On 20 July 2022, the Government published its Response to the Call for Evidence on Strategic Lawsuits against Public Participation [pdf]. The Deputy Prime Minister Dominic Raab claimed that this sets out a series of measures to prevent so-called SLAPPs. According to the Ministry of Justice, this includes a new tool for the courts to throw out meritless claims quicker and a cap on costs to prevent the rich from “bullying” journalists with the threat of expensive litigation.
On 20 and 21 July 2022, the Master of the Rolls, the President of the Queen’s Bench Division and Lady Justice King heard The Guardian’s appeal challenging the decision to exclude the press from the September 2021 hearing for the will of Prince Philip, where it was decided it should be sealed for 90 years. The Guardian argued that the case should be reheard in the high court because Mr Justice McFarlane failed to properly consider whether reporters should have been permitted to attend the original hearing, or make representations in favour of being allowed to attend. The paper argues that this was a serious interference with the principle of open justice. 5RB, The Guardian and Reuters report.
On 21 July 2022, the BBC offered a public apology and agreed to pay damages to the former nanny of Prince William and Prince Harry following the “fabricated” and “false and malicious” allegations made by Martin Bashir that Tiggy Legge-Bourke, now Alexandra Pettifer, had an affair with Prince Charles, in order to secure his world-famous 1995 interview with Princess Diana. The BBC also pledged to never air or license out footage of the Panorama interview again. The BBC, Press Gazette, Independent, NBC and Washington Post are some of the many publications to cover the statement in the High Court.
Internet and Social Media
Google’s Chief Privacy Officer wrote a blog post explaining the company’s plans to abide by the Global Cross-Border Privacy Rules system. Keith Enright explained that the CBPR system as “an important step toward enabling continued, trusted data flows between participating jurisdictions.”
Data Privacy and Data Protection
On 19 July 2022, the government published the Data Protection and Digital Information Bill, which follows up the consultation response in June. The Bill is set to reform areas of UK data protection and electronic privacy law, and introduce new regulatory frameworks, most notably in the field of digital identity verification. By amending the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, the Bill realises the Government’s ambition to recalibrate its approach to data protection and privacy following the UK’s withdrawal from the EU. Mishcon de Reya has published it’s a summary of the notable aspects here. DLA Piper’s summary can be read here.
The Home Office has announced its Data Access Agreement concerning criminal data sharing with the US will take effect on 3 October 2022. The agreement aims to provide law enforcement in both countries with “better access to vital data to combat serious crime” while also maintaining values and a “mission of protecting our citizens and safeguarding our national security.” Agencies will be able to access data “more quickly than ever before” while “strong oversight and protections that our citizens enjoy” remain.
Newspapers, Journalism and Regulation
Ofcom has ruled that the Russian television network RT breached the UK’s broadcasting code 29 times in four days after Russia invaded Ukraine. The 525-page report found 15 individual RT News bulletins on 27 February (every hour between 5am and 7pm), 12 on 1 March (5am to 12pm and 3pm to 8pm) and one at 9am on 2 March breached impartiality in coverage of the war, which began on 24 February 2022. The Press Gazette has more information here.
The Norweigan hacker Runa Sandvik has launched Granitt, a service for at-risk people like activists, journalists and refugees. Sandvik has made a career of helping journalists cloak their identities online, defending news organizations from hackers and developing tools so reporters can communicate with sources securely. TechCrunch has more information here.
- 01665-22 Paisley v Sunday Life, 12 Discrimination (2021), 10 Clandestine devices and subterfuge (2021), 3 Harassment (2021), 2 Privacy (2021), 1 Accuracy, Breach – sanction: publication of correction
Statements in Open Court and Apologies
As mentioned above, on 20 July 2022 the BBC made a statement in open court [pdf] apologising and agreeing to pay damages to Alexandra Pettifer for the false allegations made by Martin Bashir that the nanny had an affair with Prince Charles. The BBC Director General also made a public statement of apology.
New Issued Cases
There were four defamation (libel and slander), one Injunction, one Norwich Pharmcal and one Miscellaneous claim(s) filed on the media and communication list last week.
Last Week in the Courts
On 18 July 2022 Steyn J heard the trial in the case of Riley v Sivier. The case was the subject of a judgment by the Court of Appeal in May 2021 ( EWCA Civ 713). Judgment was reserved.
On 19 July 2022 Johnson J heard an application in the case of Hills v Fomukong Epse Tabe.
