The Trinity Legal Term began last Tuesday 4 June 2019. The first full week of term will see the hand down on Wednesday 12 June 2019 by the Supreme Court (Lords Kerr, Wilson, Sumption, Hodge, and Briggs) of its long awaited judgment in the “serious harm” case of Lachaux v Independent Print.
The case was heard on 13 and 14 November 2018 so the judgment will be nearly 7 months after the hearing (which can be viewed here, here and here). The Supreme Court will give practitioners the definitive view as to the interpretation of the “serious harm” requirement in section 1 of the Defamation Act 2013 nearly 5½ years after the Act came into force.
On 31 May 2019 the Lord Chief Justice of Northern Ireland held that the police had obtained “inappropriate” search warrants, and ordered them to return laptops, phones, documents and other material seized from journalists Trevor Birney and Barry McCaffrey. He held that the journalists had behaved in a “perfectly proper manner” in protecting sources. On 3 June 2019 the police announced that they had dropped their investigation into the two journalists.
On 4 June 2019 Advocate General Szpunar gave his opinion in the of Case C‑18/18, Eva Glawischnig-Piesczek v Facebook Ireland Limited. He expressed the view that Article 15 of the E-commerce Directive does not preclude a host provider from being ordered to seek and identify the information identical to the information that has been found to be illegal. In relation to equivalent information, the duty the host provider to search and identify such information is only in relation to the information disseminated by the user that disseminated that illegal information. He also expressed the view that an injunction can impose removal of information on a worldwide basis. There was a post about this decision on the IPKat blog.
The Guardian has a piece by Catherine Baksi, “Landmarks in law: Sally Bercow and the first major ‘Twibel’ case”.
Internet and Social Media
As we noted in a post on 31 May 2019, the consultation on the Government’s White Paper on “Online Harms” is still open. A number of responses have been published:
- That of Index on Censorship on “Implications for freedom of expression” – discussed in a piece in the Press Gazette.
- The response by the Open Rights Group [pdf]
- The initial response of the Internet Association [pdf]
The Social Media Law Bulletin has a piece by Daniel Daniele, “Doxing the age of social media”
The Cyberlaw Clinic has launched a “Principled Artificial Intelligence” project – there is a data visualization summarising their findings.
Data Protection and Data Privacy
Reuters reports that campaigners have filed complaints to data protection regulators in France, Germany and seven other EU countries over the way it deals with data in online advertising.
Newspapers, Journalism and Regulation
IPSO has found that the Yorkshire Evening Post needed a father’s consent to publish images of a mother and children. There was a piece in the Press Gazette. The IPSO ruling can be found here: 02322-19 A Man v Yorkshire Evening Post, 2 Privacy (2018), 6 Children (2018), Breach – sanction: publication of adjudication.
IPSO has published a number of rulings and resolution statements since our last Round Up:
00170-19 Salih v The Daily Telegraph, 1 Accuracy (2018), 12 Discrimination (2018), No breach – after investigation
07959-18 UWE Bristol v Bristol Post, 1 Accuracy (2018), 10 Clandestine devices and subterfuge (2018), Breach – sanction: action as offered by publication
02852-19 Cook v Stamford Mercury, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation
00457-18 Tabor-Thickett v Daily Mirror, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation.
00148-19 Jamelia v Mail Online, 9 Reporting of crime (2018), No breach – after investigation
07363-18 Williams-Thomas v The Mail on Sunday, 1 Accuracy (2018), Breach – sanction: action as offered by publication
00409-19 Pallett v mirror.co.uk, 1 Accuracy (2018), No breach – after investigation
00348-19 Taylor v derbytelegraph.co.uk, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation
00347-19 Taylor v nottinghampost.com, 1 Accuracy (2018), 2 Privacy (2018), No breach – after investigation
Statements in Open Court and Apologies
The MoD has apologised to Richard Holden, a political advisor, and agreed to pay him substantial damages and the payment of costs, after it breached his privacy and data protection rights by wrongly disclosing documents from his Developed Vetting interview process to the CPS for use in a prosecution against him
Last Week in the Courts
On 6 June 2019 the Court of Appeal (Underhill V-P, Sharp LJ and Sir Rupert Jackson) handed down judgment in the case of Butt v Secretary of State for the Home Department  EWCA Civ 933 [pdf]), (heard 17 October 2018) The appeal was dismissed. There was a 5RB case note.
On 7 June 2019 Warby J handed down judgment in the case of Spicer v Commissioner of Police  EWHC 1439 (QB) (heard 5 June 2019). There was a 5RB case note.
On the same day, Richard Spearman QC (sitting as a Deputy High Court Judge) handed down judgment in the case of Otuo v The Watchtower Bible and Tract Society EWHC 1349 (QB) (heard 1-14 and 25 to 29 March and 1 April 2019). The claim was unsuccessful.
Please let us know if there are any events which we should be drawing to the attention of our readers.
Media Law in Other Jurisdictions
Media groups have condemned a police raid on ABC News. We had a post on the issues which arise from this. It was widely covered in the international media, including by the BBC, CNNand the Guardian.
