On 2 March 2022, Nicklin J gave an ex tempore judgment dismissing the libel claim in Eurasian Natural Resources Corporation v Burgis. The claim related to a book published by FT journalist Tom Burgis about the rise of kleptocracy, which Burgis describes as “the greatest threat to freedom today.”
ENRC argued that parts of two chapters of the book would be understood by an ordinary reader as claiming that the corporation had three men murdered to protect its business interests, or there were at least reasonable grounds for suspicion. The judge held that those parts of the book did not mean that the corporation was involved in the murders and the claim was dismissed. The Press Gazette’s coverage can be read here.
The creators of the British sit-com Only Fools and Horses are suing an immersive theatre show, Only Fools: The (Cushty Dining Experience) for breach of copyright law and passing off. Lawyers representing Shazam, the company set up by the original show’s creator John Sullivan prior to his death in 2011, accuse the theatre production company of tricking customers into thinking it was an officially endorsed product. Operators of the show contend that their production is permitted under fair dealing restrictions. A key issue is whether the scripts of Only Fools and Horses are “literary works” – which enjoy a higher standard of copyright protection – or “dramatic works”. The Guardian has more information here.
Internet and Social Media
Facebook is set to hire a number of lobbyists and regulatory specialists in preparation for negotiations relating to the UK Online Safety Bill and the EU Digital Services Act passing, Politico reports. Facebook’s lobbying team will be led by former U.K. Deputy Prime Minister Nick Clegg, president of global affairs at Facebook. Politico has more information here.
The Norton Rose Fulbright Data Protection Report has a produced a summary and analysis of Google’s Data Safety Form.
Clean Up the Internet has published its support of the UK Department for Digital, Culture, Media and Sport’s revised measures to protect people from anonymous trolls with the Online Safety Bill. The plans include an obligation on the largest platforms to offer their users an option to choose to verify their identity under a new “user verification duty,” and offering users more control over who can interact with them.
Art, Music and Copyright
As mentioned above, the creators of the British sit-com Only Fools and Horses are suing an immersive theatre show, Only Fools: The (Cushty Dining Experience) for breach of copyright law and passing off. The Guardian has more information here.
Data Privacy and Data Protection
The British National Health Service Digital’s former chairman Kingsley Manning has warned that the merger of the agency and NHS England puts the privacy of 55 million citizens’ medical information at risk, and creates additional barriers for citizens to ask about the use of their data.
DLA Piper has published a warning that the geo-political tensions resulting from Western sanctions on Russia in response to the invasion of Ukraine increases the risk of cyber-attacks.
DLA Piper has also published an analysis of the Information Commissioner’s Office’s (ICO) new guidance on processing personal data for the purpose of scientific research.
Privacy International has published a long read on the ways that digital health apps exploit user’s data.
A UK workers’ union has warned that employee surveillance is “spinning out of control,” the Financial Times reports. Approximately 60% of employees report being subject to some form of technological surveillance and monitoring at their current job, a survey shows. This is up from 53% last year.
- 01785-21 Brewerton v thesun.co.uk, 1 Accuracy (2019), 2 Privacy (2019), 3 Harassment (2019), 4 Intrusion into grief or shock (2019), 10 Clandestine devices and subterfuge (2019), No breach – after investigation
- 01788-21 Brewerton v express.co.uk, 1 Accuracy (2019), 2 Privacy (2019), 3 Harassment (2019), 4 Intrusion into grief or shock (2019), 10 Clandestine devices and subterfuge (2019), No breach – after investigation
- 01789-21 Brewerton v Telegraph.co.uk, 1 Accuracy (2019), 2 Privacy (2019), 3 Harassment (2019), 4 Intrusion into grief or shock (2019), 10 Clandestine devices and subterfuge (2019), No breach – after investigation
- 01790-21 Brewerton v liverpoolecho.co.uk, 1 Accuracy (2019), 2 Privacy (2019), 3 Harassment (2019), 4 Intrusion into grief or shock (2019), 10 Clandestine devices and subterfuge (2019), No breach – after investigation
- 01791-21 Brewerton v dailyrecord.co.uk, 1 Accuracy (2019), 2 Privacy (2019), 3 Harassment (2019), 4 Intrusion into grief or shock (2019), 10 Clandestine devices and subterfuge (2019), No breach – after investigation
- 08884-21 Trans Legal Project v The Daily Telegraph, 1 Accuracy (2019), Breach – sanction: action as offered by publication
- 09309-21 A woman v Daily Mail, 1 Accuracy (2019), 12 Discrimination (2019), No breach – after investigation
- 10754-21 Millar v Nation.Cymru, 1 Accuracy (2021) No breach – after investigation
Statements in Open Court and Apologies
On 28 February 2022, a statement in open court was read in settlement of Arron Sykes v Melanie Shaw. The defamation claim related to a Facebook post Ms Shaw published in May 2021, which contained a number of allegations about Mr Sykes relating to the death of his wife, Jodie Sykes. In her statement, Ms Shaw accepted that Mr Sykes did not kill or otherwise cause the death of Ms Sykes and Ms Burrows (his ex-partner), nor did he mentally and physically abuse Ms Sykes and Ms Burrows. In addition, Ms Shaw has agreed to pay Mr Sykes a substantial sum by way of compensation. A full summary of the retraction is provided by 5RB here.
