The legal year and the Michaelmas Legal Term begin today. The term ends on Wednesday 21 December 2022. Our regular weekly updates begin again today. Please let us know if there are hearings or judgments we should be including.
On 14 September 2022, Google’s appeal against a €4.34 billion antitrust fine handed down by the European Union four years ago failed in the General Court, Case T‑604/18. The bloc’s competition regulator found major violations in how it operated its Android mobile OS to consolidate the dominant position of its search engine. TechCrunch, the Financial Times, Forbes, and The Verge report the ruling.
Carter-Ruck has launched an International Media Law Guide, which has been written by experts who practise in media law in the jurisdictions featured. It will be a useful resource for those seeking to access information about the different rights and remedies available in this field globally. Read the press release here.
The Strasbourg Observes blog has an article on the role of blasphemy laws in multi-religious societies in response to the violence committed against Salman Rushdie in August of this year. The article concludes that all these laws “can do is choke public discourse and the arts, placing authors and their bodily integrity at risk of sheer extremism.”
Internet and Social Media
Ofcom is to launch a market study to examine the position of Amazon, Microsoft and Google to ensure that the UK’s £15bn cloud services/digital communications markets are working well. Ofcom states that if competition concerns are identified, it could lead to further action. Read Ofcom’s press release here. The Guardian, Verdict and TechMonitor cover this announcement.
On 15 September 2022, Clean Up the Internet asked what was next for the Online Safety Bill? under a Liz Truss government.
Art, Music and Copyright
IPKat has published a book review of Professor Kathy Bowrey’s, UNSW, Sydney, book Copyright, Creativity, Big Media and Cultural Value: Incorporating the Author. The book seeks to address questions of how copyright generates income and how distributions of profits are allocated in the publishing, film and music industries. To do so, it surveys the incorporation of authorship into modern industry dynamics and embarks on a history of the media industries in the 20th century, linking the relevance of that history to 21st-century grievances about copyright. Read the full review here.
Data Privacy and Data Protection
The Mishcon de Reya blog has written an open letter to the Minister of State at the Department for Digital, Culture, Media & Sport, Julia Lopez, to highlight the risk to “information rights” laws under the Retained EU Law (Revocation and Reform) Bill, introduced to Parliament on 22 September 2022. The Bill sets a “sunset date” of 31 December 2023 by which all remaining retained EU Law will either be repealed, unless expressly assimilated into UK domestic law.
The Information Commissioner’s Office (ICO) has taken action against seven organisations who have failed to respond to the public when asked for personal information held about them, known as a Subject Access Request (SAR). Read Mishcon de Reya’s commentary of the ICO’s latest display of enforcement against data rights infringements here.
The ICO has announced a notice of intent to fine TikTok £27 million for alleged UK data protection violations. The ICO’s investigation found potential violations concerning nonconsensual processing of minors’ data, unlawful processing of special category data and insufficient transparency. The Privacy and Information Security Law Blog commentary can be read here.
The second reading of the Data Protection and Digital Information Bill in the House of Commons did not take place as scheduled on 5 September 2022 in order to “allow Ministers to consider the legislation further”. Read the Mishcon de Reya blog’s commentary here. The HawkTalk Blog covers the removal of another layer of data subject protection; the exemption that applies to the processing of personal data for “RAS purposes,” shorthand for scientific research, archiving in public interest, historical research and statistical research.
The ICO has announced that its commitment to the value and importance of research through its new guidance on research provisions. In a press release, Ian Hulme said data protection should offer confidence to researchers and research participants.
The ICO has published draft guidance for anonymization, pseudonymization and privacy-enhancing technologies.
The European Court of Human Rights has published a revised version of its factsheet on Mass Surveillance. This newest update includes leading cases ranging from the classic 1970s landmark judgment in Klass and others v Germany to the Haščák v. Slovakia case of this Summer. It also indicates pending applications on the issue.
Newspapers Journalism and Regulation
On 5 September 2022, Hacked Off research revealed the extent of press bias in Conservative Party-supporting newspapers during the race to become PM. Read the results here.
- 10382-22 Mitchell v The Sentinel, 1 Accuracy (2021), Breach – sanction: action as offered by publication
- Satisfactory Remedy – 10512-22 Bavister v cornwalllive.com, 1 Accuracy (2021), Resolved – satisfactory remedy
- 01732-22 Rahman v Mail Online, 1 Accuracy (2021), 2 Privacy (2021), 3 Harassment (2021), 12 Discrimination (2021), No breach – after investigation
- 00627-22 Doe v You (The Mail on Sunday), 2 Privacy (2021), No breach – after investigation
- Resolution Statement – 02507-22 Jones v Daily Mail, 2 Privacy (2021), Resolved – IPSO mediation
Statements in Open Court and Apologies
The Daily Mirror has apologised to Chancellor Kwasi Kwarteng for using a picture of Bernard Mensah, president of the International Bank of America, to caption an article about the mini-budget. See Mr Kwarteng’s tweet to the Daily Mirror here. The Press Gazette has more information here.
