The UK Government has published a “call for evidence [pdf]” in relation to so-called “Strategic Lawsuits against Public Participation (SLAPPs). SLAPPs are characterised as “an abuse of the legal process, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means”.
The Call for Evidence sets out various options for reform including strengthening the public interest defence in the Defamation Act 2013, capping the costs that claimants can recover to stop the high cost of litigation being “weaponised” against free speech, and the introduction of a requirement for claimants to prove “actual malice” in libel cases. The Press Gazette and the Guardian have reports. There is an Online Survey – asking various questions about SLAPPs (without providing any clear definition of such claims).
Ofcom has revoked the broadcast license of the Russian state-funded channel, RT, after determining that the channel’s licensee was not “fit and proper to hold a UK broadcast licence.” The Ofcom investigation took into account “new laws in Russia which effectively criminalise any independent journalism that departs from the Russian state’s own news narrative,” which make it “impossible for RT to comply with the due impartiality rules,” the Press Gazette reports.
On 14 March 2022, the Supreme Court denied Julian Assange permission to appeal against the High Court’s decision to extradite him to the United State as the application did not raise an arguable point of law. The Press Gazette, BBC, Guardian and Reuters have more information.
Critics of the incoming Judicial Review and Courts Bill, which will allow first magistrates’ court appearances in some circumstances to become online administrative hearings, fear this could lead to “justice in the dark” and represents “an affront to open justice.”
The Editors of the Entertainment and Media Law Reports (the EMLR), HHJ Parkes QC and Godwin Busuttil, are retiring after 13 years. They will be succeeded by Dr Maria Mercedes Frabboni and Tatiana-Lynn Makhoul.
Internet and Social Media
Hacked Off has published its criticisms of the regulation exemptions in the Online Safety Bill for newspapers and newspaper comment sections, which are said to put “the rights and interests of the press above those of the public.” You can sign Hacked Off’s petition to amend these exemptions here.
The Social Media Law Bulletin discusses the Online Safety Bill’s proposals to protect against anonymous online trolls. These measures would give users of “main social media firms” more control over who can interact with them and the type of content users see.
The Evan Law blog has a summary of the recent decision Allen v. Vertafore, Inc., No. 21-20404 (5th Cir., March 11, 2022), in which the defendant stored over 27 million Texas driver’s license records on an external unencrypted server. In 2020, the defendant announced that a third party had accessed the records without authorization. In upholding the lower court’s decision to dismiss the DPPA class-action claim, the Fifth Circuit Court of Appeals held that the plaintiffs had failed to plausibly allege that storing the data on an unencrypted server amounted to a “disclosure”.
Google has announced plans to update Google Analytics’ programming to address user privacy and regulatory compliance demands. Analytics 4, which will be in operation by July 2021, adapts built-in privacy features to data collection from the web and applications. The upgrade also curtails the ability to log and store IP address information. This follows a number of EU data protection authorities who have ruled against Google Analytics privacy practices in recent months.
Data Privacy and Data Protection
The Government has announced it will introduce legislation to establish an Office for Digital Identities and Attributes. The legislation will create an accreditation and certification process for organizations to prove they meet security and privacy standards needed to use digital identities and the ODIA office will have the authority to issue trustmarks to certified digital identity organizations.
The International Bar Association has published an “In-House Perspective” on the pressure governments are facing to regulate privacy and data protection.
The Data Protection Report has produced a summary and analysis of the EU Commission’s Data Act, published on 23 February 2022, which forms the last major building block of the Commission’s February 2020 Data Strategy.
Inforrm published an article by two computer scientists that explains how the Internet of Things can violate privacy.
Statements in Open Court and Apologies
On 17 March 2022, the Telegraph published its apology and announced it will pay £40,000 in damages to ex-Labour staffer Laura Murray after falsely suggesting she was an “anti-Jewish racist” and part of the “vile anti-Semitism of Corbyn’s Labour”, allegations it now accepts are untrue. The Guardian and the Press Gazette report the story.
