On 11 February Lord Justice Warby handed down judgment on the summary judgment application in the case of HRH Duchess of Sussex v Associated Newspapers Ltd  EWHC 273 (Ch). The judge ruled that the publication of the Duchess’s letter to her father by the Mail on Sunday was “manifestly excessive and hence unlawful” and that “there is no prospect that a different judgment would be reached after a trial”.
On the copyright claim the Judge said an electronic draft of the letter “would inevitably be held to be the product of intellectual creativity sufficient to render it original in the relevant sense and to confer copyright on its author or authors”. He also found that the MoS’s articles “copied a large and important proportion of the work’s original literary content”. He held that the issue of whether the Duchess was “the sole author” or whether Jason Knauf, formerly communications secretary to the Duke and Duchess, was a “co-author” should be determined at a hearing, despite being something “of minor significance in the overall context”. A further hearing is scheduled for 2 March to deal with all consequential matters including costs.
A spokesperson for Associated Newspapers said:
“We are very surprised by today’s summary judgment and disappointed at being denied the chance to have all the evidence heard and tested in open court at a full trial. We are carefully considering the judgment’s contents and will decide in due course whether to lodge an appeal.”
Hacked Off had a press release “Summary judgment issued in Duchess of Sussex v The Mail (Associated Newspapers)”.
The chief executive of the Competition and Markets Authority has admitted regulators such as his in the UK and others around the world “struggled to stay ahead of the curve” and keep up with the tech giants. In April the UK Government will launch a new competition regime, the Digital Markets Unit, within the CMA to rein in the dominance and power of platforms such as Google and Facebook, rebalancing the relationship between the tech giants and news publishers. The Press Gazette had a piece.
The US government has appealed a UK judge’s ruling against the extradition of the WikiLeaks co-founder Julian Assange, according to a justice department official. The appeal made clear that Joe Biden intends to have Assange stand trial on espionage- and hacking-related charges over WikiLeaks’ publication of hundreds of thousands of US military and diplomatic documents. The Guardian had a piece.
As usual, updates on the Coronavirus guidance can be found on the Courts and Tribunal Judiciary.
Internet and Social Media
The Google News Showcase programme to pay publishers for content has launched in the UK, two weeks after a similar project went live at Facebook. The Press Gazette had a piece.
Microsoft is calling for the US and the EU to follow Australia in introducing rules that require technology companies to share revenue with news organisations and support journalism. The company, which stood against Facebook and Google in supporting the proposal, argues that it is necessary to impose such a levy to create a level playing field between large tech firms and independent media organisations. The Guardian had a piece.
The Society of Editors had a piece “Facebook steps up crackdown on vaccine misinformation”.
Data Privacy and Data Protection
The ICO had a post “Safer Internet Day 2021”.
The Information Commissioner’s Office (ICO) has issued fines totalling £270,000 to two separate companies for making unlawful marketing calls to numbers registered with the Telephone Preference Service (TPS).
The Panopticon blog had a post “Leave it out: marketing content in non-marketing emails”
DLA Piper Privacy Matters had a post “Will this recent High Court decision reduce the number of group-litigation claims?”.
Computer Weekly had a piece “UK border surveillance regime highly privatised, says Privacy International”.
Sky News had a piece “Denmark to boost defence of Arctic using drones for surveillance”.
Newspapers Journalism and Regulation
More than a dozen current and former national newspaper editors have signed an openDemocracy public letter calling for MPs to urgently investigate the British government’s handling of Freedom of Information (FOI) requests. The Press Gazette reported on this.
The Press Gazette had a piece “China bans BBC World News TV channel in response to Ofcom ban on China Global TV”.
IPSO has published a number of rulings and resolutions statements since our last Round Up:
- 28800-20 de Waal, Tabor and Runcie v The Daily Telegraph, 1 Accuracy (2019), 2 Privacy (2019), Resolved – IPSO mediation
- 02356-19, 00230-20 Sharp v dailyrecord.co.uk, 1 Accuracy (2018), 2 Privacy (2018), 3 Harassment (2018), 12 Discrimination (2018), Breach – sanction: action as offered by publication
- 00231-20 Sharp v mirror.co.uk, 1 Accuracy (2019), 3 Harassment (2019), 2 Privacy (2019), Breach – sanction: action as offered by publication
- 01701-20 Bythell v Sunday Mail, 1 Accuracy (2019), Breach – sanction: publication of adjudication
Seven new claims were issued in the Media and Communications List this week, three were libel claims and four were data protection cases.
Last Week in the Courts
On 9 February 2021 Steyn J handed down judgment in the case of Kim v Lee  EWHC 231 (QB) (heard 26 January 2021).
As already mentioned, on 11 February 2021 Warby LJ handed down judgment in the case of Duchess of Sussex v Associated Newspapers (heard 19 and 20 January 2021).
On the same day HHJ Lewis handed down a judgment in the case of Gilham v Mirror Group Newspapers & anr.
