On 7 April 2022, the Attorney General was granted an interim injunction restraining the BBC from broadcasting a programme that identified an alleged MI5 covert human intelligence source (“X”), Attorney General v British Broadcasting Corporation  EWHC 380 (QB).
The BBC alleged that X is a dangerous extremist and misogynist, who abused two former female partners and used his connection to MI5 to terrorise and control one; and that MI5 should have known and cut ties with X. Chamberlain J accepted that restraining the programme represented a “very significant interference with the right of the BBC to freedom of expression and the correlative right of the public to receive the information the BBC wishes to publish”, and that the BBC “comfortably” met the test of establishing that the allegations it sought to publish are serious and have a credible evidential basis. However, he concluded that the AG was more likely than not to succeed at trial in establishing that the balance of public and private interests favoured granting the injunction, either on the basis of the law of confidentiality or ECHR rights. Read the BBC’s statement, as well as reporting from 5RB, Press Gazette and the Guardian.
On 7 April 2022, in a statement read before the High Court [pdf], Mr Ian Austin and The Telegraph provided a full and unreserved apology to Laura Murray following her successful defamation claim. Both defendants admitted that their accusations that Ms Murray was an anti-Semite were untrue, and also recognised that, during her time as Stakeholder Manager to the Leader of the Opposition, then as Head of Complaints, Ms Murray worked tirelessly to address issues of anti-Semitism and foster good relations with the Jewish community. Read the Telegraph’s apology, Ian Austin’s apology and Carter Ruck’s summary.
The barrister who acted for Andrew Griffith, the disgraced former MP who was found guilty of raping his wife and unsuccessfully attempted to retain anonymity throughout the family court proceedings (Griffiths v Tickle  EWCA Civ 1882), has been forced to apologise for potentially breaching court rules and section 12 of the Administration of Justice Act 1960, which forbids publication of details of any case involving children heard in private, when he disclosed his unredacted skeleton argument to third parties not involved in the case without the court’s permission. The Transparency Project has more information here.
Internet and Social Media
The Centre for Internet Law and Society blog has an article that considers the proposed EU Digital Services Act and US Platform Accountability and Transparency Act, and the trade-off between research and information access on the one hand, and privacy on the other.
Last week, Paul Bernal’s blog asked do we even need an Online Safety Bill? The post cites the costs to privacy, freedom of speech (such as the ‘legal but harmful’ concept), the ‘duty of care’ demanded of online service providers to limit or even ban both encryption and anonymity, the political control of censorship via Ofcom, and the “mammoth and costly bureaucratic burdens being foisted on people operating online services” as some of the many reasons that the proposed Bill might be doing more harm than good.
Art, Music and Copyright
The Court of Justice of the European Union (CJEU) has delivered judgment in C-433/20 Austro-Mechana, ruling that the notion of reproduction ‘on any medium’ extends to the cloud, and, therefore, that private copying under Article 5(2)(b) of the InfoSoc Directive also applies in that context. IPKat has more information here.
Data Privacy and Data Protection
On 7 April 2022, the European Data Protection Board released a statement on the announcement of a new Trans-Atlantic Data Privacy Framework. The Hunton Andrews Kurth blog has published a summary and analysis of the announcement.
Newspapers Journalism and Regulation
The independent media platform Open Democracy has written an open letter to the Information Commissioner John Edwards, calling for stronger Freedom of Information provisions to combat rising government secrecy. The letter says that FoIs are “a critical tool for rooting out ills”, but a rise in “late responses, stonewalling, public-interest-test delays, repeated misuse of exemptions, as well as opaque and inconsistent monitoring and enforcement” demonstrates the current system was “clearly not working”. Over 100 editors, celebrities and MPs signed the letter, the Press Gazette, Guardian and the Mishcon de Reya blog report. The ICO’s response can be read here.
The Mishcon de Reya blog also published an article on FoIs last week, explaining the recent decision of Moss v Kingston-on-Thames and The Information Commissioner NJ/2018/0007, in which the High Court held that failure to comply with a FoI notice is contempt of court.
