This round up covers law and media developments during August since our last Law and Media Round Up on 1 August 2022. Our regular weekly round ups will resume on Monday 3 October 2022, the first day of the Michaelmas Legal Term and of the new legal year.
A number of reserved judgments have been handed down during August including the folloing.
On 1 August 2022, judgment was handed down in Wright v McCormack [2022] EWHC 2068 (QB) by Chamberlain J. The defamation claim was brought by Dr Craig Wright, who avows to be the true author of the 2008 “white paper” entitled Bitcoin: A Peer-to-Peer Electronic Cash System, which was published under the alias Satoshi Nakamoto. It is widely believed that the person(s) behind Nakamoto invented Bitcoin. The defendant, Peter McCormack, is a cryptocurrency blogger who published a series of tweets and took part in a YouTube broadcast in 2019, in which he asserted that Dr Wright’s claims to be Nakamoto were fraudulent.
Mr McCormack abandoned his truth defence in late 2020, saying that he could not afford legal representation for the additional trial time that the defence would require. Consequently, the main issue to be determined was whether the 15 publications complained of at trial had caused, or were likely to cause, serious harm within the meaning of s.1(1) of the Defamation Act 2013.
Chamberlain J relied on retweets and replies to McCormack’s offending publications as evidence of harm done to Dr Wright’s reputation [137], rather than Dr Wright’s own oral evidence at trial regarding his reputation in academic or other circles [140]. However, the “deliberately false case as to serious harm” advanced by Dr Wright until days before trial meant that he was awarded only nominal damages of £1 [143-4]. CoinGeek, LexisNexis News, Yahoo!Finance, Guardian and Law Gazette cover the ruling.
On 11 August 2022, the Court of Appeal (Arnold LJ, Dingemans LJ and Warby LJ) gave judgment in Riley v Murray [2022] EWCA Civ 1146. The court upheld the trial decision of Nicklin J that defences of truth, honest opinion and public interest did not succeed. The Evening Standard, Independent and Daily Mail cover the ruling. Find The Media Law Podcast’s discussions on the wider issues of meaning, and the court’s interpretation of statements that interpret other statements, raised by this case here and here.
On 12 August 2022, author Salman Rushdie was stabbed in New York and remains in a critical condition. The attack has been widely condemned as an assault on freedom of expression, and Hadi Matar has been arrested for attempted murder. Rushdie has faced years of death threats for his novel The Satanic Verses, which some Muslims see as blasphemous. In 1989, Iran’s then Supreme Leader Ayatollah Khomeini called for Mr Rushdie’s execution. He offered a $3m (£2.5m) reward in a fatwa – a legal decree issued by an Islamic religious leader. The fatwa was never rescinded. The BBC, Sky News, Guardian, Caerta.ie, Index on Censorship and Article 19 cover the attack.
On 23 August 2022, Wimbledon spectator Anna Palus announced that she will be taking legal action against Nick Kyrgios over allegations he made against her during the tennis tournament’s final on 10 July 2022, which resulted in her temporary removal from the arena. Read the Brett Wilson press statement here. The Guardian, Sun, Sky News and Express cover the announcement.
Internet and Social Media
The Centre for Internet and Society blog has published an analysis of Peiter “Mudge” Zatko’s whistleblower complaint with the US Securities and Exchange Commission, filed in July 2022, which accuses the platform of serious security failings.
Cyberleagle has published a post on the most vulnerable aspects of the Online Safety Bill in light of last term’s delay, and discusses how the Bill might be reimagined under a new Prime Minister.
Pundit Gary Neville is to be referred to the Attorney General for a social media post he made during his ex-Manchester United team-mate Ryan Giggs’ domestic violence trial. Manley J has referred it as a possible case of contempt of court. The BBC has more information here.
Art, Music and Copyright
IPKat explains the legal nuance behind Beyoncé’s decision to remove a sample of the song “Milkshake” from her song “Energy” on her latest album, Renaissance. Beyoncé received criticism after Kelis, the singer of “Milkshake,” called it theft, suggesting Beyoncé used the song without rights clearance. As IPKat explains, Kelis is not the rights holder of the song: her problem is with her producers, not Beyoncé.
