The Law Commission has published its final report (pdf) on reforming the criminal law as it relates to intimate image abuse. The taking and sharing of sexual images without consent violates the sexual autonomy and bodily privacy and can cause serious harm to victim-survivors. Existing intimate image abuse offences are not fit for purpose, and the lack of a comprehensive legal regime means many instances of abuse fall between a gap in the law. For example, upskirting is a criminal offence but downblousing is not; nor is sharing an intimate image that has been altered (aka “deepfakes”).
The report recommends a new tiered framework of offences which uses one consistent definition of an intimate image, covers the full range of perpetrator motivations, and applies protective measures for victims consistently. This framework comprises the following five new offences:
- A base offence of taking or sharing an intimate image without consent.
- More serious offences where there is:
a) An intention to cause the victim humiliation, alarm or distress.
b) An intention that the image will be looked at for the purpose of obtaining sexual gratification.
c) An offence of threatening to share an intimate image.
- An offence of installing equipment in order to commit a taking offence.
On 8 July 2022, Nicklin J handed down judgment on several preliminary issues in a libel claim brought by the Duke of Sussex against Associated Newspapers Limited over a Mail on Sunday article published in February 2022, Duke of Sussex v Associated News Ltd  EWHC 1755 (QB). He held, that the article, in the meaning found by the Court, contained both expressions of opinion and allegations of fact, and is defamatory at common law.
The meaning found, with the underlined words deemed expressions of opinion (with the balance making allegations of fact), is as follows: (a) in his legal claim against the Home Office over the provision of police protection, the Claimant had initially sought confidentiality restrictions that were far-reaching and unjustifiably wide and were rightly challenged by the Home Office on the grounds of transparency and open justice; (b) the Claimant was responsible for public statements, issued on his behalf, which claimed that he was willing to pay for police protection in the UK, and that his legal challenge was to the Government’s refusal to permit him to do so, whereas the true position, as revealed in documents filed in the legal proceedings, was that he had only made the offer to pay after the proceedings had commenced; and (c) as such, the Claimant was responsible for attempting to mislead and confuse the public as to the true position, which was ironic given that he now held a public role in tackling “misinformation”. All three meanings to be defamatory at common law. ANL’s argument that the article bore no defamatory meaning of the Claimant and that a reader would have detected only a criticism of his “team” or those acting on his behalf was rejected, finding that the natural reaction of the reader would be that the Claimant was responsible for public statements issued on his behalf (RPC summary). 5RB, the Press Gazette, Guardian and Sky News are some of the many to cover the ruling.
A plea from specialist media titles to be exempt from the content takedown requirement in the Online Safety Bill (OSB) has been rejected. The draft law compels tech platforms like Google and Facebook to remove harmful content, but includes protection for news-related material. However, the definition of news-related material is “news or information about current affairs, opinion about matters relating to the news or current affairs, or gossip about celebrities, other public figures or other persons in the news”. Using this definition excludes specialist publishers’ titles, such as Inside Housing (which won awards for its investigation into the causes of the Grenfell fire) even if they are independently regulated by IPSO. The Press Gazette has more information here.
On 5 July 2022, the Government announced its intention to amend that OSB and a separate National Security Bill to address concerns around foreign state disinformation. This follows Hacked Off’s criticism of the Bill’s media exemption, which was to protect publishers of hostile foreign state disinformation like Russia Today, as well as racist, misogynistic and other abusive publishers from regulation. Read Hacked Off’s comment here. Two days later, the Government announced further amendments to the OSB, which will force social media companies to ask foreign propaganda outlets and extremist publishers which qualify as “news publishers” before removing their content from social media.
Internet and Social Media
On 6 July 2022, Ofcom published its roadmap to regulation for when the OSB becomes law, along with a “call for evidence” for the first phase of online safety regulation. The roadmap expressly states it is not a guide to future compliance, but rather an information document setting out Ofcom’s present thinking. The Panopticon Blog draws out the “nuggets of interest” in the roadmap.