- 01743-21 Power v Mail Online, 1 Accuracy (2019), No breach – after investigation
- 08762-21 Nita v edinburghnews .scotsman.com, 14 Confidential sources (2019), 2 Privacy (2019), 1 Accuracy (2019), No breach – after investigation
- 10375-21 Warde v Bridport & Lyme Regis News, 12 Discrimination (2021), 1 Accuracy (2021), No breach – after investigation
- 00505-22 Various v mirror.co.uk, 1 Accuracy (2021), Breach – sanction: action as offered by publication
Statements in Open Court and Apologies
As mentioned above, on 7 April 2022 there was an apology to Laura Murray from The Telegraph and Ian Austin following Ms Murray’s successful claim in libel, Murray v Telegraph Media Group Ltd and another.
New Issued Cases
There were three defamation claims and two injunction claims issued on the Media and Communications list since last week’s round up.
Last Week in the Courts
On 4 April 2022, there was application in the case of QRT v JBE before Saini J.
On 5 April 2022, there was an application in Fatima and another v Aviva Insurance UK Limited and other before Saini J.
On 6 April 2022, judgment on meaning was handed down by Collins Rice J in Sivananthan v Vasikaran  EWHC 837 (QB). Held, the natural and ordinary meaning of the words complained of are that Mr Sivananthan misled or misinformed Boris Johnson, then campaigning for election as Prime Minister, causing Mr Johnson to refer in his letter to ‘deepening ties’ with Sri Lanka. That in turn (has) the effect of undermining or reversing the hard work, and wasting the resources, others in the Tamil community have put in to promoting a very different foreign policy towards Sri Lanka and/or attracting support for the Conservative Party. Mr Sivananthan also, actively or by omission, falsely took the credit given in the letter to the British Tamil Conservatives (BTC) for taking parliamentarians to the UNHRC in Geneva. This, and other behaviours, also undermines others in the Tamil community. Mr Sivananthan also acted in breach of the BTC constitution in order to advance his own interests (original emphasis) at . These meanings are defamatory in tendency . It is now for Mr Sivananthan to establish that the posts complained of are of defamatory tendency at common law, but also pass the threshold set out in section 1 Defamation Act 2013.
On 6 April 2022, there was an application in Mehmood v HUM Network UK Limited and others before Saini J.
On 6 and 7 April 2022 there was a hearing in MBR Acres Limited and others v FREE THE MBR BEAGLES before Nicklin J.
Media Law in Other Jurisdictions
Author and feminist commentator Clementine Ford will receive $39,000 in damages after settling her defamation suit against the executive editor of the Sydney Morning Herald and Age over public comments alleging that she engaged in “vile and personal attacks” on the newspapers’ staff, the Herald reports.
The Sydney Morning Herald covers the ongoing defamation case between Clive Palmer’s and Mark McGowan.
The Guardian covers the ongoing defamation case between Ben Roberts Smith and the Age, Sydney Morning Herald and Canberra Times.
The Canadian government has introduced a bill to bring an Australia-style news media bargaining code into law. The Online News Act will require “digital news intermediaries” to negotiate with news publishers for use of their content, the Press Gazette reports.
On 7 April 2022, Finance Minister Chrystia Freeland unveiled the annual Budget, which “buried” a promise to extend the term of copyright from the international standard of life plus 50 years to life plus 70, fulfilling the commitment in the Canada-US-Mexico Trade Agreement. The Michael Geist blog criticises this change for creating “significant costs with limited to no benefits.”
The Fei Chang Dao blog has published a translation of the court’s reasoning for imprisoning the journalist Shi Tao.
On 7 April 2022, Advocate General Pitruzzella delivered his opinion in TU, RE v Google on the question of the specific function performed by search engines in relation to Articles 7, 8, 11 and 16 of the Charter of Fundamental Rights of the European Union, which set out respectively the right to respect for private life, the right to protection of personal data, freedom of expression and information and freedom to conduct business. Pitruzzella opined that a de-referencing cannot be made by simple data subject request, noting an individual must “provide prima facie evidence of the false nature of the content.” Additionally, Pitruzzella said public figures will be held to a higher standard of proof when seeking dereferencing. The Press Release can be read here. The Courthouse News Service also reports.
