Law and Media Round Up – 5 October 2020

The Michaelmas Legal Term in England and Wales began on Thursday 1 October 2020 and will end on Monday 21 December 2020.  This post includes significant developments over the past few weeks, since our Summer Law and Media Round Up.

As usual, updates on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary.

On 23 September 2020, the Government launched a call for evidence on the impact of loot boxes in video games (in-game containers purchased with either virtual or real-world currency that awards players with randomized virtual items), to examine concerns they may encourage or lead to problem gambling. The Government’s website had a press release.

On 29 September 2020 the Press Gazette had a piece on a High Court judge, Mr Justice Williams, agreeing to bar journalists from attending a private trial due to take place in the Family Division of the High Court. The case is about a separated couple’s dispute about the care of a child. The child’s father, who has been diagnosed with a depressive disorder asked for the hearing to be held in private and argued that if journalists attended he would be anxious. The child’s mother and journalists objected, but Mr Justice Williams ruled in the man’s favour after considering evidence from a psychologist at preliminary hearings.

It has been reported that Coleen Rooney has served a 55 page defence in the libel claim brought against her by Rebekah Vardy.  The Sun, whose stories are at the centre of the dispute, has also written about the defence.

During  the trial of Wikileaks founder Julian Assange  (who is fighting extradition to the US), the Old Bailey was told that Wikileaks was not the first publisher of diplomatic unredacted classified documents because they had already appeared online and therefore Mr Assange was unfairly accused to be the first publisher of the unredacted classified cables. There was a piece on the Press Gazette.

The Press Gazette had a piece “Agency reporter overturns reporting restrictions covering teen knife attacker who posted on Facebook”.

Internet and Social Media

Twitter has commented that tweets wishing for Donald Trump’s death in the wake of the president’s diagnosis with Covid-19 violate its policies and could result in suspension. The Guardian had a piece.

Human Rights Watch has released a report stating that companies like Facebook, Twitter and Youtube are right to quickly remove content that could incite violence or jeopardise national security or public order, but that permanent removal with no archive access can hamper efforts for accountability and journalistic investigation. The Press Gazette had a piece.

The Press Gazette had a piece “Google pledges to pay $1bn to news publishers over next three years”.

Data Privacy and Data Protection

The ICO had a blog post “Accountability Framework: demonstrating your compliance”.

On 24 September 2020 the ICO released a statement “Statement from Information Commissioner Elizabeth Denham on the NHS COVID-19 app”.

The Information Commissioner’s Office (ICO) has fined Digital Growth Experts Limited (DGEL) £60,000 for sending thousands of nuisance marketing texts at the height of the pandemic. There was a news piece on the ICO’s website.

Mishcon de Reya Data Matters had a post “Further delay in proposed ICO GDPR fine for Marriott”.

The European Data Protection Board (EDPB) has adopted Guidelines (8/2020) on the targeting of social media users under GDPR.

Surveillance

Surveillance measures introduced during the Covid-19 epidemic are handing “unchecked powers” to authoritarian regimes across Asia, human rights experts are warning. In a report issued by Maplecroft,  risk analysts warn that “extreme measures and unchecked powers” brought in to tackle Covid-19 could become permanent features of government across the region, and have an impact on the rights and privacy of millions of people. The Guardian had a piece.

Newspapers Journalism and Regulation

IPSO has published a number of rulings and resolutions statements since our last Round Up:

• 12184-20 Graham v dailystar.co.uk, 1 Accuracy (2019), 2 Privacy (2019), Resolved – IPSO mediation
• 00804-20 Smith v The Herald, 1 Accuracy (2019), 3 Harassment (2019), 2 Privacy (2019), No breach – after investigation
• 06575-20 Brown v thesun.co.uk, 1 Accuracy (2019), 2 Privacy (2019), Resolved – directly with publication
• 02805-20 Roberts v liverpoolecho.co.uk, 1 Accuracy (2019), No breach – after investigation
• 01230-20 Islamic Human Rights Commission v thetimes.co.uk, 1 Accuracy (2019), 12 Discrimination (2019), No breach – after investigation
• 09767-19 Evans v mirror.co.uk, 6 Children (2019), No breach – after investigation
• 09645-19 Evans v Cornwalllive.com, 5 Reporting suicide (2019), 1 Accuracy (2019), 2 Privacy (2019), 6 Children (2019), No breach – after investigation
• 08349-20 Message v Daily Express, 1 Accuracy (2019), Resolved – IPSO mediation

Media Law in Other Jurisdictions

Australia

In Webster v Brewer (No 3) [2020] FCA 1343, Gleeson J assessed damages after a default judgment in respect of seven defamatory publications. Damages of $350,000 were awarded to the first claimant, $225,000 to the second claimant and $300,000 to the third claimant.

In Fox v Channel Seven Adelaide Pty [2020] SASC 180 Stanley J considered an application to strike out certain particulars in a defence as being disproportionate and an abuse of the process.  With one exception the application was dismissed.

Ashurst has a post In the Public Interest? Changes to the Uniform Defamation Law dealing with the 2020 Amendments to the Model Defamation Provisions.

Senator Pauline Hanson has filed a truth defence in the ‘sexual harassment’ defamation case launched by former One Nation senator Brian Burston. The Guardian had a piece.

