The High Court has ruled a class-action lawsuit against TikTok concerning children’s privacy violations can proceed, SMO v TikTok Inc. and Others  EWHC 489 (QB). The claims relate to TikTok’s data processing activities, which are alleged to be causing damage to millions of class members. TikTok has said the claims “lack merit” and the company has “robust policies, processes and technologies in place to help protect all users, and our teenage users in particular,” TechCrunch reports.” The Panopticon blog has a summary of the case here.
The Transparency Project has published a summary of Re B, R & G (a Child)  EWHC 320 (Fam), in which the local authority was applying for reporting restrictions for the trial of G and E’s parents, who were charged with the murder of E. The application was opposed by the BBC; The Times; ITN; Associated Newspapers (The Mail) and PA Media Ltd (formerly Press Association). G is currently placed with local authority foster carers. The application was refused on the ground that the “reporting of the names as against the reporting of the trial without names, is not so obviously stark as to justify the proposed erosion of freedom of speech under Article 10” .
Internet and Social Media
Twitter is launching a Tor-specific version of its service, enhancing privacy protection options. The Tor network will encrypt and reroute web traffic through certain servers to conceal users’ identifying information, The Verge reports.
The U.K. government announced separate initiatives to protect individuals from harms generated by digital advertising. First, the U.K. will update its Online Safety Bill to include requirements to prohibit fraud or scams connected to advertising campaigns. These scams include embedded cyberattacks that “steal people’s personal data, peddle dodgy financial investments or break into bank accounts.” Additionally, the U.K. is launching a consultation on a wide-ranging online advertising reform “to improve transparency and accountability and tackle harmful, fraudulent and misleading adverts.”
The Information Commissioner’s Office public consultation is seeking input on its updated draft guidance on anonymization, pseudonymization and privacy-enhancing technologies. Submissions are due by 16 September 2022. The fourth chapter explores approaches to governance when anonymizing personal data, with guidance on legislation to consider when disclosing anonymous data. Additional draft chapters will continue to be released, and the ICO said input “can make a significant difference” as responses will be used to inform the guidance, IAPP reports.
The ICO has also urged organizations to be vigilant against potential Russian cyber threats in light of the war in Ukraine. The Information Commissioner John Edwards said it is important employees report any suspicious emails, the Guardian reports.
The HawkTalk blog has published a list of omissions in the Ministry of Justice Human Rights consultation, including the absence of any consideration or analysis of the impact of the human rights proposals on the current UK_GDPR data protection regime in the UK or how they impact on data subjects (60 million in the UK alone them).
Art, Music and Copyright
The Evan Law blog has an article summarising Finley v. YouTube, 2022 WL 704835 (N.D. Cal., March 9, 2022). The Plaintiff sued YouTube after the platform took down one of her videos in response to a Digital Millennium Copyright Act (DMCA) takedown notice. She claimed YouTube failed to follow the procedures by, for example, not providing her with a physical signature of the copyright owner and otherwise not following the “exact course of the DMCA guidelines.” YouTube moved to dismiss and the court granted the motion.
IPKat has produced a summary of the recent Italian Supreme Court decision, Cassazione civile, Sez I, No 4038/2022, which concerned the unauthorized reproduction of thousands (24,000) of paintings of a well-known Italian artist in the context of an archiving project aimed at producing a catalogue of records held by a foundation initially established with the goal of maintaining and protecting the works of the now deceased artist. The court was asked to consider the overarching limits of the three-step test (Article 5(5) of the InfoSoc Directive); how far can an unauthorized quotation, criticism, or review go? Held, not as far as allowing one to reproduce a work in its entirety.
Data Privacy and Data Protection
DLA Piper has an article on the Department for Digital, Culture, Media & Sport (DCMS) most recent draft Telecommunications Security Regulations and an associated draft Code of Practice for consultation. The Regulations and Code of Practice form part of several new security measures introduced by the Government specifically to address the security of public telecommunications networks and services.
