Law and Media Round Up – 17 December 2018 [Updated]

17 12 2018

The Michaelmas Legal Term 2018 will end on 21 December 2018 with the Hilary Term 2019 commencing on 11 January 2019. INFORRM will be taking a Christmas break with the first Law and Media Round Up of the New Year being published on 14 January 2019.

The ICO has issued guidance for businesses, particularly SME’s, to assist in their Brexit preparations from a data protection perspective. This includes standard Six Step Guidance, Guidance if the UK leaves the EU without a Withdrawal Agreement and FAQ’s. Denton’s Privacy and Cybersecurity Blog has produced a succinct summary of the guidance.

On Thursday 13 December 2018 Master McCloud granted J D Wetherspoon a Norwich Pharmacal order against Twitter in order to identify the person responsible for a fake Twitter account.  There were reports in the Guardian and the Daily Telegraph.

Former MSP Tommy Sheridan has won his appeal on interest on the libel damages he was awarded in 2006 at the rate of 8% per annum ([2018] CSIH 76 [pdf]).  There is a news report in Scottish Legal News.

The controversial defamation case brought against comedian Louise Reay by her ex husband, has settled.  There are reports in the Guardian and on the “Beyond a Joke” website.

On INFORRM Oliver Fairhurst has covered the case of Magyar Jeti Zrt v. Hungary in which the European Court of Human Rights ruled on liability for hyperlinking to defamatory content.

Internet and Social Media

Reuters covers the important US Supreme Court case of Manhattan Community Access Corporation v. Halleck. The case concerns a public access television networks status as a public forum and has implications for companies being treated as state actors on the internet.

The Washington Examiner has considered Facebook’s latest data breach on 7 December 2018, where a bug exposed 6.8m user’s photos to third-party developers.

Search Engine Journal notes that, following a series of surveys, US adults are consuming news via the social media than traditional newspapers.

NiemanLab has compiled social media predictions for 2019, focusing on highlighting the utility it provides for journalists.

The Irish Examiner has noted approaches to social media which ensure long-lasting impact.

Data Privacy and Data Protection

PwC blog has a post on suggested guidance on best practice responses to data breaches.

The National Review has considered the issue of data privacy and its increasing importance following the ever evolving commoditisation of data. The Guardian has a similar piece focusing on issues surrounding DNA testing as has the Thomson Reuters Foundation which has noted the increasing trend of people using DNA test kits.

Using devices to store and transmit body-related data has been commented on by CPO magazine.

The Courthouse News Service has considered the development and application of AI following a survey of over 1,000 technology professionals.

Law360 considers how GDPR has changed data privacy in 2018.

The IAPP has noted the compliance issues presented by Blockchain and GDPR.

Privacy International (PI) has been characteristically busy this week:

ICO

A copy of Information Commissioner’s Elizabeth Denham’s speech at this year’s India-UK Future Tech Festival, which covers data protection and privacy.

A London firm has been fined £200,000 after sending over 14.8m spam text messages.

Surveillance

PI comments on Taylor Swift’s alleged use of facial recognition software at a kiosk in a recent concert, which scanned users face’s without consent and compared them to those documented to pose a security risk to her. The Guardian and Vanity Fair have analysis whilst Pogowasright also considers the issue.

The Register has highlighted challenges to the UK’s surveillance regime by human rights organisations.

Open Democracy has commented on surveillance being used as a tool to silence Scottish writers, following requesting commentary from readers. The University of Strathclyde has commented on this issues stating that “Digital surveillance holds one in five of writers back”.

The ACLU blog examines a recent patent application by Amazon which may result in the development and integration of facial recognition software into doors.

Newspapers, Journalism and Regulation        

Hacked Off has a press release highlighting concerns the group has with the Counter-Terrorism Bill. This focuses on the greater stop, search and seizure powers the bill grants to border officers, which has the propensity to hinder investigative journalism.

On INFORRM Brian Cathcart has a critical analysis of the recent controversy surrounding footballer Raheem Sterling and how the media must be held accountable when it perpetuates racism.

The Stanford Cyberlaw Blog has analysed the threat posed by deepfakes in perpetuating the spread of disinformation and the role of technology in providing solutions.

The Transparency Project Blog has analysed coverage of the recent guidance issued by the President of the Family Division on the anonymization of judgments in the family courts.

The LSE Media Policy Project Blog has highlighted some digital skills that need to be cultivated to ensure equal opportunity.

