On 8 and 9 February 2022, there was a hearing in Vardy v Rooney before Mrs Justice Steyn. Mrs Rooney applied to join Caroline Watt (Mrs Vardy’s agent) to the proceedings and for specific disclosure. Mrs Vardy also applied for disclosure. The hearing was extensively covered in the tabloids. The Guardian reports on the hearing here and here.
Caroline Kean, a partner at Wiggin and leading media defence lawyer, has urged MPs to show “guts” and act to protect public interest journalism in England and Wales from the existential threat posed by public figures and bodies attempting to shut down criticism. The Guardian has more information here.
Internet and Social Media
The Competition and Markets Authority has received legally binding commitments from Google to address competition concerns over its Privacy Sandbox plan to introduce an alternative to third-party cookies that is better for user privacy. Google’s commitments, which will apply globally, mean it must inform the CMA before it intends to remove third-party cookies and wait for approval as the watchdog assesses if there are any remaining competition concerns. The Press Gazette has more information here. The ICO has published a statement in response.
Inforrm had an article criticising the “new” criminal offences added to the Online Safety Bill, which prohibit the sending of harmful communication, genuinely threatening messages and false information. The author argues that this sort of communication is already prohibited by law, and so these additions are likely to continue to fail victims of online abuse.
In response to the Digital, Culture Media and Sport (DCMS) Select Committee’s inquiry into ‘influencer culture’ on social media, the LSE Media Blog has published a policy brief which highlights concerns around the effect of influencers and sponsored advertising on children who are too young to discern and understand persuasive messaging.
Cybersecurity agencies from Australia, the U.K. and the U.S. have issued the first-ever ransomware advisory documenting trends identified from 2021 incidents. Notable trends include increased use of hired criminals, personal information sharing between criminals and diversified extortion schemes. The advisory also includes recommendations for mitigation tactics to reduce risk of compromised systems.
A report from URL Genius has found YouTube and TikTok track the most personal data of any of the 10 major social media applications, with 14 network contacts apiece before a user logs in. This tops Facebook, Twitter and Instagram, which average six. Ten of YouTube’s network contacts are first party, while 13 of TikTok’s 14 network contacts were third parties.
Facebook’s oversight board has advised its parent company Meta Platforms not to allow users to share individuals’ home addresses (even if they are publicly available) and to create a communications channel for doxxing victims to explain violations. Reuters has more information here.
Meta’s annual financial report indicates that Facebook and Instagram may cease European operations if the EU and the U.S. can’t reach an agreement on data flows.
The HawkTalk blog has published its latest instalment of its criticism of the DCMS consultation “Data: a new direction”. The author criticises the paucity of evidence that the consultation relies on, the lack of detail, all the omissions and of its erroneous analysis of data protection.
Art, Music and Copyright
Rap lyrics have been referenced in multiple reports of the sentencing of Dylan McEwan, a 19-year-old from Leeds who plead guilty to burglary and car theft charges at Leeds Crown Court. Detective Inspector Vicky Vessey said: “The utter disdain he has for the people he targets to steal from is abundantly clear from the lyrics in his social media post.” The criminalisation of drill and grime has been criticised as discriminatory practice by the police.
A Dutch court has rejected a copyright infringement claim on Anne Frank’s diary, concluding that the defendants had taken all reasonable measures to block or sufficiently discourage access to the website hosting the material. IPKat has more information here.
Data Privacy and Data Protection
5RB’s John Stables considers the legislative history of the Data Protection Act 2018 (Amendment of Schedule 2 Exemptions) Regulations 2022, which came into force on 31 January 2022. The amendment is a remedial response to the Court of Appeal’s declaration of incompatibility regarding an immigration control exemption in May 2021. Privacy International has a long read on how Privacy and Data Protection Law can help defend Migrants’ Rights.
Newspapers Journalism and Regulation
None of the three new offences created by the Online Safety Bill, covering harm, falsehoods and threats, will apply to “regulated media such as print and online journalism, TV, radio and film”, according to the UK government. The Press Gazette has more information here.
News UK has been released from its legal undertakings to keep The Times and The Sunday Times separate, the Press Gazette reports. The Guardian reports that the Times and Sunday Times editor John Witherow and Emma Tucker sent an email to staff which said: “Times and Sunday Times editorial independence continues and is enshrined in the editors’ contracts. The Times and The Sunday Times remain as separate newspapers and there are no plans to merge the titles.”
Hacked Off has an article covering the Independent Press Recognition Panel’s sixth Annual State of Recognition Report, which was highly critical of the industry-controlled press complaints handler, IPSO.
New Issued Cases
One defamation (libel and slander) claim, two data protection claims and one misuse of privacy information claim, as well as one Norwich Pharmacal Order application, were issued on the media and communications list last week.
Last Week in the Courts
As mentioned above, on 8 and 9 February 2022, there was a hearing in Vardy v Rooney. Mrs Rooney applied to amend her Defence to join Caroline Watt (Mrs Vardy’s agent) to the proceedings and for specific disclosure. Mrs Vardy also applied for disclosure.
Judgement on meaning was handed down by Mr Justice Griffiths in Smith v Baker  EWHC 246 (QB) on 10 February 2022. Meanings were found to relate to the mental stability of Ms Baker and allegations of her dishonesty, and were taken as statements of fact and/or opinion and defamatory in all eleven publications.
