The Michaelmas Term legal term begins on Tuesday 1 October 2019 and the (intermittent) Inforrm summer break comes to an end today. This post includes significant developments over the previous few weeks, since our Law and Media Summer Round Up.
The top 5 summer break posts were
- Practice Note: Media and Communications List becomes a Specialist List, new CPR 53, Practice Directions and Pre-Action Protocol
- Round up of the Media Law Cases in the 2018-2019 legal year: Six libel and privacy trials – Nataly Tedone.
- Case Law: R (Bridges) v Chief Constable of South Wales Police: The use of facial recognition software by the police is lawful – Suneet Sharma.
- Ben Stokes, The Sun and Gareth Thomas: muckraking journalism with no regard for private lives.
- Ben Stokes v The Sun: gross intrusion or simple reportage? How media privacy law works – Rebecca Moosavian
Over the summer Suneet Sharma’s post “Top 10 Defamation Cases of 2017, a selection” became the most viewed Inforrm post of all time, overtaking the 2016 post “Case Law: PJS v News Group Newspapers, Court of Appeal grants privacy injunction by Sara Mansoori and Aidan Wills“,
News Round Up
On 9 September 2019, the Foreign Affairs Select Committee published a report in which it stated that the campaign and other recently-launched initiatives amounted to a “good start” towards defending media freedom worldwide, but that the UK ought to “go further”. The Press Gazette had an article.
On 13 September the Press Gazette had a piece “Government won’t appeal ruling which stopped full probe into Saudi investments in Standard and independent”. The Independent also had an article.
On 17 September, the Sun newspaper published on its cover an intrusive story about Ben Stokes, the England cricketer, and his family. The Sun’s article was condemned by Ben Stokesand it received wide coverage by the international press including the Press Gazette, BBC Sport, The Times of India, the Law Society Gazette and Hacked Off had a blog post. There were Inforrm posts from Peter Coe, Rebecca Moosavian and Brett Wilson.
On 19 September, The Committee to Protect Journalists had a blog post about the CJP joining 21 other press freedom and freedom of expression organizations in sending an open letter to Secretary General of the Council of Europe Marija Pejcinovic Buric, calling on her to prioritize press freedom and the safety of journalists among the council’s 47 member states.
On 25 September, Hacked Off had a press release warning of “dangerous reporting” by tabloid press in light of Supreme Court decision on Parliament prorogation.
The Guardian had a piece on the Sandra Muller, a woman who launched a French version of the #MeToo campaign to expose abusive male behaviour, been found guilty of defaming a media executive she accused of making lewd and sexist remarks.
ASA had a news about their new report which reveals that people struggle to identify when social media posts by influencers are ads, and confirms that our current approach of requiring influencers to use a prominent reference, such as #ad, is necessary as a minimum.
The Guardian had an article “Growing backlash against BBC in Naga Munchetty race row”.
Internet and Social Media
On 10 September 2019 the Press Gazette had a piece on Google changing its search engine algorithms globally to keep original reporting at the top of results for longer.
The Press Gazette reported that Google has refused to pay to show news stories in its search results in France, where the first new European Copyright Directive-based legislation is being introduced next month, but it will instead remove the short previews of news stories. The new Article 15 (formerly Article 11) of the European Copyright Directive was adopted by the European Council in April 2019.
Data Privacy and Data Protection
On 24 September, The Guardian had a piece on the landmark ruling of the European Court of Justice which said that the “right to be forgotten” online does not extend beyond the borders of the European Union and arch engine operators faced no obligation to remove information outside the 28-country zone. Inforrm, IPKat and Brett Wilson’s blog had posts. The news was widely covered by the international press, including the Press Gazette, the BBC, CNBC, France24 and Los Angeles Times.
The Data Matters blog from Mischon de Reya had a piece “Children’s data protection rights: a data protection casualty?”.
On 12 September, the ICO blog had a post “Privacy attacks on AI models”.
On 17 September, the ICO website reported it has fined a Swansea double-glazing company £150,000 for making nuisance calls, and for calling numbers which were registered with the Telephone Preference Service (TPS) and who had not given their consent to receive them.
Hawktalk had a blog post “When are facial recognition systems, used for law enforcement, not subject to a data regime?”.
Wired had a post “ New surveillance tech means you’ll never be anonymous again”.
The Institute called on the Investigatory Powers Commissioner’s Office to provide more detailed information about warrants seeking journalists’ digital data and information that could identify their sources. The Press Gazette had a piece.
