Law and Media Round Up – 6 May 2019

The short Easter legal term began on Tuesday 30 April 2019 and ends 4½ weeks later on 24 May 2019.  This will be a busy term. This is the end of the Inforrm Easter break.

Last week we had a preview of the cases to be heard this term. In addition, the Supreme Court may give its long awaited judgment in the “serious harm” case, Lachaux v Independent Print (heard on 13 and 14 November 2018) this term.

BBC Radio 4 had a document “The Press, the Police, the Politicians and their Public” (on BBC Sounds) dealing with the unfinished scrutiny of press ethics launched by the Leveson Inquiry.

The CPR on private hearings has been amended.  We had a post on the new rules and Practice Guidance by Aidan Wills.  There was also a piece on the Transparency Project Blog.

Decrypt reports that Roger Ver, the CEO of Bitcoin.com, was served with a lawsuit today by Craig Wright for calling him a fraud and a liar in a YouTube video—which has since been removed by YouTube.  Mr Wright has sued a number of people in the crypto industry in an apparent campaign to prove that he is Satoshi Nakamoto, the mysterious and anonymous inventor of Bitcoin.

Hacked Off has launched a videogame about technology and journalism, Dan Hett, brother of Martyn Hett who was tragically killed at the Manchester Arena Attack in 2017.  The game is called “Sorry to bother you”

Internet and Social Media

Google has announced that it is to offer user the option of automatically deleting their search and location history.  There is a news story on the BBC website.

The Social Media Law Bulletin has a post “Uncharted territory — the UK sets sail towards regulation of ‘Online Harms’”

Data Protection and Data Privacy

The Privacy Matters blog notes that the European Data Protection Board has released for consultation a new set of guidelines on the topic of the processing of personal data in the context of online services.  The Guidelines (2/2019) can be found here [pdf].

The Irish Times reports Facebook will have a ruling from Ireland’s Supreme Court on its  data transfer appeal by 6 June 2019. The issue concerns the decision of the High Court to refer issues concerning the validity of EU decisions approving the EU-US data transfer channels to the CJEU.

In a blog post the Irish Data Protection Commission considers right to rectification complaints under Article 16 of the GDPR.

The First Tier Tribunal, in the case of Farrow & Ball Ltd v ICO has dismissed an appeal against a penalty notice for a failure to pay the statutory fee for data controllers.  There is a post about this on the Mishcon de Reya blog.

ICO

The ICO has launched a “Call for Views” on the journalism code of practice which it is required to produce under the DPA 2018. There is a piece about this in the Press Gazette.

ICO has ruled that all biometric data held under HMRC’s Voice ID system for which it does not have explicit consent should be deleted.  There is a piece about this on the Mischcon de Reya blog.

Newspapers, Journalism and Regulation 

James Ball has a piece on Journalism.co.uk entitled “The hidden threats in taming tech by law”.

Hacked Off has released an analysis of media coverage of the Christchurch attacks revealing the role of traditional media publishers in amplifying the terrorist message.

IPSO

IPSO has issued a number of rulings and resolution statements since our last Round Up:

• 03743-18 Purcell v metro.co.uk, 1 Accuracy (2018), No breach – after investigation
• 03195-18 Purcell v Hackney Gazette, 1 Accuracy (2018), No breach – after investigation
• 03194-18 Purcell v The Daily Mirror, 1 Accuracy (2018), No breach – after investigation
• 03180-18 Purcell v thesun.co.uk, 1 Accuracy (2018), No breach – after investigation
• Resolution statement 02388-19 Osman V The Sunday Telegraph, 1 Accuracy (2018), Resolved – IPSO mediation
• 01114-19 King’s College Hospital NHS Foundation Trust v The Sun, 1 Accuracy (2018). 8 Hospitals (2018), No breach – after investigation
• 06781-18 Jordon v The Sun, 2 Privacy (2018), 9 Reporting of crime (2018), 1 Accuracy (2018), 6 Children (2018), 15 Witness payments in criminal trials (2018), No breach – after investigation
• 07858-18 The Labour Party v The Sun, 12 Discrimination (2018), 1 Accuracy (2018). No breach – after investigation
• 07454-18 Belcher v The Times, 1 Accuracy (2018), 12 Discrimination (2018), No breach – after investigation
• 07446-18 Heppell v Bella, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation
• 08062-18 Gordon v Sunday Life, 3 Harassment (2018), No breach – after investigation
• 07925-18 Partlett v express.co.uk, 1 Accuracy (2018), Breach – sanction: publication of adjudication
• 00154-19 Stirling v The Daily Telegraph, 1 Accuracy (2018), Breach – sanction, publication of correction

Statements in Open Court and Apologies

On 1 May 2019 there was a statement in open court [pdf] in the case of Ramm v MGN. before Warby J.  The case concerned an article about the police investigation into the Rachel Nickell murder which falsely described the claimant as a “disgraced police officer”. There were pieces about this on the Carter Ruck website, the 5RB website and the Press Gazette.

