People in England who have been told to self-isolate through NHS Test and Trace could have their details shared with the police on a “case-by-case basis” to enable them to enforce self-isolation laws. There were reports on the BBC website and in the Independent.
Meanwhile, the Government has admitted that the system was launched without a data protection impact assessment having been conducted, thus rendering its operation unlawful. The Open Rights Group has a piece “Demand Privacy Protections for Test and Trace”.
Byline Investigates has a piece about a decision in the Mirror Phone Hacking litigation last week, “Piers Morgan’s Disputed Evidence to Leveson Inquiry to Face Full Courtroom Test”.
The Metro has a piece entitled “A timeline of everything that has happened between Coleen Rooney and Rebekah Vardy in the year since ‘It’s……… Rebekah Vardy’s account’” setting out the history of the various press reports concerning this high profile libel action.
The Press Gazette had a piece “Max Mosley sues Daily Mail for ‘malicious prosecution’ after it shared racist election leaflet with CPS”.
On 13 October 2020 the Press Gazette had a piece on Ofcom upholding a complaint against Newsnight over the broadcast of images which appeared to show the murdered journalist Lyra McKee in her dying moments. The BBC programme showed mobile phone footage which focused on her as she lay on the ground. Ms McKee, 29, was shot dead by dissident republicans in Londonderry in April 2019 as she observed rioting in the Creggan area of the city. Nichola Corner, her sister, complained to Ofcom that Ms McKee’s privacy had been infringed. Ofcom said in its ruling:
“Ms McKee had a legitimate expectation of privacy in relation to the broadcast of the footage of her in her dying moments, even though she was largely obscured and there was no close-up detail of her shown, and that the broadcast represented a very significant intrusion into her privacy”.
Responding to the Department for Digital, Culture, Media and Sport (DCMS) committee’s report into Misinformation in the Covid-19 Infodemic, the government said that it recognised the vital role of newspapers in supporting communities and isolated individuals and reiterated its intention to protect freedom of expression amid taking action to address misinformation online. The Society of Editors had a piece.
On 14 October 2020, there were discussions in the House of Commons about the increase of online abuse, soon after a survey of regional journalists found more than 80% feel the problem has got “significantly worse” since the start of their careers. Guardian columnist Owen Jones agreed and advised journalists targeted by online abuse to “take it seriously” after he saw for himself how it can trickle into real life. In August 2019, Jones was attacked outside a London pub while celebrating his birthday. Jailing the ringleader for two years and eight months, the judge ruled the attack was “wholly unprovoked… by reason of [Jones’] widely published left-wing and LGBTQ beliefs by a man who has demonstrable right-wing sympathies”. The Press Gazette had a piece.
The IPKat blog has two pieces about lawyers and confidentiality “When you are a lawyer, what is confidential about a confidential settelement”? and “What’s a fiduciary duty got to do with it? Lawyers, successive parties, and confidentiality”
As usual, updates on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary.
Internet and Social Media
Google News Initiative has announced a suite of tools that use technology to help reporters do their work more efficiently when working with data. The Journalist Studio contains tools such as Pinpoint – an alternative to “Ctrl + F” – which uses AI to help reporters quickly go through thousands of documents by automatically identifying and organising the most frequently mentioned people, organisations, and locations. The Society of Editors had a piece.
The CMA said it had investigated the issue of “hidden advertising” and was concerned that the Facebook-owned platform Instagram was not doing enough to tackle the problem In response Facebook Ireland, said it had committed to a package of measures including prompting users to clearly disclose if a post has been paid for, and putting in place systems to spot posts for which this has not been done. Clear labelling of incentivised posts is required under UK consumer protection law, so that people are not misled. There was a piece on The Guardian and Reuters.
Data Privacy and Data Protection
The Information Commissioner’s Office (ICO) has fined British Airways (BA) £20m for failing to protect the personal and financial details of more than 400,000 of its customers. An ICO investigation found the airline was processing a significant amount of personal data without adequate security measures in place. This failure broke data protection law and, subsequently, BA was the subject of a cyber-attack during 2018, which it did not detect for more than two months. The ICO’s website had a news.