On 10 February 2021 Nicklin J heard an application in the case of BHX v GRX
Media Law in Other Jurisdictions
In the case of Ogbonna v. CTI Logistics Ltd  WASCA 25 the Court of Appeal dismissed an appeal against an award of defamation damages on summary judgment.
The news media code that would require Google and Facebook to negotiate with news outlets for payment for content is set to be debated in parliament after a Senate committee endorsed the legislation without pushing for any amendments. The Coalition-majority Senate committee report, noted “concerns raised by various submitters and witnesses” over the operation of the code, but ultimately found the legislation would “deliver on its intended outcomes”. The Guardian had a piece.
The New York Times had a piece “Woman Accused of Defaming Dozens Online Is Arrested”.
The Calgary Herald had a piece “Calgary businessman sues Nenshi for defamation for allegedly suggesting he’s a gangster”.
In the case of Hategan v. Farber, 2021 ONSC 874 Ferguson J granted summary judgment in a defamation case, with general damages of $100,000 and aggravated and punitive damages of a further $100,000.
AP News reports that the Supreme Court has asked the Government and Twitter to respond to a petition which seeks greater regulation of content on social media.
The Guardian had a piece “Facebook moderators ‘told not to discuss working conditions’”.
The heirs of murdered journalist Daphne Caruana Galizia have been ordered to pay the former head of Malta’s 2015 CHOGM task force, Phyllis Muscat, €750 in moral damages over a defamatory blog post. Times of Malta had a piece.
The Jewish Chronicle had a piece “Polish court libel verdict condemned by Holocaust scholars”.
Russian opposition leader Alexey Navalny has appeared in a Moscow court facing charges of insulting a World War II veteran, after being ordered to prison in a separate case that sparked global outrage and mass protests in Russia. Aljazeera had a piece.
Fox News Media former and current hosts Lou Dobbs, Maria Bartiromo and Jeanine Pirro asked a court to dismiss a defamation lawsuit by voting-machine company Smartmatic USA Corp., arguing their coverage of President Trump’s claims the 2020 election was rigged was protected by the First Amendment. The motions to dismiss the $2.7 billion lawsuit follow a similar move by Fox Corp.’s Fox News, which is also a defendant. The suit, filed in a New York court, alleges that Fox and its hosts knowingly allowed false statements on the network’s programs about the reliability of Smartmatic technology. Each of the hosts argued that claims by Mr. Trump and his lawyers were newsworthy. The Wall Street Journal had a piece.
Research and Resources
- Artificial Intelligence and Sensitive Inferences: New Challenges for Data Protection Laws, Mark Findlay, Jolyon Ford, Josephine Seoh and Dilan Thampapillai (eds.), Regulatory Insights on Artificial Intelligence: Research for Policy (Edward Elgar, 2021), Damian Clifford, Australian National University College of Law, Megan Richardson, University of Melbourne – Law School, Normann Witzleb, Monash University – Faculty of Law.
- The Ethics of Facial Recognition Technology, Forthcoming in The Oxford Handbook of Digital Ethics ed. Carissa Véliz., Evan Selinger, Rochester Institute of Technology – Department of Philosophy, Brenda Leong.
- Big Boss is Watching You! The Right to Privacy of Employees in the Context of Workplace Surveillance, Fidan Abdurrahimli, Faculty of Law, Lund University.
- The Posthumous Privacy Paradox: Privacy preferences and Behavior Regarding Digital Remains, New Media & Society, (November 2020). https://doi.org/10.1177/1461444820974955, Tal Morse, Hadassah Academic College, Michael Birnhack, Tel Aviv University – Buchmann Faculty of Law.
- The Digital City: Critical Dimensions in Implementing the Smart City, Tali Hatuka, Department of Geography and Human Environment at Tel Aviv University, Eran Toch, Tel Aviv University – Department of Industrial Engineering, Michael Birnhack, Tel Aviv University – Buchmann Faculty of Law, Hadas Zur, Department of Geography and Human Environment at Tel Aviv University.
- Privacy and Data Protection: Solving or Reproducing the Democratic Crisis of the Neoliberal Capitalism? Wanshu Cong, European University Institute – Department of Law (LAW); McGill University – Faculty of Law.
- The Schengen-Wide Entry Ban: How Are Non-Citizens’ Personal Data Protected? Journal of Ethnic and Migration Studies 2020, Izabella Majcher, European Council on Refugees and Exiles; Graduate Institute of International and Development Studies (IHEID).
- Deepfake Privacy: Attitudes and Regulation, Northwestern Public Law Research Paper No. 21-04, Matthew B. Kugler, Northwestern University – Pritzker School of Law, Carly Pace.
Next Week In the Courts
On 16 and 17 February 2021 there will be a hearing in the case of Wright v McCormack.
On 18 February 2021 there will be a trial of preliminary issue on meaning, fact or opinion and whether the words are defamatory in the case of Ware v French.
The following reserved judgment after a public hearing is outstanding:
Spicer v Commissioner of Police for the Metropolis, heard 1 to 5 February 2021 (Julian Knowles 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.