On Tuesday 23 October 2018 the Court of Appeal handed down its decision in ABC v Telegraph Media Group  EWCA Civ 2329. This caused a storm of media complaint and misrepresentation – the Telegraph itself failing to make clear the temporary nature of the injunction or the fact that two of the complainants covered by NDAs supported it.
However, on Thursday 25 October 2018 former Labour Cabinet Minister, Lord Hain, named the claimant in the House of Lords, seeking to shelter behind Parliamentary Privilege to justify his patent breach of the injunction. His conduct has been widely criticised including by Lord Judge, former Lord Chief Justice. We had a post by Paul Wragg suggesting that action could be brought against him.
There was a report in the Press Gazette covering the series of events culminating in the naming and the response from the Telegraph’s lawyers to Lord Hain’s statement. The Guardian has set out details of Sir Philip Green’s alleged misbehaviour – none of which appears to amount to criminal misconduct.
The death of journalist Jamal Khashoggi at the Saudi Consulate in Istanbul has drawn much press attention this week given questions regarding the involvement of the Saudi government. The protection of freedom of speech in Saudi Arabia, accountability for the death and censorship have become cruxes of debate. Coverage by a range of UK media outlets can be found below:
- The Guardian has covered the context and development of the matter as has the BBC.
- The BBC has also noted recent statements from Saudi Arabia’s Foreign Minister stating that suspects are to be tried in Saudi Arabia and profiled Khashoggi.
- The Telegraph notes the disparate statements made by the Saudi Government.
Hold the Front page has a piece on the Burki v Seventy Thirty case entitled “Is serious financial loss as high a hurdle as we thought?”
Internet and Social Media
The Stanford Cyberlaw Blog has posted on the European Parliament’s recent approval of the Audiovisual Media Services Directive (AMSD) and the implications of its implementation post-Council approval. In particular, the AMSD places more onerous obligations on internet content hosting platforms to self-regulated content.
Mark Pearson has posted on the Journlaw blog analysing, comments by President Trump on social media and their propensity to make Twitter an “echo chamber”.
A parent has been requested to remove a picture of her daughters’ homework from social media, with the head teacher of the school alleging that her critical comments of the grading were potentially defamatory.
Data Privacy and Data Protection
Denton’s Privacy and Cybersecurity law Blog has considered possible regulatory landscapes for data protection post-Brexit.
Privacy International (PI) notes the potential hazards presented by the fintech sector from a data protection and regulatory perspective due to the high volumes of sensitive data typically process. PI has also covered recent work done by the US Senate Committee on Commerce, Science and Transportation on matters of consumer data privacy.
The Hawk Talk Blog has analysed the ICO’s Guidance on what constitutes the lawful processing of data under the GDPR and whether this is, in actuality, compatible.
The Fast Company website has a post on the distinction between data protection and data privacy.
The ICO has issued Facebook the maximum fine of £500,000, for breaches of data protection law pre-GDPR, focusing on the use of data analytics for political purposes. The fine is made on the grounds that Facebook failed to obtain informed consent from users for application developers to access their personal data. Pogowasright has coverage.
The Guardian has an article on Toronto’s implementation of a “smart-city project” and the fact a privacy expert recently left the project. The case study is used to debate the data protection implications of a data-oriented city development.
Newspapers, Journalism and Regulation
Secretary of State for Digital, Culture, Media and Sport (DCMS) Jeremy Wright appeared before the DCMS Committee on Wednesday to present evidence on his strategy to tackle fake news. The Press Gazette has succinctly summarised his statements, including the possibility of implementing a levy on technology companies and alleged disinformation spreading by the Russia.
The Press Gazette has also noted protests to the Counter-Terrorism and Border Security Bill. Specifically, a number of public interest groups have released a joint statement criticising the Bill for having the potential to undermine the protection of journalistic sources.
Rod Liddle has posted a column in the Sunday Times on the weekend before last which has proved incendiary. In the column Liddle discusses issues such as extremism and makes a number of racial-oriented comments. The article has been criticised by Hacking Inquiry.
The Press Gazette has noted the Labour Party’s recent withdrawal of a complaint to IPSO concerning the accuracy of a series of Daily Mail articles. The articles concern current party leader Jeremy Corbyn’s alleged attendance to a 2014 wreath-laying ceremony in Tunisia.
The Transparency Project blog has a post about the unsatisfactory way in which IPSO dealt with its complaint, entitled “Bob the Builder – Can IPSO fix it?”
Three rulings have been published by IPSO’s Complaints Committee this week:
- 03737-18 Jones v walesonline.co.uk, Clause 1 (accuracy), 2 (privacy) and 12 (discrimination), no breach after investigation.
