On Monday 11 October 2021, the Labour Party named Seumas Milne, Karie Murphy, Georgie Robertson, Laura Murray and Harry Hayball as the individuals responsible for leaking the report entitled “The work of the Labour Party’s Governance and Legal Unit in relation to antisemitism, 2014-2019.” The individuals continue to deny any involvement or complicity in the leak whatsoever.
English Defence League founder Tommy Robinson has been given a five-year stalking protection order after he shouted abuse outside the home of a journalist and threatened to repeatedly return to her address.
Internet and Social Media
The repercussions of the disclosures of whistleblower, Frances Haugen, as to what Facebook knows precisely how and to what extent its platform causes harm to its users coninue. The Wall Street Journal has released a series of reports, dubbed the Facebook Files, that detail internal documents, Facebook employees’ testimonies and company practices to identify the platform’s ill effects. In response to these revelations, the LSE Media Law Blog has published an article asking if the UK’s proposed Online Safety Bill missed the regulatory target. Defining harm as individual harm, for example, fails to capture the many harms that online providers cause which are exercised at a societal level. Inforrm had a pieces responding to Haugen’s revelations here and here.
Priti Patel has announced that she is considering banning anonymous social media accounts in an attempt to tackle the “relentless” abuse of MPs online. The announcement follows the tragic murder of MP Sir David Amess on 15 October 2021. Patel indicated she is considering requiring sites like Facebook and Twitter to retain details of the identities of people posting material which could be handed over to police investigating crimes. Diane Abbott, who receives more online abuse than any other MP, has given her support to legislation that would force tech giants to reveal the identity of those who peddle hate on their platforms. Matt Warman, former digital minister, had a similar message for The Telegraph.
Evan Brown’s Blog has considered how we attribute value to non fungible tokens (“NFTs”) by demarcating how we ascribe value to things that physically exist and those that exist intangibly. Ultimately, Evan’s concludes NFT’s value is in their uniqueness, and their “abstractly intriguing” creation.
Art, Music and Copyright
The award-winning Irish author Sally Rooney (Normal People) has refused an offer to translate her new book, Beautiful World, Where Are You into Hebrew in solidarity with the cultural boycott of Israel because of the country’s treatment of Palestine. Rooney has come under criticism online, in part because her novels are available in Cantonese despite the Chinese government’s treatment of the Uighurs. It is unclear, however, whether Chinese publishing houses secured the rights to re-publish the novel from Rooney.
Data Privacy and Data Protection
The HawkTalk Blog has analysed the proposals in the DCMS consultation document, Data: a new direction, to change the “legitimate interests” in Article 6(1)(f) of the GDPR so that the controller’s legitimate interests always prevails in a limited number of pre-defined circumstances. The DCMS states that many controllers have found the balancing test difficult to perform, but this criticism appears to be based on a misunderstanding of the current law, which is already tipped in favour of the controller.
The Panopticon Blog has a piece “Reforming UK data protection laws – the ICO responds” by Anya Proops QC.
The Financial Times has published an article analysing how Apple’s changed privacy terms have obstructed rivals like Facebook from targeting adverts on Apple users, and the extraordinary benefit this has brought to Apple’s own in-house advertising business.
The EU proposals for the Network and Information Systems (NIS) Directive would create a reinforced, GDPR-compliant form of Whois – the old system that showed, inter alia, who owned a given web domain name, listing name, and what street address it was registered to. Article 23 of the draft NIS Directive states that “Member States shall ensure that the TLD registries and the entities providing domain name registration services for the TLD publish, without undue delay after the registration of a domain name, domain registration data which are not personal data.” Chad Anderson, a senior security researcher for threat intel firm DomainTools, told The Register that the proposed NIS Directive will have no impact on whistleblowers and leak sites designed to protect anonymity.