Forbes had a piece “U.K. Privacy Watchdog Hits British Airways With Record-Breaking £20 Million GDPR Fine”.
The ICO had a piece “Engagement key in protecting people’s privacy across the UK during the pandemic”.
Norton Rose Fulbright Data Protection Report had a post “Apple’s New Privacy Requirement: The Impact and the Solution”.
Wired had a piece “Universities are using surveillance software to spy on students”.
Newspapers Journalism and Regulation
IPSO published its 2019 Annual report.
IPSO has published a number of rulings and resolutions statements since our last Round Up:
- 01293-20 Garner v Mail Online, 4 Intrusion into grief or shock (2019), No breach – after investigation
- 00996-20 A Woman v thesun.co.uk, 1 Accuracy (2019), 2 Privacy (2019), No breach – after investigation
Last Week in the Courts
On 12 October 2020 there was a CMC in MTVIL, the phone hacking litigation against News Group Newspapers, Various Claimants v News Group Newspapers. There was also a statement in open court in the case of Michael Turner v News Group Newspapers Limited.
On 13 October 2020 there was a statement in open court in the case of Warnes v Forge before Warby J.
On 14 to 16 October 2020 Saini J heard an application to set aside service out in the case of Qatar Airways v Middle East News. Judgment was reserved.
On 15 October 2020 the Court of Appeal (Moylan, Singh and Popplewell LJJ) heard the appeal in the “bitcoin” case of Wright v Granath. Judgment was reserved.
Media Law in Other Jurisdictions
In the case of Nine Network Australia Pty Ltd & Ors v Wagner & Ors  QCA 221 the Supreme Court of Queensland dismissed the defendant’s appeal against an award of $3,6 m defamation damages to a wealthy Queensland family defamed in a report about the fatal Grantham floods in 2011. There was a report on the 7news website.
Commonwealth prosecutors have declined to charge the ABC journalist Dan Oakes over his reporting of alleged war crimes by Australian special forces in Afghanistan. In a statement, the Australian federal police said although commonwealth prosecutors advised there were “reasonable prospects” of convictions in relation to two charges, they had decided not to prosecute due to “public interest” considerations. The Guardian had a piece.
In June 2020, the Daily Mail reported broadcaster Erin Molan seemingly mocked the names of Pacific Islander NRL players on The Continuous Call Team radio show. A follow-up article said Molan described the phrase as an “in-joke” and refused to apologise. Erin Molan launched defamation proceedings seeking aggravated damages over articles and tweets she says implied she is racist, callous and arrogant. According to Molan’s statement of claim, she never said her comment was an “in-joke”, did not refuse to apologise, and was not given sufficient opportunity to respond. The Daily Mail filed a 61-page defence in the Federal Court admitting the imputations Molan complains of and seeking to establish they are “substantially true”. In doing so, it has dug up and filed more than 20 examples from 2017 to 2020 of the show’s hosts doing impressions of accents and joking about the pronunciation of players’ names. There was a piece on the Sydney Morning Herald.
Consortium News has sued the Canadian TV network Global News for defamation in federal court in Virginia over a report that said CN was part of an “attack” and a “cyber influence” campaign “directed” by Moscow against a Canadian leader. Consortium News had a piece.
In the case of Khaiyum v Nawaikula  FJHC 823 the High Court of Fiji dismissed a libel claim against an opposition MP brought by the Chief Executive of the Fijian Broadcasting Corporation. The High court ruled that the defendant’s statements were not defamatory and declined FBC’s claims for damages and loss of business revenue and profits. There was a report on the RNZ website.
MSPs have backed the general principles of the Scottish Government’s Defamation and Malicious Publication Bill, which reforms defamation law in Scotland. The proposed new legislation includes a definition of what defamation is and introduces a new threshold of causing ‘serious harm’. Holyrood had a piece. The Sunday Times had a piece “MSPs support looser law on defamation”.
