The Inforrm Winter Break ends today with the beginning of the Hilary Legal Term. The term begins today and ends, 13 weeks later, on 13 April 2022. This Round Up covers developments since the last round up on 20 December 2021.
On 20 December 2021, judgment was handed down in favour of TV presenter Rachel Riley in her defamation claim against Laura Murray (Riley v Murray  EWHC 3437 (QB)). The claim related to a tweet by Ms Murray which read, “Today Jeremy Corbyn went to his local mosque for Visit My Mosque Day, and was attacked by a Brexiteer. Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi. This woman is as dangerous as she is stupid. Nobody should engage with her. Ever.”
The tweet was in response to a tweet by Ms Riley commenting on an incident in which the former Labour party leader Jeremy Corbyn was attacked with an egg. Nicklin J found that, because Ms Murray’s tweet was stated as fact, it had one meaning; the defence of truth failed. The honest opinion and public interest defences failed because Ms Murray failed to prove the truth of her foundation of the opinion, or her reasonable belief that publication of her was in the public interest. Ms Riley was awarded £10,000 damages. The 5RB summary can be found here. The Guardian reports here.
On Monday 20 December 2021 the Court of Appeal handed down judgment in favour of a former Humberside Police Officer in Harry Miller -v- (1) The College of Policing (2) The Chief Constable of Humberside  EWCA Civ 1926 over on an allegedly transphobic tweet. Harry Miller was challenging police guidance on “hate incidents,” claiming that it interfered with the basic right to freedom of expression. The Court of Appeal found that while the guidance had legitimate aims of preventing crime, those aims could be achieved by less intrusive measures. The Hull Daily Mail reports on the judgement here and The Northern Echo here.
On Boxing Day, the Mail on Sunday published its court-ordered front-page statement telling readers of the Duchess of Sussex’s copyright victory. Associated News Ltd, publisher of the Mail On Sunday, is to pay the Duchess of Sussex “substantial” damages for copyright and £1 nominal damages for misuse of private information. The Court of Appeal’s Order bringing an end to the action can be found here [pdf].
Roman Abramovich has settled his libel claim against the journalist and publisher behind the book, Putin’s People. This followed his success in the High Court in November 2021, where Mrs Justice Tipples ruled that nine statements in the book were defamatory.
On 21 December 2021, the Court of Appeal handed down judgment in Soriano v Forensic News LLC & ors  EWCA Civ 1952, allowing the Claimant’s cross-appeal to serve out his data protection claim against the US-based defendant news organisation and journalists. This is the first appellate decision on the territorial reach of GDPR. The 5RB case report is available here.
Marc Bola, a Middlesbrough footballer, has secured the partial removal of a – now deleted – 10-year old Tweet from the written responses to a FA Disciplinary Decision. 5RB has more information here.
The long running case of Lachaux v Independent Print has finally concluded, settling on terms whereby the defendant’s appeal was withdrawn.
Internet and Social Media
Facebook’s fact checking function has been questioned after the British Medical Journal, one of the world’s most prestigious medical publications, was labelled by the social media network as a spreader of misinformation. The incident followed the publication of a peer-review article that questioned the integrity and regulatory oversight issues surrounding Pfizer’s phase III Covid-19 vaccine trial. Would-be readers reported having their posts flagged with a warning about “Missing context … Independent fact-checkers say this information could mislead people.” Inforrm has an article here.
The controversial Politics For All (PFA) account and its associated brands including News For All were suspended from Twitter on Sunday 2 January 2022, as was the account for owner, Nick Moar. A Spokesperson for Twitter said the PFA account was “suspended for violating rules on platform manipulation and spam.” No reason has been given for Moar’s suspension.
A recent trademark dispute between fitness-tech company iFIT inc. and lingerie retailer Victoria Secret shows that any everyday word (here, “SWEAT”) can qualify for trademark protection. The dispute arose out of a social media campaign by Victoria Secret which prominently used the word “SWEAT” in its promotions of its fitness apparel. The Norton Rose Fulbright Social Media Law Blog has more information here.
The biannual Federal Reserve Financial Stability Report has highlighted the role of social media and retail investors in equity market volatility. The Norton Rose Fulbright Social Media Law Blog has more information here.
Data Privacy and Data Protection
A joint study by academics at Princeton University Centre for Information Technology Policy and Radboud University Digital Security Group, which set out to investigate how online services have complied with the GDPR and the California Consumer Privacy Act (CCPA), has ended in confusion, frustration and wasted costs for the businesses and organisations unwittingly subjected to the study. Mishcon de Reya has more information here.