Data Privacy and Data Protection
Apple unveiled a Lockdown Mode capability that offers optional protection to users who may be personally targeted by serious digital security threats. In a blog post, Apple explained that turning on Lockdown Mode “further hardens device defences and strictly limits certain functionalities, sharply reducing the attack surface that potentially could be exploited by highly targeted mercenary spyware.”
The HawkTalk Blog has published its response to the Government’s proposes Bill of Rights, set to replace the Human Rights Act 1998, finding that, to name a few criticisms, the Bill is a significant risk to the Adequacy Agreement with the European Commission, and that it tips the balance in favour of protection of the State, rather than the individual.
In a joint letter, the National Cyber Security Centre (NCSC) and the ICO ask the Law Society to remind its members that they should not advise clients to pay ransomware demands should they fall victim to a cyber-attack. Read the ICO’s summary here.
David Davis MP and others are calling for a ban on the Chinese surveillance camera brands Hikvision and Dahua, used by UK government bodies. Davis said the technology’s “advanced surveillance capabilities such as facial recognition, person tracking and gender identification” could threaten civil liberties and potentially national security. The lawmakers also seek “an independent national review of the scale, capabilities, ethics and rights impact of modern CCTV in the UK.”
Newspapers Journalism and Regulation
Culture Secretary Nadine Dorries has decided not to intervene in Newsquest’s takeover of fellow regional publisher Archant. This followed Newsquest chief executive Henry Faure Walker promise that the company “intend[s] to do our utmost to save these loss-making titles” using economies of scale, the Press Gazette reports.
- 01429-22 Hopkins v cornwalllive.com, 1 Accuracy (2021), Breach – sanction: action as offered by publication
- 00640-22 Longstaff v The Northern Echo, 1 Accuracy (2021), Breach – sanction: publication of adjudication
- 10762-21 Peer v thesundaytimes.co.uk, 1 Accuracy (2021), No breach – after investigation
- 11818-21 Hoy v Wisbech Standard, 9 Reporting of crime (2021), 1 Accuracy (2021), No breach – after investigation
- 11928-21 Tierney v Wisbech Standard, 1 Accuracy (2021) No breach – after investigation
- 11947-21 Dizaei v Daily Mail, 2 Privacy (2021), 3 Harassment (2021), 9 Reporting of crime (2021), 1 Accuracy (2021), No breach – after investigation
- 12346-21 A man v Lancashire Telegraph, 1 Accuracy (2021), 2 Privacy (2021), Breach – sanction: publication of adjudication
- Resolution Statement 02089-22 Rogerson v hulldailymail.co.uk (Hull Live), 1 Accuracy (2021), 4 Intrusion into grief or shock (2021), Resolved – IPSO mediation
New Issued Cases
There were two defamation (libel and slander) and one miscellaneous claims filed on the media and communications list last week.
On 1 July 2022 Collins Rice J handed down judgment in the case of Lee v Brown  EWHC 1699 (QB). The claim was dismissed as the claimant had failed to establish that the publications in question had caused or were likely to cause serious harm. There was a post about the case on the Transparency Project blog by Julie Doughty.
Last Week in the Courts
On 4 July 2022 there was a directions hearing in the case of Dental Centre Turkey UK Limited and another v Morley before Nicklin J.
On the same day there was the trial of Shah v Ahmed before Collins Rice J.
On 7 June 2022, Pepperall J heard an application in Daedone v BBC. Nicole Daedone, chief executive One Taste, a wellness company centred on “orgasmic meditation” training sessions, asked the High Court to waive the standard one-year window for bringing a defamation claim in order to bring proceedings against the BBC. The claim relates to “The Orgasm Cult”, a ten-part Radio 4 podcast broadcast in November and December 2020, in which Daedone and another executive, Rachel Cherwitz, were accused of operating a “destructive orgasm cult” that led to “isolation, debt and abuse” among members and staff. The Press Gazette, Law360, CityAM and The Times cover the hearing.
