The Easter Legal Term begins tomorrow, 26 April 2022 and will end on 27 May 2022. This term will see the long awaited trial in the so-called, “Wagatha Christie” libel case, Vardy v Rooney which is due to commence on 9 May 2022 and is listed for 7 days. As we mention below, judgment was given in the PTR last week.
The Facebook Oversight Board has upheld the 7 January 2021 decision to ban former-President Donald Trump from the platform, after his social media activity was partially blamed for inciting the violence at the January 6 Capitol riots, in which five people died. Inforrm has an article on the ban and the uncertain future of the oversight board.
Elon Musk has offered to buy Twitter for $43.4 billion and launched a hostile takeover of the company in which he has a 9.2% stake. The billionaire claims he wishes to “unlock” Twitter’s “extraordinary potential.” The Guardian, Verge, CNN and BBC report the story. Inforrm has an article considering what changes might be in store for the company following this announcement.
The Information Commissioner’s Office (ICO) has found “insufficient evidence” to prosecute two suspected whistleblowers over the leaked CCTV footage of former Health Secretary Matt Hancock kissing his aide in his office in the Department for Health and Social Care (DHSC). Further details below.
Internet and Social Media
The LSE Media Blog has an article that considers how the creation of a digital inclusion fund could provide equitable access to broadband internet, as well as basic digital skills training.
Epic Games and Lego announced a new partnership to develop a metaverse space “with the wellbeing of kids in mind.” The project aims to “protect children’s right to play by making safety and wellbeing a priority; safeguard children’s privacy by putting their best interests first,” and “empower children and adults with tools that give them control over their digital experience,” The Verge reports.
Art, Music and Copyright
The music artist Four Tet is suing his record label Domino Recording Company for breach of contract in the Intellectual Property Enterprise Court. He argues that removing his songs from streaming services, such as Spotify, breaches Dominion’s duty to exploit/duty of good faith. IPKat has more information here.
Data Privacy and Data Protection
The ICO has found “insufficient evidence” to prosecute two suspected whistleblowers over the leaked CCTV footage of former Health Secretary Matt Hancock, which shows him kissing his aide in his office in the Department for Health and Social Care (DHSC). The ICO believes that the leaked images given to The Sun were obtained by someone recording CCTV footage screens with a mobile phone. Six mobile phones were seized under warrant, but none of them had the CCTV footage. By virtue of section 170 of the Data Protection Act 2018, it is an offence to obtain or disclose personal data without the consent of the controller, but a defence for preventing or detecting crime and acting in the public interest exists. The ICO said it had a “legal duty to carry out an impartial assessment of the evidence available” given the “seriousness of the report and the wider implications it potentially had for the security of information across government”. The Sun editor Victoria Newton said the paper “welcome(d) the closure of this investigation,” calling it “an outrageous abuse of state power which risked having a chilling impact on whistleblowers and a free press,” the Press Gazette reports.
The HawkTalk blog reviews the new Information Commissioner’s speech at the end of March to a group of IAPP data protection specialists. The article criticises the speech for containing statements not recognised as being consistent with the DCMS proposals for changing the UK_GDPR.
Google has a new cookie consent interface for web users, which allows users to “deny all” to opt out of web tracking entirely. Google previously only offered users to “accept” or “customize,” forcing users to opt out of tracking three separate times on a different webpage. The new feature will start on YouTube. TechCrunch has more information here. The ICO’s response to the new plans can be read here.
On 21 April 2022, the United States, Canada, Japan, Singapore, the Philippines, the Republic of Korea and Chinese Taipei published a declaration establishing the Global Cross-Border Privacy Rules Forum. The Forum will establish an international certification system based on the existing APEC Cross-Border Privacy Rules and Privacy Recognition for Processors Systems, enabling participation beyond APEC member economies. The Global CBPR and PRP Systems, as they will be known, are designed to support the free flow of data and effective data protection, and enable interoperability with other privacy frameworks. The Privacy and Information Security Law Blog has more information here.
Newspapers Journalism and Regulation
The LSE Media Blog has an article that critically examines the risks involved in the UK government’s decision to privatise Channel 4.
- 01199-22 Maksoi v northantslive.news, 1 Accuracy (2021), No breach – after investigation
- 3300-21 Hagyard v Liverpool Echo, 1 Accuracy (2021), No breach – after investigation
- 10659-21 Hagyard v Mail Online, 1 Accuracy (2021), 2 Privacy (2021)
New Issued Cases
Two defamation (libel and slander) cases have been filed on the Media and Communication list in the two weeks since the last round up.