Freedom of Information
The Panopticon Blog has a piece “FOIA and security bodies: running sections 23 and 24 together” concerning the recent judgment in the case of FCDO v IC, Williams and Others  UKUT 248 (AAC)
The non-profit group The Citizens, along with tech advocacy group Foxglove Legal, have been given permission to challenge the decision to refuse multiple information requests about the use of messaging apps Whatsapp and Signal by government ministers. The matter will proceed for a full judicial review. The court heard allegations that the Cabinet told ministers and officials to delete messages at the end of every conversation. This would violate the Public Records Act 1958, which requires such communications to be kept in case they are needed in the public interest
Newspaper Journalism and Regulation
Hacked Off has criticised IPSO for taking nine months to reach a decision on a simple and highly distressing breach of the Editors’ Code protections for children. A Man v Isle of Wight County Press dealt with an uncorroborated allegation of horrendous domestic abuse, which was entirely baseless and proved significantly distressing for the man and children involved. Hacked Off concludes the article with a call to reform or replace IPSO with an independent regulator so that such wrongdoing is avoided in the future.
The Press Gazette has an opinion piece reflecting on the Australian Government’s Media Code, six-months after the government managed to corral Google and Facebook through legislative reform.
IPSO has published one ruling since our last Round Up:
- 02862-21 Castleford Farm v Daily Mirror, 1 Accuracy (2021), Breach – sanction: action as offered by publication.
Statements in Open Court and Apologies
On 13 October 2021, Mail Online (Associated Newspapers Ltd.) accepted that they invaded the privacy of Delta Bell Shepard, daughter of Hollywood actors Kristen Bell and Dax Shepard, when they published a photograph of the Claimant last year when she was on a walk with her parents. Associated Newspapers also agreed to pay the Claimant’s legal costs and undertook to limit the publications of photos of the Claimant or her siblings. 5RB’s summary can be found here, and Press Gazette’s here. The full statement can be found here.
News anchor Reham Khan apologised to PTI leader Zulfi Bukhari and agreed to pay damages to settle the defamation claim. Khan had made several assertions on social media in December 2019 about Bukhari’s involvement in a “corrupt plan” to sell and reacquire the Roosevelt Hotel, New York, for profit. On 15 October 2021, Khan apologised on Twitter, the same platform from which she made the original allegations, saying that the allegations were “false and untrue.”
New Issued Cases
There were 6 new cases issued in the Media and Communications List between 11 and 18 October 2021: 4 data protection cases, 1 defamation case and 1 application for permission to read a statement in open court.
Last Week in the Courts
Judgement was given in the appeal of A v Burke and Hare UKEATS/0020/20/DT. A sought an anonymity order in her claim for holiday pay arising from her work as a stripper. This was refused at first instance. A appealed on three grounds, the first being that the publication of her name would damage her honour and reputation because strippers are stigmatised by society. The Claimant indicated that if the EAT did not anonymise the judgement in her holiday pay claim she would drop the proceedings, and submitted that elevating the principle of open justice over her right to privacy would impede her access to justice. The Application was refused, with Lord Summers relying on R v Legal Aid Board ex p. Kaim Todner  QB 966 to conclude that “embarrassment and reputational damage” are ordinary concomitants of litigation, and therefore “social opprobrium is not sufficient to justify an anonymity order” at .
Senior Master Fontaine entered default judgement in favour of Jane Cahane, the ex-editor of The Investigative Journal (TIJ), a London-based news website that claimed to publish objective public interest long-form journalism, following Cahane’s claim that she had been misled about the sites intentions and funding. Cahane averred that TIJ’s articles “clearly demonstrate politically motivated bias and manipulation” and that her association with the site “seriously harmed” her reputation for journalistic independence and integrity. She was awarded over £80,000 in damages to cover her financial losses as a result of her subsequent unemployment, plus costs.
In the case of Fairhurst v Woodard [pdf] in the Oxford County Court, Judge Melissa Clarke held that security cameras and a Ring doorbell “unjustifiably invaded” the privacy of a neighbour, broke data laws and contributed to harassment. The Judge held that the audio data collected by cameras mounted on the defendant’s shed, in a driveway and on the Ring doorbell was processed unlawfully. It was not possible to turn off the audio recording faculty at the time, as that was not possible until an update in 2020. It was held that audio data could capture conversations “even more problematic and detrimental than video data,” and that “personal data may be captured from people who are not even aware that the device is there, or that it records and processes audio and personal data.” The Guardian reports that Amazon has asked owners of its Ring security cameras to respect privacy as a result of the judgment.