Data Privacy and Data Protection
John Edwards, the Information Commissioner, has opened an investigation into concerns that the Ministry of Justice itself was unlawfully processing barristers’ personal data. Mishcon de Reya has more information here.
Mishcon de Reya also covers the outcome of the Cabinet Office’s review of the Government’s Freedom of Information (FOI) “Clearing House” process. The Clearing House is where the Cabinet Office oversees and advises on certain FOI requests received by other Government departments. It has been the subject of frequent criticism related to the lack of an “applicant-blind” process.
A recent criminal case against a former health adviser found guilty of illegally accessing patient records illustrates when the ICO can make an application to the sentencing court for compensation, forcing the offender to pay money to data subject victims. Thus, while the ICO guidance makes clear that it cannot award compensation, it can where the ICO is the prosecutor of a criminal charge. Mishcon de Reya has more information here.
The DLA Piper Privacy Matters blog has a post that looks at the European Commission’s new Digital Markets Act (DMA), the Digital Services Act (DSA), the Data Governance Act (DGA) and the Data Act, introduced as part of its data strategy.
The UK Parliament deactivated its TikTok account after several MPs were sanctioned by the Chinese government. In an open letter, the affected MPs underscored the requirement for companies to turn over data to the government when requested under China’s National Intelligence law. TikTok officials denied turning data over to the Chinese government, despite its ownership by ByteDance. Politico has more information here.
HawkTalk has a post that questions how the Data Protection and Digital Information Bill impacts on the lawfulness and compatibility of any further processing by a controller, in particular, a controller that voluntarily discloses personal data to HMRC.
Surveillance
WhatsApp has said the service would not accept a push by the British government to weaken end-to-end encryption, the BBC reports. As part of efforts to police child sex-abuse images, the government suggested scanning private messages as part of the Online Safety Bill.
Newspapers Journalism and Regulation
The first two investigations by Ofcom into GB News have ended with no rebukes, keeping the TV channel’s record clean as it enters its 15th month. The opinion-led news channel was investigated under the UK’s strict impartiality rules, but it has avoided sanction despite airing some strident views on Covid-19 lockdowns and vaccines. Two Ofcom investigations into GB News TV and radio broadcasts remain ongoing. The Press Gazette has more information here.
Former Prime Minister Gordon Brown has lost an IPSO complaint against The Spectator over an article about his so-called “Russian riches.” Brown also complained to IPSO’s independent complaints reviewer about the handling of his complaint but was told the process was not flawed, with his request for a review turned down, the Press Gazette reports.
The BBC has donated a total of £1.42 million to seven charities linked with Princess Diana following its investigation into how journalist Martin Bashir secured his infamous 1997 Panorama interview with her, the Press Gazette reports.
IPSO
· 01909-22 Walker v Daily Mail, 1 Accuracy (2021), Breach – sanction: action as offered by publication
· 02464-22 Phillips v Daily Mail, 1 Accuracy (2021), No breach – after investigation
· 09483-22 Various v Daily Mail, 1 Accuracy (2021), No breach – after investigation
· 09957-22 Various v thescottishsun.co.uk, 1 Accuracy (2021), No breach – after investigation
Statements in Open Court and Apologies
Len McCluskey, who was General Secretary of Unite the Union from 2011 to 2021, has received a full apology, £18,000 in libel damages and his legal costs from The Mirror over an article which falsely suggested that he had “nearly bankrupted” the union. In fact, The Mirror has acknowledged that Unite’s assets increased substantially under his leadership. Mr McCluskey has donated all of the damages to the NSPCC, Carter Ruck reports.
New Issued Cases
There have been twelve defamation (libel and slander), three data protection and two miscellaneous claims filed on the media and communications list in the last month.
Last Month in the Courts
We have already mentioned the judgment in Wright v McCormack [2022] EWHC 2068 (QB) handed down on 1 August 2022,
On the same day, judgment was handed down in Tewari v Khetarpal & Ors [2022] EWHC 2066 (QB) by Collins Rice J. The claimant’s application to disapply the limitation period for defamation actions was refused. The defendant’s application to strike out the claim for offering no real prospect of success and amounting to an abuse of process was successful.
On the same day, Nicklin J heard a committal application in Hijazi -v- Yaxley-Lennon.
As we have already mentioned, on 11 August 2022 the Court of Appeal handed down judgment in Riley v Murray [2022] EWCA Civ 1146 (heard on 21 July 2022).