The Information Accountability Foundation says Russia’s invasion of Ukraine highlights “the critical and increasing role” of data, surveillance and intelligence activities, adding that the right to data sharing for security is a “fundamental” one; “the fundamental right to life and personal security” should be part of a “data protection proportionality equation.”
Vodafone officials are investigating data breach claims made by the same hacking group that recently targeted Samsung. On March 7 2022, the hacking group Lapsus$ asked subscribers on the Telegram application what they should leak next. As of March 10, Vodafone led the options with 56% of the vote. Vodafone has confirmed that the company is aware of Lapsus$’s claims, CNBC reports.
Ministers have been accused of “turning off the headlights at the first sign of dawn” after scrapping nationwide Covid surveillance programmes, with scientists saying it will almost certainly end up costing more money in the long run, the Guardian reports.
Biometrics and Surveillance Camera Commissioner Fraser Sampson’s keynote speech on at the NPCC CCTV Conference on the 8 March 2022 can be read here.
Newspapers Journalism and Regulation
On 7 March 2022, Ofcom ruled that BBC News at Six breached the accuracy standard set by the Broadcasting Code on 26 February 2021 with Scotland editor Sarah Smith’s statement that: “Alex Salmond said he believes Nicola Sturgeon has misled Parliament and broken the Ministerial Code, which he thinks means she should resign.” However Salmond had actually said “no doubt that Nicola broke the Ministerial Code, but it is not for me to suggest what the consequences should be”. The Press Gazette has more information here.
Hacked Off has published an article on how journalists and the media can be protected from SLAPP lawsuits.
Hacked Off has also published its analysis of IPSO rulings in 2020, which explores how IPSO has failed to establish itself as an effective regulator.
- 09771-19 Reynolds v Mail Online, 1 Accuracy (2019), Breach – sanction: action as offered by publication
- 09940-21 Louise Hough v dailypost.co.uk, 2 Privacy (2019), 5 Reporting suicide (2019), 4 Intrusion into grief or shock (2019), 1 Accuracy (2021), No breach – after investigation
- 09942-21 Louise Hough v mirror.co.uk, 2 Privacy (2019), 5 Reporting suicide (2019), 4 Intrusion into grief or shock (2019), 1 Accuracy (2021), No breach – after investigation
- 09943-21 Louise Hough v walesonline.co.uk, 2 Privacy (2019), 5 Reporting suicide (2019), 4 Intrusion into grief or shock (2019), 1 Accuracy (2021), No breach – after investigation
- 10294-21 The Majority v The Herald, 1 Accuracy (2019), No breach – after investigation
- 10300-21 Brant v kentlive.news, 1 Accuracy (2019), Breach – sanction: publication of correction
- 10439-21 The Family of John Patrick Cunningham v The Daily Telegraph, 1 Accuracy (2021), No breach – after investigation
- 11206-21 Various v Daily Express, 1 Accuracy (2021), Breach – sanction: action as offered by publication
Statements in Open Court and Apologies
On 9 March 2022 a statement was read in open court before HHJ Lewis in settlement of Wallace v Associated Newspapers Ltd. ANL offered its “sincere apologies” and agreed to pay substantial damages and legal costs, for the publication of an article that falsely alleged that the Claimant, Jo Wallace, was responsible for sex discrimination by sacking two straight white men as part of an attempt to obliterate their culture within the advertising agency that they all worked for. The article was accompanied with intimate photographs taken from Ms Wallace’s private Instagram account. ANL also agreed to remove the online version of the article.
On 10 March 2022, a statement was read in open court before HHJ Lewis in settlement of Anderson v Google Ireland. Google apologised to Conservative MP Lee Anderson, for a Google Ads advert that suggested he was “sympathetic to the abuse of children.” The Evening Standard, The National and The Journal cover the story.
