On Friday 17 May 2019, the Court of Appeal (Lewison, McCombe and Haddon-Cave LJJ) handed down a judgment ( EWCA Civ 852) which comprehensively reversed the decision of the first instance judge, Mr Justice Jay, given after a 7 day libel trial.
The Judge had dismissed the claim Serafin v Malkiewicz & Ors on a number of grounds (see our case comment). The Court of Appeal profoundly disagreed. In relation to the “public interest” defence, they found that the statements complained of were not on matters of public interest  to  and, moreover, that the defendant had not made out a reasonable belief that this was the case  to . In addition, the Judge had been wrong to find that the defence of truth had been established in relation to one crucial allegation  to . Most strikingly, the Court held that the Judge had treated the claimant in a way which was “manifestly unfair and hostile”.
The Telegraph was interested in the case because of Mr Justice Jay’s role as counsel to the Leveson inquiry reporting on it with the inaccurate headline “Libel trial unsafe because of Leveson judge’s “overbearing” and “bullying” behaviour, Court of Appeal rules“.
Splash News and Picture Agency Limited and Splash News & Picture Agency LLC (‘Splash’) have apologised and agreed to pay substantial damages to the Duke of Sussex after using a helicopter to take photographs of his home in the Cotswolds. There was a statement in open court [pdf] and pieces about the case on the Brett Wilson Media Law Blog and in the Press Gazette.
The Guardian reports that Jamal Hijazi, the Syrian schoolboy who was filmed being attacked in a playground in Huddersfield, is suing the far-right campaigner Tommy Robinson for accusing him of assaulting white schoolgirls.
The editor of the Times, John Witherow, has given evidence in an Employment Tribunal case in Scotland to defend paper claims of a sexist newsroom culture that discriminates against transgender people. Mr Witherow defended the paper’s coverage of transgender issues. The case was not reported in the Times.
The Press Gazette reports that the Divisional Court (Sharp LJ and Warby J) has given permission for a new contempt of court case to be brought against Mr Stephen Yaxley-Lennon (aka Tommy Robinson) . The full hearing will be on 4 and 5 July 2019 at the Old Bailey. Mr Yaxley-Lennon’s supporters gathered outside court and journalists were abused and manhandled.
On 15 May 2019 the Joint Committee on Human Rights held an evidence session in its inquiry “Democracy, free speech and freedom of association”. Evidence was heard from Jodie Ginsberg. Jacob Rowbottom and Richard Wingfield. The session can be watched here. There was a piece about the session on the Index website.
Internet and Social Media
The NY Times has a piece by Jennifer Senior dealing with the “privacy paradox”: we know we are not alone when we are on Google but we still act like we are.
Data Protection and Data Privacy
With GDPR’s first anniversary approaching, Stewart Room has an analysis on the pwc Data Protection and privacy insights blog analysing the first results of GDPR readiness programmes and explaining the importance of a purposeful data privacy approach.
GovInfoSecurity reports that the European Data Protection Board found EU national supervisory authorities received 64,684 data breach notifications in the first nine months under the GDPR.
Data Protection Report has a post entitled “ICO’s draft Age Appropriate Design Code could seriously impact processing of under 18’s personal data”.
The Mishcon blog has a post on applying the GDPR and PECR to the sports sector.
Newspapers, Journalism and Regulation
IPSO has published a number of rulings and resolution statements since our last Round Up:
Statements in Open Court and Apologies
As already mentioned, on 16 May 2019 there was a unilateral statement in open court [pdf] in the case of HRH The Duke of Sussex v Splash News and Picture Agency.
Last Week in the Courts
On Monday 13 May 2019 Soole J heard the meaning trial in the case of Morgan v Times Newspapers Ltd. Judgment was reserved.
On 15 May 2019 the Supreme Court gave judgment in the case of R (on the application of Privacy International) v Investigatory Powers Tribunal ( UKSC 22) (heard 3 and 4 December 2018). By a 4:3 majority the Court allowed the appeal, holding that s.67(8) of RIPA did not oust the supervisory jurisdiction of the High Court.
On the same day the Court of Appeal (Longmore, Sharp and Bean LJJ) handed down judgment in the case of Tinkler v Ferguson  EWCA Civ 819. The appeal was dismissed.
On the same day Warby J handed down judgment on the preliminary issue of meaning in the case of Allen v Times Newspapers Ltd  EWHC 1235 (QB). There was a news item about this decision on the 5RB website.
As already mentioned, on 17 May 2019, the Court of Appeal (Lewison, McCombe and Haddon-Cave LJJ) handed down judgment in the case of Serafin v Malkiewicz & Ors  EWCA Civ 852 (heard 5 March 2019).