The Sydney Morning Herald reports that a Sydney plastic surgeon is suing a former patient on whom he refused to operate after she allegedly posted a series of anonymous and defamatory comments about him online, including “falsified photographs” of people she claimed were his patients.
The Journlaw blog reports on a case in which the Queensland police have charged a man with criminal defamation under a rarely used provision of theCriminal Code1899.
The NSW Court of Appeal has heard the appeal and cross appeal in the case of Chris Gayle v Fairfax Media. There were reports in The Guardian and the Sydney Morning Herald.
The South African reports that businessman Patrice Motsepe has filed a defamation lawsuit against Botswana newspaper Sunday Standard for claiming he tried to influence politics in the country.
In the case of Roberts v. Edmonton Northlands, 2019 ABCA 229 the Alberta Court of Appeal held that a libel claim by 19 parking cashiers dismissed in October 2015 can proceed. There was a news report on CBC.com.
Congress has passed a controversial bill revolutionizing Colombia’s telecommunications and media infrastructure.
In a judgment handed down on 31 May 2019 [pdf], the Supreme Court dismissed Facebook’s appeal over a High Court decision to refer key issues concerning the validity of European Commission decisions approving EU-US data transfer channels to the Court of Justice of the EU. There is a report in the Irish Times.
A jury has awarded bakery owner David Gibson damages of $11 million against Oberlin College which had accused Gibsons Bakery of having a history of racial profiling and discriminatory treatment. There is a post about the case on the Lega Insurrection Blog.
The IPKat blog has a post “California Privacy Law: Too Good to be True?”
The Data Protection Report notes that Nevada, New York and other states are following California’s CCPA.
Research and Resources
- Anti-Libel Injunctions and the Criminal Libel Connection, University of Pennsylvania Law Review, Forthcoming, UCLA School of Law, Public Law Research Paper No. 19-15, Eugene Volokh, University of California, Los Angeles (UCLA) – School of Law.
- Privacy Shield: Toward a Strong Personal Data Protection Between The US and the EU?, Revue des Juristes de Sc Po, vol. 14, 2018. Céline Castets-Renard.
- The Murky Ethics of Emoji: How Shall We Regulate a Web for Good?, Elizabeth A Kirleyand Marilyn McMahon, Deakin University, Geelong, Australia – Deakin Law School and Deakin University, Geelong, Australia – Deakin Law School.
- The Empires Strike Back: Reassertion of Territorial Regulation in Cyberspace, The Empires Strike Back: Reassertion of Territorial Regulation in Cyberspace, 3 J.L. & TECH. AT TEXAS (AUSTIN) 1 (2019) and Cyber-World War III: Origins, 7 J.L. & Cyber Warfare 1 (2018). Jon Garon.
- Governance of the Facebook Privacy Crisis, Lawrence J. Trautman, Western Carolina University – College of Business.
- Countries with Data Privacy Laws – By Year 1973-2019, Graham Greenleaf, University of New South Wales, Faculty of Law
- The Common Law of Cyber-Trespass, Brooklyn Law Review, Forthcoming, Michael James O’Connor, The Pennsylvania State University, Penn State Law.
- Consent and Privacy, Custers B.H.M., Dechesne F., Pieters W., Schermer B. & Hof S. van der (2018), Consent and Privacy. In: Müller A., Schaber P. (red.) The Routledge Handbook of the Ethics of Consent. London: Routledge. 247-258., Bart Custers, Francien Dechesne, Wolter Pieters, Bart Willem Schermerand Simone van der Hof, Leiden University – Center for Law and Digital Technologies, Leiden University – Centre for Law and Digital Technologies, Delft University of Technology, Leiden Law School and Leiden University – Leiden Law School.
- ‘When the Dust Doesn’t Settle’ – GDPR Compliance One Year In, Nathan Good, Ira Rubinsteinand Jared Maslin, Good Research, New York University (NYU) – Information Law Institute and Slalom Consulting.
- Explanation < Justification: GDPR and the Perils of Privacy, Forthcoming, Pennsylvania Journal of Law and Innovation, Talia B. Gillisand Joshua Simons, Harvard University, Law School and Harvard University, Faculty of Arts and Sciences, Department of Government, Students.
Next Week in the Courts
On 11 June 2019 there will be a hearing in the case of Malle v Atwal.
As already mentioned, on Wednesday 12 June 2019, the Supreme Court will hand down judgment in the case of Lachaux v Independent Print (heard 13 and 14 November 2018).
On 13 June 2019 there will be an application in the case of Halal Foods Authority Ltd & ors v Golding.
On the same day there will be hearing before Norris J in the case of Winstone v MGN.
The following reserved judgments after public hearings in media law cases are outstanding:
Bull v Desporte, heard 25 to 28 March 2019 (Julian Knowles J)
Sadik v Sadik, heard 2 April 2019 (Julian Knowles J).
Morgan v Times Newspapers Ltd, heard 13 May 2019 (Soole J).
Please let us know if there are any reserved judgments which should be added to this list.
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