Belgium

Lawyer Walter Van Steenbrugge has been found guilty by a court in Ghent of libel of the head of the religious charity the Brothers of Charity during the trial of three doctors involved in a case of euthanasia. The Brussels Times had a piece.

Canada

In Elkow v Sana, 2020 ABCA 350 the Court of Appeal of Alberta allowed the defendant’s appeal against awards of aggravated ($100,000) and exemplary ($10,000) damages on an assessment in a libel case.  The appeal against the award of general damages ($150,000) was dismissed.

In the case of Chopak v. Patrick, 2020 ONSC 5431, Schabas J held that the defendant was liable for the defamatory statement of fact that the plaintiff had “admitted she lied”, however the statements about the plaintiff having an “axe to grind” and being a “rat” were expressions of opinion to which the defence of fair comment applied.  Damages were reduced to $5,000.

Ireland

The European Commission has expressed views on Ireland’s defamation laws which are said to “raise concerns” about the media’s ability to expose corruption. The Commission also said it was worried about the frequency of defamation cases in the courts, which are extremely difficult and expensive for publishers to defend. There was a piece on the Sunday Times.

Singapore

The Straits Times had a piece “Doctor wins libel suit against woman but judge says case sullies his professional reputation”.

United States

The New York Times had a piece “American Could Face Prison in Thailand After Posting Negative Reviews of a Resort”.

In September 2019, the US government sued Edward Snowden over his publication of Permanent Record, a book which the United States says violated non-disclosure agreements he signed when working for the NSA and the CIA.

A federal court has ruled that the United States is entitled to more than $5.2m from former National Security Agency contractor Edward Snowden’s book royalties, according to the US Department of Justice. The Guardian had a piece.

Research and Resources

• EU General Data Protection Regulation Sanctions in Theory and in Practice, Santa Clara High Technology Law Journal, Vol. 37 (Forthcoming, 2020). W. Gregory Voss, Toulouse Business School, Hugues Bouthinon-Dumas, ESSEC Business School
• Rethinking Libel for the Twenty-First Century, Tennessee Law Review, Vol. 87, No. 465, 2020, University of Tennessee Legal Studies Research Paper No. 398, Glenn Harlan Reynolds, University of Tennessee College of Law.
• Volenti Non Fit Injuria – A Conceptual Analysis, Legal Encyclopaedia (ISBN: 978-81-943164-1-1), Volume 1, Edition 1 (2020), Rajas Salpekar, Independent.
• Zoning Cyberspace: Protecting Privacy in the Digital Upside Down, Utah Law Review, Vol. 2020, No. 2, 2020, Albany Law School Research Paper No. 3 for 2020-2021, Raymond H. Brescia, Albany Law School.
• The Algorithmic Learning Deficit: Artificial Intelligence, Data Protection, and Trade, Big Data and Global Trade Law, ed. by Mira Burri, Cambridge University Press, Forthcoming, Svetlana Yakovleva, University of Amsterdam – Institute for Information Law (IViR), Joris van Hoboken, University of Amsterdam – Institute for Information Law (IViR).
• A Stronger Claim to Data Protection During Pandemics? Leveraging the American Convention on Human Rights Against Governmental Inaction: A Brazilian Case-Study, Revista de Direitos Fundamentais & Justiça (2020 Forthcoming), Nicolo Zingales, Fundação Getulio Vargas (FGV); Tilburg Law and Economics Center (TILEC); Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT); Stanford University – Stanford Law School Center for Internet and Society.
• Breach of Confidence and the Misuse of Private Information – How Do the Two Actions Work Together?, (2010) 15 Media and Arts Law Review, pp. 265-273, Victoria University of Wellington Legal Research Paper No. 76/2020, N. A. Moreham, Victoria University of Wellington – Faculty of Law.
• Individual Privacy Management, Media And Arts Law Review, Vol. 21, No. 3, p. 315, 2016, Victoria University of Wellington Legal Research Paper No. 79/2020, Marcin Betkier, Victoria University of Wellington – Faculty of Law.
• A Survey on Privacy Preserving Clustering Analysis in Big Data Environment, Institute of Scholars (InSc), 2020, Dr. Manjunath T N, BMS Institute of Technology and Management, Amogh Pramod Kulkarni, Presidency University, Dr. Ravindra S Hegadi, Central University of Karnataka, Prabhuram B, affiliation not provided to SSRN.
• The Concept of Privacy: Is Privacy Still a Useful Concept?, Temilola Abdul, University of Kent, Canterbury, Kent Law School.
• Going Dark or Living Forever: the Right to be Forgotten, Search Engines and Press Archives, Simon Verschaeve, Research Group Law & Technology at Ghent University.
• FakeSafe: Human Level Data Protection by Disinformation Mapping Using Cycle-Consistent Adversarial Network, Dianbo Liu, Massachusetts Institute of Technology (MIT) – MIT Computer Science and Artificial Intelligence Laboratory, He Zhu, affiliation not provided to SSRN.
• The Portability and Other Required Transfers Impact Assessment: Assessing Competition, Privacy, Cybersecurity, and Other Considerations, Peter Swire, Georgia Institute of Technology – Scheller College of Business; Georgia Tech Institute for Information Security & Privacy; Cross-Border Data Forum.
• The Right-to-Be-Forgotten Between Acculturation and Geopolitics: Developing a Different Thinking on Some Common One-Liners, Laima Jančiūtė, Independent.

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.