On 29 November 2018 the Lord Chancellor and Secretary of State for Justice, David Gauke, issued a statement, “Controlling the costs of defamation cases”. The Government also belatedly published its response to the 2013 consultation “Costs protection in defamation and privacy claims: the Government’s proposals”.
The Government has decided to commence section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 in relation to media cases as of 6 April 2019, abolishing the recoverability of the conditional fee agreement success fee in such cases. The recoverability of after the event insurance premiums will not be affected. There was a comment on these changes from Iain Wilson on Inforrm and a piece in the Sunday Times.
On the same day judgment was handed down in the case of R (on the application of Jefferies & Ors) v The Secretary of State for the Home Department & Ors  EWHC 3239 (Admin). The case concerned the judicial review of the Government’s decision not to implement Part 2 of the Leveson Inquiry. The application was refused. Hacked Off issued a press release entitled “Victims vow to fight on after Leveson Part Two judicial review finds in favour of government”. There were reports of the decision in the Guardian, the Independent and The Press Gazette.
On 27 November 2018 an international grand committee was convened in Parliament to heard evidence on the issue of fake news. Parliamentarians from across the world signed a declaration on Principles of the Law Governing the Internet. There was coverage in the Press Gazette. Mark Zuckerberg’s absence at the conference was noted, especially after the DCMS Committee’s seizure of documents from Facebook on 25 November 2018.
On 30 November 2018 Marriot International announced that it had been the subject of an extensive data breach. The breach, of the Starwood Properties Booking tool, is estimated to have compromised over 500 million guests’ data, with 327 million guests personal data being put at risk. The ICO confirmed notification of the breach. Coverage was expectedly broad with the Financial Times, New York Times and Huffington Post, among others commenting.
Brett Wilson’s Media Law Blog has covered the case of Doyle v Smith  EWHC 2935 (QB), which concerned the liability of a blogger for comments regarding a planning dispute. The case considered the application of s.4 Defamation Act 2013 that publication was in the public interest.
Internet and Social Media
In a highly significant case for all social media platforms a number of America-based parties have applied to the federal district court for the Eastern District of California to unseal documents in a wiretapping case involving Facebook messenger. In August 2018 the Ministry of Justice allegedly sought to enforce a wiretap order to obtain Facebook messenger voice calls. Similar to the Carpenter IPhone access case this raises issues around encryption, data privacy and government interference.
The LSE Media Policy Project Blog has considered the European regulation of video-sharing platforms and their practical implications.
The IAPP reports that Cambridge Analytica alleged used Facebook users’ fashion preferences to target them with ads.
Data Privacy and Data Protection
Stanford’s Cyberlaw blog has an insightful article entitled “The promise and peril of personalization”. The article considers how technology providers collate extensive personal information in order to personalise their services, in doing so that information can be disseminated and commoditised.
Pogowasright considers statements which imply that Amazon’s facial recognition system may be racially biased and harm free expression.
On the Privacy Perspective Blog Suneet Sharma provides a brief introduction to the development of privacy law pre-Human Rights Act 1998.
Privacy International (“PI”) has been characteristically active this week releasing:
- A Report: “From oppression to liberation-reclaiming the right to privacy”, focusing on the right to privacy and the vulnerability of minority groups.
- The UN Special Rapporteur is conducting a consultation on “Gender Perspectives on Privacy” for which PI has made a submission.
- PI has also released a feminist manifesto on “reclaiming privacy”.
Facebook has announced its intention to appeal the ICO’s £500,000 fine in relation to the misuse of personal data harvested by Cambridge Analytica. The social media platform argues that, since no UK user data was implicated in the breach, the fine cannot be justified.
The Mischon de Reya Data Matters Blog has covered the ICO’s fining of organisations for failing to pay the data protection fee, as has Pinsent Masons.
It has been found that electric cars in China can covertly send location information to the government.
Newspapers, Journalism and Regulation
Harvard Law School’s Cyberlaw Clinic has released guidance on content regulation for podcast providers. The memo seeks to provide a framework for maintaining quality content which is consistent and mindful of fair speech laws.
FC Reporting Watch in an INFORRM repost unpicks a Times article in Press Reporting: Did a council ‘act perversely’ to offer a jailed rapist a chance to see his victim’s child?
Regulator Impress has been donated £3m from the Mosley family charity, the Press Gazette reports.
A ruling and two resolution statements have been published by IPSO’s Complaints Committee this week:
- Resolution Statement 05896-18 Alexander v The Times, provision 1 (accuracy), resolved via ISPO mediation
- 04767-18 A Woman v Harlow Star, principles 1, 2 (privacy) and 7 (children in sex cases), no breach after investigation
- Resolution Statement 05309-18 Dark v express.co.uk, principle 1, resolved via IPSO mediation
Statements in Open Court and Apologies
There were no statements in open court last week.