Naked Security had a post “Report: Use of AI surveillance is growing around the world”.
Newspapers Journalism and Regulation
On 5 September 2019, Press Gazette had a piece “Rotherham Advertiser wins battle to overturn reporting restrictions on grooming gang members”.
On 6 September 2019, Scottish First Minister Nicola Sturgeon has said she had no role in a legal bid aimed at preventing a newspaper from publishing a story about a prisoner’s death. There was a piece in the Press Gazette.
On 17 September IPSO announced a change to its rules and regulations. On 23 September the Press Gazette had a piece, content primarily aimed at overseas readers published by UK-based news websites with newsrooms in other countries, such as Mail Online, is now formally exempt from complying with IPSO guidelines.
On 19 September, IPSO’s issued a press release “Coverage relating to Ben Stokes and Gareth Thomas”, stating that it was not able to comment on individual cases but takes all complaints seriously.
IPSO has published a number of rulings and resolutions statements since our last Round Up:
- 04123-19 Philips v dailyrecord.co.uk, 1 Accuracy (2018), 2 Privacy (2018), Breach- sanction: action as offered by publication
- 03262-19 Bromley v The Sunday Times, 1 Accuracy (2018), 2 Privacy (2018), Resolved- IPSO mediation
- 08073-18 A woman v Daily Mail, 1 Accuracy (2018), 2 Privacy (2018), 11 Victims of sexual assault (2018), No breach- after investigation
- 03816-19 Hayden v Mail Online, 1 Accuracy (2018), Resolved- IPSO mediation
- 02069-19 Jones v Daily Post, 1 Accuracy (2018), 12 Discrimination (2018), No breach- after investigation
In the Courts over the Summer Vacation
The following media law judgments have handed down since the last weekly Round Up on 29 July 2019:
- Boyo v Lloyds Bank Plc  EWHC 2279 (QB) Anthony Metzer QC
- Fentiman v Marsh  EWHC 2099 (QB) Richard Spearman QC
- JKL v VBN  EWHC 2227 (QB) Morris J
- Wright v Ver  EWHC 2094 (QB) Nicklin J
- Caine v Advertiser and Times Ltd & Ors  EWHC 2278 (QB) Richard Spearman QC
- Al-Ko Kober Ltd & Anor v Sambhi  EWHC 2409 (QB)
- BVC v EWF  EWHC 2506 (QB) HHJ Parkes QC
- Canada Goose UK Retail Ltd v Persons Unknown & Anor  EWHC 2459 (QB) Nicklin J
Please let us know if there are any events we should be drawing to the attention of our readers.
Media Law in Other Jurisdictions
In the case of Poniatowska v Channel Seven Sydney  SASCFC 111, the full Court allowed the plaintiff’s appeal against the Judge’s dismissal of her defamation action and entered judgment of damages to be assessed.
In the case of Doe v Dowling  NSWSC 1222 Fagan J entered judgment for four anonymised plaintiffs in the sum of $150,000 each in respect of defamatory internet publications making sensational and salacious allegations of a sexual nature.
In Hayson v The Age Company Pty Ltd  FCA 1538 Bromwich J held that a previously published “bad reputation” articles were not admissible in evidence in mitigation of damage.
Former Silverchair frontman Daniel Johns is suing the Sunday Telegraph in the supreme court of Victoria for publishing a front-page story which alleged that the notorious Sydney brothel The Kastle had become his second home. The Guardian had a piece.
Australian billionaire and political party leader Clive Palmer is threatening to sue an Australian YouTuber over what he says are defamatory statements. In statements made by YouTube creator Jordan Shanks on the channel Friendly Jordies, Shanks calls Palmer, “Fatty McF—head” and a “dense Humpty Dumpty.” Business Insider had an article.
In the case of Huff v Zuk, 2019 ABQB 691 K D Nixon J awarded the plaintiff defamation damages of $50,000 in action between two dentists.
The BBC had a piece “How Hong Kong protesters avoid police surveillance”.
The Council of Europe’s human rights commissioner has urged Malta to drop libel lawsuits against murdered journalist Daphne Caruana Galizia, according to a letter to the country’s leader. The Guardian had an article.
The Court of Session will hear an appeal by a prominent pro-independence blogger who lost his legal case against former Scottish Labour leader Kezia Dugdale. Stuart Campbell of the Wings Over Scotland blog accused Ms Dugdale of defamation after she claimed he had sent “homophobic tweets”. The BBC had a piece.