On Tuesday 14 May 2019, Mann J heard an application for the redaction of a witness statement in the case of Various Claimants v News Group Newspapers by former journalist Dennis Rice. The application was dismissed. A summary of the decision is available on Lawtel [£]. The Press Gazette has a report entitled “£65k legal bill for reporter after failed bid to challenge lawyer’s ‘unlawful newsgathering’ slur” and there is an account in the Byline Times under the headline “‘Scurrilous’ Evidence from former News of the World journalist in Pointless Court case”
On Wednesday 15 May 2019, there will be a preliminary issues trial of meaning and opinion in the case of Travel Insurance Facilities v Times Newspapers Ltd.
On the same day, the Court of Appeal (Longmore, Sharp and Bean LJJ) will hand down judgment in the case of Tinkler v Ferguson (heard 3 April 2019).
On 16 May 2019 Warby J heard an application in the case of Siddiqi v Aidiniantz & ors.
On 17 May 2019 Julian Knowles J heard an appeal in the case of Desporte v Bull.
3rd Global Conference of the Internet & Jurisdiction Policy Network, Berlin, Germany, 3-5 June 2019.
Media Law in Other Jurisdictions
In the case of Ashworth v Nine Network Australia (No.2) ( NSWDC 188) Gibson DCJ dismissed defamation claims for a broadcast and three online newspaper publications imputing that he is famous for sleazy scams and shonky businesses and that he engaged in dishonest business activities to trick young women into group sex. Defences of justification and contextual justification were successful. There was a piece about the judgment in the Sydney Morning Herald.
In the case of Raynor v Murray ( NSWDC 189) Gibson DCJ awarded the plaintiff damages of $120,000 for the publication of a defamatory email to 17 people in a building where the parties resided.
In the case of Paramount v. Kevin J. Johnston, 2019 ONSC 2910 J E Ferguson J granted summary judgment to the plaintiffs in a libel action against a self-styled anti-Muslim pundit. The publications complained of were “hateful, Islamophobic remarks”. General, aggravated, punitive and special damages of $2.5 million and a permanent injunction were granted. There were reports of the judgment in the Globe and Mail, Toronto City News and on the CBC website.
In the case of Gichuru v Purewal, 2019 BCSC 731 J A Power J awarded general damages of $5,000 in a slander claim arising in the context of a residential tenancy dispute.
A Canadian company, Defiant Tech Inc, accused of peddling an illicit trove of 1.5 billion user names and associated passwords has pleaded guilty to criminal charges.
Sir David Barclay is suing a French playwright for defamation and privacy over a play about poor twins who build a property and media empire.
The Irish Times reports that a High Court jury, in a majority verdict, has awarded €160,000 damages to solicitor Gerald Kean after finding he was defamed in a newspaper article concerning a visit by members of the Criminal Assets Bureau (CAB) to his Dublin office.
The Court of Appeal has upheld an award of defamation damages of €310,000 to Brian Nolan, a former Kildare Gaelic footballer, for defamation by two articles in the Sunday World.
The Independent reports that three schoolchildren who sued the Iceland supermarket for defamation after being accused by a member of staff of stealing and opening a packet of biscuits have been awarded a total of €14,000 damages.
The Press Gazette reports that Allison Morris, the Irish News security correspondent, has won an apology and a charity donation from a former Democratic Unionist Party politician over false and “seriously defamatory” posts made about her online and on social media.
CNN reports that Stormy Daniels has reached a settlement with Michael Cohen and Keith Davidson, her former attorney, in her lawsuit that accused both men of working together to protect President Donald Trump.
NBC News reports that a defamation claim against tech news website Techdirt filed by a Shiva Ayyadurai’who claimed to have invented email has been settled. No money has changed hands.
Research and Resources
- Dron’t Stop Me Now: Prioritizing Drone Journalism in Commercial Drone Regulation, Columbia Journal of Law & the Arts, Forthcoming, David Fischer, Columbia Journal of Law & the Arts.
- Expanding Media Law and Policy Education: Confronting Power, Defining Freedom, Awakening Participation, Communication Law & Policy, Vol. 24(2), pp. 271-306 (2019), Erik Ugland, Marquette University.
- The First Amendment’s Real Lochner Problem, University of Chicago Law Review, Forthcoming, Genevieve Lakier, University of Chicago Law School
Next Week in the Courts
On 21 May 2019 there will be a hearing in the case of Fox v Lawrence
On 22 May 2019, there will be a hearing in the case of Kirkegaard v Smith.
The following reserved judgments after public hearings in media law cases are outstanding:
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)
Bull v Desporte, heard 25 to 28 March 2019 (Julian Knowles J)
Sadik v Sadik, heard 2 April 2019 (Julian Knowles J).
Otuo v The Watchtower Bible and Tract Society (heard 12-14 and 25 to 29 March, 1 and 15 April 2019 ( Richard Spearman QC).
Morgan v Times Newspapers Ltd, heard 13 May 2019 (Soole J).
Travel Insurance Facilities Ltd v Times Newspapers, heard 15 May 2019 (Jay J)