On 2 March 2022, a joint statement in open court was read in settlement of Mike Ashley v Times Newspapers Ltd. The defamation claim related to allegations published in The Times that Mr Ashley had engaged in fraudulent behaviour during a high-profile commercial dispute in 2017. TNL has published an apology and retraction and agreed to pay substantial damages to Mr Ashley as well as his legal costs, accepting it “did not intend to make the allegations that the court found the articles to bear,” and “accepts that the allegations are untrue.” 5RB and Carter Ruck have produced summaries of the statement.
New Issued Cases
There were two harassment and three defamation (libel and slander) claims filed in the Media and Communication List last week.
Last Week in the Courts
On 28 February 2022 HHJ Lewis granted a default judgment in favour of the claimants in Rafique v The Association of Community Organisations for Reform Now Limited  EWHC 414 (QB). The claim for libel and slander arose out of a soured tenancy agreement; the court took into account the first claimant’s acceptance that the serious harm tests had been met by virtue of an offer of amends . The proceedings against the first defendant was resolved. The proceedings were head in the second defendant’s absence following the second defendant’s failure to file any evidence, applications or communicate with the court in anyway, despite proper notice. The injunction was also granted to the claimant in respect of the harassment claim . The Press Gazette and BBC cover the judgement.
On 1 and 2 March 2022 Chamberlain J heard an application for an injunction in the case of HM Attorney-General for England and Wales v BBC. The 5RB summary can be read here. Judgment was reserved.
On 1 March 2022 Nicklin J heard an application in the case of SMO v Tik Tok Inc. Judgment was reserved.
As mentioned above, on 2 March 2022, Nicklin J dismissed the libel claim in Eurasian Natural Resources Corporation v Burgis. The Press Gazette’s coverage can be read here.
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 28 February 2022, the claimant’s case was dismissed in Taylor v Nationwide News Pty Limited (No 2)  FCA 149. The dispute related to a tabloid exposé which the claimant alleged implied he was a mobster and a criminal involved in organised crime. The court found none of the imputations had been conveyed.
The Norton Rose Fulbright Social Media Law Bulletin has published analysis of Australia’s new Online Safety Act 2021, which came into effect on 23 January 2022 and is described by the bulletin as taking the “international lead” in social media regulation.
On 2 February 2022, the Belgian Data Protection Authority delivered its long-awaited decision against IAB Europe with regard to the IAB Transparency and Consent Framework. DLA Piper has produced a summary and analysis of the decision.
Both defendants’ applications to dismiss two defamation actions as a strategic litigation against public participation (“SLAPP”) were dismissed in Mondal v. Evans-Bitten, 2022 ONSC 809.
The Michael Geist blog has published a commentary on the discussions held by the Senate Standing Committee on Legal and Constitutional Affairs regarding Bill S-210, which aims to limit minor’s access to pornography sites by implementing age verification and website blocking requirements.
The Conversation has an article that argues vaccine passports can be used for surveillance under the guise of public health measures. This is follows the wave of protests against vaccine mandates organised by the so-called “freedom convoy.”
The Data Protection Commission (DPC) has published its Annual Report 2021.
Primary areas of focus for the DPC in 2021 included the safeguarding of children’s data protection rights, progressing ongoing large-scale inquires and prioritising responding to complaints which have raised issues of substance, with a data subject centric approach to resolution, DLA Piper reports.
