On Monday 2 November 2020 Nicol J will hand down judgment in the most high profile media law case of the year, Johnny Depp v News Group Newspapers. The trial was heard on heard on 7 to 10, 13 to 17, 20 to 24, 27 and 28 July 2020 and was fully covered on Inforrm.
On 29 October 2020 at a remote hearing Warby J ruled that the trial between the Duchess of Sussex and Associated Newspapers should be adjourned from January 2021 until Autumn 2021. The primary basis for the adjournment was a “confidential ground”. ANL did not object to the adjournment, but urged that any new trial date should be as soon as possible given Thomas Markle’s increasing ill health. There were pieces on The Guardian and the Press Gazette.
On 30 October, Nicklin J handed down judgment in Rayner v Seabourne-Hawkins  EWHC 2895 (QB). The Claimant alleged that the Defendant falsely accused him of sexual assault (“the First Slander”) and being investigated for interfering with young girls (“the Second Slander”). The Claimant claimed that he had a job offer at a florist shop rescinded as a result of the First Slander. On the morning of the second day of trial, the Claimant abandoned the Second Slander claim and denied that the words alleged were spoken. Nicklin J dismissed the First Slander claim, finding that the Claimant invented the allegation and sought to manufacture evidence of the lost job. He found that there was evidence that the Claimant was “out to get” the Defendant, and bringing the slander action was consistent with other vindictive behaviour displayed by the Claimant. There was a judgment commentary on Matrix Chambers’ website.
In Sheeran & Ors v Chokri & Ors  EWHC 2806 (Ch), Master Kaye held that the claimants had given an ‘inadequate’ response to Part 18 requests from defendants – first by ignoring the requests and then dismissing them as inappropriate. The judgment followed a costs and case management conference for litigation concerning Ed Sheeran’s 2017 number one hit “Shape of You”. Total costs are expected to come to £3m. The defendants allege the song infringes copyright on their own composition. Sheeran and other claimants are seeking negative declaratory relief that they had not infringed the defendants’ copyright. The defendants have counterclaimed for copyright infringement, damages, and an account of profits. There was a piece in the Law Society Gazette.
The Press Gazette had a piece “Study reveals press freedom falling off the news agenda despite worsening global picture”.
Further to announcements on the national restrictions in England, the national fire-break in Wales courts and tribunals will continue to operate within COVID-secure guidelines. The Lord Chief Justice and Senior President of Tribunals annoucement on new COVID-19 restrictions for England (1 November 2020). As an essential public service, the work of the courts and tribunals continues and there are currently no plans to change scheduled hearings. Full details on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary.
Internet and Social Media
Twitter said it had changed its policy and lifted a freeze it placed on the account of the New York Post after the newspaper published controversial articles about Joe Biden’s son, Hunter Biden.
It is the latest move in an ongoing saga that called into question the moderation policies of social media platforms. Both Twitter and Facebook took measures to limit the spread of an article published by the New York Post on 14 October, which claimed to be based on documents gleaned from an abandoned computer belonging to the Democratic candidate’s son. The Guardian had a piece.
Thousands of ads from Joe Biden’s election campaign and some from President Trump’s have been mistakenly blocked by Facebook. The social network’s policy to ban any new ads a week before election day as part of its crackdown on misinformation kicked in on Tuesday, but pre-approved ads should still run. Facebook blamed technical issues, and apologised. The BBC had a piece.
Data Privacy and Data Protection
A campaign group, Facebook You Owe Us, is to launch a representative action against Facebook for the illegal use of one million users’ data in the England and Wales following Cambridge Analytica scandal.
The ICO has fined Marriott International Inc £18.4 million for failing to keep millions of customers’ personal data secure. Marriott estimates that 339 million guest records worldwide were affected following a cyber-attack in 2014 on Starwood Hotels and Resorts Worldwide Inc. The attack, from an unknown source, remained undetected until September 2018, by which time the company had been acquired by Marriott. The ICO had a news piece.