Last Week in the Courts
On Monday 11 April 2022, there was an application in LCG -v- OVD in private before Chamberlain J.
On 11 to 13 April 2022 there was summary judgment application in the case of Various Claimants v MGN, the Mirror Phone Hacking Litigation. The defendant sought judgment on the basis that the claims are statute barred.
On Tuesday 12 April 2022, there were 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.
In a preliminary hearing on Wednesday 13 April 2022, Coleen Rooney’s request for documents detailing communications between Rebekah Vardy, her agent and nine Sun journalists was granted in part; News Group Newspapers is only to release communications between Ms Vardy, her agent and journalist Andy Halls. Judgment was handed down on 21 April 2022 ( EWHC 946 (QB)). Steyn J granted Mrs Rooney a third party disclosure order against the Sun, granted Ms Vardy permission to rely on written summaries from four Sun journalists and struck out substantial parts of Mrs Rooney’ witness statement. The Press Gazette, Guardian and Independent report details of the hearing.
On 13 April 2022, Nicklin J handed down judgment in the MPI and breach of data rights case of (1) Underwood, (2) Underwood v (1) Bounty UK Ltd, (2) Hampshire Hospitals NHS Trust  EWHC 888 (QB). The first and second claimants are mother and child. Bounty was a pregnancy and support club that went into administration in 2020 following an investigation by the Information Commissioner in April 2019, which found that Bounty’s business model was largely based on harvesting data from expectant mothers in order to sell the data on to third parties. The claim related to an incident on 16 October 2017, where a Bounty representative appeared by the first claimant’s post-natal bedside, read various medical files, and offered to take a “first family portrait” . The claimants’ obtained judgment in default against Bounty on 12 November 2020. This judgment related to the claimants’ allegation that the second defendant made the claimants’ private information available to Bounty on 16 October 2017 through culpable omission.
It was accepted that private medical information was contained in the papers accessed by the Bounty representative on 16 October 2017 , and, on balance, it is likely that the Bounty representative saw some/all of this information . However, the second defendant was not found to be liable for the Bounty representative obtaining the second defendant’s name and gender by failing to prevent the Bounty representative from gaining access to the relevant documents . The second defendant’s acts could not be regarded as making those documents available to the Bounty representative or generally. The Bounty representative was acting inappropriately by looking at those documents. If she had asked the second defendant’s staff if she could read them, permission would rightly have been refused. The second defendant is not liable for the unauthorised (and probably unlawful) acts of the Bounty representative . Nor did the second defendant process the claimants’ data unlawfully, for the same reasons being that the Bounty representative’s actions were unauthorised . The alleged breach of the Seventh Data Protection Principle (failing to take appropriate technical and organisational measures to prevent unauthorised processing of (or access to) the Claimants’ personal data) was rejected on the grounds that the logical extension of such precedent would require all patient data to be strictly withheld, which would be disproportionate, unnecessary and inefficient in a hospital environment . Finally, the MPI claim failed on the ground that there had been no “misuse” of the claimants’ private information . The Panopticon Blog’s summary can be read here.
On 13 April, Collins Rice J handed down judgment on meaning in the defamation case of Mehmood (Butt) v Dunya News Ltd  EWHC 905 (QB). The words complained of came from news sources broadcasted in July 2019, and were of the theme that Mr Mehmood was a murderer and drug dealer who was involved in criminal gangs and had left Pakistan in order to avoid prosecution for criminal offences. All of the publications complained of, whether allegations of fact or expressions of opinion, were found to be defamatory at common law.
On 13 April 2022, Chamberlain J refused an appeal against the summary judgment granted on the defamation claim in Jabbar v Aviva  EWHC 912 (QB).
On 14 April 2022, Saini J handed down judgment in relation to financial remedies in the case of Dudley v Phillips  EWHC 930 (QB), with an award of £10,000 entered for the claimant in respect of the libel and data protection claims plus an injunction. The court accepted that the true value of the claim would be in the range of £30,000 to £40,000.
Media Law in Other Jurisdictions
The Michael Geist blog has an article that raises several concerns about both online harms and the broader Internet regulation raised by the (relatively unpublicised) Online Harms Consultation, that “should not be overlooked or swept under the rug.”