New Issued Cases
There were nine defamation (libel and slander), two Norwich Pharmacal, one misuse of private information, one data protection, one malicious falsehood claim(s), and one application for permission to read a statement in open court filed on the media and communications list over the last month.
Last Month in the Courts
On 14 September 2022, the appeal brought under section 57 of the Freedom of Information Act 2000 (“the FOIA”) in Greenwood v The Information Commissioner & Anor  UKFTT 333 (GRC) was dismissed. The appeal concerns a request for information relating to the companies and individuals who made bids for contracts to supply PPE in March 2020. The Department of Health and Social Care withheld the information on the basis of section 43(2) (commercial interests) of FOIA. The Commissioner held that section 43(2) was correctly applied and the public interest in maintaining the exemption outweighs the public interest in disclosure. The tribunal agreed that S43(2) was engaged for the companies on the withheld information list, as disclosure would or would be likely to adversely affect their commercial interests, even if it is only a small number or even just one .
The issue of costs ordered in the defamation element of Piepenbrock v London School of Economics and Political Science & Ors  EWHC 2421 (KB) was resolved in a judgment handed down on 30 September 2022 by Heather Williams J. A stay of the proceedings was granted in respect of the claims that were not struck out (as bound to fail or an abuse of process) pending payment by the Claimant of the costs he was ordered to pay in the 1 July 2020 Order made in the 2020 Claim. The case is to remain on the Media and Communications list.
Media Law in Other Jurisdictions
A new national proposal would grant sexual assault and harassment complainants immunity against claims for defamation over reports to police and other authorities. The state of Victoria is leading the push to extend the existing defamation defence of absolute privilege to people who make complaints to police and bodies such as anti-discrimination commissions and professional disciplinary bodies. The Sydney Morning Herald has more information here.
On 23 September 2022, the Federal Court found stockbroker Peter Schiff had been defamed by a ’60 Minutes’ broadcast (Schiff v Nine Network Australia Pty Ltd (No 2)  FCA 1120).
Peter Dutton has discontinued his High Court Appeal against Shane Bassi. Read the press release here.
A forensic investigator being sued for defamation by Lloyd Rayney over comments about the mysterious death of the former Perth barrister’s wife has failed in a last-minute bid to have the judge who presided over the trial remove herself from the case. ABC News has more information here.
The Online news outlet Crikey has confirmed it will deploy the new public interest defence in its defamation battle with Lachlan Murdoch, in what is likely to be the first test of the new Australian law. The Sydney Morning Herald has more information here.
Over the last month, the Michael Geist blog has published a five-part series explaining why the Online News Act is a bad solution to a real problem. Read Part One (the risk to free flow of information), Two (encouraging clickbait and low quality journalism with no “news content” standards), Three (unprecedented government intervention into a sector where independence is essential), Four (undermining Canadian copyright law and international copyright treaty obligations) and Five (Appearance before the Standing Committee on Canadian Heritage).
The Social Media Law Bulletin has an article on Canada’s proposed legislation to regulation artificial intelligence and strengthen privacy law. Read the summary of the Digital Charter Implementation Act 2022 Bill C-27 here.
The Fei Chang Dao blog has a post on how PRC Internet companies’ censored information relating to UN High Commissioner for Human Rights Michelle Bachelet’s visit to Xinjiang in May 2022. In its report dated 31 August 2022 “Assessment of human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China,” the Office of the High Commissioner for Human Rights found serious human rights violations have been committed in XUAR, which may constitute international crimes and crimes against humanity.
Under the Data Security Law, organisations are required to classify the data they process according to their level of significance. The recent Draft Standard on Information Security Technology Network Data Classification and Grading Requirements highlights the principles and methods for different industries, fields, localities, departments, and data processors to classify and grade data, DLA Piper reports.
The European Commission is to introduce the Cyber Resilience Act, which lays out cybersecurity requirements for connected devices (aka the Internet of Things). The draft framework includes ensuring confidentiality of data, encryption and purpose limitation principles. Euractiv has more information here.
Ireland’s Data Protection Commission has fined Meta’s Instagram €405 million for children’s privacy violations under the EU GDPR. The fine was issued for alleged violations stemming from Instagram’s default account settings for children ages 13-17 that exposed email addresses and phone numbers associated with child-operated accounts. A Meta spokesperson said the fine concerns “old settings that we updated over a year ago” and it is “carefully reviewing their final decision,” Politico reports.
In August 2022, the Constitution and Human Rights Division of the High Court of Kenya issued a decision on the question of image rights and its relationship with privacy rights and data protection laws in Kenya. Read IPKat’s summary and analysis here.
