The Michaelmas Term legal term begins on Thursday 1 October 2020 when the Inforrm summer break comes to an end. This post includes significant developments over the past few weeks, since our Weekly Law and Media Round Up.
During the summer, the courts have continued to hear cases and hand down judgments, jury trials have also resumed in many courts. As usual, updates on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary.
On 6 August 2020 the Press Gazette had a piece “Judge rejects journalist’s application for family court evidence”.
On 3 September 2020 the Press Gazette had a piece on the case brought by The Duchess of Sussex in her own right and the Duke of Sussex on behalf of their son Archie, against Splash News after one of its photographers took ‘long lenses’ pictures of her with her son on Vancouver Island earlier this year. At a remote hearing Master Victoria McCloud gave the Claimants permission to serve their case against the US arm of Splash.
The Council of Europe issued the Level 2 “media freedom alert” after Ministry of Defence press officers blacklisted a group of investigative journalists from Declassified UK and denied them access to information.
Internet and Social Media
On 7 August 2020 the Press Gazette had a piece on Twitter which has flagging up “state-affiliated” media and journalists to let users know where governments may exercise control over editorial content. In a blog explaining its actions, Twitter said ““We believe that people have the right to know when a media account is affiliated directly or indirectly with a state actor”.
On 13 August Ofcom had a news piece “Fewer people getting news from social media”.
On 8 September The Guardian had a piece “TikTok battles to remove video of livestreamed suicide”.
China’s UK embassy has asked Twitter to “make thorough investigations” after its ambassador’s official account liked a pornographic clip. The BBC had a piece.
On 11 September The BBC had a piece “Google and Twitter vow to block voting misinformation”.
Data Privacy and Data Protection
On 11 August 2020 the ICO released a statement on the Court of Appeal judgment in R (on the application of Bridges) v Chief Constable of South Wales Police ( EWCA Civ 1058) stating that “we welcome the Court of Appeal’s judgment that provides clarification on the police use of live facial recognition technology in public places.”
There was a post about the case on the Inforrm Blog by Hugh Tomlinson QC “Case Law: R (on the application of Bridges) v Chief Constable of South Wales, Police use of “automatic facial recognition technology unlawful”. The Panopticon Blog had a post “Key points from the Bridges facial recognition appeal”.
On 14 August the ICO released a “Statement in response to exam results”.
On 18 August Hawktalk had a post “Exam results: no automated decision, no transparency, no right of access and perhaps no adequacy”.
On 2 September the ICO’s Age Appropriate Design Code came into force. The Code is designed to ensure that children’s personal data has a baseline of protection automatically by design and default and companies will have a 12 month transition period to conform. The Code applies to “relevant information society services which are likely to be accessed by children” in the UK, further to section 123(1) Data Protection Act 2018, and captures a broad range of services. Companies providing online services likely to be accessed by children – including apps, connected toys, online games, streaming services, social media platforms and websites offering other goods or services to children over the Internet will need to comply. There was a piece on the ICO’s website and the Mishcon de Reya Data Matters blog.
City A.M had an article “Let’s hope tough new rules on children’s online data collection deliver, and give parents peace of mind”.
On 8 September Hawktalk had a post “Ambiguous Digital Identity Principles read like a vague afterthought”.
On 10 September the ICO issued a fine under a law brought in to stop scammers defrauding people out of their pensions. A Swansea based company was fined £130,000 for making more than 100,000 unauthorised direct marketing calls to people about their pensions.
On 3 September 2020 the BBC had a piece “NSA surveillance exposed by Snowden ruled unlawful”.
On 7 September the Council of Europe had a news “Digital surveillance by intelligence services: states must take action to better protect individuals”.
Newspapers Journalism and Regulation
The Press Gazette had an article “BBC correspondent showed bias against Trump in article, complaints unit rules”.
On 14 August 2020 IPSO had a blog post “Exploring the circumstances and application of Private Advisory Notices”.