The ICO has ordered the credit reference agency Experian Limited to make fundamental changes to how it handles people’s personal data within its direct marketing services. The enforcement notice follows a two-year investigation by the ICO into how Experian, Equifax and TransUnion used personal data within their data broking businesses for direct marketing purposes. A complaint from the campaign group Privacy International to the ICO also raised concerns about the data broking industry, specifically Equifax and Experian. There was a news on the ICO’s website.
Politico had a piece “French politicians urge deployment of surveillance technology after series of attacks”.
The Verge had a piece “Surveillance company harassed female employees using its own facial recognition technology”.
Newspapers Journalism and Regulation
The Society of Editors had a piece “SoE welcomes reports of new laws to protect journalists”.
Proposals to restrict how long foreign reporters can stay in the US could pose a threat to journalists’ livelihoods and restrict press freedom, it has been claimed. The proposal would remove the framework that allows foreign correspondents to stay in the US for as long as they comply with the terms of their “I” classification visa.
The Association of Foreign Press Correspondents in the United States (AFC-USA) also said in its response to the Department of Homeland Security’s proposals that they could put journalists from countries with poor human rights records in danger by forcing them to return home “where they risk retaliation because they’ve done critical, truthful reporting while in the States”. There was a piece on the Press Gazette.
IPSO’s Blog had a post “What is editorial discretion?”.
IPSO has published a number of rulings and resolutions statements since our last Round Up:
- 04772-19 Ward v The Daily Telegraph, 1 Accuracy (2018), No breach – after investigation
- 04771-19 Ward v The Daily Telegraph, 1 Accuracy (2018), No breach – after investigation
- 03688-19 Ward v Mail on Sunday, 1 Accuracy (2018), No breach – after investigation
Last Week in the Courts
On 27 October 2020 there was a trial of a preliminary issue in the case of Haji-Ioannou v Telegraph Media Group before Collins-Rice J.
On the same date Nicklin J heard an application in the case of Hewson v Times Newspapers. He ordered the defendant to answer to Part 18 request to clarify the way in which it intended to defend the case. There was a piece in the Law Society’s Gazette. The matter is listed for a 3 day trial commencing on 7 December 2020.
As already mentioned, on 29 October 2020 Warby J heard an application in the case of HRH Duchess of Sussex v Associated Newspapers.
On 30 October 2020 Warby J handed down judgment in the case of Gubarev v Orbis Intelligence Ltd  EWHC 2912 (QB). The trial was heard on 20 to 24 July 2020. The claim was dismissed.
On the same day Nicklin J handed down judgment in the case of Rayner v Seabourne-Hawkins  EWHC 2895 (QB). The trial was heard on 22 to 23 July 2020. This was a claim for slander which dismissed.
Media Law in Other Jurisdictions
In the case of Brien v Mrad  NSWCA 259 the Court of Appeal allowed an appeal on liability in a slander case.
In Clarke v Nursing and Midwifery Council of New South Wales  NSWDC 641 Scotting DCJ dismissed claims for libel based on an email and other matters.
The Guardian had a piece “Key federal agency cleared of intimidating FOI website Right to Know”.
In the case of Zhao v. Corus Entertainment Inc 2020 BCSC 1533 Milman J granted a motion for the summary dismissal of a number of libel actions on the basis of defences of justification and fair comment.
A local Muslim man is suing the People’s Party of Canada (PPC) and several associates after his name and image were used and branded as a “terrorist” online. Global News had a piece.
John Delaney, the former Football Association of Ireland (FAI) chief executive, has lodged High Court defamation proceedings against his ex-girlfriend, Susan Keegan. Though no statement of claim has been filed, the cause of action is listed as defamation. Under Irish law, defamation proceedings must be taken within one year of the allegedly defamatory comment being published. The Sunday Times had a piece.
On October 28, President Julius Maada Bio signed a law revising the country’s 1965 Public Order Act to remove measures that criminalized publications deemed libelous or seditious, according to news reports.
The repealed measures included multi-year prison terms and fines for convictions. Current legal cases involving those measures will still proceed unless they are withdrawn by state prosecutors. The Committee to Protect Journalists had a piece.
