The Duchess of Sussex has won the latest round of her privacy and copyright claim against the Mail on Sunday, with a unanimous judgment of the Court of Appeal upholding the decision of the High Court ( EWCA Civ 1810). The matter now returns to the High Court for compensation to be determined.
The Duchess is seeking “accounts for profits,” which would mean compensating on the basis of how much Associated Newspapers benefited from its law-breaking. The Mail on Sunday will now have to publish prominently on its front page three statements acknowledging that it infringed the Duchess’ copyright, as ordered by the court at first instance. Associated Newspapers is said to be considering an application for permission to appeal to the Supreme Court.
5RB has a summary here. Brian Cathcart produced a summary of the judgement for Inforrm here and the Mail’s reaction here and here. Simon Carne questions why the Mail wants its day in court here. The Press Gazette response to the Duchess’ victory is here. The Panopticon blog has an article on the appeal decision here.
The European Commission has published its comprehensive legislative proposal package to reinforce democracy and protect the integrity of elections. Inforrm had an article on the new proposal for transparency and targeting of political advertising, an amendment prompted by the prominence of manipulative advertising techniques in the Brexit vote and 2016 US election.
Judgement was handed down in Pal v UK  ECHR 990, a case arising out of the arrest and prosecution of journalist Dr Rita Pal, for harassing another journalist, AB. The Fourth Section of the Court of Human Rights has ruled that the arrest constituted a violation of Dr Pal’s Article 10 rights. Inforrm has a summary here. The Press Gazette reports here.
The Transparency Project has an article warning against the publication of overly graphic sexual content in judgments, prompted by a (now removed) family court judgement that was “basically, pornographic in content.” The piece emphasises the need for an Anonymisation Unit and training.
Internet and Social Media
A promising number of MPs have expressed support for the Social Media Platforms (Identity Verification) Ten Minute Rule Bill, Clean Up the Internet reports. Misuse of anonymity is also thought to be part of the Online Safety Bill.
Twitter has banned the sharing of private media of another person without their permission. The company has said that the policy will not apply to content from large public events.
Data Privacy and Data Protection
The forthcoming Police, Crime, Sentencing and Courts Bill has once again come under fire for its inclusion of measures that will give the police new powers to gather and share data on people allegedly involved in “serious violence,” which has the potential to undermine existing data rights and further entrench discriminatory policing practices.
A newly proposed Product Security and Telecommunications Infrastructure Bill aims to prevent hacking of smart devices in individuals’ households. The draft law would ban default passwords pre-loaded to devices and carries provisions regarding timely notification of cybersecurity updates for devices, the European Data Protection Digest reports.
The U.K. Central Digital and Data Office has rolled out an algorithmic transparency standard for government agencies and the public sector. The standard aims to bring transparency to “the way in which algorithmic tools are being used to support decisions” and especially those decisions with “legal or economic impact on individuals.” A pilot program will begin in the coming months to generate feedback before any formal endorsement from the Data Standards Authority, the European Data Protection Digest reports.
DLA Piper has produced a helpful summary of the European Data Protection Board’s (EDPR) draft Guidelines on the Interplay between the application of Article 3 and the provision on international transfers as per Chapter V of the GDPR. The Guidelines seek to clarify for controllers and processors in the EU in identifying whether a processing activity constitutes a transfer to a third country or to an international organisation, and, as a result, whether they have to comply with the provisions of Chapter V of the GDPR. Hunton Andrews Kurth also has a summary of the Guidelines here.
The ICO has fined the Cabinet Office £500,000 for a data breach that disclosed the postal addresses of the 2020 New Year Honours recipients online.
The ICO has announced its provisional intent to impose a potential fine of just over £17 million on Clearview AI Inc, a company that proclaims to be the “World’s Largest Facial Network.” In addition, the ICO has issued a provisional notice to stop further processing of the personal data of people in the UK and to delete it following alleged serious breaches of the UK’s data protection laws.
Mishcon de Reya has an article on the risks of facial recognition technology, and how they are best avoided.
Art, Music and Copyright
IPKat has an article on Spotify’s decision to accord Adele’s request to remove the “shuffle” function on her new album, 30, so that the default setting meant fans listened to the work in the order she intended. The piece considers whether there would have been any legal implications had the platform not granted Adele’s request.
Newspapers Journalism and Regulation
The Press Gazette investigates why the Mail Online systematically appears lower in Google search results despite being one of the biggest English language websites in the world, prompted by the Mail’s accusations that Google is deliberately downgrading its content.
Lord Rothermere has increased his offer to take the Mail, Metro and i publisher DMGT private, the Press Gazette reports.
