Google has won its appeal in the Supreme Court in Lloyd v Google, with a unanimous judgement that rejected the Court of Appeal’s ruling that compensation can be awarded for “loss of control” of personal data by reason of any non-trivial contravention of the Data Protection Act 1998 (DPA 1998), without the need to prove facts relating to specific individuals.

The claim cannot proceed as a representative action under Civil Procedure Rule 19.6 because members of the class do not have the same interest. Inforrm published an article that considered the consequences of the decision here and a summary here. 5RB has a summary here. Mishcon de Reya has an article on the judgement here. DLA Piper has an article on the judgement here. The Data Protection Report has an article on the judgement here. The Panopticon Blog has an article on the judgement here.

On 9-11 November 2021, the Court of Appeal heard Associated Newspaper’s (ANL) appeal against the order to grant summary judgement to the Duchess of Sussex (dated 11 February 2021 and 5 May 2021) in the Duchess’s action in misuse of private information, infringement of copyright and breach of data protection rights, in respect of extracts of a letter written to her father that was published in the Mail on Sunday and MailOnline.

Brian Cathcart summarised Day 1, Day 2 and Day 3 of the hearing for Inforrm.  On the appeal ANL sought to rely on new evidence from Jason Knauf, the former communications chief to the Sussexes. Emails and texts between Ms Markle and Knauf suggest that the Duchess of Sussex had contemplated that the letter would be leaked, and this, ANL argue, should be explored at a full trial. The Guardian has more information here. Press Gazette has an article here.

The Justice Committee on Open Justice: court reporting in the digital age was held on the 9 November 2021. The Press Gazette has an article on the Bureau of Investigative Journalism’s project on court access, as well as the Committee meeting here.

Internet and Social Media

Clean Up the Internet has produced a summary of their involvement in the cross-party parliamentary meeting on solutions for misuse of anonymity on social media.

Journlaw has launched the first episode of its SMALL podcast – Social Media and Law Livestream. Listen here.

IPKat has an article that considers how IP rights will function in the Metaverse. The article defines four areas that will be affected by the new internet landscape: territoriality, licensing, user generated content and the mixing of IP, and enforcement.

LSE’s Professor Lee Edwards analyses how media literacy is presented in the draft Online Safety Bill, and suggests how the Bill’s proposals could be strengthened, for the LSE Media Policy Project.

YouTube will no longer display the dislike count on its videos, to reduce the impact of ‘dislike attacks’ on small creators’ videos. The button itself will remain.

Meta (formally Facebook) has announced it will “no longer allow advertisers to select terms for ad targeting related to sensitive identifying traits, such as race, ethnicity, political affiliation, religion, or sexual orientation.” The policy change will come into force in 2022.

Facebook will delete the “faceprints” of more than a billion people after announcing that it is shutting down its facial recognition system due to the “many concerns” about using the technology raised in a $650M settlement negotiation.

Data Privacy and Data Protection

The Guardian has a long-read article on neurotechnology and the right to privacy. The piece considers a new type of rights, neuro rights; the freedom to decide who is allowed to monitor, read or alter your brain. Chile has become the first county in the world to enshrine mental integrity as a right for all citizens, and France, Spain and Italy are following Chile’s lead in their discussions of mental privacy.

HawkTalk considers the DCMS proposals to change the duties of the Information Commissioner (ICO) in such a way that the prospect of enforcement on data protection grounds is decreased, which, it is argued, would reduce the protection afforded to data subjects. “The proposals for “Reform of the Information Commissioner’s Office” comprise a power grab to influence (or determine) what the Commissioner’s duties and priorities should be.”

The Data Project Report has an article that provides some clarity on China’s new data-transfer laws. The Privacy and Cybersecurity Law Blog has an article on the same topic here.

Surveillance

The Home Office has delayed the release of its annual stop-and-search data, prompting concern that the figures will reveal a further increase in the disproportionate targeting of black people. Some campaigners have alleged that the withholding of key data is an attempt to avoid negative headlines while the controversial Police, Crime, Sentencing and Courts Bill is passed through parliament.

Newspapers Journalism and Regulation

The Press Gazette has an article on the proposals to prevent the press from contacting bereaved or survivors of a terror attack for at least 48 hours. The piece considers the impact this would have on press freedom.