New Issued Cases
There were two defamation (libel and slander), one data protection and two miscellaneous claims filed on the media and communications list last week.
On 10 February 2022 Nicklin J handed down judgment in the case of Harcombe v Associated Newspapers Ltd  EWHC 543 (QB) dealing with the question as to whether there should be preliminary issues in what the judge described as “the most significant piece of defamation litigation that I have seen in a very long time” . The judge directed that there should be trials of a series of preliminary issues.
Last Week in the Courts
An application for anonymity in judicial review proceedings has been refusedand permission to use disclosed documents for the purposes of journalism granted in R (on the application of Newsquest Media Group Ltd) v Legally Qualified Chair of the Police Misconduct Tribunal  EWHC 299 (Admin). The Applicant publishers sought permission to report statutory police disciplinary proceedings in which the Police Misconduct Tribunal concluded that Terry Cooke had systematically abused his role as a police officer to pursue inappropriate and prohibited relationships with vulnerable women. 5RB’s summary can be read here.
Five Extinction Rebellion (XR) activists who were found guilty of obstructing a highway during a 14-hour blockage at Newsprinters in Broxbourne, Hertfordshire in 2020 are appealing their convictions. They argue that their actions were justified by freedom of expression and by their rights to freedom of assembly and association, the Press Gazette reports.
The Bonavero Institute, University of Oxford, is hosting an online lecture by Vicki C Jackson titled Knowledge Institutions in Constitutional Democracies: Reflections on “the Press” on 22 March 2022, 15:00-16:30. Register here.
Media Law in Other Jurisdictions
High-profile victims of online trolling have criticised the proposed “anti-trolling” bill, which seeks to shift liability from the owners of social media pages and groups to social media platforms for defamatory user comments, if platforms do not attempt to facilitate the unmasking of anonymous commenters for someone seeking to bring defamation proceedings. Erin Molan and Nyadol Nyuon have said it would be “almost impossible” to uptake and not “useful” to most people in Australia due to the cost and effort involved, the Guardian reports.
The Guardian reports the ongoing defamation trial between ex-soldier Ben Roberts-Smith and the Age, the Sydney Morning Herald and the Canberra Times.
The claimant’s defamation claim was struck out in Skyllar v The University of British Columbia 2022 BCSC 439.
On 19 March 2022, it was announced that the girlfriend of Xu Zhiyong (许志永), a civil rights lawyer and one of the founders of the civil society groups Open Constitution Initiative and the Chinese News Citizens’ Movement, has been indicted for creating a website that shared Xu’s blog posts, which had been censored by the Chinese government. Xu was indicted for committing the crime of subverting state power on 5 August 2021. The Fei Chang Dao blog has more information here.
The re-election campaign website of French President Emmanuel Macron was found to be the least compliant with EU data protection standards, but none of the major candidates for the presidency were discovered to be fully compliant with data regulations. Noncompliance ranged from data collection, to user consent or transparency. Macron’s website was found to have collected the most personal data and used U.S.-based services, such as Google Analytics, Facebook Pixel and Mailchimp, IAPP reports.
Last week’s Round Up covered the High Court’s dismissal of Gerry Adams’ bid to strike out parts of the BBC’s defence against his defamation action against the BBC over its reporting of the murder of Denis Donaldson. The judgment is now available on Baillii, Gerry Adams v BBC  IEHC 135.
The Irish Data Protection Commission fined Meta €17 million over a series of 12 data breaches from June to December 2018. A DPC investigation determined Meta violated Articles 5 and 24 of the EU General Data Protection Regulation related to the processing of data tied to the breach notifications. While two European supervisory authorities raised objections, the DPC said, “consensus was achieved through further engagement,” IAPP reports.
A new law has been introduced that criminalises the dissemination of “false information” about the Russian military. The Press Gazette recaps the effects that the law has already had on some publishers reporting from Russia.