The Committee to Protect Journalists had a blog post “CPJ joins call to UN rights council for end to press crackdown in Turkey”.
The Washington Post had an article “A newspaper reported that a man’s ancestors were slaveholders. He’s suing for defamation.”
One America News sued Rachel Maddow for more than $10 million for defamation after she called the conservative television network “paid Russian propaganda.” CBS News had a piece.
Virginia’s Democratic lieutenant governor, Justin Fairfax, filed a $400 million defamation lawsuit against CBS , accusing the network of amplifying sexual assault claims that Fairfax says are “false, defamatory and politically-motivated.” The CNN had a piece.
Research and Resources
- A Principled Approach to Defamation Claims in New Zealand: Untangling the Harm Threshold, Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 14/2019, Emma Croskery, Victoria University of Wellington, Faculty of Law, Student/Alumni.
- The ‘Right to be Forgottenʼ Online within G20 Statutory Data Protection Frameworks, David Erdos, University of Cambridge – Faculty of Law; Trinity Hall, Krzysztof Garstka, British Law Centre; University of Cambridge.
- Obstacles to Transatlantic Harmonization of Data Privacy Law in Context, W Gregory Voss, Journal of Law, Technology and Policy, Vol. 2019, No. 2 (Fall), 2019 (2019 U. Ill. J.L. Tech. & Pol’y (Issue 2)), Forthcoming.
- Choice of Law for Defamation Privacy Rights and Freedom of Speech, Oslo Law Review, Volume 6, No 1, 2019, p. 32-42, ISSN online 2387-3299; DOI: 10.18261/issn.2387-3299-2019-01-06, Copenhagen Business School, CBS LAW Research Paper No. 19-30, Peter Arnt Nielsen, Copenhagen Business School – CBS Law.
- Defamation and Alternative Dispute Resolution: Healing The Sting, Journal of Dispute Resolution, Vol. 1986, No. 3, 1986, Robert Ackerman, Wayne State University Law School.
- Claimant-Focused Damages in the Law of Privacy, Jason Varuhas and Nicole Moreham (eds.), Remedies for Breach of Privacy (Oxford: Hart Publishing, 2018), 141-161, Eric Descheemaeker, University of Melbourne – Law School.
- The Upside of Deep Fakes, 78 Maryland Law Review 960 (2019), Northeastern University School of Law Research Paper No. 356-2019, Jessica M. Silbey, Northeastern University School of Law, Woodrow Hartzog, Northeastern University School of Law and Khoury College of Computer Sciences; Stanford Law School Center for Internet and Society.
- Privacy: The Lost Right, Privacy: The Lost Right, Oxford University Press, 2008. ISBN 9780195367355, University of Florida Levin College of Law Research Paper Forthcoming, Jon L. Mills, University of Florida – Levin College of Law.
- Privacy, Cybersecurity and Control of Autonomous Vehicle Personal Data: An Exploration, Conference Paper for the 2019 NCTU Technology Law Conference, M. Bob Kao, Queen Mary University of London, Centre for Commercial Law Studies
- NGO Involvement in the Evaluation and Follow-Up Mechanisms for Data Protection Convention 108+ (Submission to the Consultative Committee of Data Protection Convention 108 by the Australian Privacy Foundation (APF), the Electronic Privacy Information Cente, Graham Greenleaf, University of New South Wales, Faculty of Law.
- Fighting Online Disinformation: Did the EU Code of Practice Forget about Freedom of Expression?, Forthcoming in: “Disinformation and Digital Media as a Challenge for Democracy” European Integration and Democracy Series, Vol. 6, eds. E. Kużelewska, G. Terzis, D. Trottier and D. Kloza, Intersentia, 2019, Aleksandra Kuczerawy, KU Leuven, Centre for IT & IP Law (CiTiP)
Next Week in the Courts
On Monday 30 September 2019 Nicklin J will hand down judgment in the case of AAA v Rakoff (heard 30 July 2019).
On Wednesday 2 October 2019 the Court of Appeal (Sharp P, Vos C and Davis LJ) will hand down judgment in the data protection case of Lloyd v Google LLC (heard 16 and 17 July 2019).
The following reserved judgment after a public hearing in a media law case is outstanding:
Sadik v Sadik, heard 2 April 2019 (Julian Knowles J).
Please let us know if there are other 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