Netflix is to face a defamation claim from chess grandmaster Nona Gaprindashvili for a false statement made in the fictional series The Queen’s Gambit, which stated that Gaprindashvili “never faced men.” The Georgian chess player said that this has “tarnished (her) personal and professional reputation” in the eyes of millions of viewers worldwide. In refusing Netflix’s application to have the case thrown out, a Californian Central District Court judge said that there was no evidence of “precluding defamation claims for the portrayal of real persons in otherwise fictional works.” The BBC, Daily Mail and Chess.com have covered the ruling.
On 26 January 2022 there was a directions hearing in the case of HM Attorney General v BBC. The Attorney General is seeking an injunction to stop the BBC from airing a programme which would allegedly identify an intelligence operative working overseas, the Press Gazette reports. Oliver Sanders QC, counsel for the Attorney General, told the Court that “this is a breach of confidence case where there is a dispute between the parties as to whether certain information can be published.” The BBC argues that it is in the public interest that the information be published. Directions were given for a hearing on 1 and 2 March 2022 with part of the hearing being in private.
Julian Assange has been granted permission to appeal to the UK Supreme Court against the December 2021 decision to extradite him to the US. The appeal relates to a point of law, namely “in what circumstances can an appellate court receive assurances from a requesting state which were not before the court of first instance in extradition proceedings.” The Press Gazette reports here. The Guardian reports here.
Internet and Social Media
The LSE Media Blog has an article detailing Europe’s proposals to reduce, and ultimately prevent, image-based sexual abuse (colloquially known as “revenge porn”). Article 24b of the Digital Services Act introduces targeted obligations on online platforms primarily used for the dissemination of user generated pornographic content. The measures are described as a “welcome recognition of the prevalence and harms of image-based sexual abuse,” with the “potential to make a significant difference to the lives of victims.”
Inforrm had an article on the new phenomenon of the “TikTok Tabloid,” which sets out how digital technologies are enabling a new form of social surveillance, and the impact this has on people’s private lives.
The Data Protection Report has an article on privacy rights in the metaverse from a Canadian perspective: “One aspect of the metaverse that raises privacy concerns is the vast amount of personal data that may be collected on participating individuals. Compared to traditional social media, metaverse platforms can track individuals in a much more intimate manner. Companies can monitor physiological responses and biometric data such as facial expressions, vocal inflections, and vital signs in real time while participants are in their metaverse. This depth of information allows companies to gain a deeper understanding of users’ behaviour, which in turn can be used to tailor advertising campaigns in an exceptionally targeted way.”
Data Privacy and Data Protection
DLA Piper reports on the UK government new International Data Transfer Expert Council, which forms part of the UK’s National Data Strategy. The Council will meet quarterly to cover issues such as future data adequacy partnerships, the development of new data transfer tools, and how governments can work together to promote greater trust in sharing personal data for law enforcement and national security purposes. The blog also reports on the first ‘Government Cyber Security Strategy – Building a Cyber Resilient Public Sector’, which outlines how central government and the public sector will ensure that public services can function in the face of growing cyber threats. The Strategy aims to “step up the country’s cyber resilience by better sharing data, expertise and capabilities.”
The mental health support hotline Crisis Text Line has revealed that it shares callers’ data with its for-profit subsidiary, Loris.ai. Crisis Text Line said any shared data is anonymised and it is not possible to identify help line callers. Privacy advocates expressed concerns over the potential to trace records back to specific individuals and whether callers consent to having their data shared.
The HawkTalk blog has published the second instalment of its criticism of the Ministry of Justice Consultation, Human Rights Act Reform: A modern Bill of Rights, which is said to have the “potential to significantly undermine the application of UK’s data protection regime.” The article discusses the knock-on effects of the proposals to change the interpretation of the words “necessary” and “public interest” so that “great weight” has to be given to Parliament’s view of what is necessary/public interest.