IPSO has published a number of rulings and resolutions statements since our last Round Up:
- 02815-20 Mulqueen v Daily Mail, 1 Accuracy (2019), 4 Intrusion into grief or shock (2019), 14 Confidential sources (2019), 2 Privacy (2019), 12 Discrimination (2019), Resolved – IPSO mediation
- 01813-20 Lanigan v Sunday Life, 1 Accuracy (2019), No breach – after investigation
- 00663-20 Dorante-Day v belfasttelegraph.co.uk, 1 Accuracy (2019), 12 Discrimination (2019), No breach – after investigation
- 11134-20 Hayes v liverpoolecho.co.uk, 1 Accuracy (2019), Resolved – IPSO mediation
- 06836-20 Greens v Daily Record, 1 Accuracy (2019), Resolved – IPSO mediation
- 02883-20 Longstaff v thesun.co.uk, 1 Accuracy (2019), Resolved – IPSO mediation
- 02767-20 Henshaw v nottinghampost.com, 1 Accuracy (2019), 2 Privacy (2019), Breach – sanction: action as offered by publication
- 01888-20 Saled v birminghammail.co.uk, 3 Harassment (2019), 2 Privacy (2019), No breach – after investigation
- 00607-20 Dorante-Day v thesun.co.uk, 1 Accuracy (2019), 3 Harassment (2019), Resolved – IPSO mediation
- 00040-20 Smith v metro.co.uk, 1 Accuracy (2019), Breach – sanction: action as offered by publication
- 09508-20 Daniel Zajac v thesundaytimes.co.uk, 1 Accuracy (2019), Resolved – IPSO mediation
- 02728–20 Brown v The Scottish Sun, 1 Accuracy (2019), Resolved – IPSO mediation
- 02294-20 Chan v The Mail on Sunday, 1 Accuracy (2019), 12 Discrimination (2019), No breach – after investigation
- 00541-20 Newman v Daily Record, 3 Harassment (2019), No breach – after investigation
- 09388-19 Brooks v metro.co.uk,1 Accuracy (2019), 6 Children (2019), Resolved – IPSO mediation
- 09386-19 Brooks v dailymirror.co.uk, 1 Accuracy (2019), 6 Children (2019), Resolved – IPSO mediation
- 09334-19 Brooks v thetimes.co.uk, 1 Accuracy (2019), 6 Children (2019), Resolved – IPSO mediation
- 09150-19 Brooks v dailyrecord.co.uk, 1 Accuracy (2019), 6 Children (2019), Resolved – IPSO mediation
Media Law in Other Jurisdictions
On 24 August 2020 The Guardian had a piece on a preliminary judgment in a defamation case of a nine-year-old Indigenous boy, Quaden Bayles against columnist Miranda Devine, Bayles v Nationwide News Pty Limited FCA 1213. A video by Quaden’s mother made global headlines in February after her inconsolable son cried about being bullied at school. The clip was met with an outpouring of support but the Bayles said Devine later retweeted material that suggested it was all a scam and that the Brisbane boy born with a common form of dwarfism was actually an adult actor. Justice Anna Katzmann said the alleged defamatory meanings were likely to lead to an ordinary reasonable person thinking less of the nine-year-old and that Quaden Bayles has an arguable case that he was defamed by the columnist.
On 1 September the Press Gazette had a piece “Facebook Australia threatens to block news sharing on its platforms if government forces it to pay publishers for content”.
On 10 September 2020 the Supreme Court gave judgment in two “Anti-SLAPP” cases 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 and Bent v. Platnick, 2020 SCC 23 . Both appeals were dismissed and the Court gave guidance on the operation of the Anti-SLAPP legislation. The Globe and Mal had a report, Supreme Court ruling stresses right to sue to protect reputation. We will publish a case comment shortly.
On 24 August The Irish Times had a piece “Social influencer’s Facebook action over troll identities adjourned”.
A defamation bill before the Scottish parliament will improve clarity on the law for journalists, MSPs have heard. The Defamation and Malicious Publications Bill will, if passed, bring in a “serious harm” threshold that will have to be cleared before a defamation action can be raised. The Times had a piece on 26 August 2020.