New Issued Cases
There was one defamation (libel and slander) and one misuse of private information claim filed on the Media and Communications list last week, as well as one Norwich Pharmacal order.
Last Week in the Courts
On 7 March 2022 HHJ Lewis heard 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. Judgment was reserved
On 9 March 2022 HHJ Lewis heard an application in the case of Suleman v Badejo. Judgment was reserved.
On 10 March 2022, Johnson J handed down his ruling on meaning in the defamation case of Chris Packham CBE v (1) Dominic Wightman, (2) Nigel Bean and (3) Paul Read  EWHC 482 (QB). The dispute relates to nine articles published in “Country Squire Magazine,” two videos published on YouTube and eight tweets containing text and hyperlinks to the articles or videos complained of. Overall, the meaning ascribed to each of the publications is a variation on the accusation that the claimant dishonestly raised funds from the public by stating that tigers had been rescued from a circus where they had been mistreated, whereas in fact, the claimant knew that the tigers had been well-treated and were donated to the circus . Each of the meanings were found to be defamatory and amounted to an asserted fact rather than a statement of opinion. The matter will proceed to trial.
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.
There will be a plenary session of the Media and Communications List Users Group on Wednesday 13 April 2022 at 4.45pm in Court 13, Royal Courts of Justice. All users of the Media and Communications List are invited to attend.
Media Law in Other Jurisdictions
The Supreme Court of New South Wales has handed down judgment in Newman v Whittington  NSWSC 249. David Rolph has described the ruling as the “first judgment in Australia considering the new serious harm element.” The court suggests that the standards set in Lachaux v Independent Media should be followed in Australia, given the similarities between section 10A of the Defamation Act 2005 (Aus) and section 1 of the Defamation Act 2013 (UK).
The author and feminist commentator Clementine Ford is bringing a defamation claim against the executive editor of The Sydney Morning Herald and The Age over public comments alleging she engaged in “vile and personal attacks” on journalists and editors at the mastheads, The Sydney Morning Herald reports.
A cosmetic surgeon is suing a rival doctor, alleging that his competitor “dishonestly posed” as a patient to post a defamatory review online to discredit and harm his reputation, The Age reports.
ABC, the Guardian and The West report the ongoing defamation case between Mark McGowan and Clive Palmer.
The Guardian also reports the ongoing defamation case between Ben Roberts-Smith and The Age, The Sydney Morning Herald and the Canberra Times.
On 10 March 2022, the Health Professions Appeal and Review Board (“the Board”) issued its judgment in the matter of MP v JB (CanLII 16878). The dispute related to a number of comments published on social media by the applicant, who is a registered psychotherapist, about the respondent, who was the subject of a public Police Service Act hearing in which he was found guilty of sexual misconduct. The Board was asked to review the decision of the Inquiries, Complaints and Reports Committee of the College of Registered Psychotherapists of Ontario (“the Committee”). In upholding the decision of the Committee, the Board found that the Applicant had held herself out as a professional psychotherapist in her social media accounts, and was therefore responsible for ensuring that her comments met the standards of the profession. While the Applicant has the right to freedom of expression and can certainly engage in social activism and political speech, by choosing to join a regulated profession, registrants are also obligated to maintain professional standards. The Board agreed with the Committee that mandating an ethics course and reflection paper to allow the Applicant to build the skills to navigate these situations in the future was appropriate.
The Michael Geist blog has published the next three of a four-part response to the Canadian Radio-television and Telecommunications Commission proposals as set out in Bill C-11, including its position that any broadcasting from anywhere in the world be subject to its jurisdiction so long as there is a Canadian nexus to the activities, and a discoverability provision, which grants the CRTC the power to establish a discoverability requirement as a condition on internet services (written in two parts).
The Fei Chang Dao blog has an article that translates and analyses an article entitled the “National Committee of the Chinese People’s Political Consultative Conference Member Zhu Zhengfu: A Proposal to Abolish the Crime of Disturbing the Peace in Due Course,” which was published in the People’s Political Consultative Daily at the start of this month. While not mentioned in the reporting about Zhu’s proposal, Fei Chang Dao discusses the ways in which the crime of disturbing the peace is used to prosecute political speech, both online and in physical venues.