On the Privacy Perspective Suneet Sharma conducted an analysis of the funding dynamics of privacy and defamation cases in the UK.

IPSO

Rulings

A ruling and two resolution statements have been published by IPSO’s Complaints Committee this week:

Statements in Open Court and Apologies

We are not aware of any statements in open court being made in the past week.

Last Week in the Courts

On 13 December 2018 Master Giddens gave an ex tempore judgment in the slander claim of Kenny v Commissioners for HM Revenue and Customs.  The claim was struck out on Jameel grounds.  There is a case note on the 5RB website.

On 14 December 2018 Nicklin J gave an ex tempore judgment on meaning the case of Poulter v Times Newspapers. He held that article bore meanings of guilty of sexual assault.  [Update] There is a 5RB case note on this judgment.

Events

We are not aware of any relevant media and law events in December 2018.  Please let us know of any events you would like us to list.

Media Law in Other Jurisdictions

Australia

The cricketer Chris Gayle will receive half his libel damages of A$300,000 pending an appeal by the defendant, Fairfax Media.  Payment of the remainder of the damages is to be stayed until the appeal is resolved.

The Sydney Morning Herald has an article analysing the state of defamation law in Australia arguing that Sydney could now be regarded as “the defamation capital of the world”, making reform a necessity.

The Guardian has analysed the issue of digital surveillance in Australia.

Argentina

The Argentinian DPA has issued guidance on the application of Binding Corporate Rules.

France

The Press Gazette has covered calls for an investigation into reports that the police are targeting journalists at “Gilets Jaunes” protests in France. Reporters without Borders and the National Union of Journalists have contacted by policy holders.

Ireland

The Irish Times reports that the Court of Appeal has heard an appeal by Kenmare Resources over a €10 million damages award to its former deputy chairman Donal Kinsella in the “naked sleepwalker case”.  There was also a report in the Irish Independent.  Judgment was reserved.

The jury in the Paudie Coffey libel case has been unable to reach a verdict and it seems that there is likely to be a re-trial.

The Irish Data Protection Commissioner is to investigate Facebook following another data breach which took place in September 2018. The Economic Times has analysed how successive data breaches have impacted the social media giant.

Malta

The Times of Malta reports that former Nationalist party executive council president Ann Fenech won two libel suits she instituted against the prime minister and the president of the Labour Party after false claims made against her in statements by the party.

Scotland

We have already mentioned the decision in Sheridan v News Group Newspapers ([2018] CSIH 76 [pdf]).

Sierra Leone

The AllAfrica website reports that the President has promised the repeal of the criminal libel and sedition laws and the creation of a fund to support journalists.

Singapore

The editor of the website “The Online Citizen” has been charged with defamation after he published a letter alleging that there was corruption “at the highest echelons” of Singapore’s government.

United States

The Stormy Daniels defamation case in Los Angeles has recently concluded with Daniels being ordered to pay President Trump’s legal fees ($293,000) and sanctions of $1,000. The New Zealand Herald has coverage. Daniels lawsuit against the President (with ancillary allegations against Michael Cohen and Keith Davidson) to challenge the validity of the non-disclosure agreement she allegedly entered into continues.

In his new book Eric P. Robinson analyses St. Amant v. Thompson and its development of the notion of reckless disregard vis a vi the concept of actual malice in defamation cases. Eric P. Robinson is assistant professor at the School of Journalism and Mass Communications at the University of South Carolina.

Internet cases has considered Facebook’s alleged tracking of users visiting healthcare-related websites, and its potential breach of HIPAA. The Blog also considers a recent defamation case where a dummy website was used to target a company’s employees and their families’ personal information.

Research and Resources

Internet and Social Media

Surveillance

 Data Protection and Data Privacy

Defamation                                                        

Newspapers, Journalism and Regulation

Next Week in the Courts 

On 17 December 2018 Nicklin J will hear the trial of a preliminary issue on meaning in the case of Tinkler v Ferguson. This is a claim for libel and malicious falsehood arising out of a claim published to the London Stock Exchange in relation to the Stobart Group. The claim was issued on 8 June 2018. The Claim Form and Particulars of Claim are available on Lawtel [£]

[Update] On 18 December 2018 Nicklin J will hear the trial in the case of Carruthers v Associated Newspapers.

On 20 December 2018 the Court of Appeal will consider the claimant’s appeal in the “right to be forgotten” case of NT1 v Google LLC.

Judgments

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.


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