Law and Media Round Up – 24 January 2022

The case of Banks v Cadwalladr concluded before Steyn J in the Royal Courts of Justice this week, with Cadwalladr arguing that her belief that the “covert relationship” between Banks and the Russian government was reasonable; the defence of public interest applies. She argued the meaning that the court ascribed to the words complained of (that Banks had received Russian money, or lied about receiving Russian money) was not what she intended. Rather, she only meant to imply about the extent of his contacts with Russia. Judgement is reserved. Inforrm published an article on the closing submissions here.

The Government has issued a High Court claim against the BBC over a story which it is claimed would identify a spy operating overseas.  The claim was issued in the Media and Communications list on 19 January 2022.  The Daily Mail describes this as a “New Spycatcher affair.”  A BBC spokesman said:

‘The Attorney General has issued proceedings against the BBC with a view to obtaining an injunction to prevent publication of a proposed BBC news story. We are unable to comment further at this stage, beyond confirming that we would not pursue any story unless it was felt it was overwhelmingly in the public interest to do so and fully in line with the BBC’s editorial standards and values.‘

On Monday 24 January 2022, a further judgment is to be handed down by the High Court in the case of Julian Assange, who is seeking permission to fight his extradition to the United States to the UK Supreme Court. This follows the Royal Courts of Justice ruling in December 2021, which held that the WikiLeaks founder should be extradited to the US where he faces criminal charges over the publication of thousands of classified documents between 2010 and 2011.

Inforrm had an article on the “journalistic misrepresentation or laziness on a grand scale” in the reports of the Duchess of Sussex’s £1 damages award for misuse of her private information.

Internet and Social Media

The Information Commissioner Office has launched a major consultation on three draft documents related to its regulatory approach: an overarching Regulatory Action Policy, Statutory Guidance on Data Protection Act 2018 Action  and Statutory Guidance related to its Privacy and Electronic Communication Regulations (PECR) Powers. These documents would replace the ICO’s Regulatory Action Policy. Inforrm had an article on the direction of information rights.

The Brett Wilson Blog has an article on how to identify anonymous anti-vax trolls, drawing on the Norwich Pharmacal procedure as a possible way to compel social media platforms to release the identity of an anonymous troll on their platform.

The Royal Society has produced research that shows banning misinformation from online platforms is ineffective, and essentially drives it “underground.” The report suggests that a “collective resilience” should be fostered instead, the Financial Times reports.

Art, Music and Copyright

Inforrm had an article on the new legal challenges posed by digital assets, like handbags, being sold in the form of non-fungible tokens (NFTs). The piece was prompted by the filing of Hermès v. Rothschild (the “MetaBirkins” case) in New York on 14 January 2022. The dispute arises over whether the copyright to the iconic handbag extends into the metaverse. The article highlights the uneasy relationship NFTs have with IP law, as they consist of a digital token that can be readily traded combined with a media asset like a photo, and may or may not also include some type of license governing use of that media asset. The question in Hermès v. Rothschild is, how much creative license does the designer of these assets get under the First Amendment?

IP Kat has an article on the effectiveness of Germany’s new Press Publisher’s Neighbouring Right against Google News Showcase online service.

Data Privacy and Data Protection

Google has added a feature to its Android mobile operating system that allows users to disable 2G connections, enhancing security by reducing the risk of a privacy breach through a rogue mobilw tower. Cell site simulators (aka “stingrays”) pose as legitimate mobile towers, tricking phones within its range to connect to it. This allows attackers to stage man-in-the-middle attacks that exploit weaknesses in the aging 2G standard to intercept device information, call records, voice and text content, and browsing history.

The Drum has a need-to-know summary of the debates around consumer data protection in the metaverse. The infrastructure of the metaverse is supposed to shift power away from platforms and toward creators, which opens the potential for users to have more say over who has access to their personal information than ever before. However, this only works if the metaverse is truly decentralised and not owned by any one actor.

HawkTalk has an article introducing the inadequacy of the proposals to reform the Human Rights Act. The next series of blogs will set out how the human rights legislation that protects UK citizens and underpins the data protection regime is in serious jeopardy.

Surveillance

The UK Government has launched a new “No Place to Hide” campaign, warning social media companies’ use of end-to-end encryption could lead to undetected cases of child sex abuse. The Guardian reports here. The ICO’s response backing the campaign can be read here.

Paul Bernal has published his criticisms of the UK government’s new anti-encryption campaign, finding it to be “based on many false assumptions, but the biggest of all of these is the whole idea that hiding is a bad thing.”

Newspapers Journalism and Regulation

Hacked Off’s has published a response to the reports that the UK Government whips are using threats of negative press coverage as a coercion tactic. Chief Executive Nathan Sparkes says this shows how some newspapers “are being approached to work in partnership with political factions to damage their opponents. The national press’ refusal to join an independent regulator means there is no real redress for the victims of press cancel culture when reporting is untrue.”

The latest Edelman Trust survey has revealed that two-thirds (67%) of people globally have said that they believe journalists purposely try to mislead people by saying things that are false or grossly exaggerated.

