The Trinity Legal Term ended on Friday 29 July 2022.  The Michaelmas Legal Term will begin on 3 October 2022.  Inforrm will be taking a summer break over the next two months and our next Law and Media Round Up will be in October.   We will, however, continue posting from time to time over this period.

In a judgment handed down on the last day of term (Vardy v Rooney [2022] EQHC 2017 (QB)) Mrs Justice Steyn dismissed Rebekah Vardy’s libel claim against Coleen Rooney.  The Jude found that Rooney’s post was “substantially true.” This brought to an end to the “WAGatha Christie” saga.  The claim was brought against Rooney following the publication of a social media post by Rooney which accused Vardy of leaking private Instagram posts to The Sun. Rooney’s truth defence therefore succeeded, but her public interest defence did not.

Steyn J found that Vardy had used her agent Caroline Watt as an accomplice to leak the posts and that she condoned and actively engaged in the leaks. It was further found that Vardy had deliberately deleted Whatsapp conversations with Watt, and that Watt had deliberately dropped her phone into the North Sea. The press summary can be read here. The BBC, Guardian, Independent, Sky News, 5RB, Press Gazette and Inforrm cover the judgment. Channel 4 has announced that it has commissioned a Docu-drama of the case. The Guardian, Independent, and Times are some of the many titles to provide commentary over the weekend.

On 27 July, the Court of Appeal handed down judgment in George v Cannell [2022] EWCA Civ 1067, allowing the Claimant’s appeal. The decision provides clarity on the proper construction of s.3 of the Defamation Act 1952. See further details below.

BBC News, ITN, Sky News and PA Media broadcasters will be allowed to film and broadcast sentencing hearings in the Crown Court under a pool system similar to that which exists in the Court of Appeal. Other news outlets will be given access to their footage through PA while Sky News will host a dedicated Youtube channel for all the hearings recorded. This follows a near 20-year-long campaign for the right to broadcast sentencing. The Press Gazette has more information here.

Internet and Social Media

The Cyberleagle blog has an article on the New Clause 14 in the Online Safety Bill, introduced before the Bill was put on pause until the Autumn, which stipulates how user-to-user providers and search engines should decide whether user content constitutes a criminal offence. This was previously an under-addressed and hugely problematic feature of the Bill’s illegality duty.

Data Privacy and Data Protection

The Information Commissioner’s Office (ICO) has published updated guidance for using binding corporate rules as a data transfer mechanism. The updates are geared toward a “simplified” approach for controllers and processors. The regulator also called BCRs a “gold standard” transfer mechanism that “demonstrates your commitment to implementing appropriate safeguards.”

Surveillance

The advocacy group Big Brother Watch has filed a complaint to the ICO regarding the use of surveillance cameras at the convenience store chain Southern Co-op. The chain said the camera systems, found in 35 of its 200 stores, were installed to mitigate theft. BBW Director Silkie Carlo’s submission to the ICO said the system and its biometric data collection allow Southern Co-op to allegedly add to “secret watch-lists” with “no due process.” Read BBW’s legal complaint here and the BBC’s coverage here.

The European Union has discovered evidence that employee smartphones were compromised by Pegasus spyware, Reuters reports. The investigation has not found “conclusive proof” that the phones were hacked, but there was some evidence the phones had been compromised. The investigation is ongoing.

Newspapers Journalism and Regulation

The content licensing organisation NLA Media Access has revealed that it removed over 50,000 articles from 1,000 fake or illegitimate news sites in 2021, an increase of approximately 20,000 articles from more than 700 sources the year before, the Press Gazette reports.

Hacked Off had an article explaining why it is not in the interests of the public or the freedom of the press to repeal section 40 of the Crime and Courts Act 2015, following Conservative MP and candidate for Leader of the Conservative Party and Prime Minister Rishi Sunak’s pledge to do so. Section 40, combined with the Leveson recommendation of arbitration, has the effect of levelling the playing field between claimants and defendants in media cases.

IPSO

Statements in Open Court and Apologies

Labour MP Chris Bryant has apologised to businessman Christopher Chandler for alleging that he was a Russian spy involved in money laundering during a parliamentary debate on the Sanctions and Anti-Money Laundering Bill in 2018. Parliamentary privilege did not apply in this instance as Bryant later quoted from his speech in a letter to the Foreign Secretary which was published on Twitter. Chandler requested that the settlement money be donate to a charity supporting the Ukraine in lieu of damages and legal fees. This case is the first where an MP was “held accountable” for a defamation claim after quoting words they had previously said in parliament. The7News and The National report the settlement.

New Issued Cases

There was one defamation (libel and slander) claim filed on the media and communications list last week.

Last Week in the Courts

On 25 July 2022, there were 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 were hearings in Dyson v MGN Limited before Nicklin J and Smith -v- Baker and another before Griffiths J.

