The most high profile media law story of the week concerned the discontinuance of Sir Philip Green’s breach of confidence action against the Daily Telegraph. In a judgment handed down on Friday 8 February 2019 ( EWHC 223 (QB)) Warby J granted the claimants permission to discontinue and refused to impose any conditions on them. It was reported that the claimants faced a £3m legal bill.
The discontinuance of the action meant that the interim injunction granted by the Court of Appeal in September 2018 was discharged. The Daily Telegraph [£] immediately published allegations that Sir Philip Green had subject five individuals to racial, physical and sexual abuse. The Telegraph also published excerpts from six phone conversations with Sir Philip Green [£] discussing the newspaper’s intent to publish a story based on the allegations.
The other high profile story of the week concerned an award of libel damages to Labour MP Richard Burgon after a trial. He was awarded damages of £30,000 in his case against the Sun over a claim that a heavy metal band he performed with delighted in Nazi imagery. Dingemans J handed down judgment on 6 February 2019 ( EWHC 195 (QB)) There were reports in the Guardian, the BBC website and in the Press Gazette. The Times reports that the Sun intends to appeal.
On 5 February 2019 Warby J granted a without notice interim injunction to restrain the publication by Linklaters’ former Director of Business Development and Marketing of information concerning what he described as the firm’s “current culture” ( EWHC 177 (QB)). He also granted an order for the disclosure of the identity of any journalists, press, media organisations, agents or publicists or third party to whom the defendant has disclosed any part of the information in question with a view to publication. The case is discussed in a post on Richard Moorhead’s Lawyer Watch blog. There is also a piece about the case in the Press Gazette.
The Labour Party has proposed the creation of a new digital watchdog with the power to break up tech monopolies. There were reports on the BBC website, in the Financial Times and the Press Gazette.
Amazon founder Jeff Bezos has alleged that David Pecker, CEO of the company that publishes the National Enquirer, attempted to blackmail him by threatening to publish explicit photos of him. It is alleged that the National Enquirer were trying to stop an investigation into how it obtained intimate messages from Mr Bezos to a woman. Ars Technica reports that the investigator suspects that the messages were stolen by a “government entity”. The Guardian suggests that the allegations put a focus on National Enquirer links to President Trump. In the Intercept, Glenn Greenwald draws attention to the fact that Amazon is itself involved in the building of a surveillance state.
Internet and Social Media
Germany’s competition authority, the Bundeskartellamt, has placed restrictions on Facebook’s data-processing activities. Facebook will only be allowed to combine data collected from WhatsApp, Instagram and other third parties with Facebook should they receive “voluntary” consent from users. There is also a report in the Guardian. Facebook disagrees with the decision and intends to appeal.
The Social Media Law Bulletin has a post about the Davison v Randall, on the issue of banning critics from social media and the First Amendment.
Data Privacy and Data Protection
The Taylor Wessing website has a post by Timothy Pinto, “The rise of the GDPR in media law“.
The Panopticon blog has a post on two recent FTT decisions on confidentiality and freedom of information.
The Hawktalk Blog has a post entitled “Questions concerning the DPA1998 haunt the UK’s approach to GDPR implementation and threatens adequacy”.
The Spinoff has a post “How 2018 was the year privacy fought back”
The Sydney Morning Herald has an opinion piece by Josh Bernstein entitled “In this age of surveillance capitalism, the law is left for dust”.
Newspapers, Journalism and Regulation
The Press Gazette reports on an IPSO ruling that Daily Mail should publish a correction over an article which claimed up to 300,000 illegal migrants lived in a single Paris suburb. The article was headlined “Powder keg Paris” and was published on 28 July 2018. The IPSO ruling (concluded 4½ months after the complaint) can be found here.
