Law and Media Round Up – 25 January 2021

On 19 and 20 January 2021 Warby J heard the summary judgment application brought by the Duchess of Sussex in her case against Associated Newspapers (“ANL”). It is the Duchess’ case that ANL has “no prospect” of defending the claim, and If successful in her application, she could see the case resolved without a trial.

The Duchess is seeking damages from ANL for alleged misuse of private information, copyright infringement and breach of data protection over a series of articles which reproduced parts of the handwritten letter she sent to her father in August 2018.  Warby J reserved judgment, saying that he intended to circulate a judgment in draft in 2 weeks. There was an Inforrm piece by Brian Cathcart on the hearing.  There were also articles on the Press Gazette and the BBC.

Google has threatened to remove its search engine from Australia and Facebook has threatened to remove news from its feed for all Australian users if a code forcing the companies to negotiate payments to news media companies goes ahead. The Guardian and the BBC had pieces. Google vice president Vint Cerf said the proposed laws fundamentally threaten the existence of a free and open internet.

Scottish Legal News has an interview with BBC Scotland legal director Rosalind McInnes on her life in the law.

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

Internet and Social Media

Facebook removed UK-based news aggregator NewsNow’s page without any explanation or warning. After restoring the page, a Facebook spokesperson said: “The page was removed in error… We’re in touch with NewsNow also to apologise.” The Press Gazette had a piece.

Italian prosecutors have opened an investigation into the accidental death of a 10-year-old girl who allegedly took part in a “blackout challenge” on the video-sharing network TikTok. The probe came as Italy announced it had temporarily blocked access to TikTok for users whose age could not be proved definitively. According to TikTok’s terms and conditions, users must be at least 13 years old. The Guardian had a piece.

Facebook’s oversight board set up to have a final say on the social network’s moderation decisions, will rule on the decision to suspend Donald Trump’s account, Nick Clegg has said. The referral will see the board, which is made up of more than 30 luminaries from around the world, decide whether Facebook’s policies were correctly applied, and whether those policies respect international human rights standards more broadly. The Guardian had a piece.

Data Privacy and Data Protection

On 21 January the Department for International Trade published a Guidance “Freedom of information and subject access request privacy notice”.

The ICO’s website had a post “Blog: Maintaining data flows for a digital world”.

Mishcon de Reya Data Matters had a piece “The EU/UK Trade and Co-operation Agreement: Digital Trade”.

The Panopticon blog had a post “Overseas websites and the GDPR’s reach”.

Surveillance

The Press Gazette had a piece “Independent’s man in Russia fears Covid-19 surveillance will make investigative journalism harder”.

Newspapers Journalism and Regulation

IPSO had a piece “Response to “The Fake News Ferret” Hacked Off report”

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

• 28437-20 Wimborne-Idrissi v thejc.com, 1 Accuracy (2019), 3 Harassment (2019), 12 Discrimination (2019), No breach – after investigation.
• 28341-20 Carroll v The Times, Relevant code provisions, 1 Accuracy (2019), No breach – after investigation.
• 25169-20 Mote Medical Practice v kentonline.co.uk, Relevant code provisions, 1 Accuracy (2019), Breach – sanction: publication of correction.
• 15682-20 Bride v Milton Keynes Citizen, Relevant code provisions, 1 Accuracy (2019), Breach – sanction: publication of correction.
• 12355-20 Coleman v The Spectator, 1 Accuracy (2019), Breach – sanction: publication of correction.
• 04851-20 Taylor v Sunday Life, Relevant code provisions, 1 Accuracy (2019), No breach – after investigation.
• 04851-20 Taylor v Sunday Life, Relevant code provisions, 1 Accuracy (2019), No breach – after investigation.
• 04849-20 A Woman v Yorkshire Evening Post, Relevant code provisions, 1 Accuracy (2019), 2 Privacy (2019), 3 Harassment (2019), Breach – sanction: publication of adjudication

Media Law in Other Jurisdictions

Australia

The Guardian reports that New South Wales and South Australia have intervened in a high court case in defence of Australia’s foreign interference laws, which are being challenged by a political staffer accused of acting on behalf of China.

Canada

In the case of Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 the Ontario Court of Appeal ruled that a defamation claim by Subway against Canada’s public broadcaster CBC over a report on the chain’s chicken sandwiches, was not frivolous and can proceed.  The Court said that “allowing this action to proceed to a determination on the merits gives appropriate weight to the public interest in seeing harm arising from defamatory statements remedied and the public interest in protecting the type of expression in which CBC engaged.”

The judgment in Giustra v Twitter, Inc., 2021 BCSC 54 is now available on Canlii.