The next Data Protection Practitioner Course is in London, and starts on the 22 March (6 days); full details available here.
The next Data Protection Foundation Course is in London, and starts on the 9-11 May (3 days); full details available here.
Media Law in Other Jurisdictions
Both applications to summarily dismiss (improper purpose; statute-barred and/or the amended statement of claim did not disclose a reasonably arguable cause of action and the application has no reasonable prospect of success) were dismissed in Massarani v Kriz  FCA 80. The defamation dispute relates to an accusation of sexual harassment on university campuses, in which the claimant was not named but was readily identifiable.
An application for contempt of court alleging that there had been multiple breaches of terms of permanent injunction orders was dismissed in Billis v McLernon (No 3)  WASC 38.
The claimant’s defamation claim was made out in De Kauwe v Cohen (No 4)  WASC35. Held, the defendants published the defamatory statements with malice, causing the claimant actual damage to pecuniary loss. Exemplary damages were not awarded.
An extension of time was granted in Gluszak v Yeap (No 2)  WASC 283, so that the defendant can counterclaim with respect to publications barred by s.15 of the Limitation Act 2005.
The Guardian reports on the ongoing defamation claim between Clive Palmer and Mark McGowan.
The Guardian reports on the ongoing defamation claim between ex-soldier Ben Roberts-Smith and the Age, the Sydney Morning Herald and the Canberra Times.
On 2 February 2022, the Belgian Data Protection Authority fined IAB Europe for various infringements in relation to the IAB Transparency and Consent Framework. This decision could have a huge impact on the majority of players in the online adtech ecosystem who rely on the framework, according to the Data Protection Report.
Summary judgement was granted to the claimant in the defamation claim Canada Easy Investment Store Corporation v MacAskill  BCSC 202. An application seeking to hold the defendant in contempt of court for violating the terms of the interlocutory injunction was also successful.
The defendants’ application for a dismissal order in the defamation claim of Durkin v Marlan  BCSC 193 was granted. Held, there was substantial public interest in protecting the particular “expression” in the disputed article, which outweighed the modest seriousness of the harm suffered by the Article’s publication.
The Michael Geist blog has an article on the private member’s Senate bill, Bill S-210, which purports to restrict underage access to sexually explicit material. The author appeared before the Senate Standing Committee on Legal and Constitutional Affairs last week to discuss the bill, warning that face recognition technologies raise serious privacy risks and that website blocking would have negative consequences for freedom of expression. Further, criticism was leveraged at how broadly the bill is drafted.
The French Supervisory Authority (CNIL) has sent a Formal Notice to a web operator using Google Analytics ordering it to comply with its ruling that the use of Google Analytics leads to illegal transfers to the United States. CNIL follows the Austrian Supervisory Authority, who made a similar ruling regarding Google Analytics last month. The Privacy and Information Security Law Blog also reports on the decision.
Ireland’s Data Protection Commission has announced plans for a children’s privacy guidance.
The Independent covers the closing days of Sarah Palin defamation trial against the New York Times.
The CyberLaw Clinic has filed an amicus brief in the US Court of Appeals for the Ninth Circuit in support of Forbes Media, who are seeking a reversal of a Northern District of California opinion, that denied the disclosure of non-identifying portions of law enforcement All Writs Act requests.
An Illinois Supreme Court has ruled that the Compensation Act is not a bar to Biometric Information Privacy Act (BIPA) damages. BIPA is considered the most comprehensive law governing the processing of biometric data. It is also one of the most popular class action suits today. The Data Protection Report has more information here. The Privacy and Cybersecurity Law blog also has information here.
The anti-encryption-come-child-safety bill known as the EARN IT Act passed the Senate Judiciary Committee last week, the PogoWasRight blog reports.
Research and Resources
- Daniel White and Hirofumi Katsuno, Artificial emotional intelligence beyond East and West  Internet Policy Review 11(1)
- Mark Pearson, Global Justice, Factual Reporting and Advocacy Journalism  the Handbook of Global Media Ethics
- Anita Allen, Dismantling the Black Opticon: Race Equity and Online Privacy and Data Protection Reform  Yale Law Journal
- Jerome Duberry, Freedom to Think and to Hold a Political Opinion: Digital Threats to Political Participation in Liberal Democracies  in Bernard F., and Morin J.H. Human rights and cyberspace, Harts Publishing (Oxford, UK)
- Jamie Cameron, Resetting the Foundations: Renewing Freedom of Expression under Section s.2(b) of the Charter  Osgoode Legal Studies Research Paper, Supreme Court Law Review
- Ronald K. L Collins and David Hudson, The Roberts Court—Its First Amendment Free Expression Jurisprudence: 2005–2021  Brooklyn Law Review, Vol. 87, Belmont University College of Law Research Paper No. 2022-5
- Abdul Aziz, Digital Pitfalls: The Politics of Digitalization in Bangladesh  Communication, Culture & Critique
- Teresa Violante, Data Retention in Portugal  European Constitutional Courts towards Data Retention Laws
Next Week in the Courts
At 2pm on Monday 14 February 2022 Steyn J will hand down judgment in the case of Vardy v Rooney (heard 8 and 9 February 2022).
On Wednesday 16 February 2022 the UK Supreme Court will hand down judgment in the case of ZXC v Bloomberg LP (heard on 30 November – 1 December 2021).
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).
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).