On 7 March 2022, the Supreme Court handed down judgment in Padraig Higgins v The Irish Aviation Authority [2022 IESC 13]. The court was asked to determine what guidelines should apply to reaching awards of damages in defamation cases which were conducted in front of a jury. The dispute related to a series of emails which seriously questioned the claimant’s capacity as an airline pilot. The defendants subsequently apologised for the emails and accepted that they were defamatory. The Court of Appeal concluded that the jury award of €300,000 in general damages should be reduced to €70,000, and that the award of €130,000 in aggravated damages should be reduced to €15,000. Higgins applied for leave to appeal to the Supreme Court, submitting that the Court of Appeal had erred in law in arriving at the figures for general damages and aggravated damages. In addition to guidance for jury awards, the Supreme Court was asked to determine the following issues; the basis upon which jury awards might be overturned on appeal; the extent to which a discount might be given for an offer of amends; and whether it might be possible to set out “bands”, or guidelines, involving a range of appropriate damages drawn from Irish or foreign case law. By a majority, the appeal was allowed (Hogan J dissenting).
On 11 March 2022, the High Court dismissed a bid by Gerry Adams to strike out parts of the BBC’s defence against his defamation action against the UK broadcaster over its reporting of the murder of Denis Donaldson. The court also dismissed the BBC’s application for discovery of a second category of materials and documents, namely material he may have relating to comments he allegedly made in a 1987 press conference that the consequence of informing on the IRA is death. The Irish Times has more information here.
Telegram has promised the messaging application’s Ukrainian users that their personal data is protected from any potential security issues stemming from the ongoing war between Russia and Ukraine, BBC News reports.
Research and Resources
- Danielle Keats Citron, How To Fix Section 230 (March 10, 2022). Boston University Law Review, Forthcoming, Virginia Public Law and Legal Theory Research Paper No. 2022-18
- Morgan Weiland, First Amendment Metaphors: The Death of the “Marketplace of Ideas” and the Rise of the Post-Truth “Free Flow of Information” (2022), Yale Journal of Law and the Humanities, Vol. 33, 2022
- Raphael Cohen-Almagor, Bullying, Cyberbullying and Hate Speech (2022), International Journal of Technoethics (IJT), Volume 13(1)
- Margot E Kaminski, The Case for Data Privacy Rights (Or ‘Please, a Little Optimism’) (2022), Notre Dame Law Review online
- Dylan Cooper et al. Privacy Considerations for Online Advertising: A Stakeholder’s Perspective to Programmatic Advertising (2021), Forthcoming in Journal of Consumer Marketing (DOI 10.1108/JCM-04-2021-4577)
- Jonathon Penney and Bruce Schneier, Platforms, Encryption, and the CFAA: The Case of WhatsApp v NSO Group (2022), Berkeley Technology Law Journal, Vol. 36, No. 101, 2022
- Jeremy Wiener, Deceptive Design and Ongoing Consent in Privacy Law (2021), Ottawa Law Review, Vol. 53, No. 1
- Vrinda Bhandari et al, Personal Data Protection Bill, 2019 (2021), Independent
- Kimberly Houser and John Bagby, The Data Trust Solution to Data Sharing Problems (2022), Vanderbilt Journal of Entertainment & Technology Law
Next Week in the Courts
We are not aware of any media law cases listed for hearing this week.
Suleman v Badejo, heard on 9 March 2022 (HHJ Lewis).
Shah v Chohan, heard on 7 March 2022 (HHJ Lewis).
HM Attorney-General for England and Wales v BBC, heard 1 and 2 March 2022 (Chamberlain J).
Wright v Granath, heard on 24 February 2022 (HHJ Lewis).
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).
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