Last week saw the conclusion of the widely-reported “WAGatha Christie” libel trial between Rebekah Vardy and Colleen Rooney. Most of the mid-trial reporting was covered in last week’s Round Up. While judgment is likely to be reserved for some time, the BBC, Mail Online and Independent provide helpful summaries of the trial’s events.
Inforrm had a post that explains what can be learnt about avoiding libel on social media from this case. The Guardian follows in a similar vein, considering how the case has put defamation law on trial in the social media age.
On 18 May 2022, the actor and Reclaim Party founder Laurence Fox’s application for a trial by jury in his ongoing defamation litigation was refused by Nicklin J (Blake & Ors v Fox (Re Trial by Jury) [2022] EWHC 1124 (QB)). Fox referred to the three claimants as “paedophiles” on Twitter, who themselves accused him of racism, prompting a counterclaim by Fox. Since the coming into force of section 11 Defamation Act 2013, trial by jury in a defamation claim is only appropriate where there is a real prospect of “involuntary bias” on the part of any judge who was called upon to try the issues in the case, and when that could be overcome by ordering a trial by jury. Nicklin decided that there was no such prospect in this case and reiterated the valuable aspects of a trial by judge in defamation claims. Read the Law Society Gazette’s report here.
The much-publicised defamation trial between actor Jonny Depp and his ex-wife Amber Heard over allegations of domestic violence resumed in the US last week after a one-week recess. The Brett Wilson Media Blog has an article commenting on the case and the perils of life-streaming and trial by TikTok.
On 17 May 2022, The Sun broke the story of a Tory MP who has been arrested on suspicion of rape, but was not identified by either the media or Parliament. The Press Gazette explains why this is.
Internet and Social Media
The Centre for Internet and Society’s letter to the European Commission on the Commission’s proposed regulation on child sex abuse online can be read here.
Art, Music and Copyright
IPKat has an article on a recent landmark deal in France regarding performers’ remuneration from streaming services, which could impact how this hotly debated issue in the music industry is considered at the international level.
Data Privacy and Data Protection
Google is being sued for allegedly using NHS health data belonging to 1.6 million people without their consent. Google’s artificial intelligence arm DeepMind received the data to test an app called Streams, Sky News reports.
The HawkTalk blog has published an analysis of the “Lobby Pack” that accompanied the Queen’s Speech, which describes important elements of the proposed Parliamentary legislative programme. The article reveals how the Lobby Pack shows that the DCMS’s numerical arguments for changes to the Data Protection regime favour the interests of large controllers, which comprise 0.6% of the controller community. Projected average savings are calculated to be “pitiful £2.60 per controller per week.”
Surveillance
The UK Health and Security Agency released privacy guidance for the National Health Service’s COVID-19 mobile application. Using the app is voluntary for citizens and it cannot track the location of users, monitor users if they are self-isolating, be used by law enforcement or see personal messages on a user’s phone.
Newspapers Journalism and Regulation
The Transparency Project has a published a summary of the new Reporters’ Charter, which outlines the rights and responsibilities of court reporters and designed to boost transparency in the justice system.
IPSO
– 10663-21 Straughan v blackpoolgazette.co.uk, 1 Accuracy (2021), No breach – after investigation
New Issued Cases
There were two defamation (libel and slander) claims and one Norwich Pharmacal Order issued on the media and communications list last week.
Last Week in the Courts
As mentioned above, the Vardy v Rooney defamation trial was heard by Steyn J on 16, 17 and 19 May 2022. Judgment was reserved.
On 16 May 2022, judgment was handed down in MBR Acres v Free the MBR Beagles [2022] EWHC 1123 (QB) by Nicklin J. The principal issue of contention was whether an injunction order is required to be served personally on a defendant who is represented by solicitors before s/he can be found to be in contempt of court for alleged breach of the order, or whether the effect of the CPR is to require that the injunction order be served on his/her solicitors. Held, personal service of an injunction order is still required by CPR 81.4(2)(c), unless the Court has permitted a different mode of service or has exceptionally dispensed with the need to serve the injunction order. Unless permitted by an alternative service order under CPR 6.15 and 6.27, service of an injunction order upon a legal representative who is on the record for a defendant is not good service [105].
On the same day judgment was handed down in BW Legal Services Limited v Trustpilot by Tipples J.
On 17 May 2022, judgment was handed down in Wright v Granath [2022] EWHC 1181 (QB) by Lewis J. Wright claims to be Satoshi Nakamoto, the inventor of bitcoin. Granath called Wright a fraud in a tweet. Lewis dismissed Granath’s summary judgment application, which argued that Wright had no real prospect of succeeding in proving that the tweet caused him serious harm. The judgment considers the extent to which “bad reputation” and evidence of similar allegations made by others can be considered by the court, assessing the principles set out in Burstein v Times Newspapers and Dingle v Associated Newspapers under section 1 of the Defamation Act 2013. The judgment confirms that evidence of general bad reputation may only be admitted when it is within the relevant sphere of a claimant’s reputation, but evidence of the same allegation having been made against the claimant may not be relied on in accordance with the rule in Dingle.
Wright is bringing a separate libel claim against Bitcoin blogger Peter McCormack. The trial begins on 23 May 2022 and also relates to whether serious harm was caused by McCormack’s allegation that Wright fraudulently claims to be Satoshi.
