The review of transparency in the Family Courts by the President, Sir Andrew Mcfarlane has reported. [pdf] His main conclusion is that the time has come for accredited media representatives to be able, subject to clear rules on maintaining anonymity and confidential details, to report publicly on what they see and hear. The conclusion are discussed on the Transparency Project Blog in a post entitled “Seeing invisible elephants – the transparency review is published“. The Transparency Project is thrilled by the outcome of the review. There is also a piece in the Press Gazette, Journalists to be given more freedom to report on family court hearings as current system ‘not sustainable’
The website Tortoise media has launched a podcast investigation into the “cat-fishing campaign,” a misuse of private information claim that was settled on the of 14 June 2021 and is generally regarded as the first successful civil claim relating to a cat-fishing scam in the UK and common law world. 5RB has a summary here.
A new claim has been filed against HM Revenue & Customs (HMRC) alleging breaches of the Claimant’s individual rights under the EU’s data protection legislation in connection with the processing of her sensitive personal and financial information under Foreign Account Tax Compliance Act (FATCA), causing personal damage and distress.
In Wolfe & Others v Veale Wasbrough Vizards LLP  EWHC 2809 (QB) a claim for an infringement of data protection law was dismissed, the Master finding it implausible that any distress had been suffered. DLA Piper has a summary here, and Bret Wilson here.
Internet and Social Media
Facebook has announced that the company will change its name to Meta, saying the move reflects the fact that the company is now much broader than just a social media platform. The social media site will still be called Facebook. Marcus Carter and Ben Egliston consider whether this is a genuine bid to set the company on course for the future of computing, or merely a PR exercise, for Inforrm this week.
Stephen Kinsella (Clean Up The Internet) and Harry Dyer considered whether the banning of anonymous online accounts would reduce abuse for Inforrm this week, both concluding banning anonymity is not the answer. Kinsella advocates for a three-point solution which woul allow users to be verified if they so choose, and have a mark against their account (perhaps a tick) to show to other users that they are who they pretend to be. Then the platforms could give users the ability to decline to interact with, to receive replies from, accounts that are not verified.
Google has announced plans to allow minors age 18 and under to request removal of their images from the company’s search engine. The child, or their guardian, will be asked to submit a request form at which point Google will consider the request under its requirements for removal. In a statement, Google has said that they “believe this change will help give young people more control over their digital footprint and where their images can be found on Search.”
The U.K. Competition and Markets Authority Executive Director Andrea Coscelli has divulged details regarding the CMA’s ongoing review of Google’s “Privacy Sandbox” and its work on third-party cookie alternatives. Coscelli said the case is forcing the CMA to “grapple with the questions of competition and privacy in the digital economy.”
Data Privacy and Data Protection
The Government is intending to change the accountability arrangements in the UK_GDPR in such a way that it will become harder to hold controllers to account. In summary, Chapter 2 of the DCMS Consultation document (“Data: a new direction”) makes two main proposals in relation to accountability:
- to reduce or remove the requirement to undertake DPIAs (A.35 and A.36); to reduce or remove the requirement to have a Data Protection Officer (A.37-A.39); to remove the need to create a register of processing activities (ROPA; A.30); and to reduce the need to report a data breach to the ICO (A.33).
- for each controller to develop its own privacy management programmewhich includes many of the accountability elements similar to those identified in (i) above.
In the first of two blogs on these proposals, HawkTalk addresses the privacy management programme and the proposal to remove or reduce the DPO role.
The G7 Trade Ministers have agreed a set of Digital Trade Principles which are aimed at demonstrating a commitment to achieving high and enforceable standards of data protection, greater global commonality and consistency in the approach taken to data governance and data protection; the removal of obstacles to cross-border data flows (while continuing to address privacy and data protection) and consensus on common principles for trusted government access to personal data held by private sectors.
The European Data Protection Board (“EDPB”) adopted Guidelines 10/2020 on restrictions under Article 23 of the EU General Data Protection Regulation (“GDPR”) (the “Guidelines”) following public consultation. Article 23 of the GDPR permits EU Member States to impose restrictions on data subject rights as long as the restrictions respect the essence of the fundamental rights and freedoms of individuals, and are necessary and proportionate measures in a democratic society to safeguard, for example, national security, defence or public security. The data subject rights to which the restrictions may apply are those set out in Articles 12-22 (e.g., rights of access, erasure), Article 34 (communication of a data breach to individuals) and Article 5 (the data processing principles) to the extent that its provisions correspond to data subject rights. Hunton Andrews Kurth blog has more information.