On 24 August Reuters had an article “Sarah Palin can sue New York Times for defamation – court ruling”.
On 9 September the BBC had a piece about the US Department of Justice taking legal action to defend President Donald Trump in a defamation case from a woman who accuses him of raping her. Under a court filing, the department is moving to replace the president’s private lawyers and take over the case.
On 5 August 2020 Warby J handed down judgment in the case of HRH The Duchess of Sussex v Associated Newspapers Ltd  EWHC 2160 (Ch) (heard 29 July 2020). The Duchess won an order to keep the inames of “five friends” secret. There was an article in the Press Gazette and a piece on the 5RB website.
On 11 August 2020 Julian Knowles J handed down judgment in the case of Kim v Lee  EWHC 2162 (QB)
On 12 August 2020 HHJ Lewis handed down judgment in the case of Gilham v MGN Ltd  EWHC 2217 (QB). A schoolteacher was awarded £49,000 compensation after an offer of amends. We had a case comment by Mathilde Groppo. There was also a piece in the Press Gazette.
On 18 August 2020 Richard Spearman QC handed down judgment in the case of Haven Solicitors v Police Federation  EWHC 2233 (QB)
On 2 September 2020 NIcklin J handed down judgment following a preliminary issue trial of meaning in Burleigh v Telegraph Media Group Limited  EWHC 2359 (QB). The Claimant, who wrote a piece published on The Daily Telegraph in January 2019, had brought a libel claim against the publisher of the Daily Telegraph after it had published an apology to First Lady Melania Trump in January 2019 concerning the author’s article. The newspaper had also agreed to pay “substantial damages” to Mrs Trump as well as her legal costs. While the apology did not identify the Claimant, Ms Burleigh contended that the apology was defamatory of her as it would have been understood by a large number of readers to refer to her and could have meant that she had negligently or maliciously written the article. Nicklin J rejected the Claimant’s case and agreed with the Defendant’s submissions that the apology was not defamatory of Ms Burleigh and did not impute any culpability on her part in writing the original article. The Court held that “this is not a case where there is an implication – or a ‘nudge and a wink’ – to prompt the reader to draw a conclusion that the Claimant was culpable for the publication of the identified “false statements”, “the corrections of the ‘false statements’ are not of a gravity that suggests a fundamental failure on the part of the Claimant, as author of the original article” and that “most importantly, the apology contains no attribution of fault or blame for the errors.” There was a piece on 5RB and the Press Gazette. It has been reported that Ms Burleigh intends to appeal.
Research and Resources
- The Influence of Defamation Law on the Interpretation of Australia’s Racial Vilification Laws, (2020) 26 Torts Law Journal 34, Bill Swannie, Victoria University.
- Rethinking Libel for the Twenty-First Century, Tennessee Law Review, Vol. 87, No. 465, 2020, Glenn Harlan Reynolds, University of Tennessee College of Law.
- Defamation Law in the Internet Age: Final Report, Law Commission of Ontario,Defamation Law in the Internet Age: Final Report(Toronto: March 2020), Law Commission of Ontario, Law Commission of Ontario.
- Blockchain based E-voting System, Albin Benny, University of Mumbai, Pillai College of Engineering, Students.
- Constitutional Pandemic Surveillance, Matthew B. Kugler, Northwestern University – Pritzker School of Law, Mariana Oliver, Northwestern University, Pritzker School of Law.
- Conceptual Privacy Framework for Health Information on Wearable Device, Boston University journal of Science and Technology Law, Forthcoming,Seyedmostafa Safavi, the National University of Malaysia.
- Confidentiality in the Courts: Privacy Protection or Prior Restraint? Sergio J. Campos, University of Miami School of Law.
- Ethical Issues with Using Internet of Things Devices in Citizen Science Research: A Scoping Review, Cambridge Handbook of Life Science, Information Technology and Human Rights, 2020, James Scheibner, ETH Zürich, Anna Jobin, STS Lab; ETH Zurich, Effy Vayena, ETH Zurich.