Last Week in the Courts
On 27 and 28 and 30 November 2018 Nicklin J heard the privacy trial in ZXC v Bloomberg. Judgment was reserved.
- Protecting the Media Conference, 4 December 2018, London
- Internet & Digital Media Law Conference 2018, 5 December 2018, London
- What happened to the “golden era of free speech”?, 6 December 2018, 16:00 – 17:00, Marine’s Memorial Club & Hotel, 609 Sutter Street, San Francisco, CA
- House of Lords AI Report: Policy Impact, Implementation, and Progress, 6 December 2018 17:30 – 19:00, Institute of Advanced Legal Studies, 17 Russell Square, London WC1B 5DR
- Privacy, Disclosure and Social Exchange Theory, 12 December 2018, 16:10 – 17:30 202 South Hall Berkeley, CA
Media Law in Other Jurisdictions
The Guardian had two pieces by the well-known commentator (and editor of the Gazette of Law and Journalism) Richard Ackland about Australian media law
· Your right to know: how Australia’s defamation law stifles public-interest journalism
· Free press backwater: how to change the defamation laws that stifle Australian journalism
The Sydney Morning Herald has a series of pieces under the rubric “Defamation Nation”
- “How you could lose your house to Australia’s defamation law”.
- Federal Labor and media chiefs push for historic defamation reform
- ‘Judges don’t get what journalists do’: Australia’s defamation law is having a chilling effect on the media.
- Fixing Australia’s broken defamation laws.
- How a zombie case came back to life thanks to Australia’s defamation law.
The Guardian reports that actor Craig Lachlan is seeking $6.5m damages in a defamation action against Fairfax Media and ABC.
The same newspaper reports that former Labor leader Mark Latham could be facing costs of A$100,000 after agreeing to settle defamation proceedings brought by ABC journalist Osman Faruqi.
In the case of Wilson v Canwest Publising 2018 BCCA 441 the Court of Appeal of British Columbia overturned an award of Can$125,000 damages made by the trial judge holding that the defence of responsible communication should be applied to the article as a whole. There is a report on the decision in the Vancouver Sun.
Geist has also continued his in-depth analysis of fair dealing:
- Misleading on Fair Dealing, Part 6: Why Site Licences Offer Education More than the Access Copyright Licence
- Misleading on Fair Dealing, Part 7: My Appearance Before the Standing Committee on Canadian Heritage
- Misleading on Fair Dealing, Part 8: The Access Copyright Fight Against Transactional Licensing
- Misleading on Fair Dealing, Part 9: The Remarkable Growth of Free and Open Materials
Donness Personnelles has released a precedent GDPR Outsourcing Contract, governed by French law.
The Entrepreneur notes the development of smart surveillance in India.
Capital News reports that the High Court has dismissed a defamation case against Nation Media Group by lawyer Ahmed Sheikh Adan who had accused the newspaper of publishing disparaging words linking him to terrorism 17 years ago.
In the ongoing defamation case of John Stringer against former Conservative party leader Colin Craig the High Court judge has recently ordered Craig to preserve two cell phones which contain relevant evidence, the New Zealand Herald reports.
The BBC reports that Dana Rosemary Scallon has reported received a six-figure sum following a successful defamation case against the Sunday World.
Spain’s Parliament recently approved the Organic Law on Data Protection and Digital Rights Guarantee- the Pinsent Mason’s Outlaw Blog has commentary.
Research and Resources
Data Protection and Data Privacy
- Privacy Things: Systematic Approach to Privacy and Personal Identifiable Information, Sabah Al-Fedaghi, Kuwait University
- Dignity and Utility of Privacy and Information Sharing in the Digital Big Data Age, Julia M. Puaschunder, Harvard University
- Determining Legal Responsibilities in Defamation: Crossing the Dividing Line between Real World and Internet Jurisdiction, Marcus Araromi, University of Ibadan
Internet and Social Media
- The Unexpected Consequences of the EU Right to Be Forgotten: Internet Search Engines As Fundamental Rights Adjudicators, Maria Tzanou, Keele University
Next Week in the Courts
On 4 December 2018 the Court of Appeal will hear the case of Ali & Anr v Channel 5 Broadcast Limited. This is an appeal against a decision of Arnold J on quantum and a cross appeal on liablity ( EWHC 298 (Ch)). We had a post on the first instance decision.
The following reserved judgments after public hearings in media law cases are outstanding:
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 and 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).
Nugent v Willers, heard 13 November 2018 (Privy Council)
Lachaux v Independent Print, heard 13 and 14 November 2018 (UKSC)
ZXC v Bloomberg, heard 27-28 and 30 November 2018 (Nicklin J)
This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law.