- 04100-18 The Transparency Project v Mail Online, Clause 1, no breach after investigation.
- 04786-18 Hobson v The Daily Telegraph, Clause 1.
Statements in Open Court and Apologies
In statement in open court read before Mr Justice Warby yesterday, 24 October 2018, Newsquest Media Group, the publishers of the Argus Newspaper in Brighton, apologised to a Libyan man arrested after the Manchester bombing pilot over an article alleging that he was an ISIS sympathiser who had publicly mourned the death of an ISIS leader. There an INFORRM post about this and a BBC news report.
Last Week in the Courts
On 22 October 2018 the Court of Appeal (Master of the Rolls, Bean and Flaux LJJ) handed down judgment in the case of Various Claimants v W M Morrison Supermarkets  EWCA Civ 2339. The appeal was dismissed. There were reports on the judgment on the Panopticon Blog and the 5RB website.
On the same day Warby J will heard the final day of the libel trial of Doyle v Smith. Judgment was reserved.
As we have already mentioned, on Tuesday 23 October 2018 the Court of Appeal (Master of the Rolls, Underhill V-P and Henderson LJ) handed down judgment in ABC v Telegraph Media Group  EWCA Civ 2329. The first instances judgment of Haddon-Cave J ( EWHC 2177 (QB)) [pdf] was made available on the Judiciary website.
- Conference on trade secrets and algorithmic systems, November 16 – 17 2018, 8:30 – 15:30, Lipton Hall, D’Agostino Hall, 108 West 3rd Street, New York, NY
- Stanford internet and society lab – secret dockets, secret searches, 27 November 2018, 12:50 – 13:50, Room 320D, 559 Nathan Abbott Way, Stanford, CA
Media Law in Other Jurisdictions
Geoffery Rush has been giving evidence in his ongoing defamation case against the Sydney Daily Telegraph, the Sydney Morning Herald reports. The Herald has also used the case to analyse the state of Australia as a jurisdiction for defamation litigation. The trial continues.
The Hugh Stephens Blog has a post entitled FairPlay Canada, the CRTC and OpenMedia: Who Got the “Big Win” on Pirate Site-Blocking?
The Journal reports that the Irish Examiner has agreed to pay libel damages to Ryanair over allegations that the company’s contract practice was a threat to safety and has apologised. There is also a report on iMediaEthics.
The Gleaner reports that Retired Assistant Commissioner of Police Keith ‘Trinity’ Gardner has obtained a default judgment his libel action against University of the West Indies, Mona lecturer Christopher Ogunsalu.
The Times of Malta reports that libel damages of €8,000 have been awarded against the Malta Independent on Sunday and its online edition over two articles alleging that the Prime Minister’s chief of staff had made use of fraudulent documents to open companies in tax havens.
In an interesting derogation from US copyright laws the Library of Congress granted an exception to the DMCA’s principles preventing the circumvention of technological measures in the archiving of software. The exception will assist libraries in the archiving of software and reduce the legal risk in employing technological processes, for example running underlying programmes and support systems, to do so.
The Department of Energy and Homeland Security have jointly launched the Pipeline Cybersecurity Initiative to seek the views of industry leaders in forming a regulatory framework for the energy sector. The Hunton Privacy Blog has commentary.
Research and Resources
Data Protection and Privacy
- Privacy, Reputation, and Control: Public Figure Privacy Law in Twenty-First Century China, Xin Dai, Ocean University of China
- Artificial Intelligence: Risks to Privacy and Democracy, Karl M. Manheim, Loyola Law School Los Angeles and Lyric Kaplan, Loyola Law School Los Angeles – Alumni
- Understanding American Privacy, Neil M. Richards, Washington University in St. Louis – School of Law; Yale Information Society Project; Stanford Center for Internet and Society, Andrew B. Serwin, The Lares Institute; Foley & Lardner LLP and Tyler Blake, Hogan Lovells
- Data Producer’s Right and the Protection of Machine-Generated Data, Peter K. Yu, Texas A&M University School of Law
Next Week in the Courts
The trial in the harassment case of CSC Computer Sciences v Price will begin on 29 October 2018 before Whipple J. An interim injunction was granted against the defendant in June 2015 ( EWHC 2348 (QB))
On 30 October 2018 Warby J will hear an application for a determination of meaning and summary judgment in the libel case of Sean Price v MGN.
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)
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).
Butt v Secretary of State for the Home Department, heard 17 October 2018 (Underhill V-P, Sharp LJ and Sir Rupert Jackson).
Doyle v Smith, heard 15 to 17 and 22 October 2018 (Warby J).
This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law.