was a news report in the Guardian.

Internet and Social Media

Whether a request under the right to be forgotten should be extended to non-EU jurisdictions is due to be considered by the European Court of Justice, the Press Gazette reports. The French data regulator the Commission Nationale de I’Informatique et des Libertes has made the request for a preliminary ruling on the matter which concerns jurisdictional and technical domain name issues arising from national extensions. The core question is whether the right to be forgotten is limited to only those EU Members States to which the law (Directive [95/46/EC]) is applicable or whether it applies to all instances of the data requested to be erased on the web.

Data Privacy and Data Protection

British Airways was hit by a substantial data breach in early September 2018, apparently compromising over 380,000 customers account and card details. BA’s statement following the breach can be found here, the ICO’s statement in response here.

The breach was covered from a number of perspectives:

In a similar vein, Equifax has been fined £500,000 by the ICO (the press release can be found here and Equifax’s response here) for its failure to protect the personal data of over 15 million people in the UK following a breach in 2017. The BBC has coverage. Data lost included names, dates of birth, driving licence details and telephone numbers. Equifax has established a comprehensive strategy in response to the leak, providing compromised customers with tools to monitor the use of their personal data.

The Panopticon Blog has covered the case of Stunt v Associated Newspapers Ltd [2018] EWCA Civ 1780. The matter at issue was whether the operation of section 32(4) of the Data Protection Act 1998, the implementation of a stay to proceedings, is consistent with Directive 95/46/EC or operates to compromise the freedom of expression and right to an effective remedy.

In a serious development for the online retailer the Wall Street Journal [£] reports that Amazon is currently investigating allegations that employees took bribes to provide data to third parties. The nature of the data is potentially commercially sensitive such that it could provide merchants with a competitive advantage.

The Hawktalk Blog has an analytical post on how the provisions of the Data Protection Act 2018 can potentially restrict employee’s subject access requests.

Surveillance

The ECHR case of Big Brother Watch and Others v UK sheds light on the application of the Regulation of Investigatory Powers Act 2000 to GCHQ investigative measures involving the interception of communications. The implications of the decision, which clarified the application of articles 8 and 10 of the Convention to determine the propriety of such powers, extend to the recently enforced Investigatory Powers Act 2018, as noted by the Cyberleagle Blog, Press Gazette and Graham Smith via INFORRM.

The International Network of Civil Liberties Organizations and Privacy International have issued a joint report entitled: Regulate Intelligence Sharing. The Report is the product of a bid for transparency and accountability in the intelligence sharing practices across 42 jurisidctions although, perhaps to be expected, the information disclosed to Privacy International is limited. The Report urges governments to implement publically available agreements, legislation, guidelines and policy regarding intelligence sharing practices complemented by mandating independent bodies to oversee such matters.

Newspapers Journalism and Regulation

At an EU level the introduction of amendments to copyright law will levy a link tax and charges search engines providing access to copyrighted materials. This may result in such content being blocked to avoid charges. The main function of these amendments is to entrench journalist’s rights to remuneration for the use of their content whilst safeguarding copyright ownership.

The Transparency Project again forays into the press’ rights to report care proceedings in an insightful post drawing on a series of case studies to help identify best practice reporting. Further, the Family Procedure Rules Committee has agreed to pilot the Project’s proposals to allow legal bloggers into family court hearings.

The Columbia Journalism Review has published an insightful series of posts exploring the realities of becoming a journalist in the modern era.

IPSO

On 1 August 2018 IPSO launched its compulsory arbitration scheme, the cost implications of the scheme on outlets has been scrutinised by the Press Gazette. The scheme provide arbitrators (who are selected barristers) with powers to award damages of up to £60,000 and cost awards of up to £25,000 for claims made against participating publications. Claims dealt with under the scheme include those for defamation, malicious falsehood, misuse of private information, data protection and harassment.

In this context IPSO has published its records of complaints received throughout 2017 (relevant also is the regulators 2017 Annual Report). Over 20,000 complaints were received by the regulator, up from almost 15,000 being received in 2016, a number being multiple complaints concerning the same article. The Sun topped the list of publications concerned with 4,847 complaints being received in respect of its articles. The extent to which the launch of the arbitration scheme will have an impact on these figures is something we will be closely following in the coming months.

The IPSO Blog has covered a wide range of topics over the summer from the application of the Editors’ Code to apologies, third party complaints and reporting on suicides in sensitive locations.

Rulings

The most controversial ruling over the summer was that concerning the Daily Telegraph’s Sam Allardyce sting (Allardyce, Moloney, Curtis v Daily Telegraph).  We had a post about this by Brian Cathcart.  There was also a report in the Press Gazette.