IPSO

We are not aware of any IPSO rulings in the last week.

New Issued Cases

There were 4 new defamation claim,s 2 Norwich Pharmacal claims, and one “miscellaneous” claim were issued on the Media and Communications List last week.

Last Week in the Courts

The High Court has awarded damages of just over £80,000 for fraudulent and/or negligent misrepresentation against Mohamed Fahmy and The Investigative Journal Limited (TIJ) following a claim brought by journalist and editor Jane Cahane.

Saini J has dismissed the claims in libel, slander per se and malicious falsehood in George v Cannell & another. The libel and slander claim did not satisfy the serious harm requirement under s.1(1) Defamation Act 2013. The claim in malicious falsehood under s.3(1) Defamation Act 1952 was not made out on the basis that Ms George did not prove, taking into account the facts extraneous to the words complained of which existed at the time of publication, that pecuniary damage was likely to result from publication. 5RB has a summary of the judgement here. Saini J has granted Ms George permission to appeal in respect of a point of law relating to the application and interpretation of section 3(1) Defamation Act 2013.

Mr Justice Jeremy Baker has permitted the identification of 15-year-old Marcel Grzeszcz after jailing him for the murder of 12-year-old Roberts Buncis. Held, naming the defendant enabled the “necessary public debate on knife crime.”

On 8 to 10 November 2021, Saini J heard the trial in the harassment and libel case of Davies v Carter, judgment was reserved and will be handed down on 15 November 2021.

Events

11KBW’s Anya Proops QC, Christopher Knight and Rupert Paines will be conducting a webinar on the Lloyd v Google judgement on 16 November 2021 at 17:00. You can register for the webinar here.

The U.S. National Institute of Standards and Technology will hold a webinar on 1 December 2021 to help organizations use regulatory crosswalks in implementing its Privacy Framework.

 Media Law in Other Jurisdictions

Australia

Documents filed for the Defendant network in the defamation case between Marcus Bastiaan (Claimant) and Nine Network allege the Federal Liberal MP and Assistant Treasurer Michael Sukkar was involved in a scheme placing factional operatives into taxpayer-funded electorate office jobs, to carry out internal Liberal Party work in Victoria in a possible breach of staff rules.

South Australia’s Deputy Premier, Vickie Chapman, has threatened to sue an opponent for defamation in what has been described as a bid to halt a parliamentary investigation into whether she has a conflict of interest.

European Union

The EU’s General Court has rejected Google’s appeal against a €2.4bn fine issued by the European Commission, who found the tech giant had abused its massive online reach by giving its own shopping recommendations an illegal advantage in its search results.

The European Commission is pursuing legal action against Belgium over concerns its Data Protection Authority is not operating independently as required under the EU General Data Protection Regulation.

Myanmar

Myanmar’s junta has charged US journalist Danny Fenster, who was arrested in May during the military coup, with sedition and terrorism. He is facing a maximum sentence of life imprisonment.

Norway

The Norwegian Data Protection Commissioner, Norwegian Consumer Council Director and Amnesty International Norway General Secretary have called for a ban on surveillance-based advertising. They state it is “unacceptable to violate fundamental human and consumer rights in an attempt at serving more relevant ads. The business model of the tech giants is incompatible with the right to privacy,” the European Data Protection Digest reports.

United States

The rappers Travis Scott and Drake have been sued for having “incited mayhem” after eight people were killed and dozens injured in a crush during a Texas concert.

U.S. House lawmakers have introduced the Filter Bubble Transparency Act, a proposal that would require internet platforms to offer an algorithm-free version of their services.

Research and Resources

Next Week in the Courts

On 15 November 2021 there will  be a statement in open court in the case of Butt v Secretary of State for the Home Department before Nicklin J.

On the same day Nicklin J will conduct a CMC in the case of CPH v ARN, a defamation claim brought by two children.

On the same day Saini J will hand down judgment in the libel and harassment case of Davies v Carter and Sir Andrew Nicol will hand down judgment in the libel case of Mueen-Udin v Secretary of State for the Home Department.

Reserved Judgments 

Duchess of Sussex v Associated Newspapers, heard 9-11 November 2021 (Vos MR, Sharp P and Bean LJ)

 GUH v KYT, heard on 28 October 2021 (Collins Rice J)

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)

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).