Meta, the tech company behind Facebook, is putting an additional £5.9m into its Community News Project collaboration in the UK over the next two years, the Press Gazette reports.
- 07567-21 Ranger v Daily Mail, 1 Accuracy (201), No breach – after investigation
- 07566-21 Ranger v Telegraph.co.uk, 1 Accuracy (2019), No breach – after investigation
- 06518-21 Extinction Rebellion v The Daily Telegraph, 1 Accuracy, No breach – after investigation
- 06401-21 League Against Cruel Sports v The Sunday Telegraph, 1 Accuracy (2019), No breach – after investigation
- 05940-21 Cygnet Health Care Ltd and Dr Tony Romero v The Times, 1 Accuracy (2019), No breach – after investigation
- 05684-21 Khoram-Scotts and Scotts v Mail Online, 1 Accuracy (2019), Breach – sanction: publication of correction
- 01431-21 Todd v oxfordmail.co.uk, 1 Accuracy (2019), 3 Harassment (2019), No breach – after investigation
New Issued Cases
There were three defamation cases issued on the Media and Communications list last week, one misuse of private information case, and one application for a Norwich Pharmacal Order.
Last Week in the Courts
The two-day appeal in ZXC v Bloomberg LP took place in the Supreme Court on 30 November – 1 December 2021. The appeal will consider whether, and to what extent, a person who has not been charged with an offence can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into her/his activities. 5RB has a summary of the case history here. The hearing can be watched on the UK Supreme Court website: 30 November, morning and afternoon, 1 December, morning and afternoon.
Summary Judgement was granted to the defendants in the case of Abulrazaq v The Trustees of the Exeter Mosque and Cultural centre  EWHC 3252 (QB). The claim arose out of the publication of two documents that explained why the Claimants had been expelled from membership of the Mosque and excluded. The Defendants’ relied on qualified privilege (duty/interest and reply-to-attack) as a defence, and a reply of malice. It was held that the defence of qualified privilege was made out and the allegations of malice were not.
Anya Proops QC, Hugh Tomlinson QC and Jorge Oliveira, Head of Data Protection at FIFA, are running a remote panel session for LawInSport’s annual conference on Tuesday 7 November 2021. Tickets can be purchased here.
Media Law in Other Jurisdictions
In the case of Wang v Qin  VCC 1906 HHJ Clayton awarded defamation damages of Aus$150,000 in respect of WeChat messages from his ex-lover.
The anti-trolling bill, which purports to help the victims of online abuse by improving pathways to complain about defamation and identify anonymous commenters, was released on 1 December 2021. The Guardian considers how, and if, the proposed changes will help ordinary people pursue a defamation claim.
Clive Palmer will be allowed to give evidence in person in a Sydney courtroom during his defamation trial against WA premier Mark McGowan, despite not being vaccinated against Covid. Mr Justice Less said that he was “not going to deny anyone access to (his) courtroom because of their vaccination status.”
Judgement was handed down in the case of Biancardi v Italy  ECHR 972, a first-of-its-kind case relating to de-indexing of online newspaper archives. The First Section of the European Court of Human Rights held that an order that found the editor of an online newspaper liable for failing to de-index an article concerning criminal proceedings did not breach Article 10 ECHR. The “right to reputation” of a person accused of a criminal offence outweighed the right of the newspaper to continue to make available a story about the incident which had led to the arrests and charge. Inforrm has a summary of the judgement here.
The European Commission has announced a provisional agreement with the European Parliament and the Council of the European Union to move forward with the EU Data Governance Act, the European Data Protection Digest reports.
The Supreme Court of Ontario has ruled that the defamation case of Luc Crawford Design Inc., et al v. Mullowney et al., 2021 ONSC 7849 should be allowed to continue, the Defendant’s anti-SLAPP motion is dismissed.
Canada’s news industry expects Google and Facebook to start paying publishers between CA$100-150 million per year following the launch of new regulation inspired by Australia. The Press Gazette has more information here.
The Henan provincial government has commissioned a surveillance system that can track journalists and international students, among other “suspicious people,” the Guardian reports.
The Autorita’ Garante della Concorrenza e del Mercato, Italy’s Antitrust Authority, has fined Google and Apple €10 million each for violating the Consumer Code’s transparency principles with their acquisition, use and “aggressive practices” of processing user data for commercial purposes. The European Data Protection Digest summary is found here.
The Minister of Works for Housing Babatunde Fashola is claiming N2billion in a defamation suit against the Chief Executive Officer of Sunrise Power and Transmission Company Ltd for what Fashola alleges are “false and downgrading” accusations that he frustrated the completion of the Mambilla Power Project.