On 15 September 2022, judgment was handed down by the European Court of Human Rights (ECHR) in Rabczewska v Poland 8257/13  ECHR 680. The case concerned the criminal conviction of Polish singer Doda following a 2009 interview with Dziennik in which she stated that, despite being religious, she did not believe in the Bible. It was common ground between the parties that the conviction amounted to an interference with the applicant’s right to freedom of expression. The Court accepted that the interference was “prescribed by law”, the applicant’s conviction being based on Article 196 of the Criminal Code (offending the religious feelings of other persons by publicly insulting an object of religious worship). The issue before the ECHR was therefore to weigh up competing interests, while leaving a margin of appreciation to the national authorities. Held, despite the wide margin of appreciation – the domestic authorities failed to put forward sufficient reasons capable of justifying the interference with the applicant’s freedom of speech .
On 20 September 2022, judgment was handed down in Orishchenko and Region v Russia 50690/11  ECHR 743 in favour of the applicant. The ECHR held that the domestic courts did not give due consideration to the principles and criteria as laid down by the Court’s case-law for weighing the reputational interests of a commercial company against the interests of members of the media in purveying information and the public interest in obtaining it .
The Singapore Court of Appeal has recently clarified that ‘emotional distress’ is an actionable loss and damage under the existing right of private action of Personal Data Protection Act 2012, DLA Piper reports.
On 20 September 2022, judgment was handed down in Zhavvy v Ukraine  ECHR 739, with the Court finding that there had been a violation of Article 10.
On 12 September 2022, the Cyberlaw Clinic filed a comment on behalf of the Center for Democracy and Technology in response to a Notice of Proposed Rulemaking issued by the US Department of Education, encouraging the Department to protect LGBTQI+ students from their schools’ use of surveillance technology. Read the comment here.
The Department of Justice has announced the Data Access Agreement concerning criminal data sharing between the UK and the US entered into force 3 October 2022. The two countries will share data under “qualifying, lawful orders for electronic data issued by the other country, without fear of running afoul of restrictions on cross-border disclosures.” The DOJ added that the agreement brings “more timely and efficient access to electronic data required in fast-moving investigations through the use of orders covered,” IAPP reports.
Research and Resources
- Douglas, Michael, The Limits of Google’s Liability as Publisher of Defamation (2022), The University of Western Australia Law School
- Fakunle, Ikeoluwapo, The Position of the Law on Malicious Prosecution vis-a-vis False Rape Claims in Nigeria (2022), Unknown
- Symeonides, Symeon, Choice of Law in Torts Arising from Infringement of Personality Rights (2022), Revue de droit des affaires internationales / International Business Law Journal
- Cheung, Anne S. Y., From Data Subjects to Data Sovereigns: Addressing the Limits of Data Privacy in the Digital Era (2022), Digital Sovereignty (Anupam Chander and Haochen eds., Oxford University Press, Forthcoming Spring 2023)
- Amasah, Edmund and Odoi, Reginald Nii and Arthur, Evans, Reasonable Expectations of Privacy in the Digital Age: To What Extent Does Ghanaian Law Protect Individuals’ Expectations in Cyberspace? (2022), Kwame Nkrumah University of Science and Technology (KNUST), Office of the Attorney General & Ministry of Justice-Ghana
- Gilden, Andrew, The Queer Limits of Revenge Porn (2022), Boston College Law Review, Forthcoming
- Das Chaudhury, Ratul and Choe, Chongwoo, Digital Privacy: GDPR and Its Lessons for Australia (2022), Monash University
- Laidlaw, Emily, Technology Mindfulness and the Future of the Tort of Privacy (2022). Osgoode Legal Studies Research Paper Forthcoming
- Erdos, David, A Bill for a Change? Analysing the UK Government’s Statutory Proposals on the Content of Data Protection and Electronic Privacy (2022), University of Cambridge
- Calzada, Igor, Citizens’ Data Privacy in China: The State of the Art of the Personal Information Protection Law (PIPL) (2022), Smart Cities 5(3)
- Kemp, Katharine, Australia’s Forgotten Privacy Principle: Why Common ‘Enrichment’ of Customer Data for Profiling and Targeting is Unlawful (2022) University of New South Wales (UNSW)
- Faley, Wallace Abdul, The Law on Pornography and Indecent Material in Sierra Leone: An Investigation into Victims’ Rights (2022), Unknown
- Salyzyn, Amy and Singer, Samuel, Open Courts, Privacy and Equality in a Digital Era: The Supreme Court of Canada’s 2021 Open Court Jurisprudence (2022), Supreme Court Law Review (Forthcoming)
- Adeyoju, Ademola, Privacy Dark Patterns: A Case for Regulatory Reform in Canada (2022), University of Saskatchewan
Next Week in the Courts
On 4 October 2022 Nicklin J will hear a PTR in the case of Sivananthan v Vasikaran. On the same day there will be a directions hearing before the same judge in the case of LCG v OVD.
On 6 October 2022 there will be a trial of a preliminary issue on meaning in the case of Dyson v Channel 4.
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)
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).