Sir Andrew Nicol heard an application in the case of Parkes v Hall, judgement was reserved.
On 18 October 2021, the European Court of Human Rights, in collaboration with Japan and US consulate generals in Strasbourg, the René Cassin Foundation and Directorate General of Human Rights and Rule of Law of the Council of Europe, are hosting a hybrid symposium on Human Rights in the Digital Sphere. The programme can be accessed here, and the registration is available via this link.
On 21 October 2021, Columbia Global Freedom of Expression are holding an online event, “Courts and Global Norms on Freedom of Expression” (2.00 pm to 5.00pm, BST)
On 26 October 2021 an event at Inner Temple poses the question “Is There a Case for Anonymity in Social Media?” with Caroline Addy (Doughty Street), Andrew Caldecott QC (5RB) and Adam Wagner (Doughty Street). Register for the event here.
Media Law in Other Jurisdictions
An application to move the defamation proceedings of Ben Roberts-Smith, the former Special Air Service soldier accused of being involved in war crimes by The Age and The Sydney Morning Herald, from New South Wales to South Australia has been refused.
The nearly settled defamation case between journalist Marcus Reubenstein (APAC News) and Geoffrey Wade, a researcher in the federal parliamentary library and informal commentator on China via Twitter. Mr Reubenstein alleges Mr Wade falsely portrayed him as a “mouthpiece” for the Chinese Communist Party who engaged in unlawful foreign interference and whose website reports fake news. Part of the settlement involves a statement from Mr Reubenstein on his website, but Reubenstein wants to post an image of the text, not the text, which means it is not searchable.
The Superior Court of Ontario handed down judgement in Martel v City of Ottowa (1) and Jeff Deloyde (2) 2021 ONSC 6790. The issue to be determined was whether the allegations regarding the Plaintiff’s inadequate construction management, even if accurate, could constitute libel, and if so, whether the statements are protected by qualified privilege. The application was dismissed because it was not possible to determine whether the defamation action on its face is of questionable merit, and the defence of qualified privilege will be found to be completely dispositive of the claim.
Judgement has been handed down in Justine Lavellee and Shania Lavellee v Solit Isak ONSC 6661. The Plaintiffs were successful in obtaining summary judgement in their defamation claim against Isak, following the success of Isak’s online campaign that accused the Plaintiffs of mocking George Floyd’s death. Both Plaintiffs were fired from their jobs and unable to secure further employment as a result of the backlash, their home was vandalised and their family members received death threats. They were awarded $50,000 each, and Istak was ordered to remove all posts regarding the Plaintiffs and prohibited from publishing any more defamatory statements about them.
The UN has expressed its “deep concern” over the arrest of pro-democracy activist and womens’ rights defender, Chow Hang-Tung, on charges of “incitement to subversion” and being a foreign agent.
Pakistan has announced that it has amended its regulation of social media platforms that provide services in Pakistan. The “Removal and Blocking of Unlawful Online Content (Procedure, Oversight and Safeguards) Rules, 2021” require social media platforms including Twitter, Facebook and YouTube to establish offices in Pakistan and register with the Pakistan Telecommunication Authority (PTA) within three months. Social media platforms will not be allowed to publish or live stream any post or event against the country’s national security, glory of Islam, public order, or integrity or defence of Pakistan. Social media companies must remove or block any online content against these rules within 48 hours following directives of the PTA or they could face a fine of 500mil Pakistani rupees (RM12.06mil).
A TV journalist was killed in a targeted attack in the Balochistan province. The murder of Shahid Zehri was claimed by the Baloch Liberation Army, who alleged that Zehri was a spy.
The Moscow metro has rolled out the world’s first mass-scale facial recognition payment system. Russian authorities say that passengers’ data will be securely encrypted and stored in data processing centres that are only accessible by interior ministry staff. Privacy activists have raised concerns that the data could end up in the hands of security services.