Energy Secretary Alfonso Cusi has filed separate libel claims against seven news organisations that have published stories on him and the Duterte campaign donor Dennie Uy over the disputed Malampaya gas field buyout. Cusi’s libel claim accuses the media of malice. Coalition 1Sambayan has criticised Cusi for bringing what they call “baseless and unnecessary libel cases” on the media for coverage of a hotly contested deal. In a statement, 1Sambayan say that “Cusi’s action is meant to stifle the free flow of information to the public, by employing legal harassment tactics against the media organisations.”
United Arab Emirates
The UAE has enacted the long-awaited federal level data protection law. DLA Piper examines some of the key features of the new legislation here.
Tesla Inc, the electric car manufacturer, has asked a US court to affirm its recent victory in an arbitration with a former engineer who claimed the automaker fired and defamed her for raising concerns about defective floormats and contracting practices.
Former President Donald Trump has asked a federal court in Manhattan for permission to add a counterclaim in the defamation suit brought by New York advice columnist E Jean Carroll. The original claim relates to Trump’s denial that he raped Carroll in a department store two decades ago. This is the second time Trump has sought to initiate a counterclaim in a defamation claim brought against him in relation to denials of sexual assault, the first being in the (now dropped) case by former Apprentice contestant, Summer Zervos.
John C Greiner, Graydon Head & Ritchey LLP, has published an article on Lexology explaining why Kyle Rittenhouse does not have a sustainable defamation claim against the corporate media.
The Federal Deposit Insurance Corporation, Federal Reserve, and Office of the Comptroller of the Currency (collectively the federal banking regulators) have issued a final rule requiring banking organizations and bank service providers to make certain notifications in the event of a “computer-security incident.” The rule takes effect on 1 April 2022. DLA Piper has more information here.
Research and Resources
- Divyanshu Dembi, Hate Speech under Article 19(1)(a): Conceptualising the Case for Constitutional Protection of Hate Speech under Indian Law (2021) O. P. Jindal Global University, Jindal Global Law School (JGLS)
- Christophe Carugati, The Antitrust Privacy Dilemma (2021), Université Paris II – Panthéon-Assas
- Chris Baumohl, Piercing the Veil: Reconciling FISA and the State Secrets Privilege in the Schrems II Era (2021), American University Washington College of Law
- Divyanshu Dembi, Privacy & National Security: A Balancing Act? (2021), O. P. Jindal Global University, Jindal Global Law School (JGLS)
- Gajendra Liyanaarachchi, Sameer Deshpande, Scott Weaven, and Charles Jeberajakirthy, Privacy Paradox to Competitive Advantage: A Grounded Theory Study Introducing the Theory of Privacy Paradox (2021), Griffith University
- Covarrubias Llamas, Zadamig Jersain, Irving Norehem and Aryesha Bianka, Validity Characteristics in Electronic Voting Through Blockchain (2021), Independent and Universidad Del Valle De Atemajac
- Jan Trzaskowski, Your Privacy Is Important to Us! – Restoring Human Dignity in Data-Driven Marketing (2021), Copenhagen Business School; Aalborg University
Next Week in the Courts
On 6 December 2021 Nicklin J will hear a CMC in the case of Zu Sayn-Wittgenstein-Sayn v Juan Carlos Alfonso Victor Maria De Borbon y Borbon
[Update]: On 8 December 2021 Julian Knowles J will hear the trial in the misuse of private information case of Driver v Crown Prosecution Service
On the same day Collins Rice J will hand down judgment in the case of Hwang v
On the same day Saini J will hear the trial of a preliminary issue in the case of Mehmood v Up and Coming TV Limited.
On 8 December 2021 there will be fourteen statements in open court read before Fancourt J in the managed News Group phone hacking litigation. The statements will be for the following claimants: Sharleen Spiteri, Jane Epstein, Michael Hollingsworth, Shane Warne, Natalie Cecil, Richard Fleeshman, Louise Port, Michelle Collins, Quintin Lawson, Dani Behr, Julia Sawalha. Nadia Sawalha, Sean Bean and Dane Bowers.
On the same day there will be CMC in this litigation.
[Update2] On 10 December 2021, Collins Rice J will hand down judgment in the case of Sahota v MBC Limited.
ZXC v Bloomberg LP, heard on 30 November – 1 December 2021 (UK Supreme Court).
GUH v KYT, heard on 28 October 2021 (Collins Rice J)
Soriano v Forensic News, heard 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)
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).