On 26 June 2019 Dame Victoria Sharp was sworn in as the new President of the Queen’s Bench Division, replacing Sir Brian Leveson who retired on 23 June 2019. Dame Victoria was appointed to the High Court in 2009 and to the Court of Appeal in 2013.
Prior to her appointment to the bench Dame Victoria had a media and libel law practice at One Brick Court, which finally closed its doors on 24 June 2019.
Dame Victoria was one of the two judges who, on 14 May 2019, decided that Stephen Laxley-Lennon (aka Tommy Robinson) should face fresh contempt proceedings. Those proceedings with be heard at the Old Bailey on 4 and 5 July 2019.
Readers are reminded that the consultation on the Government’s Online Harms White paper closes at 23:59, 1 July 2019. Responses can be provided online using this link.
On 27 June 2019 the Culture Secretary, Jeremy Wright, made a written statement to Parliament having opened an investigation into the Evening Standard and Independent after an investor with “strong links” to the Saudi state bought shares in their parent companies. Mr Wright confirmed that he has issued a Public Interest Intervention Notice (PIIN) and he has asked the Competition and Markets Authority and Ofcom to conduct investigations and report their findings by 23 August. He said that he considered there were “reasonable grounds to suspect that a relevant merger situation has been created”.
On 26 June 2019 the Guardian reported that from financial filings it emerged that the Evening Standard made a pre-tax loss of £11.5m last year, taking total losses to more than £23m in the last two years. Earlier this month the newspaper cut about 20 staff as part of a cost-cutting merger of print and online operations. It was reported by the Press Gazette that the Independent, which closed its print editions in 2016, has grown its revenues by 11.5 per cent in a year. The news of the investigation was widely covered by the national press, including the Guardian, the Press Gazette and the Independent.
We had a post on a book published book, Unmasked: Andrew Norfolk, The Times Newspaper and Anti-Muslim Reporting – a Case to Answer [pdf] laying serious charges against three series of articles by the paper’s chief investigative reporter. These all concern Muslims. Hacked off had a press release on the report. We had a post summarising the ‘Unmasked” report, and Media Reform Coalition had an article.
The Times, in its coverage of the story on the report, condemned the “72-page pamphlet, co-authored by a founder of the campaign group Hacked Off, accusing Norfolk of writing articles that “tended to encourage fear of Muslims”, and of breaching standards of professional conduct and ethics”. There was a response on Byline by one of the report’s authors and one on the Hacked Off blog.
Recent Judgments and Orders
The order of the Court of Appeal in the case of Serafin v Malkiewicz is now available [pdf].
On 20 June 2019 the Court of Appeal (Males LJ) granted Bloomberg LP permission to appeal in the case of ZXC v Bloomberg. There is a news item on this decision on the 5RB website.
Lawtel [£] has details of two recent judgments not presently available on Bailii.
The full judgment of Andrew Hochauser QC in the data protection subject access case of Dawson-Damer v Taylor Wessing LLP  EWHC 1258 (Ch) [pdf] handed down on 17 May 2019.
A summary of the judgment of Nicklin J in the case of Stunt v Associated Newspapers handed down on 21 June 2019 refusing an extension of time for providing security for costs in a claim for misuse of private information.
Internet and Social Media.
The Society of Editors had an article “Ofcom boss echoes press freedom concerns on online harms and age verification”.
Facebook has released a report in a blog post that detailed the results of its workshops and roundtables to construct an Oversight Board. The purpose of the board is to determine what about Facebook’s Community Standards is fair and transparent, and what isn’t. In its essence, it is a “Supreme Court” for content review. The story was widely covered by the international press, including the Telegraph, CNBC , NBC News, and there was a post in News Busters.
The Guardian had a piece “The Trump rule? World leaders that violate Twitter rules will get warning label”.
Himsworth Scott Insights had a piece on the danger of “deepfake” technology and the possible remedies for the victims. “Deepfake” refers to video or audio recordings that are edited, using readily available technology, to create a fake clip of an individual saying or doing something which never happened. This can also be used to create fake pornographic content of non-consenting individuals.