Eight schools in North Ayrshire, Scotland, have “temporarily paused” use of facial recognition scans for payment in cafeterias, while one has completely abandoned the option, following concerns raised by privacy advocates.
Huq, a British firm which sells people’s location data, has admitted that some of its information was gained without seeking permission from users. The BBC has more information here.
Newspapers, Journalism and Regulation
David Erdos, writing for Inforrm in two parts, takes a first look at the Information Commissioner’s Office Draft Data Protection and Journalism Code. See Part 1 and Part 2. The Privacy Perspective Blog has also written on the ICO’s consultation for the draft code.
Journalists will be able to report much more detail about what they witness in England and Wales’s family courts under new plans to improve transparency. The Press Gazette has more information here.
The Sun and Mail Online both feel they are unfairly being downgraded by Google search rankings, which is depriving them of audience share, the Press Gazette reports. Google has reimbursed Mail Online after turning off advertising on its US homepage for several hours over the “perceived presence of dangerous or derogatory content.”
IPSO Rulings and Resolution Statements
- 04515-21 Brassington v stokesentinel.co.uk, 2 Privacy (2019), No breach – after investigation
- 03296-21 Carr v Southend Echo, 1 Accuracy (2019), 2 Privacy (2019) Breach – sanction: action as offered by publication
- 01348-21 IPSO v Tatler, 16 Payment to criminals (2019), No breach – after investigation
Statements in Open Court and Apologies
NVTV has apologised to Nasir Butt for allegations that he was an organised criminal and agreed to pay damages for libel as well as his legal costs.
New Issued Cases
There were four new cases issued in the Media and Communications List between 25 October and 1 November 2021: 3 data protection claims and 1 harassment claim.
Last week in the Courts
Judgment was given in London Borough of Hammersmith and Fulham v Keable EA-2019-000733-DA (previously UKEAT/0333/19/DA). The EAT dismissed the appeal against the Tribunals decision that the Claimant had been unfairly dismissed following an allegation of serious misconduct arising out of comments referencing anti-Semitism made by the Claimant at a rally outside Parliament which was recorded and proliferated on social media.
On 28 October 2021 Collins Rice J heard an application to commit in the case of GUH v KYT, judgment was reserved.
Lawyers for Julian Assange have opposed an attempt by the US to overturn the block to his extradition, arguing that assurances over its potential treatment of him are “meaningless” and “vague”. The Press Gazette has more information here. The US legal team has argued that the refusal to extradite Assange risks “rewarding fugitives for their flight.”
Media Law in Other Jurisdictions
In the case of Nassif v Seven Network  FCA 1286. Channel Seven has been ordered to pay the wife of a Sydney developer $100k in damages for suggesting that she was falsely claiming to help disadvantaged families through her charity.
In the case of Gould v Jordan (No.2)  FCA 1289 White J held that the impugned statements referred to the plaintiff and conveyed defamatory imputations but that they were made on an occasion of qualified privilege.
The Defendants in Craig McLachlan’s defamation case have alleged that the actor touched a colleague’s breast during a rehearsal for Neighbours in the 1980s during a preliminary hearing. The media organisations are relying on the defences of truth and contextual truth for articles that accused McLachlan of harassing his female colleagues. The four-week trial is set to begin in May 2022.
Mining magnate Clive Palmer has moved to drop “very large parts” of his defence in a defamation battle with the West Australian Premier after he lost a separate High Court case.
Judgement was handed down in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43. In allowing the appeal, the court held that a discrimination claim is not, and must not become, an action in defamation. The two are governed by different considerations and have different purposes. A discrimination claim must be limited to expression whose effects are truly discriminatory. The Human Rights Tribunal has no power to decide actions in defamation or other civil liability actions, since its jurisdiction is limited to complaints of discrimination or exploitation.
Judgement has been given in the Intermediate People’s Court of Yulin, Shaanxi Administrative Decision (2020) Shaan 08 Administrative Final No. 521, translation available on the Fei Chang Dao blog. The court found that police did not violate Yuan’s rights when they subjected him to administrative detention for reposting an article to his personal social media accounts that the police determined defamed a Communist Party cadre. The court held that as a journalist Yuan had a duty to verify the contents of the article.
