On 12 February 2019 the report of the Cairncross Review on “A sustainable future for journalism” [pdf] was published. This was largely welcomed by commentators. We had posts by Brian Cathcart and Steve Barnett. There was a comment by Jonathan Heawood in the Press Gazette.
On 13 February 2019 the EU Commission announced that negotiators had reached a breakthrough on the proposed Copyright Directive. This includes a new press publishers’ right which will apply to online uses of press publications by information society services providers, such as news aggregators or media monitoring services. This will not apply to “snippets”. There is a piece about this in the Press Gazette.
On 12 February 2019 Mann J handed down judgment in the case of Fearn & Ors v The Board of Trustees of the Tate Gallery  EWHC 246 (Ch) which was an Article 8 and nuisance claim arising out of the fact that the claimants’ flats are overlooked by a viewing platform at the Tate Gallery. The claim was dismissed. The Law Society Gazette had a piece on the case: “People who live in glass houses shouldn’t make article 8 claims”.
Pink News reports that Stephanie Hayden, a trans woman, has disputed a “grossly irresponsible” story about her in The Mail on Sunday, which was shared by Donald Trump Jr. on Twitter and said that she will sue the paper for defamation.
David Banks Media law has a post “Contempt of Court and the challenge of social media”.
The latest Media Law Podcast is entitled “Defamation, drones and the public interest”.
The judgement of the Senior Master refusing an order for a split trial in the case of Gubarev v Orbis  EWHC 162 (QB) [pdf] is now available.
Internet and Social Media
IPKat has a post drawing attention to the problem of celebrities posting copyright pictures of themselves on social media: Gigi Hadid faces another Copyright Infringement Claim after posting picture of herself on Instagram.
CNN reports on claims that Facebook lacks transparency and ethics in its attempt to identify posts which appear pose suicide risks.
Data Privacy and Data Protection
The Privacy and Information Security Law Blog notes that At its plenary meeting on February 13, 2019, in Brussels, the European Data Protection Board (“EDPB”) adopted an Information Note on Data Transfers under the GDPR in the Event of a No-Deal Brexit, and an Information Note on BCRs for Companies Which Have ICO as BCR Lead Supervisory Authority.
The Mishcon blog has a post “Regulatory Cooperation and Information sharing” concerning a former director banned by the insolvency service after an ICO penalty in relation to the sending of unsolicited SMS messages.
The pwc blog has a post “Data Protection, Cyber Crime and Modern Business”.
The Hayes solicitors website has a post on the new draft ePrivacy Regulation.
The Register has a piece concerning Elizabeth Denham’s comments on the Facebook/ Cambridge Analytica investigation at a Institute for Government event. She said that the millions spent on the investigation were worth it because it allowed the ICO to secure greater powers.
Newspapers, Journalism and Regulation
The Press Gazette reports that US blogger Peter Heimlich (whose blog is called The Sidebar) is pushing for a change to the Editors’ Code of Practice – the standards to which most UK newspapers are held – which would see publications sanctioned for pulling articles without explanation.
The Transparency Project blog has a post entitled “Mail Online forced to publish correction after its inaccurate reporting of a Family Court case”.
IPSO has handed down a number of recent rulings:
- Resolution Statement 0782-18 Wilson v thesun.co.uk, 2 Privacy (2018), 1 Accuracy (2018), Resolved – IPSO mediation
- Resolution Statement 07827-18 Wilson v Mail Online, 1 Accuracy (2018), 2 Privacy (2018), Resolved – IPSO mediation
- 06605-18 McPartlin and Corbett v Woman, 2 Privacy (2018), No breach – after investigation
- 06604-18 McPartlin and Corbett v Now, 2 Privacy (2018), No breach – after investigation
- 06491-18 For Britain Movement v The Northern Echo, 1 Accuracy (2018), No breach – after investigation
- 06005-18 Newlands v Evening Telegraph (Dundee), 8 Hospitals (2018), 4 Intrusion into grief or shock (2018), 2 Privacy (2018), 1 Accuracy (2018), No breach – after investigation
- 05927-18 Shardlow & Jones v The Spectator, 1 Accuracy (2018), 3 Harassment (2018), Breach – sanction: action as offered by publication
Statements in Open Court and Apologies
There was a statement in open court in the case of Morgan v Associated Newspapers. The statement, apology and press release can be found here. There was a report about the statement in the Press Gazette.
Last 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 12 February 2019 the Court of Appeal heard 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. Judgment was reserved.
On 14 February 2019 Nicklin J heard the trial in Greenstein v Campaign against Antisemitism, giving judgment on 15 February 2019. The was a report in the Jewish Chronicle.
On 15 February 2019 Norris J handed down judgment in the case of Winstone v MGN  EWHC 265 (Ch) [pdf] He held that MGN was not entitled to claim privilege in respect of comments made by the Chairman of Trinity Mirror after an AGM.
On the same day Warby J heard an application in the case of Otuo v Watch Tower Bible and Tract Society.
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 cricketer Chris Gayle has appealed against the award of damages in his case against that newspaper.