A federal judge rejected a U.S. government request to drop Donald Trump as a defendant in a defamation lawsuit by a writer who said the president falsely denied raping her in a Manhattan department store a quarter century ago. U.S. District Judge Lewis Kaplan in Manhattan refused to let the government substitute itself for Trump as a defendant in former Elle magazine columnist E. Jean Carroll’s lawsuit. Reuters had a piece.
Jerry Falwell Jr., who resigned as president of Liberty University in August after a sex scandal and other controversies, is now suing the evangelical school for defamation and breach of contract. Falwell Jr. is attempting to seal portions of the suit, which are redacted, because it would breach a confidentiality clause in his contract with Liberty.
Falwell’s suit emerges from a scandal that erupted this summer, after a young man in Miami went public with claims that he and Falwell Jr.’s wife had sexual liaisons for years, sometimes while the evangelical leader looked on.
Falwell Jr. acknowledged their affair in a statement, but said he was “not involved.” The CNN had a piece.
Research and Resources
- Comedy in Court: How Should the Courts Define Parodies and Humor Under UK Copyright Law? Rosie Wilson, University of Glasgow.
- AI and Data Use: Surveillance Technology and Community Disquiet in the Age of COVID-19, SMU Centre for AI & Data Governance Research Paper, Alicia Wee, Singapore Management University – Centre for AI & Data Governance, Mark Findlay, Singapore Management University – School of Law; Singapore Management University – Centre for AI & Data Governance.
- Democratizing Platform Privacy, Fordham Intellectual Property, Media & Entertainment Law Journal, Forthcoming, Sari Mazzurco, Yale Information Society Project; Yale University, Law School.
- What is Known from a Network?: Digital Contact Tracing, Privacy, and Pandemics in the Digital Age, COVID-19 Response Working Paper Series, Kelsie Nabben, RMIT University – Blockchain Innovation Hub; Digital Ethnography Research Centre, Marta Poblet, RMIT University, Jan Carlo Barca, Deakin University.
- Secrets and Likes: The Drive for Privacy and the Difficulty of Achieving It in the Digital Age, Acquisti, Alessandro, Brandimarte, Laura, and Loewenstein, George, ‘Secrets and Likes: The Drive for Privacy and the Difficulty of Achieving It in the Digital Age’. Journal of Consumer Psychology (Forthcoming), Alessandro Acquisti, Carnegie Mellon University – H. John Heinz III School of Public Policy and Management, Laura Brandimarte, Carnegie Mellon University – H. John Heinz III School of Public Policy and Management, George Loewenstein, Carnegie Mellon University – Department of Social and Decision Sciences.
- Pandemic Tech Utopias and Capitalist Surveillance Cultures: The Case of Privacy-Preserving Contact-Tracing Apps, Monique Mann, Queensland University of Technology – Faculty of Law, Peta Mitchell, Queensland University of Technology – Digital Media Research Centre, Marcus Foth, Queensland University of Technology (QUT), Irina Anastasiu, Queensland University of Technology.
- Right to Privacy in India: Remedies against Unauthorised Publication of Photographs, Pankhuri Agarwal
- Right to Privacy in Digital Era, Kamshad Mohsin, Delhi High Court; Galgotias University, Zainab Zaya Khan, Independent.
- Privacy Provision, Payment Latency, and Role of Collateral, IMF Working Paper No. 20/148, Charles Kahn , University of Illinois at Urbana-Champaign, Caitlin Long, Avanti Bank, Manmohan Singh, International Monetary Fund (IMF).
Next Week in the Courts
As already mentioned, Nicol J will hand down judgment in the case of Depp v NGN at 10.00 on 2 November 2020.
On 2 November 2020 the trial in the privacy case of Sicri v Associated Newspapers will begin before Warby J. The trial is listed for 5 days.
On the same day, Collins-Rice J will hand down judgment in the case of Haji-Ioannou v Telegraph Media Group Ltd.
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)
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.