- 06939-18 Thorne v express.co.uk, 1 Accuracy (2018), Breach – sanction: action as offered by publication
- 06786-18 Crick v The Sunday Telegraph, 1 Accuracy (2018), No breach – after investigation
- 06759-18 Jefferd v Daily Express, 1 Accuracy (2018), No breach – after investigation
- 06758-18 Jefferd v The Daily Telegraph, 1 Accuracy (2018), No breach – after investigation
- 06720-18 Johnson v express.co.uk, 1 Accuracy (2018), Breach – sanction: action as offered by publication
- 03959-18 Roberts v Barry and District News, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation
- 03958-18 Roberts v Penarth Times 03958-18, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation
- Decision of the Complaints Committee 05228-18 Versi v Daily Mail, 1 Accuracy (2018), 12 Discrimination (2018), Breach – sanction: action as offered by publication
- Resolution Statement 07343-18 Williams v metro.co.uk, 2 Privacy (2018), Resolved – IPSO mediation
- 06701-18 Watson v Daily Mirror, 2 Privacy (2018), 3 Harassment (2018), No breach – after investigation
- Resolution Statement 06677-18 A Man v theargus.co.uk, 1 Accuracy (2018), 2 Privacy (2018), 3 Harassment (2018), 4 Intrusion into grief or shock (2018), 5 Reporting suicide (2018), Resolved – IPSO mediation
- Resolution Statement 06676-18 A Man v Mail Online, 1 Accuracy (2018), 2 Privacy (2018), 3 Harassment (2018), 4 Intrusion into grief or shock (2018), 5 Reporting suicide (2018), Resolved – IPSO mediation
- 05642-18 Williams v dailystar.co.uk, 2 Privacy (2018), 1 Accuracy (2018), No breach – after investigation
- 04836-18 Ridley v The Daily Telegraph, 1 Accuracy (2018), No breach – after investigation
Statements in Open Court and Apologies
We are not aware of any statements in open court in the past week.
Last Week in the Courts
On 4 February 2019 Nicklin J heard an application in the case of Rochester v Ingham House Ltd. The Judge gave an ex tempore judgment, granting the defendant in a slander claim relief from sanctions and a retrospective extension of time for filing and serving its amended defence in circumstances where the delay in service of its amended defence had been 50 minutes and had not caused the claimant any prejudice or disruption. There is a case summary on Lawtel [£]
As already mentioned, on 6 February 2019 Dingemans J handed down judgment in the case of Burgon v News Group Newspapers  EWHC 195 (QB).
On 7 February 2019 there was a one day meaning trial in the case of Poroshenko v BBC before Nicklin J. This is a libel action brought by the Ukrainian President over allegations that a secret six figure sum was paid to arrange talks between him and Donald Trump. The Claim form and Particulars of Claim are available on Lawtel [£]. Nicklin J ruled that the reports meant that the claimant had
“procured or authorised a corrupt payment of $400,000 to be made to Michael Cohen, the personal lawyer of Donald Trump, to extend a brief meeting between the claimant and President Trump… into more substantial talks”.
There is a report of the hearing in the Press Gazette. [Update] The judgment is at  EWHC 213 (QB).
As discussed above, on 8 February 2019 Warby J handed down judgment in the case of Arcadia v Telegraph Media Group  EWHC 223 (QB)
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
3rd Global Conference of the Internet & Jurisdiction Policy Network, Berlin, Germany, 3-5 June 2019.
Media Law in Other Jurisdictions
The Sydney Morning Herald reports that former Northern Territory youth detainee Dylan Voller is suing three media organisations over comments made by members of the public on Facebook in a landmark defamation case in the NSW Supreme Court.
In the case of Labourers’ International Union of North America, Local 183 v. Castellano, 2019 ONSC 506 Dietrich J dismissed the defendants “anti-SLAPP” motion and granted summary judgment to the plaintiffs in a defamation action. No damages were awarded, on the basis that the defendant was destitute, but a permanent injunction was granted.
There is a piece on the Taylor Wessing website entitled “Interim injunctions in privacy and defamation matters in Germany”
A defamation jury trial is taking place in Dublin. The claim is by Denis O’Brien against the Sunday Independent. There were reports of Mr O’Brien’s evidence in the Irish Examiner and the Irish Times.
The Irish Examiner reports that Nicol Dowd, a Dublin-based legal assistant, who claimed she had been intimidated, scared and bullied by an Irish Rail inspector who questioned her about an invalid train ticket, has lost a €75,000 defamation case against the company and ordered to pay its costs.