The appeal of barrister Lloyd Rayney against the Aus$2.6 million awarded to him after a defamation trial has been stayed pending the resolution of professional misconduct proceedings.
News.com.au reports on the hearing of the appeal of radio presenter Alan Jones against the injunction granted to the Wagner family at the conclusion of their successful libel action. Judgment was reserved.
The Sydney Morning Herald reports that the former chief of staff to Michaelia Cash is suing the Australian Workers’ Union and BuzzFeed for defamation over claims he “deliberately evaded” attempts to serve him with a subpoena to give evidence in the union’s Federal Court challenge to what it says were politically-motivated police raids on their offices.
On 14 February 2019 the Supreme Court handed down judgment in the case of R v Jarvis 2019 SCC 10 holding that a teacher who recorded students with a hidden camera is guilty of voyeurism, the Supreme Court has ruled. Students doing normal activities at school don’t give up their privacy rights even though technology makes it easier to record them. There is a post about the decision on the Canadian Privacy Law blog.
A jury in Yukon has awarded a couple Can$800,000 defamation damages in relation to letters and posts alleging that they had engaged in “senior abuse” and fraud.
The Independent has an article about the evidence of the former Sunday Business Post editor Ian Kehoe’s evidence in the Denis O’Brien libel trial.
Journalist Olaf Tyaransen has filed libel proceedings against Twitter and Broadsheet.ie in relation to the publication of allegations by the writer Brooke Magnati against him.
The Star reports on a case by Mombasa speaker Harub Khatri against Labour Secretary Nelson Marwa. The plaintiff claims that, as a result of the libel, he “lost two lovers”.
The Times of Malta reports that a radio host has been ordered to pay €3,000 damages to a police officer libelled in a radio broadcast.
On 15 February 2019 a judgment was handed down in the long running case of Bloomfield v Slater  NZHC 171 – making public a previous interlocutory judgment in the “Whale Oil” blogger case. The effect of this judgment was to preclude the defendants from adducing any evidence directed at supporting the defences of truth or honest opinion or any evidence of bad reputation ( NZHC 2781). There is a piece about the decision in the NZ Herald.
The Press Gazette reports that the High Court has refused an application for a source disclosure order against the Sunday World Newspapers by an alleged dissident republican.
The Center for Internet and Society Blog has a piece on a failed attempt to unseal Court records relating to a Government attempt to compel Facebook to break the encryption on its Messenger service.
The Norton Rose Fulbright blog has a post about an injunction granted by a federal court halting a local law aimed to required disclosures by home sharing platforms such as Airbnb and HomeAway (Airbnb, Inc. v. City of New York, Case 1:18-cv-07712-PAE (S.D.N.Y. Jan. 3, 2019 [pdf]).
Newsdze Zimbabwe reports that the US based musician Thomas “Mukanya” Mapfumo has brought defamation proceedings against journalist Tawanda Marwizi over an article which claimed he was broke and in debt.
Research and Resources
- Lies, Line Drawing and (Deep) Fake News, 71 Okla. L. Rev. 59 (2018), Marc Jonathan Blitz, Oklahoma City University.
- Linking on the Internet and Copyright Liability: A Clarion Call for Doctrinal Clarity and Legal Certainty International Review of Intellectual Property and Competition Law, Vol. 49(5), pp. 536-564, 2018, Cheng Lim Saw, Singapore Management University – School of Law.
- Privacy as Europe’s First Amendment, European Law Journal, Symposium issue March 2019, Forthcoming, Bilyana Petkova, Maastricht University, Department of International and European Law.
- Data Subjects’ Privacy Rights: Regulation of Personal Data Retention and Erasure, University of Colorado Law Review, Vol. 90, 2019, Alexander Tsesis, Loyola University Chicago School of Law.
- Nothing to Hide, but Something to Lose, University of Toronto Law Journal (2019 Forthcoming), Ignacio Cofone and Adriana Robertson, McGill University Faculty of Law and University of Toronto – Faculty of Law
- The Essence of the Fundamental Rights to Privacy and Data Protection: Finding the Way Through the Maze of the CJEU’s Constitutional Reasoning, The Essence of Fundamental Rights in EU Law, 17-18 May 2018, Leuven, Maja Brkan, Maastricht University – Faculty of Law.
- Data As Counter-Performance: A New Way Forward or a Step Back for the Fundamental Right of Data Protection?. Laura Drechsler, Data as Counter-performance: A New Way Forward or a Step Back for the Fundamental Right of Data Protection?, in: Jusletter IT, Laura Drechsler, Vrije Universiteit Brussel (VUB), LSTS, Interdisciplinary Research Group on Law Science Technology & Society
Next Week in the Courts
On 18 February 2019 Warby J will hand down another judgment in the case of Linklaters LLP v Mellish.
On the same day there will be a case management conference in the case of Soobhan v Badal before Nicklin J.
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)
Various Claimants v MGN, heard 13 February 2019 (McCombe, Ryder and Floyd LJJ)