The European Parliament has approved the proposed Data Governance Act. The legislation aims to give companies and start-ups better access to more data for the purpose of developing new products and services. The proposal needs final approval from the Council of the European Union before becoming law.
The New York Times reports on the use of biometric services such as Clearview AI to verify the identity of Russian soldiers and travellers in Ukraine. Critics, like Fight for the Future Deputy Director Evan Greer, raised concerns about expanding facial recognition technology use with little privacy oversight.
Research and Resources
- Sargeant, Holli and Pirkova, Eliska and Kettemann, Matthias C. and Wisniak, Marlena and Scheinin, Martin and Bevensee, Emmi and Pentney, Katie and Woods, Lorna and Heitz, Lucien and Kostic, Bojana and Rozgonyi, Krisztina and Haas, Julia and Joler, Vladan, Spotlight on Artificial Intelligence and Freedom of Expression: A Policy Manual (2022), Organization for Security and Co-operation in Europe
- Stylianou, Konstantinos and Zingales, Nicolo and Di Stefano, Stefania, Is Facebook Keeping up with International Standards on Freedom of Expression? A Time-Series Analysis 2005-2020 (2022), Tilburg University – Tilburg Institute for Law, Technology, and Society (TILT); Stanford University – Stanford Law School Center for Internet and Society and University of Leeds – School of Law
- Ferguson, Andrew Guthrie, Persistent Surveillance (2022), Alabama Law Review, Forthcoming
- Levin, Avner, Ought from is: Towards Truly Reasonable Expectations of Privacy (2021), The Last Frontier: Digital Privacy and the Charter 2022, Christopher Hunt and Robert Diab (eds.)
- Dunn, Suzie and Kim, Rosel, Submission to the Province of Nova Scotia on Its Review of the Intimate Images and Cyber-Protection Act – LEAF (2022), Dunn, Suzie and Kim, Rosel, Submission to the Province of Nova Scotia on its Review of the Intimate Images and Cyber-Protection Act – Leaf
- Morten, Christopher, Publicizing Corporate Secrets for Public Good (2022), University of Pennsylvania Law Review, Vol. 171, Forthcoming
- Jarvis Cooper, Liane, Sexual Privacy and Persecution (2022), UCLA Law Review Discourse, Forthcoming,
- Corrales Compagnucci, Marcelo and Fenwick, Mark and Aboy, Mateo and Minssen, Timo, Supplementary Measures and Appropriate Safeguards for International Transfers of Personal Data after Schrems II (2022), University of Copenhagen, Kyushu University – Graduate School of Law
- Vemuganti, Ramya, Privacy, Hyper-Personalization, and Autonomy Harms (2022), Unknown
Next Week in the Courts
On Monday 11 April 2022, there will be an application in LCG -v- OVD in private before Chamberlain J.
On 11 to 13 April 2022 there will be a summary judgment application in the case of Various Claimants v MGN, the Mirror Phone Hacking Litigation. The defendant is seeking judgment on the basis that the claims are statute barred.
On Tuesday 12 April 2022, there will be hearings in the cases of BW Legal Services Limited v Glassdoor, Inc before Jay J; Dudley v Phillips before Saini J, and; XXX v Persons Unknown before Chamberlain J.
On Wednesday 13 April 2022, there will a PTR in the case of Vardy v Rooney before Steyn J.
On the same day Nicklin J will hand down judgment in the case of Underwood -v- Bounty (heard 11 to 13 January 2022).
Shah v Chohan, heard on7 March 2022 (HHJ Lewis).
Wright v Granath, heard on 24 February 2022 (HHJ Lewis).
Banks v Cadwalladr 14, 17 to 19 and 21 January 2022 (Steyn 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).
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).