The National People’s Congress, China’s top legislature, has ratified the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (“the Marrakesh Treaty”). The Marrakesh Treaty is one of the WIPO’s administered international copyright treaties. It features ‘a clear humanitarian and social development dimension’ dedicated to protecting the right to read for the blind, visually impaired and otherwise print disabled people (VIPs). IPKat has more information here.
The state watchdog has recommended Facebook pay 300,000 won (US$ 256.70) in compensation to each of the 181 users demanding damages for the provision of their personal information to third parties without their consent.
One of the women who accused Jeffrey Epstein of sexually abusing her, Rita Oh, has brought a claim against one of Epstein’s other victims, Virginia Giuffre, for defamation over Giuffre’s allegations that Oh helped traffic her.
The billionaire investor Leon Black has filed a lawsuit against a former model who has accused him of rape. The Complainant-Defendant and her law firm are jointly accused of defamation and racketeering conspiracy, including falsely linking Black to renowned sex offender, Jeffrey Epstein.
Research and Resources
- Paul De Hert, and George Bouchagiar, “Adding and Removing Elements of the Proportionality and Necessity Test to Achieve Desired Outcomes. Breyer and the Necessity to End Anonymity of Cell Phone Users,” (2021) Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT)
- Faiza Tazi, Sunny Shrestha, Dan Norton, Kathryn Walsh, and Sanchari Das, “Parents, Educators, and Caregivers Cybersecurity and Privacy Concerns for Remote Learning during COVID-19” (2021). In Proceedings of the International Conference of the Greece ACM SIGCHI Chapter (CHIGreece 2021), University of Denver and Independent
- Gregor Dorfleitner, Lars Hornuf, Julia Kreppmeier, “Promise Not Fulfilled: Fintech Data Privacy, and the GDPR” (2021), University of Regensburg – Department of Finance, University of Bremen – Faculty of Business Studies and Economics, University of Regensburg
- Marcelo Corrales Compagnucci, Mateo Aboy, and Timo Minssen, “Cross-Border Transfers of Personal Data after Schrems II: Supplementary Measures and New Standard Contractual Clauses (SCCs)” (2021), Centre for Advanced Studies in Biomedical Innovation Law (CeBIL), Faculty of Law, University of Copenhagen, LML, University of Cambridge
- Karen Levy, Kyla E Chasalow and Sarah Riley, “Algorithms and Decision-Making in the Public Sector” (2021), Cornell University
- Apratim Vidyarthi, “The Public Square Has Eyes (or Cameras): Anonymous Speech Under the First and Fourth Amendment in the Age of Facial Recognition” (2021), Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 32
- Niovi Vavoula, “Artificial Intelligence (AI) at Schengen Borders: Automated Processing, Algorithmic Profiling and Facial Recognition in the Era of Techno-Solutionism” (2021). European Journal of Migration and Law
- Ari Ezra Waldman, “Habit and Performative Privacy” (2021), 10 Social Epistemology Review and Reply Collective 43
- Christian Sundquist, “Pandemic Surveillance Discrimination” (2021). Seton Hall Law Review, Vol. 51, p. 1535, 2021, U. of Pittsburgh Legal Studies Research Paper No. 2021-33
- Normann Witzleb and Moira Paterson, “The Australian Covidsafe App and Privacy: Lessons for the Future of Privacy Regulation” (2021), Belinda Bennett and Ian Freckelton (eds), Pandemics, Public Health Emergencies and Government Powers: Perspectives on Australian Law (Federation Press, 2021), 165-180 , The Chinese University of Hong Kong Faculty of Law Research Paper No. 2021-61, Monash University Faculty of Law Legal Studies Research Paper
- Garrett Johnson, Julian Runge, and Eric Seufert, “Privacy-Centric Digital Advertising: Implications for Research” (2021), Questrom School of Business, Duke University (Visiting Scholar), Mobile Dev Memo
- Anatoliy Gruzd, Joanne McNeish, Lilach Dahoah Halevi, Martin Phillips, “Seeing Self in Data: The Effect of a Privacy Literacy Intervention on Facebook Users’ Behaviour” (2021), Ted Rogers School of Management, Ryerson University
Next Week in the Courts
We are not aware of any media law law cases listed this week.
GUH v KYT, heard on 28 October 2021 (Collins Rice J) application to commit
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).