Also on 17 May 2022, there was a hearing in the case of PHD Modular Access v Beach before Tipples J.
As mentioned above, on 18 May 2022 Nicklin J refused trial by jury in the case of Blake and others v Fox.
On the same day, judgment was handed down in Her Majesty’s Attorney-General v BBC [2022] EWHC 1189 (QB) (pdf) relating to the terms of the injunction prohibiting the BBC from identifying “X”, the alleged covert human intelligence source working for MI5. Held, the imbalance of information in respect of what information is / is not likely to identify X, where a dispute as to whether some information would breach the order had crystallised, meant it was in the interests of all parties to resolve that dispute to prevent an unnecessary interference with the BBC’s Article 10 rights in the event that they chose not to publish material that the court would otherwise have allowed them to publish. What constitutes “identifying” information was to be based on the risk of disclosure to groups who might wish to do harm to X if they knew that the BBC alleges that he is a covert human intelligence source. The risk that members of those groups might combine the BBC’s reporting with their own knowledge, causing X to be identified (in other words, jigsaw identification) must be taken into account. A further judgment was handed down in private which determined the specific information which is said to identify X. 5RB’s summary can be read here. The Press Gazette reports the decision. The Privacy Perspective Blog’s summary can be read here. The final BBC’s story can be read here.
On the same day, there was a hearing in COS v PER and another before Collins Rice J.
On 19-20 May 2022, there was a hearing in Graeme Smith & 375 Others v Talk Talk Telecom Group PLC before Saini J.
Media Law in Other Jurisdictions
Australia
On 17 May 2022, judgment was handed down in the appeal of Bazzi v Dutton [2022] FCAFC 84, which related to the interpretation of imputations in a tweet, and how the ordinary reasonable reader would understand a tweet.
Actor Craig McLachlan has decided to drop his defamation case against the Sydney Morning Herald and ABC over allegations that he sexually harassed fellow cast members, the Herald reports.
Right-wing activist Avi Yemini is taking action against Twitter in the Federal Court, attempting to force the social media giant to hand over identifying details of a user known as PRGuy, who Yemini wants to bring a defamation claim against. The Canberra Times has more information here.
Canada
The Attorney General’s motion for an order dismissing or staying SageTea’s defamation claim arising in Quebec on the ground that the court had no jurisdiction over the subject-matter of the claim was granted in SageTea Inc. v. Attorney General of Canada, 2022 ONSC 2938.
On 16 May 2022, the appeal in Echelon Environmental Inc. v. Glassdoor Inc. 2022 ONCA 391 was dismissed.
The Michael Geist Blog and the Norton Rose Fulbright Social Media Law Blog have articles on the latest parliament debates around the Online News Act (Bill C-18).
On 16 May 2022, the Office of the Privacy Commissioner of Canada released an Interpretation Bulletin on what it considers to be “sensitive” personal information under the federal Personal Information Protection and Electronic Documents Act. The Bulletin is meant to act as a consolidated guide based on jurisprudence, regulatory findings, and various interpretations of PIPEDA’s key concepts over the years. The Norton Rose Fulbright Data Protection Report has more information here.
A report by David Lyon, former director of the Surveillance Studies Centre at Queen’s University in Kingston, Ont., highlights the need for more transparency in data collection and analysis, as well as new digital rights and means of ensuring justice for Canadians. Read the Beyond Big Data Surveillance Freedom and Fairness: A Report for all Canadian Citizens.
Europe
The European Parliament has voted to widen Europol’s powers to enable the police agency to collect and process data on individuals, including those not suspected of a crime. Under the expanded powers, Europol can collect personal data from technology companies, as well as data from countries outside the European Union. The move has been criticized by civil rights advocates, including European Digital Rights Policy Advisor Chloé Berthélémy, who said, “Europol will be allowed to collect and share data left, right and centre, without much restriction or control.” Computer Weekly has more information here.
The Council of the European Union ha approved the Data Governance Act, the final step to full adoption after the European Parliament gave its backing on 7 April 2022. The framework aims to provide companies increased access to public-sector data for the purpose of developing new products and services. The new regulation will apply 15 months after it enters into force. IAPP has more details here.
Research and Resources
- Gordon-Tapiero, Ayelet and Wood, Alexandra and Ligett, Katrina, The Case for Establishing a Collective Perspective to Address the Harms of Platform Personalization (2022), Vanderbilt Journal of Entertainment & Technology Law
- Giladi Shtub, Tamar and Gal, Michal, The Competitive Effects of China’s Legal Data Regime (2022), Journal of Competition Law and Economics (2022), University of Haifa – Faculty of Law
- Christakis, Theodore and Bannelier, Karine and Castelluccia, Claude and Le Métayer, Daniel, Mapping the Use of Facial Recognition in Public Spaces in Europe – Part 1: A Quest for Clarity: Unpicking the ‘Catch-All’ Term (2022), University Grenoble-Alpes, CESICE, France
- Njenom, Pontus Joseph, Contemporary Technological Advancements and the Right to Privacy (2022), United Nations Mission in South Sudan
Next Week in the Courts
On 23 May 2022 Chamberlain J will hear the trial in the case of Wright v McCormack.
Reserved Judgments
Vardy v Rooney, heard on 10-13 , and 16, 17 and 19 May 2022 (Steyn J).
LCG v. OVD, heard on 4 May 2022 (Murray 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 (Fancourt J).
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).
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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