On 3 May 2019 there was a statement in open court before Nicol J in the case of Zarb-Cousin v Association of British Bookmakers Ltd.  The statement in open court can be found on the claimant’s twitter feed.

Last Month in the Courts

On 16 April 2019, the Court of Appeal handed down judgment Ali v Channel 5 ([2019] EWCA Civ 677)(heard 4 December 2018): The Court of Appeal dismissed an appeal on quantum and a cross appeal on liability in a privacy case arising out of the Channel 5 programme “Can’t pay? We’ll take it away”.  We had a case note on this decision by Tom Double.

On the same day the Court of Appeal handed down judgment Kennedy v National Trust for Scotland ([2019] EWCA Civ 648 [£])(judgment not presently available on Bailii)(heard 25 to 26 July 2018): The Court of Appeal dismissed an appeal from a decision of Sir David Eady ([2018] EWHC 3368 (QB)). .

On the same day Warby J handed down judgment in the cases of Alexander-Theodotou & ors v Kounis [2019] EWHC 956 (QB)(heard 22 March 2019).. There was a report on the decision in the Law Society Gazette.

Warby J also handed down judgment in the case of Feyziyev v Journalism Development Network [2019] EWHC 957 (QB)(heard 12 April 2019).

On 17 April 2019 Nicklin J handed down judgment in the case of ZXC v Bloomberg LP [2019] EWHC 970 (QB)(heard 27 to 30 November 2018).

On 1, 2 and 3 May 2019 Warby J heard an application to commit in the case of Quantum Tuning v Sam White.

On 2 May 2019 Bryan J granted an injunction in the case of Hayden v Farrow to restrain a Catholic journalist from mentioning a transgender lawyer on twitter and, in particular, from “misgendering” her.  There was a Press Association report – published, inter alia, by Banbury Cake.

On 3 May 2019 there was an application in the case of Tinkler v Ferguson before Nicol J.

Events

3rd Global Conference of the Internet & Jurisdiction Policy Network, Berlin, Germany, 3-5 June 2019.

Media Law in Other Jurisdictions

Australia

In the case of Oliver v Nine Network Australia Pty Ltd [2019] FCA 583 Lee J awarded $100,000 to an English tourist who was cleared of assaulting Australia’s former Rugby Sevens Captian.  The Nine Network report began with the newsreader saying “it was a coward punch that ended the career” of of the player.  There was a report in the Guardian and on Chronicle Live.

The libel claim in Hanson-Young v Leyonhjelm has been heard in the Federal Court.  The Greens Senator is suing over comments made by a former senator.  The Sydney Morning Herald had reports here, here, here and here and here.

Defamation claims, court suppression orders, and national security laws are resulting in a lack of transparency, and hindering press freedom, according to a survey run by the Media, Entertainment and Arts Alliance (MEAA).  The Sydney Morning Herald has a piece “Australia a ‘place to go to sue’ for defamation cases”.

The Sydney Morning Herald reports that the Daily Telegraph has launched an appeal against a judgment awarding actor Geoffrey Rush $850,000 in damages for defamation

Canada

The Globe and Mail has an opinion piece featuring a discussion on the topic “What’s the greatest threat to a free press?”

The Michael Geist blog has a post “Does Canadian Privacy Law Matter if it Can’t be Enforced?”

Ireland

The Irish Times describes defamation laws as “an existential threat to journalism”. The Sunday Times had an editorial calling for the reform of Ireland’s defamation laws.

The Irish Times reports that broadcaster Miriam O’Callaghan has obtained High Court orders allowing her to join as co-defendants 51 people allegedly connected to Facebook advertisements using her name and image which she says are defamatory.

Malta

The Columbia Journalism Review has a piece about the murder of Daphne Caruana Galizia and Anti-SLAPP in Europe.

The Independent reports that “Government committed to ‘further strengthen freedom of speech, democracy, rule of law’”.  This notes that during 2018 only 19 civil libel cases were filed, a mere third of the amount presented in 2017 (57) and just a quarter of the amount presented ten years back in 2008 (77).

Scotland

In the case of Campbell v Dugdale [2019] ScotSC 32 the Sheriff’s Court dismissed a libel action against MSP Kezia Dugdale over an allegation that blogger Stuart Campbell had posted “homophobic tweets”.  Sheriff Ross held that the defence of fair comment had been made out.  There was a report about the judgment in the Guardian. Rights Info reports that Ms Dugdale “praised the right to free speech” after her victory.

In the case of Dawson v D C Thomson & Co [2019] ScotSAC (Civ), the Sheriff Appeal Court has dismissed an appeal carer who unsuccessfully sued a local newspaper for defamation. The is a report in Scottish Legal News

The response of the Law Society of Scotland to the Scottish Government’s consultation on modernising Scots law on defamation has been published on the Society’s website [pdf].