India

The Committee to Protect Journalists has issued an alert that authorities in the state of Gujarat should drop their arrest warrant for journalist Paranjoy Guha Thakurta, and the Adani Group conglomerate should stop trying to intimidate journalists with legal harassment.

Thailand

The Thai government has filed a royal defamation complaint against one of its most high-profile critics after he questioned the involvement of a company with links to the monarchy in the nation’s vaccine production. Bloomberg had a piece.

United States

Texas Supreme Court ruled that four lawsuits accusing Alex Jones (founder of InfoWars talk show) of defamation based on wild conspiracy theories he spread after the 2012 massacre at Sandy Hook Elementary School will be allowed to move forward. Forbes had a piece.

The University of Miami website has a piece: Reforming Section 230: Is the internet free for all or a free-for-all?

Statements in Open Court

On 22 January 2021 there was a statement in open court in the case of Misra & Raja v Associated Newspapers Ltd before Warby J.

New Claims

Thirteen new claims were issued in the Media and Communications List this week: one libel claim against a national newspaper (Fredson v MGN), five “non-media” libel cases, two misuse of private information cases against Channel 5 Broadcasting, three data protection cases and two harassment cases.

Last Week in the Courts

As already mentioned, on 19 and 20 January 2021 Warby J heard an application for summary judgment in the case of Duchess of Sussex v Associated Newspapers.  Judgment was reserved.

On 20 January Collins Rice J handed down judgment in Riley v Sivier [2021] EWHC 79 (QB), striking out Mr Sivier’s defence of truth, honest opinion and publication on a matter of public interest in relation to the comments, but it was struck out. There was news piece on the 5RB website and articles in on Staylegal and the Jewish Chronicle.

On 22 January 2021 there was an application in the case of Prokhorova v Pfister & ors before Nicklin J.

Research and Resources

• In Tech We Trust? Fixing the CJEU’s Evolutionary Interpretation of the Prohibition of General Monitoring Obligations in the Era of Automated Content Moderation, Valentina Golunova, Maastricht University.
• Surveil, Trace, Repeat: Immunity Passports and Contact Tracing Surveillance, Ignacio Cofone, McGill University Faculty of Law.
• Humans and Technology for Inclusive Privacy and Security, In Proceedings of the Human Factors and Ergonomics Society Annual Meeting, October 2020, Online. , Sanchari Das, University of Denver, Robert S. Gutzwiller, Arizona State University (ASU)Rod Roscoe Arizona State University (ASU), Prashanth Rajivan, University of Washington, Yang Wang, University of California, Irvine – Department of Informatics, L. Jean Camp, Indiana University Bloomington – School of Informatics and Computing, Roberto Hoyle, Oberlin College.
• Understanding the Rise of Twitter-Based Cyberbullying Due to COVID-19 through Comprehensive Statistical Evaluation, In Proceedings of the 54th Hawaii International Conference on System Sciences. 2021, Maui, Hawaii (Virtual)., Sayar Karmakar, University of Florida, Sanchari Das, University of Denver.
• Examining National Privacy Laws in the Context of International Trade, Caitlin Chin, Georgetown University – Georgetown University, Students.
• Monitoring, Datafication and Consent: Legal Approaches to Privacy in the Big Data Context in Privacy, Big Data and the Public Good: Frameworks for Engagement (J. Lane, V. Stodden, S. Bender and H. Nissenbaum, eds.), Ch. 1, pp. 5-43 (Cambridge Univ. Press 2014), Katherine J. Strandburg, New York University School of Law.
• SYMPOSIUM: The California Consumer Privacy Act, Loyola of Los Angeles Law Review, Vol. 54, 2021, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2021-01, Justin Hughes, Loyola Law School Los Angeles, Margot E. Kaminski, University of Colorado Law School; Yale University – Yale Information Society Project; Yale University – Law School; University of Colorado at Boulder – Silicon Flatirons Center for Law, Technology, and Entrepreneurship, Jake Snow, ACLU of Northern California, Felix T. Wu, Yeshiva University – Benjamin N. Cardozo School of Law.
• United States v. Google – Implications of the Antitrust Lawsuit for Health Information, Gregory Curfman, American Medical Association

The following reserved judgments after public hearing in media law cases are outstanding:

B.C.Strategy UK Ltd v Keshet Broadcasting Ltd heard 17 November 2020  (Saini J).

Tinkler v Ferguson, heard 16 December 2020 (McCombe, Peter Jackson and Dingemans LJJ).

Duchess of Sussex v Associated Newspapers, heard 19 and 20 January 2021 (Warby J).

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.