On 12 August 2022, Nicklin J handed down judgment in the case of MBR Acres v MGivern [2022] EWHC 2072 (QB) dismissing a contempt application against a solicitor offering assistance to protestors as “wholly frivolous”. There was an article about the decision in the Law Society Gazette.
On the same day judgment was handed down in Mincione v Rizzoli Corriere Della Sera Media Group SPA & Ors [2022] EWHC 2128 (QB) by Master Davison. The defendants’ application for permission to rely upon expert evidence as to Italian law and journalistic practice was granted.
On 17 August 2022, judgment was handed down in Smith v Baker [2022] EWHC 2176 (QB) by Griffiths J, who struck out Ms Baker’s counterclaim and refused her relief from sanction and application to serve amended and alternative pleadings [96]. This was justified on the grounds of Ms Baker’s repeated failure to correct her defence and claim [95].
On 19 August 2022, Julian Knowles J handed down judgment in the case of Al-Masarir v Kingdom of Saudi Arabia [2022] EWHC 2199 (QB), the defendant’s application to dismiss the claim was unsuccessful. The application was heard on 15 and 16 June 2021. There was a report about the decision in the Guardian.
Media Law in Other Jurisdictions
Australia
Lachlan Murdoch has filed proceedings for defamation in Australia’s federal court against the independent news site Crikey over an article that named the Murdoch family as an “unindicted co-conspirator” in the 6 January Capitol riots, the Guardian reports. The lawsuit was filed a day after Crikey bought a full-page ad in the New York Times inviting Murdoch to sue them over the alleged defamation.
In the case of Google LLC v Defteros [2022] HCA 27, the High Court of Australiaallowed the appeal by Google, holding that it could not be held liable as the publisher of the websites it links to in search results, meaning it is not responsible for libel on the articles it links to. This could make it much harder to remove defamatory content from Google and could influence the way libel cases are handled in the UK, the Press Gazette reports.
Google LLC has agreed to pay AUD 60 million to Australia’s competition regulator, the Australian Competition and Consumer Commission (ACCC), after it was held that Google breached the Australian Consumer Law regarding its collection of location data. DLA Piper reports.
China
The data privacy regulators have refreshed and combined a selection of the requirements for mobile app operators into one standard. DLA Piper sets out some examples of the new requirements under the TC260’s GB/T 41391-2022 Basic Requirements for Collecting Personal Information in Mobile Internet Applications.
Europe
The Court of Justice of the European Union rendered a decision clarifying how indirect disclosure of sexual orientation data is protected under Article 9 of the EU GDPR. The court explained such data disclosure falls under the special categories of personal data in Article 9 after consulting Article 4(15) provisions for “data concerning health.” TechCrunch reports on how the decision could have wider implications across a variety of online platforms.
Italy
The Italian Supreme Court has ruled that it is possible to use a well-known person’s image without permission when this person is portrayed, not only while performing their professional activity, but also while undertaking other activities connected to their profession (ordinanza 19515/2022). The court analysed Article 97 of the Italian Copyright Act, and made no reference to the European Convention on Human Rights. Nonetheless, IPKat explains how the decision is in line with inter alia the consolidated jurisprudence of the European Court of Human Rights (ECtHR) regarding the interplay between Article 8 ECHR (right to respect for private and family life) and Article 10 therein (freedom of expression and information).
India
On 3 August 2022 the Indian Central Government withdrew the Personal Data Protection Bill, 2019 (PDP Bill). The PDP Bill, which has drawn criticism from both privacy advocates and industry stakeholders, was first published in 2018 and was to be India’s first law on the protection of personal data. The government will now need to go back to the drawing board and present a new bill, which, according to DLA Piper, is expected later this year/early next year.
Scotland
Scotland is nearing approval of the world’s first statutory Code of Practice for use of biometric information. The regulation would govern police and the criminal justice system’s “acquisition, retention, use and destruction of biometric data.” Scotland’s Criminal Justice Committee has signed off on the regulation, which could be finalised by mid-November if national ministers do not object to any of its provisions in their meeting 7 September 2022, Holyrood reports.
