On 4 December 2018 the Fourth Section of the European Court of Human Rights gave judgment in the ruled on the important case of Magyar Jeti Zrt v. Hungary  ECHR 990.
It was held that holding a third party liable for defamation for hyperlinking to questionably defamatory content was an unjustified interference with his Article 10 rights. There was a report in Press Gazette.
It has been announced that Mr Justice Stewart has been appointed as Judge in Charge of the Jury and Non-Jury lists for a four year term with effect from 1 January 2019.
There have been a number of comments on the Government’s announcement of abolition of success fees in media cases (see our post here). Hold the Front Page’s law column describes it as a “huge day for journalism” and the Times has the headline “Fall of Fees a Great Success”. There was also a piece on “Out-Law.com”
On 3 and 4 December 2018 the UK Supreme Court heard arguments in the case of R (on the application of Privacy International) v Investigatory Powers Tribunal. The question before the Court is the effectiveness of the ouster clause in s.67(8) of the Regulation of Investigatory Powers Act 2000. The Court of Appeal judgment, which held that this provision was effective, can be found here.
The DCMS Committee has released excerpts of the Six4Three documents it seized from Facebook which highlight issues around the commoditisation of users’ data.
David Wolfe QC, the Chair of Press Recognition Panel spoke to the Protecting the Media Conference about the recognition and section 40 of the Crime and Courts Act 2013. There is a report in the Press Gazette.
The Press Gazette has also covered the Government’s recent decision to render success fees unrecoverable from defendants in defamation and privacy cases. On the Privacy Perspective Blog Suneet Sharma analyses the impact upon access to justice of the decision. The Transparency Project has also reported on the development.
The Brett Wilson Media Law Blog has commented on decision in the case of Economou v De Freitas which provides guidance on what constitutes a matter of public interest as a defence (pursuant to section 4 Defamation Act 2013) in defamation cases. There was also a case comment on INFORRM by Dominic Garner.
The Brett Wilson Media Law Blog also commented on the sentence of 4 months imprisonment imposed in the case of Al-Ko Kober Ltd v Sambhi, for persistent breaches of an injunction.
The costs judgment in the case of Price v MGN  EWHC 3395 (QB) is now available on Bailii.
Internet and Social Media
Following the French Government’s announcement in 1 October 2018 that it will be moving away from using America-based corporations internet search functions in military functions. The Media Reform Coalition has insightful commentary on the current policy-oriented shifts in Europe to cyber independence.
Hugh Stephens, in an INFORRM post, has highlighted the questions of whether and how platforms can be held accountable for the content they host.
The Internet Cases Blog has published there articles covering significant recent cases in the United States:
- A summary judgment was recently awarded in favour of Chanel following the luxury brands challenge to the registrant of the domain name <chanelgraffitti.com>.
- The Blog considered the ongoing case of Strike 3 Holdings in its efforts to subpoena the identity of an ISP holder in order to serve a claim against hm.
- The Blog has considered the application of attorney-client privilege to protect the communication of lawyers with a PR firm they hired to assist their client in preventing further reputational harm.
Verizon communications has covered how 5G may power the Industrial Internet of Things.
Data Privacy and Data Protection
The Italian Competition and Market Authority has fined Facebook €10m for Consumer Code violations for the failure to properly inform users of its data-collection practices. Pogowasright also has coverage.
The Times has reported that a number of medical professionals who treated Sir Alex Ferguson are being investigated for alleged misconduct in accessing his medical records following his hospitalisation in the summer. The Mischon de Reya Data Matters Blog has a post considering the potential breaches of data protection legislation engaged in the incident.
Following the implementation of the EU Audio-visual Media Services Directive, Lubos Kuklis considers the implications for video-sharing platforms.
Spotlighting the issue of ethical data management, the IAPP has considered what the role of Chief Data Ethics Officer entails and how to build an ethics strategy.
On The Privacy Perspective Blog Suneet Sharma has considered the development of UK privacy law following the Human Rights Act 1998 through to the landmark Campbell case.