On the same day Collins J gave judgment in the case of Dew v Mills Nanyn . Oliver Mills-Nanyn was sentenced to six months’ imprisonment, suspended for a period of two years, for breaches of undertakings to the court. He was also ordered to pay the claimant £30,000 and costs on an indemnity basis. Mr Mills-Nanyn had previously made undertakings to the court following the settlement of a misuse of private information and harassment claim made against him. The Claimant complained of 20 sample breaches of the undertakings by Mr Mills-Nanyn. He initially denied the breaches but admitted them all in the week before the trial. 5RB, Brett Wilson, The Times and Mirror report the judgment.
On 19 and 20 July 2022 Richard Spearman QC heard the case of White v South Devon Railway Limited.
As mentioned above, on 20 and 21 July 2022, the Court of Appeal (Vos MR, Sharp P and King LJ) heard the appeal Guardian News and Media v Executor of HRH Prince Philip challenging the decision to exclude the press from the hearing in September 2021 regarding the will of Prince Philip. Judgment was reserved.
On 21 July 2022 the Court of Appeal (Arnold, Dingemans and Warby LJJ) heard the defendant’s appeal in the case of Riley v Murray against the judgment of Nicklin J dated 20 December 2021 ( EWHC 3437 (QB)) in which damages of £10,000 were awarded to the claimant. 5RB’s summary can be read here. Judgment was reserved.
On 21 and 22 July 2022 there was a hearing the case of MBR Acres Ltd v FREE the MBR Beagles before Nicklin J.
Conference5RB will be hosted on 29 September 2022. Booking and price information can be found here.
Media Law in Other Jurisdictions
Lawyers for former soldier Ben Roberts-Smith, accused of committing war crimes and murder in Afghanistan, have told the federal court that the allegations are “a nonsense and … an embarrassment … based on conjecture, speculation and imprecise testimony,” as his long-running defamation trial enters its final phase. The Guardian reports last week’s closing statements here.
The appeal against the decision in the defamation claim in Ogbonna v CTI Logistics Limited  FCA 851 was dismissed.
A man who accused his neighbour of sexually harassing his wife and labelled him “a threat to the safety of women and children” will have to pay $30,000 in damages after losing a defamation case, the Brisbane Times reports.
Last week the Supreme Court delivered a strong affirmation on the importance of copyright balance and the role of technological neutrality, confirming that “[c]opyright law does not exist solely for the benefit of authors,” SOCAN v Entertainment Software Association. The Michael Geist blog avers that the judgment can be read on at least four levels: (1) as a repudiation of SOCAN’s effort to establish a new, additional royalty for the “making available” of music; (2) as a confirmation of the importance of technological neutrality and copyright balance; (3) as an example of the flexibility associated with implementing the WIPO Internet treaties, and (4) as the undeniable entrenchment of Canadian copyright jurisprudence that now features deeply layered precedents on users’ rights.
The Council of the European Union has announced the its final approval for the Digital Markets Act, the final step to full adoption. The law will apply six months after it is signed by EU institutions and published in the Official Journal of the European Union.
A German citizen has brought a lawsuit against the European Commission alleging violations of the EU GDPR. The plaintiff claims the Commission illegally transfers data to the US against the CJEU’s “Schrems II” ruling while also alleging insufficient transparency around data processing practices. Euractiv has more information here.
The Irish Data Protection Commission (DPC) has sent a draft decision to other EU data protection authorities proposing to block Meta’s transfers of personal data from the EU to the US. The DPC commenced an inquiry to assess the legality of Meta’s EU-US transfers in the wake of the invalidation of the Privacy Shield in the 2020 Schrems II decision. The DPC’s draft decision indicates that it does not consider the Standard Contractual Clauses relied on by Meta for its transfers to provide sufficient protection for personal data. Other EU data protection authorities have four weeks to comment on or object to the draft decision. The Privacy and Information Security Law Blog has more information here.
In A.M. v Omegle.com, LLC, 2022 WL 2713721, the court held that Section 230 immunity did not protect Omegle, a “free online chat room that randomly pairs strangers from around the world for one-on-one chats,” in a claim for product liability and negligence. The plaintiff was connected to a man in his late thirties when she was just 11 years old. Before the man was arrested some three years later, he forced the plaintiff to send him pornographic videos of herself, made threats against her, and engaged in other inappropriate and unlawful conduct with plaintiff. The court found that s.230 did not apply because the plaintiff’s claims did not seek to treat Omegle as the publisher or speaker of content. The court observed that to meet the obligation the plaintiff sought to impose on Omegle, Omegle would not have had to alter the content posted by its users. It would only have had to change its design and warnings. The Evan Law Blog has more information here.