On 14 March 2022, Marina Ovsyannikova, an editor at Channel One television, charged onto the set of the evening news shouting “Stop the war. No to war” and holding a sign that read “Don’t believe the propaganda. They’re lying to you here.” It was signed in English: “Russians against the war.” Ovsyannikova was briefly detained and then released and ordered to pay a fine, but she could still face prosecution under the new laws described above. She has refused France’s asylum offer.
The LSE Media Blog has an article on the implications of the different media landscape in Russia in comparison to most western countries.
A new website is being used to send Russian citizens information about the war in Ukraine that has been censored by their government, The Wall Street Journal reports. Thousands of Russian citizens have been downloading VPNs to circumvent their government’s blackout of outside media sources to get information about the invasion of Ukraine, CNN reports.
Four journalists have been killed in what are believed to be targeted attacks by the Russian military, the Press Gazette reports.
The LSE Media Blog has an article discussing the contrast between the Ukrainian and Russian approaches to the information war that has emerged alongside the physical acts of war taking place.
Ukraine’s Defence Ministry has been granted free access to Clearview AI’s facial recognition software. The company has offered “to uncover Russian assailants, combat misinformation and identify the dead,” Reuters reports.
On 11 March 2022, a Federal judge ruled that ex-president Donald Trump cannot sue E. Jean Carroll, a writer who says he raped her in the mid-1990s, on the grounds that her defamation lawsuit against him violated a New York state law intended to protect free speech, Reuters reports.
On 15 March 2022, President Biden signed an omnibus spending bill into law, which requires companies to report cyber incidents and ransom payments. The relevant portions of the Cyber Incident Reporting for Critical Infrastructure Act 2022 propose reporting requirements for incidents, establishes new programs to curtail ransomware attacks and encourages information sharing between government agencies. The Data Protection Report has more information here.
On 15 March 2022, a motion by the attorney general of the District of Columbia to name Mark Zuckerberg as a defendant in a privacy lawsuit was thrown out. Judge Maurice Ross of the Superior Court of the District of Columbia said that AG Karl Racine had waited too long to try to amend the lawsuit to name Mr. Zuckerberg as a defendant, a move that sought to hold him personally accountable, the New York Times reports.
Research and Resources
- Johnson, Kollnig, Dewitte, Towards responsible, lawful and ethical data processing: patient data in the UK (2022) Internet Policy Review, 11(1).
- Bo Hu, Yu-li Liu, and Wenjia Yan, Should I Scan My Face? The Influence of Perceived Value and Trust on Chinese Users’ Intention to Use Facial Recognition Payment (2022), Unknown
- Anita Allen, Philosophy of Privacy and Digital Life (2019), 93 Proceedings of the American Philosophical Association 21-38
- Bart Custers, Profiling and Predictions: Challenges in Cybercrime Research Datafication (2021), in: A. Lavorgna & T. Holt & (eds.) Researching Cybercrimes: Methodologies, Ethics, and Critical Approaches, Cham: Switzerland: Palgrave MacMillan
- Alec Stone Sweet and Chong Bu, Breaching the Taboo? Constitutional Dimensions of China’s New Civil Code (2022), The University of Hong Kong – Faculty of Law
- Laura M Alexander, Privacy and Antitrust at the Crossroads of Big Tech (2021), American Antitrust Institute (AAI)
- Stacey Steinberg, Meredith Burgess, and Karla Herrera, Adopting Social Media in Adoption Law (2022), Utah L. Rev., University of Florida Levin College of Law Research Paper
Next Week in the Courts
On 21 March 2022 Nicklin J will hear an application in the case of DTL -v- TMA QB-2022-000865.
On 21 to 23 March 2022 Collins Rice J will hear the defamation trial in the case of Sivananthan v Vasikaran QB-2020-002381.
On 22 March 2022 Nicklin J will hear an application in the defamation case of Tewari v Khetrapal QB-2021-004309.
On 23 March 2022 Steyn J will hear an application in the case of QRT -v- JBE QB-2022-000825
On 24 and 25 March 2022 there will be a CMC in the MTVIL litigation, Various Claimants v NGN before Fancourt J. The Judge will hear an application by NGN that managed litigation should be brought to an end in July 2022.
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).