On 8 and 9 December 2021, the settlement of 15 phone hacking claims against News Group Newspapers was announced in a series of statements in open court. Most attention was given to the statement read by actress Sienna Miller, which made a number of allegations against The Sun for what was described as “prolonged” and “substantial” phone hacking, and leaking news that Ms Miller was pregnant.
The statement concluded that, given the substantial damages The Sun had agreed to pay, “notwithstanding that the settlement was reached on the agreed basis of no admission of liability, this is tantamount to an admission of liability on the part of The Sun.” Inforrm has an article on the settlements here. The Press Gazette has an article on Sienna Miller’s statement here and actor Sean Bean’s involvement in the settlements here. Hacked Off’s response to the settlement can be read here.
On 7 and December 2021 the UK Supreme Court (Lords Reed, Lloyd-Jones, Kitchin, Sales and Leggatt) heard the appeal in the case of Fearn v Board of Trustees of the Tate Gallery, a two-day appeal concerning neighbourhood privacy rights from the decision of the Court of Appeal ( EWCA Civ 104). Mann J at first instance, and the Court of Appeal on appeal, to decline to grant an injunction requiring the Respondents to prevent members of the public from observing neighbouring flats from certain parts of the 360 degree viewing gallery on one of the Tate’s extensions. 5RB has a summary here. The appeal can be viewed here: 7 December, morning and afternoon, 8 December 2021, morning and afternoon.
The US Government has succeeded in its appeal against the decision not to extradite WikiLeaks founder Julian Assange (USA v Julian Assange  EWHC 3313 (Admin)). Lord Chief Justice Lord Burnett and Holroyde LJ found that, given the US authorities’ subsequent assurances that Assange would not face the strictest prison conditions if extradited, the real and “oppressive” risk of suicide that was fundamental in the first instance decision not to extradite was no longer relevant. The Press Gazette has a summary here.
Internet and Social Media
Dozens of Rohingya refugees in the UK and US are bringing a £113bn ($150bn) claim against Facebook, alleging that Facebook’s platforms allowed “the dissemination of hateful and dangerous misinformation to continue for years.” An estimated 10,000 Rohingya Muslims were killed during the military crackdown in Myanmar in 2017. The claim filed in San Francisco accuses Facebook of being “willing to trade the lives of the Rohingya people for better market penetration in a small country in Southeast Asia.” The BBC has more information here.
One of the winners of this year’s Nobel Peace Prize, the Philippine journalist Maria Ressa, has attacked US internet companies for profiting from spreading hate and allowing what she called a “flood of toxic sludge” on social media.
The Turkish president Recep Tayyip Erdogan has described social media as one of the main threats to democracy. This comes as Erdogan’s government plans to introduce legislation to criminalise spreading fake news and disinformation online, which critics say would tighten restrictions on free speech.
Inforrm has an article on the recent decision by Twitter to ban posting images of people without their consent.
Clean Up the Internet (CUI) has an article questioning Twitter’s analysis that verification would have been unlikely to prevent the racist abuse on its platform following England’s defeat in the final of the UEFA Euros, because most of the accounts were not anonymous. Specifically, CUI found that Twitter’s definition of anonymous did not include Mickey Mouse accounts, so that, those who created fake email addresses or did not give their real birth date when they signed up to the platform, were not considered anonymous.
ARTICLE 19 has issued a new policy to address the excessive market power of large social media platforms. Their solution involves independent regulators implementing pro-competitive measures to diversify the market, and the “unbundling” of hosting and content-curation activities by the large platforms to allow users options for curation services which comply with international human rights standards.
Inforrm had an article on the recent opinion of the ECJ’s advocate general, whose non-binding but highly persuasive authority has clarified Europe’s data protection law to confirm that consumer associations can bring actions on behalf of individuals. If followed, this clarification will make it much easier for people to defend their rights against tech giants in future.
LSE’s Professor Robin Mansell argues for more attention to the implementation of policies as governments take steps towards regulating digital platforms, and the need to expose the myths that hamper reflections on digital technologies and any harms they generate for the LSE Media Blog.
The LSE Media Blog also has a summary of a recent roundtable hosted by the LSE Department for Media and Communication on the key issues of the draft Online Safety Bill.