Olympic athletes participating in the 2022 Beijing Winter Olympic Games have been provided with burner phones amid surveillance concerns. Some athletes have been advised to leave laptops and phones at home, while others — including athletes from Canada, Germany and Great Britain — are being provided temporary devices. The U.S. is encouraging disposable devices.
Newspapers Journalism and Regulation
The BBC has apologised after Ofcom launched an investigation into the broadcaster’s decision to uphold complaints regarding the accuracy and impartiality of its coverage of an anti-Semitic attack on a Hanukkah party. The BBC has amended the story on its website and issued a clarification of a TV report.
The Digital, Culture, Media and Sport Committee has published a report warning that the Online Safety Bill fails to protect journalistic freedom of speech by letting tech giants use automated algorithms to take down reporting. Press Gazette has more information here.
Former cabinet minister David Davis has warned that SLAPP (strategic litigation against public participation) libel actions are having a chilling effect on UK journalism, the Press Gazette reports. Davis said that the UK legal system allows people with “nefarious intentions” and “exceptionally deep pockets” to “threaten, intimidate and put the fear of God into British journalists, citizens, officials and media organisations”.
Hacked Off has published an article criticising IPSO’s failure to hold to account newspapers whose extensive coverage risked exposing the identity of a victim of sexual assault. There is also an article on the impact of prejudiced press coverage on Gypsies and Travellers.
New Issued Cases
One Defamation (libel and slander) claim was issued on the media and communications list last week.
Last Week in the Courts
As already mentioned, on 26 January 2022 there was a directions hearing in the case of HM Attorney-General v BBC before Chamberlain J.
On the same day Richard Spearman QC heard the libel trial in the case of Day v Chivers.
On 27 January 2022 Richard Spearman QC handed down judgment in the case of Ali v Luton Borough Council  EWHC 132 (QB). The claim was dismissed on the basis that the defendant was not vicariously liable for data breach of one of its employees.
On 28 January 2022 Warby LJ refused permission to appeal in Wright v McCormack. The Defendant’s application was filed weeks out of time, and relief from sanction was refused on the basis that it amounted to both a serious and significant breach (with no good reason) and that it would be unjust to grant the relief sought. 5RB has a summary here.
The appeal in the case of Rondon v LexisNexis Risk Solutions Limited was dismissed by consent on 31 January 2022.
Media Law in Other Jurisdictions
Leave to appeal to the Supreme Court of New South Wales has been refused in The Sydney Cosmetic Specialist Clinic Pty Ltd v Hu  NSWCA 1. Held, the defamation appeal raised no issue of principle or question of public importance, nor an injustice that was reasonably clear in the sense of going beyond what was merely arguable. The dispute related to a hyperlink posted on a WeChat group to a Chinese version of the media publication “Sydney Today,” which contained allegedly defamatory statements of some of the Claimant company’s clinicians. The claim was struck out and summarily dismissed in October 2020.
West Australian Premier Mark McGowan has been ordered to move across state borders to appear in a Sydney court where Clive Palmer is suing him for defamation. Mr Palmer argues comments made by Mr McGowan in 2020, which included calling him an “enemy” of the state, damaged his reputation. Mr McGowan has counterclaimed that Mr Palmer, in fact, defamed him by saying he had lied and had “abused” the parliamentary system. ABC news reports here.
The Austrian Data Protection Authority (DPA) has held that Google Analytics breached Art 44 GDPR by failing to provide an adequate level of protection to the transfer personal data to Google LLC in the US. The DPA did not impose a fine on Google, however, as the criminal administrative proceedings concerning fines are separately conducted under Austrian law, a fine is still possible in the future. The decision is not yet final and can be appealed. Norway’s data protection authority, Datatilsynet, has also announced it is following the Austrian DPA’s decision regarding Google Analytics.
Truckers from all over the country arrived in Ottawa this week to protest vaccine mandates and COVID-19 measures.
The Privacy and Information Security Law Blog has published a summary of the Cyberspace Administration of China (CAC) draft Regulations on Network Data Security Management. The Draft Regulations are intended to implement portions of three existing laws and add new requirements related to data processing activities. Once effective, the Draft Regulations will impose even greater compliance obligations on companies than the PIPL.