As mentioned above, on 27 July 2022 the Court of Appeal handed down judgment in favour of the Claimant in George v Cannell [2022] EWCA Civ 1067. At trial, Saini J dismissed the claims in libel, slander and malicious falsehood, finding the claims in malicious falsehood under s.3(1) Defamation Act 1952 in respect of two of the publications complained of were not made out; George had failed to prove that pecuniary damage had probably resulted from those publications. The Claimant was given permission to appeal on the application and interpretation of s.3(1). The Court of Appeal found that the words in s.3(1) “calculated to cause pecuniary damage to the plaintiff” was a forward-looking test, requiring a claimant to prove the probability of pecuniary loss judged at the time of the publication, rather than a historic exercise concerned with whether the claimant could prove some probable past pecuniary loss. It was held that the Claimant had satisfied that test on the facts, and so judgment would be entered for the Claimant on her malicious falsehood claims. Read 5RB’s summaries here and here.

On the same day there was a hearing in Thurrock Council v Stokes and others before Nicklin J.

On 28 July 2022, there were 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 the same day, the Court of Appeal handed down judgment in Mueen-Uddin v Secretary of State for the Home Department [2022] EWCA Civ 1073, dismissing by a majority the appeal from the decision of Nicol J, which struck out the Appellant’s claims in libel and data protection as abuse. The Appellant issued proceedings in libel and data protection over a statement in a report by the Commission for Countering Extremism, which Tipples J held to bear the meaning that he was a war criminal (16 February 2021). Nicol J dismissed the claim as an abuse on 15 November 2021, relying primarily on the conviction of the Appellant by a domestic tribunal in Bangladesh in 2013 of war crimes allegedly committed in 1971. That tribunal had been the subject of widespread and high-level criticism in relation to its fairness and independence, including from the US Dept of State and the Bar Human Rights Committee. The Appellant appealed on a number of grounds, including that it was wrong to dismiss the claim as a Hunter abuse, in circumstances where the Bangladeshi tribunal had been subject to such sustained criticism, and the Appellant had not been able to attend the hearing to defend himself without risking the death penalty. By majority (Sharp P and Dingemans LJ), the appeal was dismissed. Dingemans LJ set out five factors which together in his view meant that the continuation of the proceedings would bring the administration of justice into disrepute and that they were not worth the candle of pursuing.   Dissenting, Phillips LJ described the approach of the majority as “unprincipled,” remarking that it would be “unfortunate” if the Appellant “having been denied a fair trial in Bangladesh in 2013 … was now prevented from having access to the courts of this jurisdiction.” Read the full 5RB summary here.

On 29 July 2022, the Court of Appeal dismissed The Guardian’s appeal challenging the decision to exclude press from the hearing in September 2021 where the will of Prince Philip was sealed for 90 years, The Will of His late Royal Highness Prince Philip, Duke of Edinburgh (approved judgment) [2022] EWCA Civ 1081. Read 5RB’s summary here. Read the Press Gazette’s summary here. Read the Transparency Project’s response here.

As mentioned above, on 29 July 2022, the libel claim in Vardy v Rooney was dismissed by Steyn J.

Events

Conference5RB will be hosted on 29 September 2022. Booking and price information can be found here.

Media Law in Other Jurisdictions

Australia

The long-running defamation trial between former soldier Ben Roberts-Smith and the Age, Sydney Morning Herald and Canberra Times, that essentially put Australia’s role in the war in Afghanistan on trial, has concluded. Judgment is reserved. The Guardian provides a comprehensive summary of the key moments of the trial following the end of closing arguments here and here.

A Melbourne woman says she feels “dehumanised” after being filmed without consent for a “random act of kindness” TikTok that went viral. TikTok creator Harrison Pawluk approached Maree in a public shopping centre and asked her to hold a bouquet of flowers while he put on a jacket, all while his friend secretly filmed from the side lines. Pawluk then wished her a good day and walked away, leaving her with the flowers. The video now has more than 59 million views and 11 million likes. Maree learnt about the video through a friend, initially not thinking anything of it. But after seeing the TikTok video featured in media reports describing her as an “elderly woman” with a “heartbreaking tale,” she said she “felt dehumanised”. She told The Guardian, “It’s the patronising assumption that … older women will be thrilled by some random stranger giving them flowers.”

Peter Dutton has warned that refugee activist Shane Bazzi should not be awarded $248,000 in costs because that would amount to a “windfall” on top of donations raised to fund his defamation defence, The Guardian reports.

Justice Michael Lee, Federal Court Judge, is set to deliver his long-awaited verdict in the defamation trial between Clive Palmer and West Australian Premier Mark McGowan on 2 August 2022. The Canberra Times has more information here.

The ACCC has now released the ‘CDR Sandbox’, a free tool that lets Consumer Data Right (CDR) participants to test their proposed CDR compliance solutions in a virtual environment that mirrors the live CDR ecosystem. DLA Piper has more information here.