The LSE Media Policy Project had a post “Revenge pornography and online hate content: the evidence underpinning calls for regulating online harms in the UK”.
Data Privacy and Data Protection
The Information Commissioner’s Office has released the news of its publication of the “Openness by Design”, its new access to information strategy. The information strategy calls for better compliance by public authorities backed up with enforcement action.
Open Access Government had an article “Data protection: Who’s your weakest link?”.
Google faces a data protection lawsuit in France, over allegations it had breached GDPR rules when it comes to tracking user location. It was reported on the Euobserver.
Mishcon de Raya Data Matters had a news article about a previous claim that the ICO’s own website did not comply with GDPR in regards to cookies. The ICO released a statement that it has produced a guidance on cookies which will be published next week, and it has made changes to their own website.
Norton Rose Fulbright Data Protection reports had a post “Nine States Pass New And Expanded Data Breach Notification Laws”.
Techcrunch had a piece “Europe should ban AI for mass surveillance and social credit scoring, says advisory board”.
The European Commission has issued a report “Policy and investment recommendation for trustworthy Artificial Intelligence”.
Naked Security had a post on the new Mozilla’s online project called Track THIS. The company has announced on its blog the creation of a website which allows the user to choose one of four personality profiles (hypebeast, filthy rich, doomsday prepper and influencer). This profile choice would trick advertisers into thinking the user is someone else, showing ads related to the new personality type chosen. Mozilla stated that all adverts across the internet would change to be tailored to the profile chosen. The aim of the project is to demonstrate “ad snooping”. Mozilla stated “ If you’re still not sure why you’d want to block cookies, today we’re launching a project called Track THIS to help you recognize what they do”.
Newspapers Journalism and Regulation
The BBC has been accused of “censoring” a clip of Boris Johnson calling French people “turds” over their Brexit stance while he was Foreign Secretary. The story received wide coverage in the national press, including the Press Gazette, the Independent and Sky News.
IPSO has issued a press release and published new guidance for reporting major incidents after journalists were accused of behaving “very badly” in the aftermath of the 2017 Manchester terror attack. The Press Gazette also had an article.
IPSO has published a number of rulings and resolutions statements since our last Round Up:
- 02768-19 Beggs v The Sun, 1 Accuracy (2018), No breach- after investigation
- 01922-19 A woman v Grimsby Telegraph, 1 Accuracy (2018), 2 Privacy (2018), 6 Children (2018), No breach- after investigation
- 01720-19 Heppell v Pick Me Up, 1 Accuracy (2018), No breach- after investigation
- 01469-19 Andrews v bracknellnews.co.uk,13 Financial journalism (2018), 1 Accuracy (2018), No breach- after investigation
Statements in Open Court, Apologies and Settlements
On 26 June 2019 there was a joint statement in open court [pdf] in the case of Koutteineh v Associated Newspapers. The Daily Mail agreed to pay substantial damages to a student it wrongly described as a “terrorist cheerleader”. There was a news item about this in the Press Gazette.
Last Week in the Courts
On 24 June 2019 there was an application in the case of Zaffar v Khan which was to be heard by Nicklin J but was settled.
On the same day Warby J handed down a judgment in the case of Birmingham City Council v Afsar.
On Thursday 27 June 2019 Julian Knowles J handed judgment in the case of Bull v Desporte (heard 25 to 28 March 2019). There was a news item about the judgment in the Daily Mail.
On the same day Pepperall J handed down judgment in the case of Re AB IApplication for reporting restrictions: Inquest)  EWHC 1668 (QB).
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
The Guardian had an article regarding Facebook and Google being likely to face new regulators for news and ads in Australia.
A New South Wales Supreme court judge ruled that Australian publishers are liable for defamatory comments on their Facebook sites. The ruling suggests that operators of commercial Facebook pages may need to hide all comments by default so that they can be checked for defamation before they are seen by the public. There was a piece in The Conversation.
The Guardian had an article “Has an Australian judge just broken Facebook for publishers?” .
