The Attorney General’s application to have her claim for an injunction against the BBC heard in private was refused on 22 February 2022. The application relates to a programme about an alleged MI5 agent. The hearing is listed for 1 and 2 March 2022.
In a judgment made public on 24 February 2022 ( EWHC 380 (QB)) Chamberlain J held that the A-G had not advanced sufficiently compelling reason for departing from the principle of open justice, 5RB reports. The court released further details of the case on 24 February 2022; “The programme is to include the allegations that X is a dangerous extremist and misogynist who physically and psychologically abused two former female partners; that X is also a covert human intelligence source …; that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X’s behaviour and realised that it was inappropriate to use him as a CHIS.” The Press Gazette report can be read here.
Prince Harry is suing Associated Newspapers for libel over a newspaper article that alleged he attempted to keep details of his legal battle to reinstate his police protection secret from the public. Reuters, ITV News and the Sydney Morning Herald report the story.
Baroness Chapman, a shadow cabinet minister, has received an apology, substantial damages and legal costs from the Sunday Times’ chief political commentator, Tim Shipman, for tweets that suggested Chapman had an affair with Sir Keir Starmer. The Press Gazette has more information here.
The Panopticon blog has published its summary and analysis of the Supreme Court’s decision in ZXC v Bloomberg.
Internet and Social Media
Facebook has started a Special Operations Centre to monitor posts coming out of Ukraine amid the ongoing invasion by Russia. The Special Operations Centre will respond in “real time” and is staffed by native speakers, The Hill reports. Russia is reported to have limited access to Facebook amid the fallout of his attack on Ukraine. The Independent, BBC and Reuters carry the story.
Facebook has been accused of colluding with the UK website OnlyFans to blacklist rival adult websites by placing adult entertainers’ content on a terrorism database, therefore disabling their accounts. The claim has been filed in the US. Meta says the claims are “without merit.” The BBC has more information here.
New analysis from the Center for Countering Digital Hate finds that half the articles posted to Facebook by titles which publish the most popular climate change-denying content do not carry a warning or fact-checking label. The Press Gazette also reports the story here.
Google has announced that its plans to limit third-party data tracking in its Chrome browser will also extend to apps on smartphones using the Android operating system. The announcement has raised concerns among publishers that this will give the tech giant exclusive control over the monetisation of media owned properties and apps on Android. The Press Gazette has more information here.
The LSE Media Law Blog has an article on the role of tech platforms’ algorithms in the curation and promotion of news content, and the lessons to learn from news organisations about ensuring that public interest journalism has a better chance to thrive.
Data Privacy and Data Protection
DLA Piper has published a summary and analysis of the European Commission’s second instrument in the European Data Strategy; a “Regulation on harmonised rules on fair access to and use of data” (a.k.a. the Data Act), which was presented on the 23 February 2022. This proposal seeks to introduce rules regarding data sharing, access to and reuse of data, contractual terms for data sharing and use, compensation mechanisms, emergency access to data, switching between data processing services, and facilitating data portability. In other words, it builds on the Digital Governance Act 2021, which essentially defines the data-sharing architecture. The Privacy and Information Security Law Blog also has a summary here.
The Information Commissioner’s Office (ICO) has issued a reprimand to the Scottish Government and NHS National Services Scotland over both organisations failure to provide people with clear information about how their personal information – including sensitive health data – is being used by the NHS Scotland COVID Status app. The Guardian also reports.
Newspapers Journalism and Regulation
Hacked Off has an article on the homophobic systems that newsrooms are locked into, which are said to result from the pressure caused by securing advertising.
The LSE Media Law Blog has an article on the damaging impact of overly-narrow media coverage of conflict-related sexual violence (CRSV) and its focus on female victims of sexual and gender-based violence. Such coverage, it is argued, fails to capture the diversity of experiences of those victimised by CRSV.
Statements in Open Court and Apologies
As mentioned above, on 22 February 2022, Baroness Chapman and Tim Shipman settled their dispute with a public statement and apology in court, as well as a “substantial sum in damages and legal costs” awarded to Baroness Chapman.
New Issued Cases
There was one defamation (libel and slander) claim and one Part 8 application (permission to read a statement in open court) filed in the Media and Communications List last week.
Last Week in the Courts
On 24 February 2022, Chris Mullin began his challenge against the West Midlands Police, who have made an order under the Terrorism Act requiring him to reveal the sources of his investigation into the 1974 Birmingham pub bombings. Counsel for the West Midlands Police, James Lewis QC, told the Old Bailey that Mullin refuses to identify the bomber, referred to as AB. Lewis told the court that the balance falls on the side of disclosing the evidence which would make this an admissible confession. Mullin is arguing that disclosure would be a fundamental breach of the principle that journalists are entitled to protect their sources, the Press Gazette reports. The Guardian also reports the trial here.
On Monday 21 February 2022, Nicklin J heard an application to commit for contempt in the privacy case of Hayden v Duckworth.
On the same day, HHJ Lewis heard an application in the case of Rafique and another v The Association of Community Organisations for Reform Now Limited. Judgment was reserved and will be handed down on 28 February 2022.
On Thursday 24 February 2022 HHJ Lewis heard an application for summary judgment in the case of Wright v Granath. Judgment was reserved.
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 24 February 2022, the Court of Appeal refused all fifteen grounds of appeal in Cheng v Pan; Cheng v Zhou  NSWCA 21.