The ICO has released the Privacy Commissioner, Elizabeth Denham’s, speech at this year’s International Privacy Forum. The speech focuses on the international role of the ICO, convergence issues and people centric approaches to data.
A former headteacher has been fined £700 for unlawfully obtaining the personal data of school children.
The ICO has analysed the initial responses to its proposals to establish a “regulatory sandbox”. The sandbox looks to be open to any business from any sector and aims to establish informal precedents and advisory mechanisms to safeguard privacy and innovation.
In Australia the Assistance and Access Bill passed through Parliament on 6 December 2018 has raised issues around cybersecurity and misuse. ABC News has released a soundbite analysing the legislation which provides police and investigators with powers to access to encrypted messages.
Newspapers, Journalism and Regulation
Mark Pearson has released the sixth edition of his authoritative text “The Journalist’s Guide to Media Law” (co-authored with Mark Polden).
The LSE Media Policy Project Blog has a post into the issues of misinformation and digital literacy, recommending how to promote trust in the information and education of readers by outlets.
Paul Bernal has covered the curious incident of “the fake vicar” on Newsnight and draws pointed analogies to the issue of outlet credibility and integrity.
The Press Gazette also notes the recent removal of a reporting restriction on the identify of a source whose allegations were instrumental in the Metropolitan Police’s investigation in a suspected “VIP paedophile ring” operating in Westminster.
A ruling and two resolution statements have been published by IPSO’s Complaints Committee this week:
- 03137-18 Ashton v Daily Mail, principle 1 (accuracy), no breach after investigation
- 03996-18 Sanusi v Liverpool Echo, principles 1 and 2 (privacy), no breach after investigation
- 04524-18 McAlpine v The Scottish Sun, principles, 2, 3 (harassment), 4 (intrusion into grief and shock) and 10 (clandestine devices and subterfuge), no breach after investigation
- 05653-18 Crichton v Mail Online, principles 1, 2 and 4, breach with publication of a clarification
- Resolution Statement 04837-18 Osman v The Sun, principle 1, resolved via IPSO mediation
- Resolution Statement 07329-18 Rostrevor Action Respecting the Environment v News Letter (Belfast), principle 1, resolved via IPSO mediation
Statements in Open Court and Apologies
On 5 December 2018 there was a statement in open court in the case of Gavin Poolman v MGN Ltd read before Mann J.
Last Week in the Courts
On 4 December 2018 the Court of Appeal (Irwin, Newey and Baker LJJ) heard the appeal in the case of Ali v Channel 5. Judgment was reserved.
On 5 and 6 December 2018 Mann J heard a CMC and a number of applications in the case of Various Claimants v MGN Limited, the Mirror phone hacking litigation.
On 6 December 2018 Nicklin J heard applications in the case of Morgan v Associated Newspapers. Judgment was given on 7 December 2018. The background to the case can be found in an earlier judgment ( EWHC 1725 (QB)).
- Privacy, Disclosure and Social Exchange Theory, 12 December 2018, 16:10 – 17:30 202 South Hall Berkeley, CA
Media Law in Other Jurisdictions
The Sydney Morning Herald has an opinion piece by David Rolph entitled “Australia’s defamation laws are ripe for overhaul”.
In the same newspaper Michaela Whitbourn notes that the NSW led review of Australia’s defamation laws will examine “unreasonable limits” on public interest reports.
As part of the Australian libel reform campaign, The Australian has an editorial entitled “Broken defamation laws threaten our democracy”.
The BBC has covered Chris Gayle’s successful defamation case against Fairfax Media following articles alleging he exposed himself in a team dressing room at the 2015 World Cup. Gayle received $300,000 in damages. There is also a report in the Sydney Morning Herald. The judgment in has been analysed by Defamation Watch and by Stephen Murray on INFORRM.
The Guardian has a report on various pre-trial applications in the case of Craig McLachlan v Fairfax Media. It described the decisions as “minor win” for the plaintiff.
The same newspaper reports on a defamation claim by Labour MP Emma Husar over “slut-shaming” BuzzFeed report.