It is reported that the Pretoria law firm, Cawood Attorneys, has won a case against Facebook in relation to defamatory posts attacking the firms honesty and integrity.
Times of India had a piece “What is Thailand’s ‘section 112’ royal defamation law?”.
In the case of Re: Gaaays In Spaaace v. John Does (1-10) et al., 2020 WL 6042289 (D.N.J. October 13, 2020) the Court made an order allowing expedited discovery against an internet service provider to obtain the IP address used to hack the plaintiff’s system. There was a comment on the case on Evan Brown’s blog.
It is reported that the Florida State Appeals Court has upheld a decision requiring CNN to provide copies of emails and text messages as the network fights a lawsuit filed by a physician who contends he was defamed in news reports about a pediatric heart-surgery program at St. Mary’s Medical Center in West Palm Beach.
Dr. Terry Dubrow, star of TV show “Botchedsued a former patient’s lawyer for defamation after the attorney claimed that the woman had been “Botched by Botched,” according to new court documents. In the filing, Dubrow claimed that lawyer Stephen Le Brocq, who is representing his ex-buttock lift patient Sandy Scoggins, used the media to make false statements against him to garner sympathy for his client, who alleges she nearly died under Dubrow’s care in 2019. Page six had a piece.
Research and Resources
- “The History of Defamation Law: Unjumbling a Tangled Web”, T F Bathurst, Chief Justice of New South Wales.
- Slicing Defamation by Contract, Chicago Law Review Online, 2020, Yonathan A. Arbel, University of Alabama – School of Law.
- Surveillance and Cyber Operations, Research Handbook on Extraterritorial Human Rights Obligations, Mark Gibney et al. eds., Routledge, Forthcoming, Marko Milanovic, University of Nottingham School of Law.
- Catch Me if You Can: CJEU Safeguards the Privacy of Online Copyright Infringers in Landmark Decision Constantin Film Verleih v YouTube, Medialaws Rivista di Diritto dei Media 3/2020, Forthcoming, Giulia Priora, Scuola Superiore Sant’Anna di Pisa.
- Information Privacy Behavior in the Use of Facebook Apps: A Personality-Based Vulnerability Assessment, Heliyon, vol. 6(8), Article: e04714 (open access), 2020, Karl van der Schyff, Rhodes University, Stephen Flowerday, Rhodes University, Paul Benjamin Lowry, Virginia Polytechnic Institute & State University – Pamplin College of Business.
- Another Push for an Australian Privacy Tort: Context, Evaluation and Prospects, (2020) 94 Australian Law Journal 765, Normann Witzleb, Monash University – Faculty of Law.
- Privacy-Preserving Personalized Revenue Management, HEC Paris Research Paper No. MOSI-2020-1391, Yanzhe (Murray) Lei, Queen’s University – Smith School of Business, Sentao Miao, McGill University – Desautels Faculty of Management, Ruslan Momot, HEC Paris.
- What a Hybrid Legal-Technical Analysis Teaches Us About Privacy Regulation: The Case of Singling Out, Micah Altman, Center for Research in Equitable and Open Scholarship, Aloni Cohen, Boston University – Hariri Institute for Computing, School of Law, Kobbi Nissim, Georgetown University – Department of Computer Science, Alexandra Wood, Harvard University – Berkman Klein Center for Internet & Society.
- Repairing the Tax Privacy Rules, George K. Yin, University of Virginia School of Law.
Next Week in the Courts
We are not aware of any media law cases listed this week.
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)
Ward v Associated Newspapers, heard 5 October 2020 (Nicklin J)
Onwude v Dyer, heard 6-8 October 2020 (HHJ Parkes QC)
Qatar Airways v Middle East News, heard 14 to 16 October 2020 (Saini J)
Wright v Granath, heard 15 October 2020 (Moylan, Singh and Popplewell LJJ)
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.