The use of CCTV systems to collect biometric information from individuals in Australia is attracting headlines, DLA Piper reports. Organisations, including retailers, may collect biometric information via CCTV for a variety of reasons, including to build profiles of the individuals entering their stores, identify returning shoppers or to identify specific individuals that have previously been removed from their premises.

China

On 21 July 2022, the Cyberspace Administration of China fined Didi Global Inc, an online ride-hailing business, a total of RMB 8.026 billion (approximately USD 1.2 billion) for a number of data breaches, including the excessive collection of over 8.3 billion users’ clipboard information and list of applications, 107 million passengers’ facial recognition information, 53.5 million pieces of information on age group, 16.3 million pieces of information on occupation, 1.3 million pieces of information on family relationships, and 153 million pieces of information on home and company addresses. DLA Piper has more information here.

 Europe

On 28 July 2022 the European Data Protection Board announced it will offer a final decision on the Irish Data Protection Commission’s children’s privacy case against Meta’s Instagram. The case relating to the processing of personal data of children was referred to the EDPB for approval, but board members’ disapproval triggered the dispute resolution mechanism under Article 65 of the EU General Data Protection Regulation. The board’s plenary session will also consider its draft opinion with the European Data Protection Supervisor on European Parliament’s plans to combat child sexual abuse.

India

The introduction of the Indian Data Protection Bill before Parliament has been delayed by a few months. The Bill was expected to be tabled during the Monsoon Session of Parliament, which commenced on July 18, 2022. The Minister of State for Electronics and Information Technology, reaffirmed the government’s commitment to finalizing the Bill but noted that “[i]f we have to make a choice between doing something quickly versus doing something right, with a few months delay, we will choose the latter.”

Netherlands

On 27 July 2022, the highest administrative court in the Netherlands published its highly anticipated judgment involving the Dutch Data Protection Authority’s assessment of “legitimate interest” under Article 6(1)(f) GDPR. It was expected that the court would provide some clarification on whether “purely commercial interests” can qualify as legitimate interests within the meaning of Article 6(1)(f) GDPR with a potential to refer preliminary questions to the ECHR for clarification. Unfortunately, no clarity has been provided as to whether “purely commercial interests” can qualify as legitimate interests. The court found that the controller had other legitimate interests which were not exclusively commercial that could be relied on. Hence, there was no need to consider the question. DLA Piper has more information here.

New Zealand

A Californian court has ordered employer-rating site Glassdoor to hand over the identities of users who claimed they had negative experiences working for New Zealand toy giant Zuru. The decision prompts unease for online platforms that rely on anonymity to attract candid reviews. Glassdoor was ordered to provide the information so Zuru could undertake defamation proceedings against the reviewers in New Zealand. The Guardian has more information here.

United States

A controversial Florida Bill provides an opportunity for the Supreme Court to take up social media regulation on First Amendment grounds, potentially avoiding Section 230 reform. Florida’s S.B. 7072 bars social media companies from blocking political candidates. On appeal, the State of Florida attempted to bypass Section 230 by arguing that Facebook and other social media platforms are common carriers, which federal and state governments have the power to regulate.  A traditional characteristic of common carriers is that they hold themselves out to the public indiscriminately.  According to the State of Florida, the Bill does not trigger First Amendment scrutiny because, as common carriers, social media platforms have diminished First Amendment rights. The Social Media Law Bulletin writes: If the Supreme Court decides to hear the case and if it rules that social media platforms are common carriers, social media giants could be subject to unprecedented regulation. Some regulation, like the Bill, would limit social media platforms’ ability to moderate content.  The question also remains as to whether the Supreme Court would use the case as an opportunity to address federal preemption and ultimately speak on Section 230.

Privacy International has published its response to the US Supreme Court’s attack on reproductive rights, Privacy and the Body.

The US Department of Homeland Security is touting “Enhanced Border Security Agreements,” offering access to its vast biometric databanks in exchange for other states reciprocating. Reports suggest the UK is already participating, although there is no official confirmation of this. In the EU the proposals have caused a furore amongst privacy-minded MEPs. Statewatch has more information here.

Research and Resources

Next Week in the Courts 

On 1 August 2022, in vacation, Nicklin J will hear a committal application in Hijazi -v- Yaxley-Lennon.

On the same day judgment will be handed down by Chamberlain J in Wright v McCormack (heard 23 to 25 May 2022) and judgment will be handed down by Collins Rice J in Tewari v Khetarpal & Ors (heard 30 June 2022)

On 2 August 2022 Nicklin J will hear an application in MBR Acres Limited v FREE THE MBR BEAGLES.

Reserved Judgments

Dyson v MGN Limited, heard on 26 July 2022 (Nicklin J)

Riley v Murrary, heard on 21 July 2022 (Arnold, Dingemans and Warby LJJ)

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) 

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).