On 14 January 2019 the Scottish Government launched a consultation on the law of defamation in Scotland. The consultation seeks views on recommendations made by the Scottish Law Commission for reform of the law of defamation.
The consultation concerns the following areas:
- The statutory threshold test of serious harm;
- Proceedings against secondary publishers;
- The defence of honest opinion;
- Offers to make amends;
- Malicious publications; and,
- Limitation and the multiple publication rule.
The News Media Association has abandoned the appeal in its failed judicial review of the decision of the Press Recognition Panel (“PRP”) to recognise IMPRESS as an independent regulator of the press. The appeal had been listed for 17 January 2019. The background is explained in a PRP press release.
BBC Asian Network’s head of news has been found not guilty of an offence under Sexual Offences (Amendment) Act 1992 over the naming of a sexual abuse victim in a live radio broadcast by a reporter. There was a report in the Press Gazette.
Internet and Social Media
The Federal Trade Commission in the US is reported to be considering imposing its largest ever fine on Facebook – larger than the $22.5 million fine on Google over the “Safari workaround”.
The Social Media Law Bulletin notes that the US-Mexico-Canada Agreement (“USMCA”) contains a provision (Article 19.17) relating to intermediary liability – forbidding intermediaries from being hel to the same standards as publishers.
Data Privacy and Data Protection
The Amsterdam District Court has ordered Google to delist a formal reprimand which was given to a doctor. The Dutch Data Protection Authority had refused an order to delist on the basis that the information was still relevant but the Court disagreed and noted that the reprimand could be found on medical professional register. There is a report of the case in English on the Dutch News.nl website and a report in Dutch on Trouw.
The Hawktalk blog has a post entitled “Draft Brexit Data Protection Regulations would undermine adequacy determination for the UK”
The Privacy Europe site has a post looking at possible developments in data protection in the forthcoming year entitled “2019 – A new year for the GDPR”.
Out-Law reports that the body behind the operation of several hospitals and other health institutions in Singapore and the city state’s central national IT agency for the public healthcare sector have been fined a total of SIN$1 million ($739,000) over data security failings that enabled a hacker to access the personal data of nearly 1.5m people.
Tim Crook of Apple has renewed calls to Congress to reform federal privacy law. Forbes has a piece “It’s Past Time for a National Data Privacy Law”. Meanwhile, Senator Marco Rubio has introduced a bill to introduce a federal privacy law. It is reported that “battle lines” are forming in relation to the expected fight over what kind of federal privacy law there should be.
The new Data Protection Act came into force in Spain on 6 December 2018 this provides a new legal framework in relation to employees’ right to privacy in the use of digital devices at work, although no great changes have been made to the existing legal framework.
Newspapers, Journalism and Regulation
Rulings and resolution statements
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 Monday 14 January 2019 Nicklin J handed down judgment in Carruthers v Associated Newspapers Ltd (heard 18 December 2018) EWHC 33 (QB). Summary judgment was given for the defendants in two libel claims, the privacy and DPA claims continue. We had a case comment, there was a 5RB case note and a report in the Press Gazette.
On the same day Dingemans J handed down judgment in Caine v Advertiser & Times Ltd (heard 11 December 2018)  EWHC 39 (QB)
[Update] On 18 January 2018, Nicklin J handed down judgment in the case of Koutsogiannis v The Random House Group Ltd  EWHC 48 (QB)(heard 12 December 2018)
[Update] We note that, on 10 January 2019, Chief Master Marsh approved a settlement in the case of Mezvinsky v Associated Newspapers. The case concerned unauthorised photographs of Chelsea Clinton’s children. There was a news item about this on the Atkins Thomson website.
- Navigating Privacy in a Data Centric World, Lecture by Jules Polonetsky, Regent House, Trinity College, Dublin, 28 January 2019, 16.00 to 17.30.
- State of the Net 2019, Center for Internet and Society, Newseum, 555 Pennsylvania Avenue, Northwest, Washington, DC, 29 January 2019, 8.00am.
- Mind the Gap: a blueprint for a new regulatory framework that effectively captures citizen journalists, Information Law and Policy Centre, 17 Russell Square, London WC1B 5DR, 28 February 2019, 17.00 to 18.45.
- Women and AI: Harms, Impacts and Remedies, Information Law and Policy Centre, 17 Russell Square, London WC1B 5DR, 7 March 2019, 17.00 to 19.00.
- Media Democracy Festival, Media Reform Coalition, Clore Centre 27 Torrington Square, London WC1E 7JL, 10.00am to 6pm 16 March 2019
- Update: Sir Brian Leveson in Conversation with Alan Rusbridger, Lady Margaret Hall, Norham Gardens, Oxford OX2 6QA, 10 May 2019, 17.45 – 19.00
- 3rd Global Conference of the Internet & Jurisdiction Policy Network, Berlin, Germany, 3-5 June 2019.
Media Law in Other Jurisdictions
The actor Craig McLachlan has successfully delayed his defamation action against two media outlets and a former co-star while the actor fights assault and indecency charges in Victoria.
Facebook has removed sex tapes of a Rugby League player Dylan Napa although these continue to circulate on other sites. There is a discussion of the legal issues in the Sydney Morning Herald.
In the case of Grochowski v. Young, 2019 ONSC 326 the plaintiff was a doctor who had written to a local newspaper. The defendant wrote a defamatory letter in reply which was posted online. The judge rejected defences of justification, fair comment and communication in the public interest, awarding damages of Can$12,500.
The Daily Telegraph reports that Jens Maier, a German MP from the nationalist Alternative for Germany party (AfD) has been ordered to pay €15,000 (£13,200) compensation for defamation over a tweet which described the son of Boris Becker as a “little half-negro”.
The Guardian reports that a senator from the League has been given an 18-month prison sentence for likening the country’s first black minister to an orangutan.
In the case of Fridman and ors v Bean LLC and Glenn Simpson (Case 17-20141 [pdf]) a Federal judge has refused a motion by the defendant to dismiss libel proceedings brought over over the Memoranda in the “Trump Dossier”. There is a report on the Politico website.
Next Week in the Courts
On 21 January 2019, there will be a statement in open court in the “World Check” case of Al-Zeer v Reuters Ltd before Warby J.
On the same day the same judge will hear an application in the case of Arcadia Group Ltd & ors v Telegraph Media Group Ltd.
On 23 January 2019 there will be a trial in the case of Burgon v News Group Newspapers Ltd before Dingemans J. This is a defamation claim listed for a 3 day hearing. The Claim form and Particulars of Claim are available on Lawtel [£]
On 24 January 2019 the UK Supreme Court (Lords Reed and Kerr, Lady Black, Lord Briggs and Lord Kitchin) will hear the appeal in the case of Stocker v Stocker,. This is listed for one day. The Grounds of Appeal can be found here [pdf].
The following reserved judgments after public hearings in media law cases are outstanding:
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).
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).