As mentioned above, on 8 July 2022 Nicklin J handed down judgment in the case of The Duke of Sussex v Associated Newspapers  EWHC 1755 (QB)(heard on 9 June 2022).
On the same day Collins Rice J handed down judgment in the case of Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point  EWHC 1763 (QB). The claim related to a publication of French-language current affairs magazine Le Point on 21 June 2019, which was published to 94 UK subscribers and included an imputation of grounds to investigate the Claimant’s involvement in instances of international political destabalisation. The Defendants’ application to strike out and/or summary judgment with regard to serious harm was dismissed. While the pleadings were inconsistent with the meaning subsequently found by Nicol J and should be reframed to reflect it, this could be amended. The pleadings are also to be reframed to refer to harm caused in the UK as a result of UK publication. Taking the evidence in the round the witness evidence available set out a factual basis for a case of serious harm which, if established, was realistically capable of discharging the s.1(1) test. Read 5RB’s summary here.
Media Law in Other Jurisdictions
The former attorney general Christian Porter is acting for underworld figure Mick Gatto in a bid for a high court appeal in his defamation case against the ABC. Gatto sued the public broadcaster and reporters Nino Bucci and Sarah Farnsworth over an article he says falsely accused him of threatening to kill the gangland lawyer and police informant, Nicola Gobbo. The Guardian has more information here.
Co-rapporteurs for the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs and Committee on Internal Market and Consumer Protection released the first compromise amendments for the EU’s proposed Artificial Intelligence Act. The amendments will be discussed next week, Euractiv reports.
Inforrm reposted a piece from Cearta.ie on the recent decision in Tallon v Director of Public Prosecutions  IEHC 322 by Phelan J, which concerns the scope of free speech rights protected by Article 40.6.1(i) and 40.3.1 of the Constitution in relation to anti-social behaviour orders, and whether the permissibly restrain constitutional free speech rights.
As states rush to enact laws criminalizing abortion-related care in the wake of the Supreme Court’s recent decision overturning Roe v Wade, health advocates and civil rights groups are warning that school surveillance software can be weaponized against teens who seek reproductive care.
Research and Resources
- Rolph, David, A Serious Harm Threshold for Australian Defamation Law (2022) 51 Australian Bar Review
- Hess, Burkhard and von Hein, Jan and Mariottini, Cristina M. and Mariottini, Cristina M., ILA Guidelines on the Protection of Privacy in Private International and Procedural Law (‘Lisbon Guidelines on Privacy’) and Commentary Thereto (2022), Max Planck Institute Luxembourg for Procedural Law, Albert-Ludwigs-Universität Freiburg, University of Milan; Max Planck Institute for International, European and Regulatory Procedural Law
- Sogade, Tolulope, Body-Worn Camera Footage Retention and Release: Developing an Intermediate Framework for Public Access in a New Affirmative Disclosure Driven Transparency Movement (2022), Columbia Law Review, Forthcoming,
- Chao, Bernard H., Unjust Enrichment: Standing Up for Privacy Rights (2022), U Denver Legal Studies Research Paper Forthcoming
Next Week in the Courts
On 11 July 2022 Johnson J will hear the trial of preliminary issues in the case of Nagi v Santhiramoulesan.
On 12 and 13 July 2022 Jay J will hear the case of Hodson -v- Persons Unknown & Others.
On 14 July 2022 Heather Williams J will hear an application in the case of Piepenbrock v LSE.
On the same date Nicklin J will hear an application in the case of EGC v PGF NHS Trust
On 15 July 2022 there will be a hearing in the case of LCG v OVD and Ors.
Daedone v BBC, heard on 7 July 2022 (Pepperall J).
Shah v Ahmed, heard on 4 July 2022 (Collins Rice J).
Tayler v HarperCollins, heard on 28 June 2022 (Pepperall J)
George v Cannell, heard on 14 June 2022 (Underhill V-P, Warby and Snowden LLJ)
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).
Driver v Crown Prosecution Service, heard on 8 December 2021 (Julian Knowles 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).