Data Privacy and Data Protection
U.S. Commerce Secretary Gina Raimondo and U.K. Secretary of State for Digital, Culture, Media & Sport Nadine Dorries announced a new pact on the use and exchange of data between the two nations. IAPP reports that the two sides indicated progress on efforts to “support, stabilize and realize the benefits of bilateral data flows.” With respect to ongoing issues concerning international data flows, Raimondo and Dorries voiced desires to “shape a global data ecosystem in a manner that promotes and advances interoperability between different data protection frameworks.”
A new Surveillance Camera Code is before both Houses of Parliament and, subject to their approval, will come into effect on 12 January 2022. This is the first revision of the Code since its introduction in 2013. The proposed draft updates references to subsequent legislation, in particular the Data Protection Act 2018 and the judgement in Bridges v South Wales Police.
Art, Music and Copyright
The EU’s DMS Directive has been implemented into Irish law, Cearta.ie has more information here.
IPSO Recent Decisions
- 02921-21 Thompson v liverpoolecho.co.uk, 1 Accuracy (2019), No breach – after investigation
- 04639-21 Alakirik v East Anglian Daily Times, 1 Accuracy (2019), 13 Financial journalism (2019), 4 Intrusion into grief or shock (2019), 3 Harassment (2019), Breach – sanction: action as offered by publication
- 04995-21 Gaukroger v Isle of Wight County, 1 Accuracy (2019), 2 Privacy (2019), No breach – after investigation
- 07349-21 Khan v The Sunday Telegraph, 1 Accuracy (2019), No breach – after investigation
- 07356-21 Nelson v Sunday Life, 1 Accuracy (2019), Breach – sanction: action as offered by publication
Statements in Open Court and Apologies
As previously mentioned, there was a series of statements by News Group Newspapers this week in settlement of 15 phone hacking claims.
New Issued Cases
There was one defamation (libel and slander) claim, one data protection claim and one breach of privacy claim issued on the Media and Communications list this week.
Last Week in the Courts
On 6 and 7 December 2021 Nicklin J heard a CMC in the case of Zu Sayn-Wittgenstein-Sayn v Juan Carlos Alfonso Victor Maria De Borbon y Borbon. The defendant, the former King of Spain, argued sovereign immunity. There were reports in the Guardian and the Times. Judgment was reserved.
On 8 December 2021 Collins Rice J handed down judgment in the case of Hwang v Kim  EWHC 3327 (QB). The judge held that the admitted and defamatory factual allegations about Mr Hwang did not amount to slanders “actionable per se” because they did not impute recognisable criminal conduct punishable by imprisonment. The allegation that Mr Hwang would “stab” Ms Kim “with a knife” would have been understood as hyperbole and a metaphor bullying behaviour in the context [43-44]. Similarly, the allegations Ms Kim made about Mr Hwang’s “inappropriate” sexual relationship with Ms X were not allegations of coercive control contrary to s.76 Serious Crime Act 2015 and therefore did not amount to an allegation of criminality .
On 8 December 2021 Julian Knowles J heard the trial in the misuse of private information case of Driver v Crown Prosecution Service.
On 10 December 2021 Collins Rice J handed down judgment in the case of Sahota v Middlesex Broadcasting Corporation Limited  EWHC 3363 (QB). Mr Sahota was referenced during a live discussion on the Midlands Asian Television National (MATV), during which the Second and Third defendants alleged Mr Sahota was a hypocrite for attending a pro-Sikh and pro-Khalistan community protest, that his apparent activism was the product of a Muslim paymaster with other agendas, and that he stood with Kashmiri terrorists. These three accusations passed the section 1(1) Defamation Act 2013 threshold . Furthermore, it was relevant that MATV broadcasts nationally and internationally and is pitched to appeal to the wider Asian community, and that it is a reputable broadcaster of edited news that viewers were likely to regard as authoritative . Damages of £60,000 were awarded.
Media Law in Other Jurisdictions
Defence Minister Peter Dutton will not receive full legal costs as the federal court has ruled that his defamation case against Shane Bazzi could have been fought in lower court.
Australia’s electronic surveillance laws are to be reformed following a review that concluded the legislative framework is “no longer fit for purpose.” Reform will aim to create a single regulation protecting information and data while ensuring law enforcement agencies have appropriate investigative powers, IAPP reports.
