The Michaelmas Legal Term ends tomorrow and this is the final Round Up before the Christmas break. The Hilary Legal Term begins on 11 January 2022 and the first weekly Round Up of the new term will be on 10 January 2022.
The UK Government has relaunched the campaign to overhaul the Human Rights Act 1998 in an attempt to counter what Secretary of State for Justice Dominic Raab has called “wokery and political correctness.” The proposed new Bill of Rights would introduce a permission stage to “deter spurious human rights claims” and change the balance between freedom of expression and privacy. The consultation document cites the Mail’s loss in the Court of Appeal against the Duchess of Sussex for the illegal publication of the letter written to her father as evidence that freedom of expression needs better protection under law. The inconsistency of the proposed reforms with regard to freedom of expression and privacy was discussed on the latest Newscast from The Media Law Podcast. The BBC reports here.
Numerous newspapers last week reported the finding of a family court that, on the balance of probabilities, ex-Conservative MP Andrew Griffiths raped his wife. The stories were publishable because of a year-long battle to reveal the finding by freelance journalist Louise Tickle and Press Association’s Brian Farmer (backed by Tortoise Media) (Griffiths v Tickle  EWCA Civ 1882). Press Gazette’s report can be read here. The Transparency Project offers a lawyer’s perspective here. Inforrm had an article here.
Internet and Social Media
The LSE Media Blog has an article on gender-based violence online, following the UN’s 16 Days of Activism against Gender-based violence.
Data Privacy and Data Protection
Privacy International (PI) has an article calling for the facial recognition company Clearview AI to be banned. PI criticises the business model that runs on the premise that, if you are out in public or post something online, it is fair game for that data to be exploited for profit. The article is in response to the French data protection regulator CNIL’s recent decision to stop collecting and processing people’s data in France. France joins Canada, Sweden, Germany and Australia, who have all condemned Clearview’s data practices.
Professor Sonia Livingstone and 5Rights Foundation researcher Kruakae Pothong have produced a child rights response to the UK government’s recent consultation, Data: a new direction for the LSE Media Blog.
A summary of the Centre for Information Policy Leadership (CIPL)’s response to the DCMS consultation on data protection reform can be read here. This week the CIPL also published its White Paper on the Interplay between the draft EU Digital Markets Act and the GDPR.
Suneet Sharma has compiled the Top 10 EU and UK Data Breach fines of 2021 here.
Meta, the owner of Facebook, has banned seven surveillance companies for targeting users on its platforms, the BBC reports. Nearly 50,000 Facebook users in 100+ countries have been targeted by surveillance companies, The Washington Post reports.
Amazon has registered seventeen new patents to use biometric technology for its Ring doorbell to identify and report unknown and “suspicious” people. Scent, skin texture, fingerprints, eyes, voice and walk are some of the identifying factors listed.
An investigation by the Washington Post has alleged that Huawei helped Chinese authorities create surveillance technology that targets the country’s Uyghur minority population. The Guardian reports here.
Newspapers Journalism and Regulation
The Joint Committee on the draft Online Safety Bill has said that “major changes” are needed to the draft to protect news publisher content. These include altering the legislation to prioritise the protection of “content where there are reasonable grounds to believe it will be in the public interest” rather than “journalistic content” and “content of democratic importance,” the Press Gazette reports. Clean Up the Internet’s reflections can be read here. Hacked Off’s criticises the exception for newspaper comment sections – “the areas where harms thrive” – as it allows the “unregulated, irresponsible publisher to commit harms online with impunity”.
The Sun political editor Harry Cole has warned of the “systematic decay of freedom of the press” after collecting the “Scoop of the Year” prize at the British Journalism Awards, for revealing the Hancock affair. Cole spoke of the threats from government officials towards The Sun and accusations of involvement by Chinese and Russian spies, as well as a threat to reform the Official Secrets Act which would treat journalists like spies for reporting on matter of public interest.
Former Today editor Sarah Sands has told the House of Lords Communications and Digital Committee that the BBC is “institutionally statist,” that is, leaning towards more government spending as a solution to crisis. Sands did, however, defend the BBC’s approach to impartiality.
Hacked Off has an article on what Sienna Miller’s statement in open court in settlement of her phone hacking claim against The Sun reveals about the paper’s determination that phone hacking claims are not tested at trial, and the press’ obsession with women’s reproductive choices.