United States

The New York Law Journal reports that a libel claim filed in Manhattan federal court on 16 April 2019 accuses Alan Dershowitz of making knowingly false and malicious defamatory statements against Virginia Giuffre, one of the women who claims billionaire financier Jeffrey Epstein engaged in human trafficking and sexual assault against her when she was a teenager.

The defamation claim brought by former Alabama Chief Justice and Senate candidate Roy Moore against Sacha Baron Cohen has been transferred to the Federal Court in New York.

The Columbia Journalism Review has a piece by Jonathan Peters and Jared Schroeder entitled “Here’s how to stop thin-skinned bullies suing the media constantly”.

Research and Resources

• Communication and internet police: a critical rights-based history and future, Internet Policy Review, Volume 8, Issue 1, 31 March 2019. This issue brings together a selection of articles presented in the Communication Policy and Technology section of the IAMCR conference in 2018.
• Civil Liability for Cyberbullying, UC Irvine Law Review, Forthcoming, Ronen Perry, University of Haifa – Faculty of Law.
• Intelligence and the Monitoring of Everyday Life, Cyber Security: Law and Guidance (2018) ISBN: 9781526505866, Victoria Wangand John V Tucker, University of Portsmouth and Swansea University.
• A New World Standard? Why Australian Businesses Should Be Ensuring their Compliance with the Eu General Data Protection Regulation, Australian and New Zealand Intellectual Property Forum, Forthcoming, Griffith University Law School Research Paper, Elizabeth Englezos, Griffith University – Griffith Law School.
• Scope & Justification of the Right of Publicity, Columbia Journal of Law & the Arts, Vol. 42, No. 333, 2019, Jeremy N. Sheff, St. John’s University School of Law.
• The Impact of User Location on Cookie Notices (Inside and Outside of the European Union), Workshop on Technology and Consumer Protection (ConPro ’19), Rob van Eijk, Hadi Asghari, Philipp Winterand Arvind Narayanan, Leiden University, Leiden Law School, Delft University of Technology, University of California, San Diego (UCSD) – The Center for Applied Internet Data Analysis (CAIDA) and Princeton University.
• Privacy, Employment, and Dignity, Core Concepts and Contemporary Issues in Privacy, pp. 207-218, Springer (2018), University of Utah College of Law Research Paper, John G. Francisand Leslie P. Francis, University of Utah – Political Science Department and University of Utah – S.J. Quinney College of Law.
• Location Privacy in the Wake of the GDPR, International Journal of Geo-Information, 2019, 8, 157; DOI:10.3390/ijgi8030157, Yola Georgiadou, Rolf A. de Byand Ourania Kounadi, University of Twente – Faculty of Geo-Information Science and Earth Observation (ITC).
• Forget About the Right to be Forgotten: How About a Right to be Different?, Auckland University Law Review Vol. 22 (2016), Amanda Cheng, Chapman Tripp.
• Some Remarks on the Google ECJ ruling (C-131/12), Rastislav Funta, Danubius University,
• Privacy as Europe’s First Amendment, European Law Journal, Vol. 25, Issue 2, pp. 140-154, 2019, Bilyana Petkova, Maastricht University, Department of International and European Law.
• The General Data Protection Regulation and Civil Liability. Emmanuela Truli, The General Data Protection and Civil Liability, Chapter 12 in: Mohr Backum et al., Personal Data in Competition, Consumer Protection and Intellectual Property: Towards a Holistic Approach? Springer Verlag 2018 (pp. 303 – 329), Emmanuela N. Truli, Athens University for Economics and Business.
• Law Applicable to Personal Data Protection on the Internet: Some Private International Law Issues, Anuario Español de Derecho Internacional Privado XVIII (2018) 163-192,, Luís de Lima Pinheiro, University of Lisbon – Faculdade de Direito.
• Fearless Speech, First Amendment Law Review, Vol. 17, No. 294, 2019, Mary Anne Franks, University of Miami School of Law.
• Religious Speech, The Oxford Handbook for Free Speech (Forthcoming), Gautam Bhatia, Yale University – Law School.
• Judicial Protection of Fundamental Rights in the Transition from the World of Atoms to the Word of Bits: The Case of Freedom of Speech, European Law Journal, Vol. 25, Issue 2, pp. 155-168, 2019, Oreste Pollicino, Bocconi University – Department of Law

Next Week in the Courts

On 9 May 2019 there will be a hearing in the case of Allen v Times Newspapers Ltd.

Judgments

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)

R (on the application of Privacy International) v Investigatory Powers Tribunal, heard 3 and 4 December 2018 (UKSC)

Bull v Desporte, heard 25 to 28 March 2019 (Julian Knowles J)

Sadik v Sadik, heard 2 April 2019 (Julian Knowles J).

Tinkler v Ferguson, heard 3 April 2019 (Longmore, Sharp and Bean LJJ)

Otuo v The Watchtower Bible and Tract Society (heard 12-14 and 25 to 29 March, 1 and 15 April 2019 ( Richard Spearman QC).