United States
Rachel DeLoache Williams is suing Netflix for defamation over their portrayal of her in the popular series, Inventing Anna, a dramatic depiction about the “fake heiress,” Anna Delvey, aka Anna Sorokin. Her lawsuit complained that the show depicted her as a “greedy, snobbish, disloyal, dishonest, cowardly, manipulative and opportunistic person,” the BBC reports. Williams testified in Sorokin’s trial in 2019, where she alleged that she had been duped into covering a $62,000 trip to Morocco. CBS, The Washington Post, Independent and USA Today cover the announcement.
Venessa Bryant, basketballer Kobe Bryant’s widow, has been awarded $16m (£13.6m) in damages over leaked graphic photos of the helicopter crash that killed Kobe and their daughter in 2020. Images taken by Los Angeles County sheriff’s deputies and firefighters are said to have been shown to others at a bar and a gala event. Mrs Bryant told the court that she lives “in fear every day of… having these images pop up” on social media: “I don’t ever want to see these photographs,” she said. “I want to remember my husband and my daughter the way they were.” The BBC, Guardian, Sky News and CNBC report the verdict.
At the end of July, the House and Senate Democrats introduced a Bill that aims to bring back net neutrality. The rules were originally put in place by the Obama administration in 2015 to prohibit internet providers from selectively favouring, blocking or slowing content on the internet, but were rolled back by the Trump administration. The Bill would give the FCC oversight of internet service providers (ISPs). The Centre for Internet and Society Blog has more information here.
The Journalism Competition and Preservation Act (JCPA), sponsored by Democratic Senator Amy Klobuchar, is designed to force the technology giants to strike cash-for-content deals with news publishers across the US. The JCPA follows the Australian model, while the UK and Canada are planning similar legislation. The Press Gazette explains what the JCPA does here.
Snap, the parent company for Snapchat, has become the most recent company to pay a settlement for alleged violations of Illinois Biometric Information Privacy Act, the Norton Rose Fulbright blog reports.
Research and Resources
- Ciani, Jacopo, Diritto all’oblio e cooperazione internazionale: problemi e prospettive (Right To Be Forgotten and International Cooperation: Problems and Perspectives) (2022), Rivista italiana di informatica e diritto, fascicolo monografico su “LA INTERNET GOVERNANCE E LE SFIDE DELLA TRASFORMAZIONE DIGITALE”
- Arbel, Yonathan A. and Gilbert, Michael, Solving Fake News with Markets: Contracting for Truth (2022), Virginia Public Law and Legal Theory Research Paper No. 2022-61, Virginia Law and Economics Research Paper No. 2022-19
- Douglas, Michael, Explainer: The Result of the Palmer V McGowan Defamation Dispute (2022)
- Douglas, Michael, The limits of Google’s liability as publisher of defamation (2022), The University of Western Australia Law School
- moshikaro, Khomotso, Unjust Contempt as the ‘Gist’ of Defamation Law (2022), Constitutional Court Review (12) 2022
- Horton, Ben, The Hydraulics of Intermediary Liability Regulation (2021), Cleveland State Law Review, Vol. 70, No. 2, 2022
- Farris, William A., State Prosecutions of Speech in the People’s Republic of China: Cases Illustrating the Application of National Security and Public Order Laws to Political and Religious Expression (2022), Unknown
- Arbel, Yonathan A. and Mungan, Murat C., Defamation with Bayesian Audiences (2022), Journal of Legal Studies (Forthcoming)
- Englezos, Elizabeth, Digital Powerhouses and Publisher’s Responsibility: Voller and Barilaro (2022), Griffith University Law School Research Paper Forthcoming,
- Schejter, Amit M. and Schejter, Amit M. and Yemini, Moran, Hide and Seek the Truth? – Anonymity and Transparency in the Digital Age (2022), Pennsylvania State University; Center for Cyber, Law and Policy, University of Haifa; Information Society Project, Yale Law School; Digital Life Initiative, Cornell Tech
- Contreras, Jorge L. and Fagundes, Dave, Based On a True Story: Life Story Rights, Modularity and Ownership of the Self (2022), University of Utah College of Law Research Paper No. 506
Reserved Judgments
Hijazi -v- Yaxley-Lennon, heard on 1 August 2022 (Nicklin J)
Dyson v MGN Limited, heard on 26 July 2022 (Nicklin J)
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)
Colette Allen is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).
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