It was a relatively quiet year for media law cases, with only three published judgments from the Northern Ireland High Court. These were all interim decisions concerning local or regional publications. There were no Court of Appeal media law judgments in 2018.
Summaries of these judgments are set out below, as well as a round up of other media law news and developments from last year.
Libel
There were two interim libel judgments in 2018:
- McGuckin v Sunday Newspapers Ltd [2018] NIQB 6 – the plaintiff sought an interim injunction restraining publication of an article due to be published the following day. The article alleged the plaintiff had demonstrated “dictatorial and intemperate” behaviour in her role as chairperson of a charitable organisation. McCloskey J, delivering the ex tempore judgment, declined to give effect to the rule in Bonnard v Perryman (despite the claim being brought to protect the plaintiff’s reputation). He granted a temporary injunction restraining the defendant from publishing the article for seven days, which he considered achieved the appropriate balance in light of the urgency of the application.
- Cousins v Asda Stores Ltd & others [2018] NIQB 35 – the plaintiff issued proceedings over a publication in The County Down Outlook headlined ‘Women sought over theft of food, a hoover and clothes.’ The article included a photograph of the plaintiff. Maguire J delivered this interim judgment following a meaning hearing. He struck out the plaintiff’s chase level 1 meaning (the words were understood to mean she was a thief) but refused to strike out the pleaded chase level 2 meaning (there were grounds to suspect the plaintiff was a thief).
In addition to these judgments, the settlement in libel proceedings brought by Dana Rosemary Scallon (former Eurovision song contest winner) against Sunday Newspapers Ltd was widely reported. A jury was set to be empanelled (the presumption of a jury trial remains in libel proceedings in Northern Ireland) when the matter settled for a six-figure sum, with a statement read out in open court.
Privacy/data protection
There was one interim decision relating to breach of privacy and data protection; BNC v The Irish News Ltd [2018] NIQB 41(the plaintiff’s anonymity order was lifted, however only an anonymised version of the judgment is available). In this case the plaintiff sought injunctive relief in relation to a photograph taken from her Facebook page, which was published in an article online. There was a dispute over the privacy settings on the plaintiff’s Facebook account at the time of publication. The article related to a bail hearing, during which it was alleged the plaintiff sought to supply drugs to her son in prison. The plaintiff later pleaded guilty to the offence.
Burgess J, delivering the interim judgment in this case, refused the plaintiff’s application. He considered that no expectation of privacy would arise if third parties unconnected to the plaintiff could access the image on her Facebook account. As this was in dispute, the judge gave consideration to the relevant balancing exercise. This included the fact the plaintiff was charged with a serious criminal offence and the clear public interest in the story. This is a reminder of the difficulties in establishing a breach of privacy when it comes to a criminal charge.
Internet intermediaries
The Northern Ireland courts have found themselves at the forefront of providing guidance in the area of internet intermediary litigation over the last number of years. Last year, there were surprisingly no published judgments from the Northern Ireland courts that concerned internet intermediaries, the last written judgment being MM v Facebook Ireland Ltd [2017] NIQB 127.
There were however a number of developments in this area. There was extensive press coverage at the beginning of the year of the settlement in the case of AY v Facebook Ireland Ltd. It’s understood related actions against Twitter for libel and breach of privacy are ongoing. This litigation raised issues of how Facebook will handle the increase in complaints concerning intimate images uploaded onto the site without the individual’s consent.
In February 2018 the Supreme Court refused permission to appeal in the case of CG v Facebook Ireland Ltd [2016] NICA 54. The point at issue was the relationship between Regulation 19 of the E-Commerce Regulations and liability under the Data Protection Act 1998. Permission was refused on the grounds that the application did not raise an arguable point of law of general public importance, and that new legislation (Recital 21 GDPR) makes an appeal academic.
Overall in 2018, it’s understood at least eight cases were issued against internet intermediaries (Facebook, Google and Twitter) in the Northern Ireland High Court. This is a slight increase compared to previous years (six cases issued in 2016 and also in 2017).
Ciaran O’Shiel is an associate and Charlotte Turk is a solicitor in the media litigation team at A&L Goodbody.
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