On 9 June 2022, the trial of preliminary issues in the case of The Duke of Sussex v Associated Newspapers was held before Nicklin J. The Duke is suing the publishers of the Mail on Sunday over articles which he claims meant that he had “lied”, “improperly and cynically” tried to manipulate public opinion, and “tried to keep his legal fight with the Government secret from the public” over his security arrangements when he is in the UK. The Press Gazette has more information here. The Sunday Times, Independent and Evening Standard also covered the hearing.

At a meeting held in the House of Lords on 8 June 2022, the Campaign group FAIR (Falsely Accused Individuals for Reform) called for pre-charge naming of sexual offence suspects to be made a criminal offence in England and Wales.  The meeting heard impassioned speeches from Sir Cliff Richard, Paul Gambaccini and Harvey Proctor – all falsely accused of such offences in the past.  There were reports on the BBC, Sky News and ITV.

On 13 June 2022, the eagerly anticipated judgment in the libel action brought by multimillionaire Arron Banks against Guardian journalist Carole Cadwalladr will be handed down by Steyn J. The claim relates to two instances in which Cadwalladr accused the businessman of lying about his relationship with the Russian state. This libel action prompted several organisations to call on the UK government to ensure that so-called “SLAPPs” – strategic lawsuits against public participation – were not used to discourage public-interest reporting. The Guardian has more information here.

Many legal commentators in the last week have sought to explain why the US and UK courts reached different conclusions in the defamation claims brought by Johnny Depp regarding domestic abuse. The Media Law Podcast’s analysis can be found here. Carter-Ruck partner Guy Martin’s interview on LBC can be listened to here. The Press Gazette’s answer can be read here.

Art, Music and Copyright

On 8 June 2022, judgment was handed down in Shazam v Only Fools The Dining Experience and Others [2022] EWHC 1379. Held, a fictional character can be protected as a self-standing copyright work. The dispute related to the defendant’s interactive dining show, the “Only Fools The (Cushty) Dining Experience” in which actors would play the various Only Fools and Horses characters in a different context (an interactive pub quiz) from the original OFAH series. Shazam claimed that the interactive theatre experience infringed their rights. IPKat has more information here.

Data Privacy and Data Protection

Two Freedom of Information Act requests by Mishcon de Reya to the Information Commissioner’s Office (ICO) have revealed that a number of reprimands have been issued against the Government Digital Service (part of the Cabinet Office), UKIP and the CPS, as well as a number of police forces and other public bodies. The ICO had not publicised them, contrary to the ICO’s own policy that its default position was to publish all formal regulatory work.

The UK ICO has published its AI and data protection risk toolkit. The Toolkit is designed to provide practical support to organisations using AI systems which may involve the processing of personal data. It builds on the ICO’s earlier guidance on AI and data protection, published in July 2020. DLA Piper provides a summary here.

The Norton Rose Fulbright Data Protection Report has produced a summary of the European Commissioner’s Q&A on the Revised Standard Contractual Clauses.

Surveillance

Apple CEO Tim Cook told the TIME100 Summit that he fears “deeply the loss of privacy” as tracking through digital devices and technology grows. Cook questioned whether the constant feeling of user surveillance will lead to behavioural changes. “We begin to do less. We begin to think about things less. We begin to modify how we think… In a world like that where we’re restraining ourselves, it changes society in a major way,” Time reports.

Newspapers Journalism and Regulation

The Guardian has an article criticising English media law and the London reputation management law firms said to support SLAPPS against individual journalists and media organisations. The piece follows the Justice Secretary’s call for evidence on SLAPPS, which closed last month.

Press Gazette research suggests that Britain’s largest publishers could receive up to £250m a year from Google and Meta if the UK passes an Australian-style law obliging Big Tech to negotiate cash-for-content deals with broadcasters like the BBC, newspapers and non-newspaper publishers.

The editors of the Sun and Mirror have condemned creeping privacy laws that left the media unable to name the Conservative MP who has been arrested on suspicion of rape, sexual assault, indecent assault, abuse of position of trust and misconduct in a public office in May 2022. The Press Gazette has more information here.

IPSO

New Issued Cases

There was one misuse of private information claim and one Norwich Pharmacal Order issued in the media and communications list last week.

Last Week in the Courts

On 8 June 2022 there was a directions hearing the case of Hills v Fomukong Epse Tabe before Collins Rice J.

As mentioned above, on 9 June 2022 the trial of preliminary issue in the case of The Duke of Sussex v Associated Newspapers was held before Nicklin J.

On the same day there was an application in Soriano v Societe d’exploitation de l’Hebdomadaire Le Point before Collins Rice J.