Following decisions out of Norway and Austria, Liechtenstein’s data protection authority, Datenschutzstelle, has told website designers that there is no legal basis to justify personal data transfers to the U.S. associated with Google Analytics.
Inforrm published an article that critically assesses Sir Kier Starmer’s call to revoke the broadcasting licence of the Russian-funded news channel RT for its pro-Russian coverage of the invasion of Ukraine. Ofcom has opened 27 investigations into RT in relation to the coverage of the invasion, the Press Gazette reports.
The European Data Protection Digest has published a list of all last week’s privacy-related news amid Russia’s invasion of Ukraine.
The LSE Media Blog has an article on why President Zelenskyy’s selfie videos are helping Ukraine in the war against Russia.
An AirBnB cabin owner in Texas has been accused of secretly filming over 2000 videos of guests having sex with a hidden camera disguised as an adapter for a router, the US Sun reports.
Marilyn Manson has filed a defamation suit against his ex-fiancée Evan Rachel Wood, who accused Manson of abuse last year and is releasing a documentary that details the allegations. The Independent, CourtTV, Pitchfork, Guardian and PinkNews cover the story.
Sarah Palin has asked for a new trial after losing her defamation case against the New York Times last month, and requested that the judge overseeing the case be disqualified. Palin’s lawyers allege that several jurors received push notifications on their cell phones before deliberations were over, about US district judge Jed Rakoff’s decision to dismiss the case regardless of their verdict, the Guardian reports.
Research and Resources
- Maurice E Stucke, The Relationship Between Privacy and Antitrust (2022), Notre Dame Law Review
- Daniel Solove and Woodrow Hartzog, Breached! Why Data Security Law Fails and How to Improve It (Chapter 1) (2022), Oxford University Press
- Meghan Pugh, Privacy? What Privacy?: Reforming the State Secrets Privilege to Protect Individual Privacy Rights From Expansive Government Surveillance (2021), Belmont Law Review, Vol. 9, Research Paper No. 2022-11
- Kinshuk Dua, Implementation of an Efficient, Portable and Platform-Agnostic Cryptocurrency Mining Algorithm for Internet of Things Devices (2021), unknown
- Václav Janeček, Data Protection, the Value of Privacy and Compensable Damage (2020), The Cambridge Law Journal 79(3)
- Michael Goodyear, Returning to the Start? Federal BIPA Claims After TransUnion v. Ramirez (2022), U. Ill. L. Rev. Online 10 (2022)
- Zahra Takhshid, Children’s Digital Privacy and the Case Against Parental Consent (2022), Texas Law Review, Vol. 101, U Denver Legal Studies Research Paper
- Naim Cinar and Sezgin Ateş, Data Privacy in Digital Advertising: Towards a Post Third-Party Cookie Era (2022) in Filimowicz, M. (Ed.) Privacy: Algorithms and Society, Routledge
- Gehan Gunasekara, Making a Difference? The Privacy Act and Employment Relationship Problems in New Zealand (2018), New Zealand Universities Law Review, 28 (1), The University of Auckland Business School Research Paper Series
- Alan Toy and Gehan Gunasekara, Is There a Better Option than the Data Transfer Model to Protect Data Privacy? (2022), University of New South Wales Law Journal 42(2)
- Princess Alafaa, Data Privacy and Data Protection: The Right of User’s and the Responsibility of Companies in the Digital World (2022), Nigerian Law School, Lagos
Next Week in the Courts
On 7 March 2022 HHJ Lewis will hear a preliminary issue trial in the case of Shah v Chohan. This is a libel claim by Labour MP Naz Shah against a Conservative Party activist over a tweet which is alleged to have accused her of supporting “vandalism” by Black Lives Matters protestors.
On 9 March 2022 there will be a statement in open court in the case of Wallace v Associated Newspapers Ltd.
On 10 March 2022 there will be a statement in open court in the case of Anderson v Google Ireland before HHJ Lewis.
On the same day the same judge will hear an application in the case of Suleman v Badejo.
HM Attorney-General for England and Wales v BBC, heard 1 and 2 March 2022 (Chamberlain J).
SMO v Tik Tok Inc., heard 1 March 2022 (Nicklin J)
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).