On 16 February 2022, the Supreme Court handed down its judgment in ZXC v Bloomberg  UKSC 5. The judgement confirms that anonymity should be granted to those under criminal investigation until they are charged; the assumption that an investigation is private information should be taken as the “legitimate starting point” . Article 10 does not provide a universal justification for inflicting serious, and often unjustified, damage on the reputations of suspects.
Inforrm published commentary on the judgement here and here, 5RB’s response to the judgement can be found here. The Press Gazette reports here. The Guardian had an article that argues the ZXC decision signals privacy laws could be rolled back by replacements to the Human Rights Act. The Privacy Perspective Blog’s response to the Guardian article can be read here.
On 14 February 2022, judgment was handed down in an application to amend and order for specific disclosure in Vardy and Rooney  EWHC 304 (QB). The defendant’s application to join the claimant’s agent, Caroline Watt, to the proceedings was refused as the application was brought too late. The defendant was granted permission to make seven amendments, and one of her requests for specific disclosure against the claimant was ordered. The claimant’s disclosure applications and requests for further information were refused. The 5RB summary can be found here. The Press Gazette reports on the judgement here.
Internet and Social Media
The Norton Rose Fulbright Social Media Law blog has an article on intellectual property rights in the Metaverse, and how it differs from social media. One major difference identified in the article is ownership of metaverse assets/digital items, such as avatar clothing, virtual land, and interactive tools, which are often dependent on smart contracts embedded in non-fungible tokens (NFTs).
Google has announced plans to move away from cross-application tracking on Android devices with a full removal expected by 2024. The company is rolling out a Privacy Sandbox for Android with the aim of “introducing new, more private advertising solutions,” but current tracking methods will be supported for two years during development. The solutions will “limit sharing of user data with third parties and operate without cross-app identifiers, including advertising IDs,” the Wall Street Journal reports.
The Norton Rose Fulbright Data Protection Report has an article on the recent EU decisions relating to Google Analytics and the impact on business.
Art, Music and Copyright
IPKat has an article that considers the imbalance of power between music creators and the industry’s publishers/distributors, and whether the distinctive role of intermediaries in the current copyright system is still appropriate. The piece responds to the Joe Rogan controversy with Spotify.
Data Privacy and Data Protection
The Information Commissioner’s Office (ICO) is seeking feedback on the draft guidance for research provisions of the UK General Data Protection Regulation. The guidance will focus on where in the legislation the provisions that relate to research can be found and how they work. Responses are due 22 April 2022.
The ICO released a statement on California’s plans to introduce a new bill to protect children’s data online.
The RPC blog has an article on the EDPB “Guidelines on Examples regarding Personal Data Breach Notification,” published in January 2022.
DLA Piper has published a summary and analysis of the German Data Protection Conference’s (DSK) expert opinion on Section 702 of the US Foreign Intelligence Surveillance Act (FISA), which came under close scrutiny in the Schrems II decision.
Newspapers Journalism and Regulation
UK publishers are increasingly confident that the UK government will pass an Australia-style legislation forcing Google and Meta to pay for news, the Press Gazette reports.
New Issued Cases
Six defamation (libel and slander) claims and one harassment claim were filed on the Media and Communications List last week.
Last Week in the Courts
As mentioned above, on 14 February 2022 judgment was handed down in an application to amend and order for specific disclosure in Vardy and Rooney  EWHC 304 (QB) and on 16 February 2022 judgment was handed down in ZXC v Bloomberg  UKSC 5.
On 17 February 2022, Richard Spearman QC handed down judgement in Hills v Tabe  EWHC 316 (QB) in favour of the Claimant. The claim for libel and harassment related to a series of unpleasant and derogatory allegations about the claimant on a number of Facebook accounts ran by the defendant. The Facebook accounts linked to the defendant’s YouTube channel, BBTV, which specialises in broadcasting Pidgin English in the UK and internationally. The defendant declined to take part in any of the proceedings. The claimant was awarded the full £10,000 claimed, which accounted for both the harassment and the fact that the allegations that the claimant was a prostitute and engaged in criminal conspiracy damaged both her personal reputation and her professional reputation as a mental health nurse . Further, the defendant’s conduct throughout the litigation process indicated that these proceedings are unlikely to end the matter, and the claimant was therefore “entitled to an award of damages that signals the defendant’s allegations against her are false” [30.10]. The award for harassment was included in the £10,000 figure .