The summary of action for WhatsApp’s appeal of a €225 million EU GDPR fine was published in the Official Journal of the European Union.
The ICO has issued its report with NHS Test and Trace with recommendations to strengthen the protection of people’s personal data, so it can continue to play a vital role in tackling the pandemic.
On 20 December 2021 the ICO launched a public consultation on its Regulatory Action Policy (“RAP”). The consultation closes on 24 March 2022. The RAP sets forth the ICO’s risk-based approach to regulatory action and explains the factors the ICO considers before taking regulatory action, how the ICO works with other regulators, and enforces the legislation for which it is responsible.
On the 1 year anniversary of the Capitol Hill riots, the Brennan Centre for Justice has explained how the US government monitors social media and how counter-terrorism efforts can threaten civil rights and privacy.
Following a review of over 100 (predominantly confidential) Huawei PowerPoint presentations, The Washington Post revealed that the Chinese tech giant plays a broader role in China’s surveillance efforts than it has previously acknowledged.
Newspapers Journalism and Regulation
The BBC is launching an investigation after finding that an interview with Jeffrey Epstein’s former lawyer Alan Dershowitz, following the conviction of British socialite Ghislaine Maxwell, did not meet its editorial standards. In a statement, the BBC admitted that Mr Dershowitz was not a suitable person to interview as an impartial analyst.
Campaign group Movement for an Open Web has called on the Competition and Markets Authority to impose a formal restraining order on Google over the company’s plans to replace third-party cookies. Removing third-party cookies without adequate replacement would mean most of the world’s top 500 publishers would lose between 50-75% of their income.
Hacked Off has re-published lessons from the phone hacking scandal: 10 years on, first published on Campaign.org.
The Privacy Perspective Blog has an article that asks the question, does the IPSO Editor’s Code need to be reformed to protect the relatives of the accused?
IPSO has declined a request to launch an investigation into the Jewish Chronicle (JC), saying it would not be “proportionate” before the impact of the recent training of JC staff can be assessed. Hacked Off’s response can be read here, here and here.
Decisions since the last round up
- 07468-21 Couzens v Mail Online, 2 Privacy (2019), 6 Children (2019, No breach – after investigation
- 06399-21 Brace v thejc.com, 1 Accuracy (2021), Breach – sanction: action as offered by publication
- 08032-21 Doherty v Ardrossan & Saltcoats, 1 Accuracy (2019), Breach – saction: publication of adjudication
- 04367-21 Brundrett & Bailey v derbytelegraph.co.uk, 1 Accuracy (2019), No breach – after investigation
New Issued Cases
One Data Protection, one Defamation (libel and slander), one Harassment, one Misuse of Private Information and two Miscellaneous claims have been issued on the Media and Communications list since the last round up.
Last Week in the Courts
Below is a summary of the main developments over the Christmas break.
Judgement was handed down by Nicklin J in Riley v Murray  EWHC 3437 (QB) on 20 December 2021. See above.
Judgement was handed down by Dame Sharp, Lauing LJ and Warby LJ in Soriano v Forensic News LLC & ors  EWCA Civ 1952 on 21 December 2021. See above.
Judgement was handed down by Dame Sharp, Simler LJ and Haddon-Cave LJ in Harry Miller -v- (1) The College of Policing (2) The Chief Constable of Humberside  EWCA Civ 1926 on Monday 20 December 2021. See above.
All three Claimants in Blake, Seymour and Thorp v Fox  EWHC 3463 (QB) were granted relief from sanctions for failure to serve a Reply and Defence to the counterclaim, and no order was made on the Defendant’s application for Default Judgement. The claim relates to a twitter spat between the Claimants and Lawrence Fox. Mr Fox responded to the Claimant’s allegations that his criticism of supermarket Sainsbury’s support of the Black Lives Matter movement demonstrated that he was a racist, by calling the Claimants paedophiles. 5RB has a summary here.
Judgement was handed down in Mahmudov & Mahmudova v Goni Sanzberro & ors  EWHC 3433 (QB) by Collins Rice J on 17 December 2021. The court did not have jurisdiction to hear the case. The CJEU decision in eDate created a freestanding basis of jurisdiction wherever a claimants’ “centre of interests” was, even if there had not been a tort committed there. Therefore, to determine whether the court had jurisdiction, it had to first consider whether there had been a tort committed in England & Wales. Neither of the Claimantss had made out a ‘good arguable case’ that an actionable tort of libel had been committed against them in England & Wales. The 5RB summary can be found here.