- 06393-21 Minto v Sunday People, 1 Accuracy (2019), Breach – sanction: action as offered by publication
- 01933-21 Muslim Council of Britain v thejc.com, 1 Accuracy (2021), No breach – after investigation
- 02814-21 Kent v straffordshire-live.co.uk, 1 Accuracy (2019). 2 Privacy (2019), 6 Children (2019), Breach – sanction: action as offered by publication
- 07428-21 Daunt v The Daily Telegraph, 1 Accuracy (2019), No breach – after investigation
- Resolution Statement – 09601-21 Bradley v kentlive.news, 1 Accuracy (2019), Resolved – IPSO mediation
Statements in Open Court and Apologies
There was a statement in open court [pdf] in the case of Hopkinson v British Mensa Limited on 14 December 2021 before Murray J. The defendant agreed to pay defamation damages and costs to former director Eugene Hopkinson after publishing a series of statements that alleged he was responsible for a data leak and cyberattack and had deliberately attempted to harm Mensa and its membership.
On 13 December 2021 before Collins Rice J, the Mirror apologised and agreed to pay £75,000 damages to Mr Ilian Stoimenov for repeated allegations of fraud.
New Issued Cases
There were three defamation (libel and slander) cases issued on the media and communications list last week, as well as one data protection claim and one injunction application.
Last Week in the Courts
Judgement was handed down in Mahmudov v Luisa Goni Sanzberro and ors  EWHC 3433 (QB). The claim arose over an article published online relating to allegations of the origins of the Claimants’ family’s wealth. The Court was asked to rule on the question of jurisdiction and the so called “eDate” question (eDate Advertising GmbH v X [2021 QB 654), which concerned how the internet has affected where one should bring libel claims where the availability of the libellous material has become universal. The “Shevill Rule” – claimants can choose to either proceed against Defendants where the latter is domiciled for global remedies for all harm caused, or they can proceed in any/all countries where the actionable publication caused harm – had become outdated. Held, the High Court did not have jurisdiction to try the Claimants’ claim. The Claimants’ evidence does not indicate any actual harm occasioned via readers in the UK as a result of publication in the UK .
The counterclaim for defamation was rejected in Musst Holdings v Astra Asset Management  EWHC 3432 (Ch) on the basis that it was not proven that there was a publication as alleged and that the actual or natural and probable requisite loss had not been proven. The claim for malicious falsehood also failed in that the publication had not been proven.
On 13 December 2021 there was an application in the misuse of private information case of Global Processing Services (UK) v Yanpolsky before Collins Rice J.
On 15 December 2021 there was a pre-trial review in the case of Banks v Cadwalladr before Nicklin J.
On 16 December 2021 Collins Rice J heard an application in the case of Spano v De Souza.
Media Law in Other Jurisdictions
A leading defamation judge in Sydney has joined legal experts in criticising the Morrison government’s proposed anti-troll law. District Court Judge Judith Gibson says they first problem is that “vulgar abuse is not defamatory,” so the proposed new defamation scheme that requires social media platforms to hand over the identity of anonymous commenters to potential defamation claimants is fundamentally flawed. The Sydney Morning Herald has more information here.
The Australian Information and Privacy Commissioner Angelene Falk has found that the Australian Federal Police failed to conduct a privacy impact assessment before implementing Clearview’s facial recognition tool and failed to make sure its use complied with the Australian Government Agencies Privacy Code.
France’s data protection authority (CNIL) has ordered Clearview AI to stop processing photographs and videos publicly accessible online and to delete data within two months. This follows an investigation in which CNIL found Clearview’s collection and use of biometric data was in violation of the EU GDPR.
News publishers are pursuing a collective bargaining agreement with Facebook and Google similar to that struck in Australia earlier this year.
Norway’s data privacy watchdog has fined the gay dating app Grindr 65 million kroner ($7.16m) for sending sensitive personal data to hundreds of potential advertising partners without users’ consent. The figure was reduced after Grindr agreed to provide further information to the investigation and rectify areas of malpractice.
Delaware state court judge Eric M Davis has found that Fox News had enough information after the 2020 presidential election to know a conspiracy theory claiming Dominion Voting Systems rigged their voting technology was false. Therefore, the $1.6bn defamation claim can proceed. The Independent also reports here.