The High Court has declared that South Africa’s Copyright Act is unconstitutional because it limits people with visual and print disabilities from accessing copy-right protected materials in formats such as Braille, Blind SA v Minister of Trade, Industry and Competition (14996/21). To come into effect, the Constitutional Court will also have to confirm the declaration of unconstitutionality. IPKat has more information here.
Eric Coomer, former security director of Dominion Voting Systems, has asked a Denver judge to reject a motion to dismiss his defamation lawsuit, saying that the Defendants’ actions drove Coomer into hiding, cost him his job and constituted actual malice. Coomer was accused of fixing the 2020 election for Joe Biden by a number of officials on ex-President Donald Trump’s re-election campaign, top campaign attorneys, including Rudi Giuliani, and the conservative media.
Research and Resources
- Sean Quirk, “Lawfare in the Disinformation Age: Chinese Interference in Taiwan’s 2020 Elections”, Harvard International Law Journal (Vol 62 No. 2 2021)
- David Morrison and Patrick Quirk, “An Australian Conundrum: Genomic Technology, Data and the COVIDSafe App”, The University of Queensland, T.C. Beirne School of Law and Australian Catholic University (2021)
- Stephen Smith, “The Cellphone Donut Hole in the Tracking Device Statute”, Federal Courts Law Review (2021)
- Habib Usman, “Regulating Unsolicited Messages: A Call for Hybrid Approach,” Miyetti Quarterly Law Review (Vol 4, Issue 1 2021)
- David Erdos, “Assessing UK Data Protection Reform in Transnational Context: What New Direction?”, Cambridge Faculty of Law (2021)
- Ali Alibeigi , Abu Bakar Munir, Md. Ershadel Karim, “Right to Privacy, a Review of Definition, Theoretical Aspects and Development,” University of Malaya (2021)
- Antonella Zarra, Silvia Favalli and Matilde Ceron, “Pandemic-Sanctioned AI Surveillance: Human Rights under the Threat of Algorithmic Injustice in the EU,” University of Hamburg, Institute of Law and Economics, University of Pavia, Students and University of Milan – Department of Social and Political Studies
- Neil Richards, “The Invalidation of the EU-US Privacy Shield and the Future of Transatlantic Data Flows: Testimony of Professor Neil Richards before the United States Senate,” Washington University School of Law.
- Lisa Archbold, Damian Clifford, Moira Paterson, Megan Richardson and Normann Witzleb, “Adtech and Children’s Data Rights,” University of New South Wales Law Journal (Vol. 44, No. 3, 2021)
- Emanuela Podda, “Data Processing in Context: An Uncertain Regulation for Big Data Society,” Doctoral Consortium on Information Systems Security and Privacy (2021)
Next Week in the Courts
On 18 October 2021 there will be a statement in open court in the case of Zarghune v Channel 5 Broadcasting before Collins Rice J.
On the same day there will be a hearing in the case of Kostakopoulou v University of Warwick and others before Sir Andrew Nicol.
Parkes v Hall heard on 11 October 2021 (Sir Andrew Nicol)
Soriano v Forensic News, heard on 6 and 7 October 2021 (Sharp P, Elisabeth Laing and Warby LJ)
Qatar Airways Group Q.S.C.S v Middle East News UK Limited and others heard on 4 October 2021 (Saini J)
Abramovich v HarperCollins and Roseneft v HarperCollins, heard 28 and 29 July 2021 (Tipples J).
Masarir v Kingdom of Saudi Arabia., heard 15 and 16 June 2021 (Julian Knowles J)
Riley v Murray, heard 10 to 12 May 2021 (Nicklin J)
Lloyd v Google, heard 28 and 29 April 2021 (UKSC)
Kumlin v Jonsson, heard 24 and 25 March 2021 (Julian Knowles J).
Miller v College of Policing and another, heard 9 and 10 March 2021 (Sharp P, Haddon-Cave and Simler LJJ)
Ansari v Amini, heard 10-11 November 2020 (Julian Knowles J)
This Round Up was compiled by Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).