Media Law in Other Jurisdictions

Australia

In the case of Barilaro v Google llc ([2022] FCA 650) Google was ordered to pay former New South Wales deputy premier John Barilaro $715,000 over a series of “racist” and “abusive” videos published on the YouTube channel Friendlyjordies. Federal Court Justice Stephen Rares ruled that Google had failed to adhere to its own policies by doing “nothing to prevent Mr Shanks’ hate speech, cyberbullying and harassment” of Barilaro, the Guardian reports. Whether the Australian court has jurisdiction to enforce the judgment against a US-based company is another question, discussed by media law experts Professor David Rolph and Dr Damien Spry here.

On 6 June 2022, the defamation trial brought by former One Nation senator Brian Burston against Pauline Hanson began. The claim relates to a number of publications that Burston argues are allegations of sexual harassment made against him on social media, in interviews and in a text to his wife, Rosalyn. The court heard that Hanson sent a “spiteful” and “malicious” text message to Rosalyn claiming that he considered her to be an “old bag” and was “infatuated” with one of his staff members.  The Guardian has more information here.

Canada

The Toronto-based serial defamer Nadire Atas, who engaged in a one-woman war against everyone she felt had ever slighted her, has had her defamation lawsuit against the New York Times dismissed. The claim related to two articles that covered her arrest on charges of harassment, defamatory libel and spreading false information with the intent to alarm. TechDirt are Reason have more information.

China

The Fei Chang Dao blog has an article that looks at China’s censorship of the Tiananmen Square protests and massacre on the 33rd Anniversary of 4 June 1989.

IPKat has a post on the China’s image rights and the threshold for protection of the right to likeness following the publication of the nine “Typical civil cases of judicial protection of personality rights after the promulgation of the Civil Code of China” from the Supreme People’s Court of China.

Europe

The EU Data Governance Act was published in the Official Journal of the European Union on 3 June 2022. The DGA, which provides for increased access to public-sector data for the purpose of developing new products and services, will enter into force 23 June 2022 and apply to companies 15 months thereafter.

Ireland

On 8 March 2022, The Data Protection Act 2018 (Access Modification) (Health) Regulations 2022 came into force, revoking and replacing the Data Protection (Access Modification) (Health) Regulations 1989. The new 2022 Regulations will have impact organisations that process health data (i.e. physical and mental health data) and receive data subject access requests from individuals invoking their data protection rights under Article 15 GDPR. DLA Piper has more information here.

Russia – Ukraine War

The LSE Media Blog has an article responding to the banning of the Kremlin-backed media outlets Russia Today (RT) and Sputnik in the EU. Professor Natali Helberger  and Professor Wolfgang Schulz explain the implications of the ban for media freedom and freedom of communication.

United States

An appeals court in Manhattan is unlikely to revive former Alabama judge Roy Moore’s defamation suit against Sacha Baron Cohen for falsely portraying him as a sex offender on Cohen’s show “Who Is America?” Moore sued Cohen for $95 million over an interview in Washington, D.C., where Cohen, disguised as fictional Israeli anti-terrorism expert Erran Morad, waved a wand-like device that purportedly detected paedophiles, and which beeped when waved near Moore. Reuters has more information here.

On 3 June 2022, the Senate and House released a draft of the American Data Privacy and Protection Act, a watershed privacy bill that would introduce a federal standard. The Norton Rose Fulbright Data Protection Report summary and analysis can be read here.

Research and Resources

Next Week in the Courts 

As already mentioned, on 13 June 2022, Steyn J will hand down judgment in the case of Banks v Cadwalladr .

On the same day there will be a hearings in Dental Centre Turkey UK Ltd v Morley before Nicklin J and in Ismaik v Integral Media Strategies Limited before Collins Rice. J

On 14 June 2022,  the Court of Appeal (Underhill V-P, Warby and Snowden LLJ) will hear the appeal in the case of George  v Cannell.

On the same day there will be a hearing in the case of Begum Liza Shahinur v BBC before Heather Williams J.

On 16 June 2022, there will be hearings in the cases of  MBR Acres v others before Nicklin J and GJE v FJV  before Collins Rice J.

Reserved Judgments

The Duke of Sussex v Associated Newspapers, heard on 9 June 2022 (Nicklin J).

Wright v McCormack, heard on 23 May 2022 (Chamberlain J).

Vardy v Rooney, heard on 10-13 , and 16, 17 and 19 May 2022 (Steyn J).

BW Legal Services v Trustpilot A/S, heard 17 and 18 May 2022 (Tipples J)

 LCG v. OVD, heard on 4 May 2022 (Murray J).

 XXX v Persons Unknown , heard on 12 April 2022 (Chamberlain 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).