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
On 18 February 2022, judgement was given in favour of the claimants in the defamation claim Thunder Studios Inc (California) v Kazal (No 12)  FCA 110. An injunction against the defendants to halt their continued publication of defamatory material was also granted.
On 16 February 2022, judgement was handed down in De Kaume v Cohen (No 4)  WASC 35. The claimant was successful in establishing liability in defamation in four of the ten publications complained of. A total of $120,000 in ordinary compensatory damages, $30,000 aggravated damages and $310,880 for economic loss and loss of opportunity was awarded to the defendant.
The Guardian reports on the ongoing defamation claim between the West Australian premier, Mark McGowan, and Clive Palmer.
An application to set aside a default judgement granted in a defamation action in April 2021 was refused because the applicant did not meet the burden of proving that, on the balance of probabilities, allowing the order to stand constitutes a miscarriage of justice, Port Alberni Shelter Society v Literacy Alberni Society  BCSC 239.
The Canadian journalism industry has asked parliamentarians to pass an Australian-style law forcing Google and Meta to pay for news by the end of June, the Press Gazette reports.
The Michael Geist blog has an article on the Canadian Heritage Minister Pablo Rodriguez’s Bill C-11, which opens the door to regulating user generated content and asserts jurisdiction over all audio-visual services worldwide.
On Friday 18 February 2022, police began to crackdown on the “Freedom Convoy,” a protest encampment in downtown Ottawa that began in January 2022 as a truck convoy headed to Ottawa to oppose a vaccine mandate for truckers crossing the US-Canada border. It has since grown into a broader opposition to pandemic restrictions, with supporting protests across the country. The BBC has more information here.
The District Court for Prague has ruled in favour of ex-West Ham defender Tomas Repka, who sued the tabloid Pestrý svět for publishing photographs of his work in the bakery during his prison sentence. The surveillance, taking and publishing of photographs did not pass the test of proportionality as regards to the contribution to a debate in the public interest and the circumstances in which they were taken. The Czech Defamation Law blog has more information here.
The Cearta.ie blog has an article on the proposed Defamation (Amendment) Bill, which is rumoured to receive approval by the end of the month.
The dating application Grindr is appealing its NOK 65 million fine from Norway’s data protection authority over EU GDPR violations. The fine has already been reduced from NOK 106.4 million, but Grindr believes the decision “reflects incorrect interpretations of the GDPR and Norwegian law” and held the company responsible for “industry-wide practices notwithstanding that Grindr has maintained and continues to advance its strong compliance practices.” Axios has more information here.
Sarah Palin has lost her libel claim against the New York Times. Although the Times admitted that a mistake had been made in the 2017 opinion piece which suggested that there was a link between Palin’s rhetoric and a mass shooting, neither the judge nor jury considered the error to have defamed Palin. An appeal is expected, which would give the Supreme Court the opportunity to reconsider the so-called “Sullivan standard,” which states that is ought to be difficult for any public official to prove that a falsehood was damaging enough to surmount First Amendment protections. Inforrm had an article that considers what impact an appeal could have for media freedom. The Press Gazette reports here.
On 14 February 2022, judgement was handed down in re Clearview AI, Inc., Consumer Privacy Litigation 2022 WL 444135 (N.D. Illinois), with the court ruling that the Biometric Information Privacy Act (BIPA) does not violate the first amendment. The class action suit was filed against a facial recognition technology company who covertly scraped over three billion photographs of faces from the internet and then used artificial intelligence algorithms to scan the face geometry of each individual depicted to harvest the individuals’ unique biometric identifiers and corresponding biometric information. Evan Brown has published an analysis of the judgement on his blog.
On 14 February 2022, the US Copyright Office rejected an application to register a copyright claim that named “Creativity Machine,” an AI-generator, as the author of a piece of work. The decision held that copyright law only protects the “fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” IPKat has more information here.