The Norton Rose Fulbright Data Protection Report assesses the four significant amendments to the Security of Critical Infrastructure (2018): (i) expanded scope of application, (ii) cybersecurity reporting requirements, (iii) Government Assistance Powers, (iv) Foreign Investment.
The Michael Geist Blog has an article on the Canadian Government’s stalled copyright consultations and the “never-ending” lobbying battle for website blocking and weakened user rights.
The Canadian Privacy Law Blog has published the IAPP Halifax Knowledgenet presentation on the privacy and human rights dimensions of social media background checks.
The Privacy and Information Security Law Blog has an article on the recent agreement on data governance between the EU Parliament and Council of the EU.
Germany’s incoming government plans to support end-to-end encryption without backdoors as a means to combat child abuse online, IAPP reports.
Jesus Malabanan has become the twenty second journalist to be killed during the Rodrigo Duterte presidency. The Foreign Correspondents Association of the Philippines has said that the tragic murder “underscores the threats and dangers Filipino journalists continue to face.” Human Rights Watch has more information here.
The Massachusetts Supreme Judicial Court heard oral arguments in Commonwealth v Perry on 8 December 2021, a case which questioned the constitutionality of cell tower dumps. The case was prompted by a Commonwealth and FBI investigation into a series of armed robberies, in which the information of 50,000 individuals was scraped from four major cell network providers at six different times and locations, all to eventually charge one individual, Jerron Perry. The admissibility and legality of this type of surveillance is now under review. CyberLaw Clinic has more information here. The PogoWasRight blog has a summary here.
The Norton Rose Fulbright Social Media Bulletin has an article on the increased likelihood of reform of s.230 Communications Decency Act 1996, which has long been used to shield social media platforms from liability, following the revelations of Facebook whistleblower, Francis Haugen.
Research and Resources
- Jeevan Hariharan, Damages for reputational harm: can privacy actions tread on defamation’s turf? (2021), Journal of Media Law (forthcoming)
- Sara Bannerman, Relational Privacy and the Networked Governance of the Self (2019), Information, Communication & Society 22, no. 14 (2019): 2187-2202
- Matthew W Finkin, The Surveillance Capitalism Controversy (2021), Forthcoming, PRIVACY E LAVORO, edited by Adriana Topo, Gianpiero Proia, and Carlo Pisani, to be published by Guiffre Francis Lefbure
- Oskar Josef Gstrein, and Andrej Zwitter, Extraterritorial Application of the GDPR: Promoting European Values or Power? (2021), Internet Policy Review 2021, Volume 10 Issue 3
- Ademola Adeyoju, The Right to be Forgotten v Data Retention Laws in Nigeria: Exploring the Nexus (2020)
- Jeannie Marie Paterson, Elise D Bant and Henry Cooney, Australian Competition and Consumer Commission v Google: Deterring Misleading Conduct in Digital Privacy Policies (2021), Communications Law – Journal of Computer, Media and Telecommunications Law, vol.26, no.3, pp. 136-148
- Giammaria Giordano, Fabio Palomba, and Filomena Ferrucci, Smart Detection and Preservation of Privacy Concerns in Iot Systems: A Systematic Literature Review (2021).
Next Week in the Courts
On 13 December 2021 there will be a statement in open court in the case of Stoimenov v MGN read before Collins Rice J.
The same judge will then hear an application in the misuse of private information case of Global Processing Services (UK) v Yanpolsky.
On 14 December 2021 there will be a statement in open court in the case of Hopkinson v British Mensa Limited before Murray J.
On 15 December 2021 there will be a pre-trial review in the case of Banks v Cadwalladr before Nicklin J.
On 16 December 2021 Collins Rice J will hear an application in the case of Spano v De Souza.
Driver v Crown Prosecution Service, heard on 8 December 2021 (Julian Knowles J)
Fearn v Board of Trustees of Tate Gallery, heard 7 and 8 December 2021 (UKSC)
Zu Sayn-Wittgenstein-Sayn v Juan Carlos Alfonso Victor Maria De Borbon y Borbon, heard 6 and 7 December 2021 (Nicklin J)
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).