On the 13 January 2022, IAPP is hosting a discussion on LinkedIn with Chief Knowledge Officer Caitlin Fennessy, CIPP/US, and members of the IAPP Research Team on the biggest priorities facing professionals in 2022 as it relates to the areas of privacy program management, privacy law and privacy engineering. More information can be found here.
Media Law in Other Jurisdictions
On 23 December 2021 Le Miere J handed down judgment in the case of Green v Fairfax Media Publications ( WASC 474) the trial of which was heard over 19 days between 26 October 2020 and 19 March 2021. The allegation was the the claimant caused unethical market manipulation and defrauds the public. The Judge rejected the defences of justification and honest opinion and awarded damages of $400,000 including aggravated damages.
The French Data Protection Authority (CNIL) has fined Facebook €60 million and Google a total of €150 million for failing to allow the users of facebook.com, google.fr and youtube.com to reject cookies as easily as they may accept them. They have also issued an injunction to remedy such infringement within 3 months under penalty of €100,000 per day of delay. IAPP has a summery here.
Two more pro-democracy news outlets in Hong Kong have closed following the forced closure of Apple Daily last year. Foreign Secretary Dominic Raab has called this a “chilling blow to freedom of expression.”
The Indian Joint Parliamentary Committee has submitted its report on India’s draft Data Protection Bill. The Bill is likely to be passed by Parliament in its next session, beginning in February 2022, and enter into force in the first half of 2022. Hunton Andrews Kurth blog has more information here.
Norway’s Ministry of Justice and Emergency Preparedness opened a consultation proposal on amendments that would allow the Norwegian Police Security Service to store and analyse openly available data for intelligence purposes.
On Christmas Eve, a New York judge upheld an order preventing the New York Times from publishing documents prepared by a lawyer for the conservative group Project Veritas, which is suing the newspaper for defamation.
A claim against Amazon.com Inc that accuses the company of unlawfully collecting “facial geometry” scans of employees at its warehouses as part of COVID-19 wellness checks will continue to trial, an Illinois federal judge has ruled.
A class-action lawsuit filed in an Alabama federal court alleges that Meta, the parent company of Facebook, violated minors’ privacy rights and illegally collected their biometric data.
Research and Resources
- Jens T. Theilen Helmut-Schmidt-University, Andreas Baur University of Tübingen, Felix Bieker Office of the Data Protection Commissioner Schleswig-Holstein, Regina Ammicht Quinn University of Tübingen, Marit Hansen Office of the Data Protection Commissioner Schleswig-Holstein, Gloria González Fuster Vrije Universiteit Brussel, Feminist Data Protection: an introduction, Internet Policy Review, 10(4).
- Alexandros Antoniou, When the Litigation Winner Becomes the Loser: Undeserving Claimants and Mitigation of Damages in Libel Claims, The Journal of Media Law 2019, 10, Issue 2
- Alexandros Antoniou, Indecent Images and Defamatory Meaning in Late Modern Societies: Taking Ordinary, Reasonable Readers outside Their Ivory Tower, The Journal of Media Law 2017, 9, Issue 2
- John Hasnas, Free Speech on Campus: Countering the Climate of Fear, Georgetown Journal of Law and Public Policy
- Keith Whittington, Academic Freedom and the Mission of the University, Houston Law Review 9 No.4 2022
- Alan Chen, Cheap Speech Creation, University Strum College of Law
- Andrew Ray, Disinformation, Deepfakes and Democracies: The Need for Legislative Reform, University of New South Wales Journal 44 No. 3 2021
Next Week in the Courts
On 11 to 13 January 2022 Nicklin J will hear the trial in the privacy case of Underwood v Bounty.
On the same date Murray J will hand down judgment in the libel case of Bashar v Birmingham City Council.
On 13 January 2022 Julian Knowles J will hear the trial in the libel case of Goldsmith v Bissett-Powell.
On the same day Nicklin J will hear consequential arguments in the case of Riley v Murray.
On 14 January 2022 the libel trial in the case of Banks v Cadwalladr will begin before Steyn J. The defendant, the journalist Carol Cadwalladr, has raised over £400,000 by through a crowdfunder to support her defence. There is an article about the case in the Guardian.
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 and 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).