The debates continue over the proposed American Data Privacy and Protection Act (ADPPA). In a letter to House of Representatives Speaker Nancy Pelosi, the California Privacy Protection Agency (CPPA) has said that the ADPPA would lessen privacy protections for Californians, The Privacy and Information Security Law Blog reports. Privacy law scholar Professor Daniel Solove has offered his general support for the ADPPA, writing “the ADPPA bill itself isn’t too bad. In my view, Congress is generally a D student when writing laws, and the ADPPA is a B+.”
On 22 July 2022, Johnny Depp filed a notice of appeal one day after his former partner Amber Heard filed her own against the outcome of a multimillion-dollar defamation case. Documents filed in Fairfax County, Virginia, read: “Plaintiff and counterclaim-defendant John C Depp II, by counsel, hereby appeals to the court of appeals of Virginia from all adverse rulings and from the final judgment order of this circuit court entered on June 24, 2022.” On Thursday, Heard’s legal team submitted a notice that claimed errors made during the trial had prevented a “just and fair verdict” from being returned. The Guardian, Sky News and Independent cover these latest developments.
Research and Resources
- Suslavich, Benjamin, Nonconsensual Deepfakes: A ‘Deep Problem’ for Victims (2022), Albany Law Journal of Science and Technology, Forthcoming
- Rolph, David, A Serious Harm Threshold for Australian Defamation Law (2022), 51 Australian Bar Review
- Ormerod, Peter, Privacy Qui Tam (2022), Notre Dame Law Review, Vol. 98 (Forthcoming 2023)
- Ardia, David S., Beyond the Marketplace of Ideas: Bridging Theory and Doctrine to Promote Self-Governance (2022), 16 Harvard Law & Policy Review 101 (2022), UNC Legal Studies Research Paper
- Islam, Md. Toriqul and Sahula, Mariyam and Karim, Md. Ershadul, Understanding GDPR: Its Legal Implications and Relevance to South Asian Privacy Regimes (2022), UUM Journal of Legal Studies, 13(1)
- Islam, Md. Toriqul and Munir, Abu Bakar and Karim, Md. Ershadul, Revisiting the Right to Privacy in the Digital Age: A Quest to Strengthen the Malaysian Data Protection Regime (2021), Journal of Malaysian and Comparative Law (JMCL)
- Islam, Md. Toriqul, A Brief Introduction to the Right to Privacy: An International Legal Perspective (2022), Hauser Global Law School Program, 2022, New York University, USA
- Bignami, Francesca, Artificial Intelligence Accountability of Public Administration (2022), The American Journal of Comparative Law
- Kadri, Thomas, Interoperable Obscurity (2022), Journal of Free Speech Law (Forthcoming)
- Berman, Emily, Reimagining Surveillance Law (2022), University of Illinois Law Review (Forthcoming)
- Yanisky-Ravid, Shlomit and Schlesinger, Steven W, The Right to Data Encryption (2021), San Diego Law Review (Forthcoming)
- Cooper, James C., Privacy Rulemaking at the FTC (2022), Unformatted version of chapter in RULEMAKING AUTHORITY OF THE US FEDERAL TRADE COMMISSION (Daniel A. Crane, ed., 2022), George Mason Law & Economics Research Paper
Next Week in the Courts
On 25 July 2022, there will be hearings in MBR Acres Limited v FREE THE MBR BEAGLES before Nicklin J and in TJM -v- Chief Constable of West Yorkshire before Johnson J.
On 26 July 2022, there will be hearings in Dyson v MGN Limited before Nicklin J and Smith -v- Baker and another before Griffiths J.
On 27 July 2022, the Court of Appeal (Underhill V-P, Warby and Snowden LLJ) will hand down judgment in George v Cannell (heard on 14 June 2022).
On the same day there will be a hearing in Thurrock Council v Stokes and others before Nicklin J.
On 28 July 2022, there will be hearings in ABC and Others v London Borough of Lambeth and SJU and Others v London Borough of Lambeth before Nicklin J and in Nicolaisen v Nicolaisen before Jay J.
On 1 August 2022, in vacation, Nicklin J will hear on application in Hijazi -v- Yaxley-Lennon.
On 2 August 2022 Nicklin J will hear an application in MBR Acres Limited v FREE THE MBR BEAGLES
Riley v Murrary, heard on 21 July 2022 (Arnold, Dingemans and Warby LJJ)
Guardian News and Media v Executor of HRH Prince Philip, heard 20 and 21 July 2022 (Vos MR, Sharp P and King LJ)
Riley v Sivier, heard on 18 July 2022 (Steyn J)
Nagi v Santhiramoulesan, heard on 11 July 2022 (Johnson J).
Hodson -v- Persons Unknown & Others, heard on 12 and 13 July 2022 (Jay J).
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)
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).