Other rulings are as follows:

Events

Media Law in Other Jurisdictions

Australia

The Wagner family’s defamation case against radio presenter Alan Jones and 2GB has concluded with the Wagners being awarded $A3.75m in damages. Wagner & ors v  Harbour Radio & ors ([2018] QSC 201) concerned 27 broadcasts made by Mr Jones in which he suggested that the Wagner’s were responsible for the deaths of 12 individuals due to the collapse of their quarry wall in the 2011 Grantham Floods. Stuart Gibson has commentary on INFORRM.

Sophie Mirabella’s libel case against Benalla Newspapers (Mirabella v Price & Benalla Newspapers Pty Ltd [2018] VCC 650), following their publication of an article alleging that she pushed a political opponent at a rally in April 2016, has been met with the politician’s success. Mirabella was awarded $175,000 by the Court, following the jury’s finding that the papers defence of truth was not made out.

Moroney v Zegers [2018] VSC 448 examines the application of the defences of truth and qualified privilege to statements made by Karel Zegers in his campaign to be elected to the Board of the Sporting Shooters Association of Australia in 2014. Justin Castelan considers the facts and findings in an INFORRM re-post.

The Journlaw blog has an article considering the common law basis for the defences of truth and justification to defamation cases.

Brazil

Privacy International has highlighted Brazil’s implementation of new data protection laws noting that implementation and enforcement must underpin such legislative shifts. Critically, it is reported that Brazilian Temer has vetoed a number of sections in the Bill including those which mandate the establishment of an independent data protection authority.

Canada

Michael Geist has provided an overview of the myriad of groups vying for influence in Canadian governmental digital policy debates, a matter which is particularly critical given the imminent national election.

China

The Telegraph has a piece [£] from Eric Schmidt, former Google Chief Executive, who predicts that China’s invasive censure of the internet will give rise to an “alternative” internet by 2028. This is perhaps more pointed given that China has recently introduced draft legislation to prevent the importation of foreign content. The Financial Times has further details [£].

India

The Ministry of Information and Broadcasting has been ordered to hand over information relating to the shareholding and foreign ownership in a media company. The order comes from the Central Information Commission and provides that the information should be supplied free of cost.

The IAPP has a digestible post breaking down the provisions of India’s draft data protection bill as does Privacy Europe, which highlights the similarities the Bill has with the GDPR.

New Zealand

Steven Price has commented on the establishment of the public interest defence to defamation in the Court of Appeal case of Durie v Gardiner [2018] NZCA 287. The case served as grounding for the common law establishment of the defence, in doing so considering English and Canadian legal precedent.

Samoa

Following the recent introduction of the Criminal Libel Act the Samoan President Tuilaepa Sailele Malielegaoi will be bringing the first case of criminal libel against Malele Paulo for accusations posted on YouTube.

United States

A draft White Paper introduced to the Senate makes sweeping proposals for the reform of the United States approach to internet regulation, the Columbia Journalism Review explores. The Internet Association, which represents major social media players such as Facebook and Twitter, has endorsed the implementation of such new data privacy rules, CNBC Reports.

The Supreme Court of California has ruled on the case of Hassell v Bird a case involving a third party requesting the removal of customer reviews from Yelp and the application of section 230 of the Communications Decency Act in this case. The Court held section 230 to be applicable here, providing Yelp with statutory immunity. The Court further considered that the operation of section 230 is such that it seeks to shield internet intermediaries from liability such that would be imposed on the publisher or speaker of such content. The Socially Aware Blog has commentary.

The BBC has posted a succinct summary of the context behind the families of loved ones suing conspiracy theorist Alex Jones for defamation following statements he made regarding the Sandy Hook shooting.

Blog Law Online has a critical post commenting on the state of the media law landscape and the approach to journalistic outlets in the wake of President Trump’s continual denouncements of may US media outlets as purveyors of fake news- summarily the actual state of media and libel laws has changed very little.

The ACLU has a post analysing the US government hacking and its impact on the online security of members of the public.

The Federal Communication Commission attempts to weaken the protection of net neutrality laws established in the Obama-era have been the subject of escalating legal challenges. The Cyberlaw Clinic has posted on the matter following its involvement in a District of Columbia Circuit case focusing on the damage the policy could have to start-ups and innovators.

The Social Media Law Bulletin has a post on the matter of lawyers using social media in the course of their work to obtain opinions from third party lawyers to assist in a clients’ case. The opinion of the State Bar of Texas’ Professional Ethics Committee is that such conduct is permissible subject to a number of caveats.

Research and Resources

Data Protection and Privacy

University of the Philippines, Department of Philosophy and College of Law

Defamation

Internet and Social Media

Surveillance

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)

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

Kennedy v National Trust for Scotland, heard 25 and 26 July 2018 (Sharp, Asplin LJJ and Sir Rupert Jackson).

Piepenbrock v London School of Economics, heard 16, 17, 20 23, 24 and 27 July 2018 (Nicola Davies J).

Suneet Sharma is a junior legal professional with a particular interest and experience in media law