A contract cleaner from Clare has settled a libel claim against Tesco Ireland for being falsely accused of stealing over an 85 cent price shortfall for two pastries he bought in a supermarket.
The Times of India reports that the former head of the Israeli Bar Association, Efi Nave, is suing Army Radio and a number of its journalists who obtained his cellphone and extracted possibly incriminating messages from the device relating to an alleged sex scandal that has rocked the judiciary system.
A defamation claim by Story Daniels against Trump lawyer Michael Cohen has been dismissed by consent.
Research and Resources
- Free Speech and Cheap Talk, Daniel Jacob Hemel and Ariel Porat, University of Chicago – Law School and Tel Aviv University.
- Transborder Speech, 94 Notre Dame Law Review 273 (2018), U of Alabama Legal Studies Research Paper No. 3329377, Ronald J. Krotoszynski Jr., University of Alabama – School of Law
Data Protection and Data Privacy
- Privacy Cynicism: A New Approach to the Privacy Paradox, Cyberpsychology: Journal of Psychosocial Research on Cyberspace, 10(4), article 7, 2016 DOI/10.5817/CP2016-4-7, Christian Pieter Hoffmann, Christoph Lutz and Giulia Ranzini, University of Leipzig, BI Norwegian Business School and VU University Amsterdam.
- Data Privacy in India: The Information Technology Act, Benjamin Wilson, HeplerBroom LLC.
- The Antitrust Case Against Facebook, Berkeley Business Law Journal Vol. 16, Issue 1, Forthcoming, Dina Srinivasan, Yale Law School.
- Developing a European Standard For International Data Transfers After Snowden: Opinion 1/15 on the EU-Canada PNR Agreement, (2018) 81(6) Modern Law Review 1046, (2019) UNSWLRS 6, Monika Zalnieriute, University of New South Wales.
- Privacy and Manipulation in the Digital Age, Theoretical Inquires in Law Vol. 20(1) p. 157 (2019), Tal Zarsky, University of Haifa – Faculty of Law.
- From Facebook Regrets to Facebook Privacy Nudges, Ohio State Law Journal, 74, 1307, 2013, Yang Wang, Pedro Leon, Xiaoxuan Chen, Saranga Komanduri, Gregory Norcie, Kevin M. Scott, Alessandro Acquisti, Lorrie Faith Cranor and Norman Sadeh, Syracuse University – School of Information Studies, Carnegie Mellon University, University of Illinois at Urbana-Champaign, Students, Carnegie Mellon University, Indiana University, United States Department of Justice, Carnegie Mellon University – H. John Heinz III School of Public Policy and Management, Carnegie Mellon University – School of Computer Science and Carnegie Institute of Technology and Carnegie Mellon University – School of Computer Science.
- Notice, Takedown, and the Good-Faith Standard: How to Protect Internet Users From Bad-Faith Removal of Web Content, Louis University Public Law Review, Vol. 29, No. 613, 2010, Benjamin Wilson, HeplerBroom LLC
Next Week in the Courts
On 11 February 2019, Warby J will deal with the return date hearing in the case of Linklaters LLP v Mellish (mentioned above) and with a pre-trial review in the case of Otuo v Watch Tower Bible and Tract Society.
On the same day Master Fontaine will hear an application in the case of Gubarev & Others v Orbis Business Intelligence Ltd & Other.
On 13 February 2019 the Court of Appeal will hear the appeal against the judgment of Mann J of 22 March 2018 in the case of Various Claimants v MGN ( EWHC 708 (Ch)) concerning the “early disclosure” regime.
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).
Stocker v Stocker, heard 24 January 2019 (UKSC)
There is a constitutional crisis at the ICO/FOI because the Cabinet Office have hijacked the FOIA2000 and are at liberty to make any changes they wish on the said act. Ironically the Cabinet Office have been in contempt of Court since 14th Nov last year because they failed a court order to release Lockerbie Bombing and Libya Paperer. The Cabinet office are refusing dozens of FOIA requests on Brexit under the Dransfield Vexatious Court Precedent BS.