The Fei Chang Dao blog has published an article on the censorship of discussion relating to Covid-19, public health and government accountability amid China’s latest lockdowns. The latest target has been the “Sounds of April” (四月之声, or “Voices of April”) video, described as “a compilation of real audio snippets from conversations recorded in Shanghai throughout April, providing an emotional and heart-wrenching account of what residents in Shanghai have gone through since the Covid crisis started in their city.” Screenshots taken on the 24 April 2022 show that searches for “四月之声” on Sina Weibo and Tencent’s Sogou’s Weixin (WeChat) vertical returned no results.
The Strasbourg Observes blog has an article on the recent decision in the European Court of Human Rights that found the Wikimedia Foundation’s application inadmissible in relation to an access blocking decision involving Wikipedia, issued by a single judge in Turkey which lasted 2 years 8 months and 24 days. The article provides a critical overview of the legal process leading to the access blocking of Wikipedia, as well as the subsequent process at the Constitutional Court and the European Court.
The final text of the EU Digital Markets Act featured several last-minute changes, including modifying the legislation’s preamble and issues that involved default settings on devices, sideloading, third-party applications, fair, reasonable and non-discriminatory terms in search engines and other online services, a new data provision requirement, and interoperability of messaging services, Euractiv reports.
The Irish Human Rights and Equality Commission has expressed concerns about the National Police and Security Service’s use of voice-controlled technologies to collect evidence. The commission said the use of surveillance technology must be regulated through legislation and subject to “effective scrutiny,” but noted concerns that an upcoming bill on police use of body cameras and drones does not address other technologies. The Irish Times has more information here.
The Hungarian Data Protection Authority has imposed the highest fine for breach of GDPR to date in relation to the unlawful use of artificial intelligence, at €670,000 (HUF 250 million).
The maximum financial penalties for data breaches under the Personal Data Protection Act 2012 has been raised with effect from 1 October 2022. The maximum for organisations with an annual turnover in Singapore exceeding S$10 million would be 10% of its annual turnover in Singapore. For all other cases, the maximum would be S$1 million. Mishcon de Reya has more information here. DLA Piper has information here.
Military technology analysts have warned that the Ukrainian military’s use of Clearview AI facial recognition to identify dead Russian soldiers may carry negative consequences. Ukraine reported using Clearview AI to identify more than 8,600 Russian soldiers killed in the invasion. The families of 582 soldiers were directly contacted to inform them of family member deaths, with some outreach including an image of the dead soldier. Some military analysts are concerned the effort by Ukraine could backfire and harden support among Russian families for the war, The Washington Post reports.
Actor Johnny Depp’s long anticipated defamation trial against his ex-wife Amber Heard began on 11 April 2022 over allegations of domestic violence. Mr Depp has already lost one high-profile case on the topic of alleged violence toward Ms Heard in London against The Sun in 2020. Depp’s new legal action must reach a higher burden of proof, showing Heard not only defamed him but did so with malice. The Guardian, Reuters , BBC, Independent and Daily Mail report the trial.
Research and Resources
- Hanna, Mark, The ‘Chilling Effect’ of Defamation Law in Northern Ireland? A Comparison with England and Wales in Relation to the Presumption of Jury Trial, the Threshold of Seriousness and the Public Interest Defence (2021), Northern Ireland Legal Quarterly
- Jabotinsky, Hadar Yoana and Jabotinsky, Hadar Yoana and Lavi, Michal, NFT for Eternity (2022), University of Michigan Journal of Law Reform, No. 56
- Udofia, Dr Kubi, Analysis of Libelous Allegations of Indebtedness and Insolvency (2022), Unknown
- Okolie, Enright, Extent of the Latitudes and Limits of the Social Media, and Freedom of Expression within the Confines of Law in Nigeria (2019) Journal of Law, Policy and Globalization
- Cohen-Almagor, Raphael and Cohen-Almagor, Raphael and Lehman-Wilzig, Sam, Digital Promotion of Suicide: A Platform-Level Ethical Analysis (2022), Journal of Media Ethics
- Cohen-Almagor, Raphael and Cohen-Almagor, Raphael, The Price of Ridiculing the Prophet: The Charlie Hebdo Affair (April 10, 2022). in Richard Keeble (ed.), It’s the Media, Stupid: Essays in Honour of Brian Winston Festschrift (Bury, St Edmunds: Abramis, 2022)
Next Week in the Courts
We are not presently aware of any media law cases listed this week.
BW Legal Services Limited v Glassdoor, Inc, heard on 12 April 2022 (Jay J)
Dudley v Phillips , heard on 12 April 2022 (Saini J)
XXX v Persons Unknown , heard on 12 April 2022 (Chamberlain J).
Various Claimants v MGN, heard on 11 to 13 April 2022.
Shah v Chohan, heard on 7 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).