On 14 February 2022, the Texas Attorney General filed a suit against Meta, the parent company of Facebook and Instagram, over the company’s collection and use of biometric data. The claim alleges that Meta collected and used Texans’ facial geometry data in violation of the Texas Capture or Use of Biometric Identifier Act and the Texas Deceptive Trade Practices Act. The lawsuit is significant because it represents the first time the Texas AG’s Office has brought suit under CUBI.
On 17 February 2022, the California Privacy Protection Agency’s Board met to discuss their progress launching the new agency, the California Privacy Protection Agency (CPPA), which is charged with enforcing the California Privacy Rights Act (CPRA).
Research and Resources
- Louis Hensler, New York Times v. Sullivan Transformed American Defamation Law From Thumper’s Rule to Incented Obloquy (2022), Regent University School of Law
- Rupal Chhaya and Anisha Routray, Reflecting upon the Rights and Societal Status of LGBTQ (2018), A journal of Amity Law School, Delhi, Volume 7 (2018)
- Karen Pita Loor, “Hey, Hey! Ho, Ho! These Mass Arrests Have Got to Go!”: the Expressive Fourth Amendment Argument (2021), William & Mary Journal of Race, Gender, and Social Justice, Vol. 28(5)
- Davit Gvenetadze, Freedom of Expression and Certain Prerequisites for its Limitation (2021), SCIENTIFIC JOURNAL S P E C T R I N5
- Jerome Duberry, Freedom to Think and to Hold a Political Opinion: Digital Threats to Political Participation in Liberal Democracies (2021), in: Bernard F., and Morin J.H. Human rights and cyberspace. Oxford, UK: Harts Publishing
- Wolfgang Kerber, Digital Revolution, Institutional Coevolution, and Legal Innovations (2021), University of Marburg – School of Business & Economics
- Graham Greenleaf, Pakistan and Sri Lanka’s Data Privacy Bills Move Forward (2021), 173 Privacy Laws & Business International Report
- William Luther, Pornhub and the Value of Bitcoin (2022), Florida Atlantic University; American Institute for Economic Research
- Ignacio Cofone, Ethical Surveillance in Vaccine Passports (2022), McGill University Faculty of Law
- Peter Swire and DeBrae Kennedy-Mayo, The Effects of Data Localization on Cybersecurity (2022), Georgia Institute of Technology – Scheller College of Business
- Huw Roberts, Informational Privacy with Chinese Characteristics (2021). Digital Ethics Lab Yearbook 2021
- Luis Aguiar, Christian Peukert, Maximilian Schaefer, and Hannes Ullrich, Facebook Shadow Profiles (2022), CESifo Working Paper No. 9571
- Chenguo Zhang, Enhancing the Standards of Civil Damages Remedies to Fight Copyright Piracy in International Trade? A Commentary on the Proposed TRIPS-Plus Damages Reforms in the Third Amendment to the Copyright Law of the PRC Through Comparison with the US and EU (2021), Journal of World Trade 51, no. 1 (2017)
- Steve Black, Who Owns Your Data? (2021). Indiana Law Review, Vol. 54, No. 2, 2021
- Gregory Voss, Transatlantic Data Transfer Compliance (2022), Forthcoming 28 B.U. J. SCI. & TECH. L. (2022)
- Jordan Francis, CJEU Déjà Vu: Facilitating International Data Transfers and Avoiding Internet Balkanization in the Wake of Schrems II by Enacting Targeted Reforms to US Surveillance Practices (2021), 106 Minn. L. Rev. 1073
Next Week in the Courts
On Monday 21 February 2022 Nicklin J will hear an application to commit for contempt in the privacy case of Hayden v Duckworth.
On the same day HHJ Lewis will hear an application in the case of Rafique and another v The Association of Community Organisations for Reform Now Limited
On Thursday 24 February 2022 there will be an application for summary judgment in the case of Wright v Granath.
On the same day journalist and former MP Chris Mullin will appear in the Old Bailey to challenge a West Midlands Police order under the Terrorism Act to reveal sources from his investigation into the 1974 Birmingham Pub bombing. Mullin’s investigations throughout the 1980s led to the release of the six wrongly convicted men in 1991. The police claim documents in his possession could assist in their ongoing investigation. Mullin says the order breaches the principle that journalists are entitled to protect their sources. The Press Gazette reports.
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).
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).