All four of the defendants’ applications to dismiss the claimant’s defamation claim were successful in JE v Central Coast Local Health District & Ors  NSWDC 31. A similar claim against the first and second defendants was struck out in 2016 and appeal was dismissed. The third defendant never published anything about the claimant, and the fourth defendant raised finality and abuse of process issues in relation to earlier completed proceedings. All defendants pointed to the total failure to identify any publication at all, and noted that limitation has now passed should any such publication now surface.
The Guardian reports the ongoing defamation trial between ex-soldier Ben Roberts-Smith and the Age, the Sydney Morning Herald and the Canberra Times for a series of reports that alleged Roberts-Smith committed war crimes, including murder, as well as acts of bullying and domestic violence. Last week, the court heard Roberts-Smith ordered the mock execution of an unarmed civilian during an SAS training drill in 2012.
The government has pledged to create a “more transparent” version of Australia’s media bargaining code, which would force Google and Meta to pay for news content, the Press Gazette reports.
Yu Wensheng, a civil rights lawyer who was convicted of speech-related offences in 2020, has published an open letter to the Delegates to the Nineteenth Congress of the Communist Party of China, asking them to recall Xi Jinping. The full letter can be read on the Fei Chang Dao blog.
Switzerland-based news organisations were excluded from the Suisse Secrets investigation into Credit Suisse’s banking practices over fears of punitive legal punishment. The Suisse Secrets investigation by 47 media outlets around the world revealed allegations of clients involved in torture, drug trafficking, money laundering and corruption. The Bank rejects the allegations. The Press Gazette has more information here. The Guardian has more information on the leak here.
Norway’s industry minister said the government would be unable to stop a transfer of state-owned telecoms operator Telenor’s metadata of 18 million Myanmar customers. Telenor opted to sell its Myanmar operation to a local cellular provider amid “continued pressure” from the junta to activate intercept surveillance technology following the military coup last year. The company has told the human rights groups who are calling on Telenor stop the sale or delete the data that doing so would endanger employees who work inside Myanmar, Reuters reports.
Phoebe Bridgers has filed her response to the defamation claim issued against her by Chris Nelson, arguing that the statements she made were true and that this suit seeks to suppress her First Amendment rights. Her legal team has filed an anti-SLAPP motion.
The Center for Internet and Society has an article on the international impact the Ukraine conflict has on cybersecurity risks. The piece urges Americans to remain vigilant and check their own cybersecurity in light of recent Russian-linked cyberattacks.
Last week, the Cyberlaw Clinic published a summary of an amicus brief filed on 16 February 2022 in the United States Court of Appeals for the Eleventh Circuit in support of Corellium LLC. Corellium is seeking an affirmance of the District Court for the Southern District Florida’s opinion that found Corellium’s software to be a fair use of Apple’s iOS.
On Monday 21 February 2021, the San Francisco District Attorney Chesa Boudin alleged that the city’s police crime lab has been entering sexual assault victims’ DNA profiles in a database used to identify suspects in crimes. A woman’s DNA collected several years ago as part of a rape exam was used to link her to a recent property crime, the San Francisco Chronicle reports.
The Texas Attorney General’s Office has issued two Civil Investigative Demands to the social media platform TikTok. The investigation focuses on TikTok’s alleged violations of children’s privacy and facilitation of human trafficking, along with other potential unlawful conduct, The Privacy and Information Security Law Blog reports.
Research and Resources
- Svetlana Bestaeva, Hybrid War: Language as a Tool of Information Stand-Off (2021) Unknown
- Uta Kohl, Jurisdiction in Network Society (2021), University of Southampton
- Mihajlo Vučić, When Law Enters History: Prohibition of Crime Negationism and Its Limits in International Law (2021), Annals FLB – Belgrade Law Review, Year LXIX, 2021, No.4
- Anupam Chander and Paul M Schwartz, Privacy and/or Trade (2022), Georgetown University Law Center, University of California, Berkeley – School of Law
- Jeffrey Skopek, Untangling Privacy: Losses Versus Violations (2020), Iowa Law Review, Vol. 105, No. 5, 2020
- Yohannes Eneyew Ayalew, Untrodden Paths Towards the Right to Privacy in the Digital Era under African Human Rights Law (2022), 12 International Data Privacy Law 1, Oxford University Press
- Michael Cederblom, Welcome to the Digital Age: Reinventing Contact Tracing and the Public Health Service Act for a Modern Pandemic Response (2022), Annals of Health Law, Vol. 31, No. 1, 2022
Next Week in the Courts
On 28 February 2022 HHJ Lewis will give judgment in the case of Rafique v The Association of Community Organisations for Reform Now Limited.
On the same day there will be a statement in open before the same judge in the case of Sykes v Shaw.
On 1 and 2 March 2022 Chamberlain J will hear an application for an injunction in the case of HM Attorney-General for England and Wales v BBC.
On 1 March 2022 Nicklin J will hear an application in the case of SMO v Tik Tok Inc.
On 2 March 2022, Nicklin J will hear the adjourned preliminary issue meaning trial in the case of Eurasian Natural Resources Corporation v Burgis.
Wright v Granath, heard on 24 February 2022 (HHJ Lewis).
Hayden v Duckworth, heard on 21 February 2022 (Nicklin J).
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).