The LSE Media Blog has an article responding to the announcement that the BBC licence fee will be frozen for the next two years, and abolished completely in 2027. The authors argue that the debate risks overlooking the value of public broadcasting in the multi-screen era.

IPSO 

• Resolution Statement 08081-21 Jenkins and Jenkins v mirror.co.uk, 4 Intrusion into grief or shock (2021), 1 Accuracy (2021), 3 Harassment (2021), Resolved – IPSO mediation
• 07939-21 Dix v The Times, 1 Accuracy (2019), No breach – after investigation
• Resolution Statement 08081-21 Capen Ltd v stokesentinel.co.uk, 1 Accuracy (2019), Resolved – IPSO mediation
• 09833-21 A man v Mail Online, 1 Accuracy (2019), 2 Privacy (2019), 4 Intrusion into grief or shock (2019), 9 reporting of crime (2019), No breach – after investigation
• 09834-21 A man v thesun.co.uk, 1 Accuracy (2019), 2 Privacy (2019), 4 Intrusion into grief or shock (2019), 9 reporting of crime (2019), No breach – after investigation
• 10211-21 The Tax Justice Network v The Times, 1 Accuracy (2019), No breach – after investigation

New Issued Cases

There were 6 claims issued in the Media and Communications List in the last week, one data protection claim, three defamation (libel and slander) claims, one injunction claim and one classified as “miscellaneous”.

Last Week in the Courts

As already mentioned, the trial in the case of Banks v Cadwalladr took place before Steyn J on 17 to 19 and 21 January 2022.  Judgment was reserved.

On 17 and 18 January 2022 Richard Spearman QC heard the trial in the data protection case of Ali v Luton Borough Council   Judgment was reserved.

On 18 January 2022 Nicklin J heard a CMC and applications in the case of MBR Acres v Free MBR Beagles.

Media Law in Other Jurisdictions

Australia

A submission filed by Google in the High Court has warned that it will be forced to “censor” its search results if a 2020 court ruling that held Google liable for defamatory material contained in hyperlinked pages is not overturned. The Guardian has more information here.

Mining magnate Gina Rinehart has filed documents in the NSW Supreme Court for defamation and malicious falsehood for Channel 9’s miniseries House of Hancock. More information is available on Journlaw.

Canada

A very rare civil jury trial in Manitoba that awarded the plaintiff $500,000 for defamation has been replaced with an award of $50,000 by the Court of Appeal in Manitoba: Chartier v Bibeau 2022 MBCA 5.

Europe

The European Parliament has voted in favour of passing the Digital Services Act. The draft includes provisions for “more transparent and informed choice” around targeted advertising, including clear opt-outs and tracker-free versions of online platforms.

The Privacy & Information Security Law Blog has published its analysis of the French Data Protection Authority (CNIL) guidelines, published 12 January 2022, on the re-use of personal data by data processors for their own purposes (such as product improvement or the development of new products and services) under the GDPR.

India

In Hyderabad, Telengana, a case has been bought against the police concerning the use of facial recognition software, the Privacy Perspective and Aljazeera report.

United States

The UK-based voting machine company Smartmatic has filed a defamation suit against MyPillow CEO Mike Lindell for his allegations that the company switched Trump votes to Biden in the 2020 presidential election.

A defamation claim has been filed against the actor Alec Baldwin by the widow and two sisters of a US Marine killed in Afghanistan, to whom the actor donated money. The claim relates to a comment made by Baldwin on Instagram, in which he called one sister an “insurrectionist” for attending the Trump rally on the 6 January 2020, which later turned into the Capitol Riot in which 6 people were killed. CNN also reports here.

The Evan Law blog has an published analysis of the forthcoming appeal in the Indiana Supreme Court that argues the State’s law on Revenge Porn is unconstitutional. The article concludes that the defendant’s expressive activity in this case was an abuse of his right to free interchange as expressed in the constitution.

Research and Resources

• Clare McGlynn, Cyberflashing: Consent, Reform and the Criminal Law [2022] The Journal of Criminal Law
• Helena Jahromi, Anticipating the CJEU´s Judgement? Transposition of Art. 17 CDSMD in Germany, [2022] Pogacsas, Anett (ed.): “Intellectual Creations in the Service of Mankind” – Study Volume of the Memorial Conference in Honor of Professor Dr. Levente Tattay. Pázmány Press,
• Jeffery Atik and Xavier Groussot, A Weaponized Court of Justice in Schrems II [2021] Nordic Journal of European Law Issue
• Murray Brown and Normann Witzleb, Big Brother at Work – Workplace Surveillance and Employee Privacy in Australia [2021] Australian Journal of Labour Law 34(3)

Next Week in the Courts 

On 25 and 26 January 2022 the Court of Appeal will hear the claimant’s appeal in the case of Rondon v LexisNexis Risk Solutions Limited.

Reserved Judgments

Banks v Cadwalladr 14, 17 to 19 and 21 January 2022 (Steyn J) .

Ali v Luton Borough Council, heard on 17 and 18 January 2022 (Richard Spearman QC).

Underwood v Bounty UK Ltd, heard on 11 to 13 January 2022 (Nicklin J).

Goldsmith v Bissett-Powell, heard on 13 January 2022 (Julian Knowles J).

 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).