- The EU-US Privacy Shield Regime for Cross- Border Transfers of Personal Data under the GDPR: What are the legal challenges and how might these affect cloudbased technologies, big data, and AI in the medical sector? Lexxion, 2020, Timo Minssen, University of Copenhagen – Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) – Faculty of Law, Claudia Seitz, University of Ghent, Faculty of Law, Mateo Aboy, LML, University of Cambridge, Marcelo Corrales Compagnucci, Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen.
- The European Artificial Intelligence Strategy: Implications and Challenges for Digital Health, The European Artificial Intelligence Strategy: Implications and Challenges for Digital Health. / Cohen, Glenn ; Evgeniou, Theodoros; Gerke, Sara; Minssen, Timo, The Lancet Digital Health, Vol. 2, No. 7, 23.06.2020, p. 376-379, I. Glenn Cohen, Harvard Law School, Theodoros Evgeniou, INSEAD, Sara Gerke, Harvard University – Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Timo Minssen, University of Copenhagen – Centre for Advanced Studies in Biomedical Innovation Law (CeBIL) – Faculty of Law.
- Protection of Privacy Rights Through a Data Protection Law, International Journal of Legal Studies and Research, Vol. III, No. 4, August 2018, pp. 64-70, Chemmalar Patcheappan, Pondicherry University.
- Surveillance, Privacy, and App Tracking, Burris, S., de Guia, S., Gable, L., Levin, D.E., Parmet, W.E., Terry, N.P. (Eds.) (2020). Assessing Legal Responses to COVID-19. Boston: Public Health Law Watch, Jennifer D. Oliva, Seton Hall University School of Law.
- Addressing Big Data and AI Challenges: A Taxonomy and Why the GDPR Cannot Provide a One-size-fits-all Solution, M. Tzanou (ed.), Health Data Privacy under the GDPR: Big Data Challenges and Regulatory Responses (Routledge, 2021), Forthcoming, Maria Tzanou, Keele University.
- Privacy Rights in Online Interactions and Litigation Dynamics: A Social Custom View, Working Papers del Dipartimento di Economia e Statistica “Cognetti de Martiis” – ISSN: 2039-4004, 2020, Stefano Dughera, Polytechnic University of Turin, Marco Giraudo, University of Turin.
- Balancing Freedoms, Rights and Responsibilities during COVID in Us: A Study of Anti- and Pro-Restriction Discourse, Gillian Bolsover, University of Leeds – School of Politics and International Studies.
- The Deepfake Dilemma: Reconciling Privacy and First Amendment Protections, University of Pennsylvania Journal of Constitutional Law, Forthcoming, Shannon Reid, University of Pennsylvania, Students.
- The Right to be Forgotten in Peace Processes, Ignacio N. Cofone (ed.), The Right to be Forgotten: A Canadian and Comparative Perspective (Routledge: London, 2020) 76-102., Ignacio Cofone, McGill University Faculty of Law, Catalina Turriago Betancourt, McGill University.
- Is Data Localization a Solution for Schrems II? Journal of International Economic Law, Forthcoming, Anupam Chander, Georgetown University Law Center.
- Privacy, Adoption, and Truthful Reporting: A Simple Theory of Contact Tracing Applications, Yves-Alexandre de Montjoye, Imperial College London – Department of Computing, Tarun Ramadorai, Imperial College London; Centre for Economic Policy Research (CEPR); European Corporate Governance Institute (ECGI), Tommaso M. Valletti, Imperial College Business School; Centre for Economic Policy Research (CEPR), Ansgar Walther, Imperial College London.
The following reserved judgments after public hearing in media law cases are outstanding:
Depp v News Group Newspapers, heard 7 to 10,13 to 17, 20 to 24 27 and 28 July 2020 (Nicol J)
Gubarev v Orbis Business Intelligence, heard 20 to 24 July 2020 (Warby J)
Nwakamma v Umeyor, heard 13 to 16 July 2020 (HHJ Lewis)
Please let us know if there are other reserved judgments which we should be listing.
This Round Up was compiled by Nataly Tedone who is a media and entertainment paralegal.