The Michael Geist – Internet and e-commerce law blog had a post “What is the Point of the Broadcast and Telecom Legislative Review if the Government Has Already decided What it Intends to do?”.
An appeals court confirmed the conviction of an aid worker for defamation for posting an ironic tweet. This could set a dangerous precedent for freedom of expression. Human Rights Watch had a piece on this.
The Committee to Protect Journalists had a blog post on the Indian government cutting off advertisements to three major newspaper groups in apparent retaliation for their critical news coverage, according to news reports.
Human Rights Watch had a piece “Nigeria’s Wavering Commitment to Freedom of Expression”.
The Polish government has filed a complaint against the European Directive on copyright, approved in March 2019. The fight is specifically aimed at Article 13. Article 13 (now officially known as Article 17) makes online platforms that host user-generated content responsible for removing copyrighted material, a requirement that might force platforms to adopt automated filters winnowing out offending materials before they are even uploaded. Wired had an article.
The Hollywood Reporter had a piece “Britney Spears’ Father Sues Blogger for Defamation Over #FreeBritney-Related Allegations”.
In Maethner v. Someplace Safe, Inc Minnesota’s Supreme Court held that private speakers are fully protected by the First Amendment. Prior Minnesota precedents had said that some First Amendment protections against defamation liability applied only to media speakers. There was a post on Reason.
Mass Privatel had a post “Gillette Stadium’s Facia Recognition Can Identify Fans Before They Enter The Stadium”.
Research and Resources
- Intermediary Liability and Fundamental Rights, Centre for International Intellectual Property Studies (CEIPI) Research Paper n°2019-06 in: Giancarlo Frosio (ed.), The Oxford Handbook of Intermediary Liability Online (OUP, 2019, Forthcoming) 24 Pages Posted: 28 Jun 2019, Christophe Geiger, Université de Strasbourg – CEIPI, Giancarlo Frosio, Université de Strasbourg – CEIPI; Stanford University – Stanford Law School Center for Internet and Society, Elena Izyumenko, Université de Strasbourg – CEIPI.
- Article 10 ECHR and Expressive Conduct, Communications Law, 2019, Vol. 24 (2), 62-73, Ronan Ó Fathaigh, University of Amsterdam – Institute for Information Law (IViR), Dirk Voorhoof, Human Rights Centre, Ghent University; Human Rights Centre UGent.
- The Chilling Effect of Turkey’s Article 301 Insult Law, European Human Rights Law Review, 2019, Issue 3, 298-308, Ronan Ó Fathaigh, University of Amsterdam – Institute for Information Law (IViR).
- Accountability for the Use of Algorithms in a Big Data Environment. Anton Vedder & Laurens Naudts (2017): Accountability for the use of algorithms in a big data environment, International Review of Law, Computers & Technology, 2017, DOI: 10.1080/13600869.2017.1298547, Anton H. Vedder, KU Leuven Centre for IT and IP Law (CiTiP); KU Leuven – Faculty of Law, Laurens Naudts, KU Leuven, Centre for IT & IP Law (CiTiP), Students.
- Excessive Data Collection: Privacy Considerations and Abuse of Dominance in the Era of Big Data, Viktoria H.S.E. Robertson, University of Graz.
- Privacy as a Public Good: A Case for Electronic Cash, Rodney Garratt, University of California, Santa Barbara (UCSB), Maarten R.C. van Oordt, Government of Canada – Bank of Canada.
Next Week in the Courts
On 2 July 2019, there will be a 3 day trial in the case of Diamond Services SE Ltd v Ogedengbe.
The following reserved judgments after public hearings in media law cases are outstanding:
Sadik v Sadik, heard 2 April 2019 (Julian Knowles J).
Morgan v Times Newspapers Ltd, heard 13 May 2019 (Soole J).
Various Claimants v MGN Ltd, heard 5-6 June 2019 (Mann J)
Please let us know if there are any reserved judgments which should be added to this list.
This Round Up was compiled by Nataly Tedone, an LPC student with a particular interest in media law