One of WA’s racing stewards, Barbara Scott, has been awarded $140,000 following a successful defamation case against Dean Baring after Baring posted a defamatory statement against Scott on his Facebook account, the West reports.
On 5 December 2018 the Privacy Commissioner Daniel Therrin, by way of a letter to Innovation Minister Navdeep Bains, called for an overhaul of Canadian Privacy laws. CBC News reports, as does the Globe and Mail, on the development and Michael Geist analyses the call for legislative overhaul with characteristic clarity.
The Canadian Bar Association recently appeared before the Standing Committee on Industry, Science and Technology to provide commentary on Canadian copyright reform. In its brief the Association covered anti-counterfeiting and notice-and-notice takedown issues by may have missed the point, Michael Geist remarks.
CNBC has considered how data privacy is becoming a more pertinent issue in China despite historical neglect.
The Irish Times notes that the jury in the defamation case brought by the former minister of state Paudie Coffey against the publisher of the Kilkenny People will return on Tuesday 11 December 2018.
The Straits Times reports that the Prime Minister Lee Hsien Loong has begun legal action against financial adviser and blogger Leong Sze Hian for defamation, after Mr Leong shared an article on his Facebook page that said PM Lee had helped to launder funds from Malaysia’s state development fund, 1MDB.
On 4 December 2018 AOL was fined $4.95m for violating the Children’s Online Privacy Protection Act, the Hunton Andrews Kurth Blog analyses the largest fine of its kind to date.
In Dittman v. UPMC, 2018 Pa. LEXIS 6072199 (Pa. Nov. 21, 2018) the Pennsylvania Supreme Court has confirmed that employers must take reasonable care to safeguard employees sensitive personal data, Norton Rose Fulbright comments.
Research and Resources
Data Protection and Data Privacy
- ‘Equality and Privacy by Design’: Ensuring Artificial Intelligence (AI) Is Properly Trained & Fed: A New Model of AI Data Transparency & Certification As Safe Harbor Procedures, Shlomit Yanisky-Ravid, Yale Law School; ONO Academic College; Yale University – Information Society Project; Fordham University, School of Law, Sean Hallisey, Fordham University School of Law
- Protection of Personal Data in Cyberspace: The EU-US E-Market Regime, Tossapon Tassanakunlapan, Faculty of Law, Chiang Mai University, Milagros Álvarez-Verdugo, University of Barcelona
Internet and Social Media
- Interrupting Interruptions: A Digital Experiment on Social Media and Performance, Veronica Marotta, University of Minnesota – Twin Cities – Carlson School of Management, Alessandro Acquisti, Carnegie Mellon University – H. John Heinz III School of Public Policy and Management
- New Social Media and Impact of Fake News on Society, Kuldeep Nagi, Assumption University – Graduate school of eLearning (GSeL)
Newspapers, Journalism and Regulation
- Law As Source: How the Legal System Facilitates Investigative Journalism, Roy Shapira, Stigler Center, University of Chicago Booth School of Business; Interdiscplinary Center (IDC)
Next Week in the Courts
On 10 December 2018 Nicklin J will hear two applications in the case of Koksal v Barclays Bank a libel claim issued in January 2018. The Claim Form and Particulars of Claim are available on Lawtel [£]
On the same day Dingemans J will hear PTR in the case of Specialist Hygiene Solutions v Marsh. The background to the case can be found in a judgment of the Court of Queen’s Bench for Saskatchewan 2017 SKQB 258 – which concerns an unsuccessful attempt to enforce an earlier English Tomlin order in this action in Canada.
On 12 December 2018 there will be a trial of a preliminary issue on meaning in the case of Koutsogiannis v Random House Group Ltd.
On 14 December 2018 there will be a trial in the libel and misuse of private information case of Poulter v Times Newspapers before Nicklin J.
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)
R (on the application of Privacy International) v Investigatory Powers Tribunal, heard 3 and 4 December 2018 (UKSC)
Ali v Channel 5, heard 4 December 2018 (Irwin, Newey and Baker LJJ).
This Round Up was compiled by Suneet Sharma, a junior legal professional with a particular interest and experience in media law.