The Strasbourg Observes blog has an article on the December 2021 judgement in Standard Verlagsgesellschaft MBH v. Austria (No. 3), which represents an interesting development in the case law of the ECtHR on user-generated content and anonymous speech online. The case concerns the liability of host providers who refused to disclose anonymous user data for allegedly defamatory comments. The article argues that the Court’s reasoning that the requirement to disclose user data was an interference with Article 10 rights is “shaky and unclear.”
France’s Conseil d’Etat, the supreme administrative court, has upheld a decision by a watchdog imposing a 100 million euro ($111.46 million) fine on the U.S. tech giant for breaches linked to its cookies policy.
The writer Roberto Saviano, known for his international bestseller Gomorrah, in which he infiltrated the mafia, will face a defamation trial later this year. The claim is brought by Brothers of Italy leader Giorgio Meloni, who Saviano called a “bastard” after she said NGO boats that attempted to rescue refugees should be sunk. Saviano spoke to The Guardian about the case.
The defamation trial against failed Senate candidate Roy Moore began this week. The Claimant, Leigh Corfman, said Moore defamed her when he denied her accusations that he sexually molested her when she was fourteen during the 2017 U.S. Senate race in Alabama. The Independent reports on the trial’s progression here and here.
A Californian Appeal Court has upheld the state’s right to enforce net neutrality. Stanford Center for Internet and Society Director Barbara van Schewick said the ruling is a “big win” for “a free and open internet.”
Sarah Palin’s defamation trial against the New York Times has been delayed because Palin has tested positive for COVID-19. Palin alleges that the NYT falsely linked her to a mass shooting in Tucson, Arizona. The Independent and Reuters also have reports.
Research and Resources
- András Koltay, The Constitutional Protection of Freedom of Expression in the First Decade of the Fundamental Law of Hungary (2021), Iustum Aequum Salutare Vol. 17, No. 4 (2021)
- Christophe Geiger and Elena Izyumenko, From Internal to External Balancing, and Back? Copyright Limitations and Fundamental Rights in the Digital Environment (2021), Forthcoming in: Conception Saiz Garcia and Julian Lopez (eds.), Digitalización, acceso a contenidos y propiedad intelectual (2022)
- Jodi Lazare, Animal Rights Activism and the Constitution: Are Ag-Gag Laws Justifiable Limits? (2021), Osgoode Legal Studies Research Paper
- Asaf Lubin, The Duty of Constant Care and Data Protection in War (2022), Big Data and Armed Conflict: Legal Issues Above and Below the Armed Conflict Threshold (Laura A. Dickinson & Edward Berg eds., 2022)
- Ferguson, Andrew Guthrie, Surveillance and the Tyrant Test (2022), Georgetown Law Journal, Vol. 110, No. 2, 2021
- Fosch Eduard Villaronga, Adam Poulsen, Roger A. Søraa, and Bart Custers, A little bird told me your gender: Gender inferences in social media (2021), Leiden University, Norwegian University of Science and Technology (NTNU)
- Ekaterina Muravyeva, Jose Janssen, Marcus Specht and Bart Custers, Exploring solutions to the privacy paradox in the context of e‐assessment: informed consent revisited (2020), Ethics and Information Technology, 22
- Susanne Klausing, The Relation Between Attitude Certainty and the Privacy Paradox (2021)
- Martin Kwan and Ken Fu, Regulating the Sale and Use of Hidden Cameras (2021), The Regulatory Review 2021
- Laima Jančiūtė, The Right to Preserve the Use of Cash: Innovation, Countercurrents and the Protection of Privacy (2021), Institute of Regional Development, Šiauliai Academy, Vilnius University
Next Week in the Courts
On 3 and 4 February 2022 there will be the 23rd CMC in the phone hacking litigation, Various Claimants v MGN.
Banks v Cadwalladr 14, 17 to 19 and 21 January 2022 (Steyn J).
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).