The Centre for Internet and Society has an article reminding Tesla that California’s rules on autonomous technology still apply to the company’s “fully self-driving cars,” and accuses Tesla of misleading the California Department of Motor Vehicles.
New York City Council has passed a bill prohibiting employers and employment agencies from using automated employment decision tools to screen candidates or employees, Hunton Andrews Kurth reports.
Prominent journalist and dissident Pham Doan Trang has been imprisoned for nine years for “anti-state activities”, after writing about Vietnamese human rights abuses and police brutality.
Research and Resources
- Alexandros Antoniou, Advertising regulation and transparency in influencers’ endorsements on social media (2021) Vol. 26, Issue 4, Communications Law – Journal of Computer, Media and Telecommunications Law pp. 190-207
- Matthew Schafer, Liberty, Libel, and the First Amendment (2021), Fordham University School of Law
- Ronan Ó Fathaigh, Natali Helberger, and Naomi Appelman, The Perils of Legally Defining Disinformation (2021), Internet Policy Review 10 (4)
- Evelyn Aswad, Taking Exception to Assessments of American Exceptionalism: Why the United States Isn’t Such an Outlier on Free Speech (2021), University of Oklahoma College of Law
- Meagan Zabadal, Hate Speech and Minority Protection in the United States (2021), Charles University in Prague Faculty of Law Research Paper No. 2021/III/2
- 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)
- Maximilian Grafenstein, Julie Heumüller, Elias Belgacem, Timo Jakobi, and Patrick Smiesko, Effective Regulation through Design – Aligning the ePrivacy Regulation with the EU General Data Protection Regulation (GDPR): Tracking Technologies in Personalised Internet Content and the Data Protection by Design Approach (2021), Berlin University of Arts
- Alexandra Giannopoulou, Putting Data Protection by Design on the Blockchain (October 14, 2021). European Data Protection Law Review, Volume 7 (2021), Issue 3, Pages 388 – 399
- Katrin Kappler, Consequences of the German Constitutional Court’s Ruling on Germany’s Foreign Intelligence Service: The Importance of Human Rights in the Cooperation of Intelligence Services (2021), Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2021/06
- Neil M Richards, Why Privacy Matters: An Introduction (2021), Washington University School of Law; Yale Information Society Project; Stanford Center for Internet and Society
- Rebecca Green, Election Surveillance (2021), 57 Wake Forest L. Rev.
- Václav Šmejkal, Three Challenges of Artificial Intelligence for Antitrust Policy and Law (2021), Charles University in Prague Faculty of Law Research Paper No. 2021/III/3
- Robert Walters, Cross Border Data Flows – An Evolving Multilayered Regulatory Approach Required! (2021), Global Privacy Law Review, WoltersKluwer, 2021
- Gregory Voss, Data Protection Issues for Smart Contracts (2021), Smart Contracts: Technological, Business and Legal Perspectives (Marcelo Corrales, Mark Fenwick & Stefan Wrbka, eds., Hart Publishing/Bloomsbury, 2021)
Next Week in the Courts
On Monday 20 December 2021 judgement will be handed down by the Court of Appeal in Harry Miller -v- (1) The College of Policing (2) The Chief Constable of Humberside, heard 9 and 10 March 2021 by Sharp P, Haddon-Cave and Simler LJJ.
On the same day, Nicklin J will hand down judgment in Riley v Murray (heard 10 to 12 May 2021).
On Tuesday 21 December 2021 judgement will be handed down in Tzvi Soriano -v- Forensic News LLC & Ors heard 6 and 7 October 2021 by Sharp P, Elisabeth Laing and Warby LJJ.
Driver v Crown Prosecution Service, heard on 8 December 2021 (Julian Knowles J)
ZXC v Bloomberg LP, heard on 30 November – 1 December 2021 (UK Supreme Court).
Qatar Airways Group Q.S.C.S v Middle East News UK Limited and others heard on 4 October 2021 (Saini J)
Haviland v The Andrew Lownie Literary Agency Ltd., heard on 27 July 2021 (Murray J)
Masarir v Kingdom of Saudi Arabia., heard 15 and 16 June 2021 (Julian Knowles J)
Kumlin v Jonsson, heard 24 and 25 March 2021 (Julian Knowles J).
Ansari v Amini, heard 10-11 November 2020 (Julian Knowles J)
Wishing you all a very Merry Christmas.
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).