Misuse of private information claims were issued against Associated Newspapers by a number of well known claimants including Prince Harry, Sadie Frost, Elton John and Baroness Doreen Lawrence, the mother of murdered teenager Stephen Lawrence. The company, publishers of the Mail titles, has always denied phone hacking and other illegal information gathering. The allegations include burglary and landline tapping.
There is a report of the claims on Byline Investigates. This website and Expose News have published over 50 stories over 5 years about alleged Mail wrongdoing – they are all gathered together here. There are stories about the legal action in the Press Gazette, Forbes and Reuters and a comment on the Hacked Off website.
Meanwhile, a total of 142 new phone hacking claims have been issued in managed litigation in the Business and Property List since the beginning of September 2022 (in order to meet the most recent “cut off date”).
Internet and Social Media
Carolyn Pepper of Reed Smith LLP writes for the Press Gazette on the application of libel law to ‘deep fakes,’ which are digital impersonations of well-known individuals. She predicts that legislation will catch up with this new technology, but explains that, until then, journalists should take care to try to identify the individual behind the digitised representation.
The Press Gazette has investigated Facebook’s News Tab to reveal how the aggregation service is run. Details can be found here.
Data privacy and data protection
On 6 October 2022 the Advocate General delivered his opinion in the case of C-300/21 UI v Österreichische Post AG dealing with the issue as to whether compensation was recoverable under the GDPR for breaches which did not cause damage. He was of the view that a person who suffered “mere upset” was not eligible for compensation. There was a post about the decision on the Panopticon Blog.
The ICO formally reprimanded the Home Office in line with article 58(2)(b) of the UK GDPR for leaving ‘official sensitive’ documents in a public venue in London. The documents, which included reports by the Extremism Analysis Unit and Counter Terrorism Policing, were not reported as missing within the 72-hour limit set by the ICO.
The Secretary of State for Digital, Culture, Media and Sport, Michelle Donelan, announced at the Conservative Party Conference that the government would be “replacing GDPR with our own business and consumer-friendly data protection system.” Commentary by Mischon de Reya can be found here.
A catalogue retailer, EasyLife, has been fined £1.48 million by the ICO for illegally using the personal information of over 145,000 customers to predict their health conditions and market goods to them without their consent. The ICO also fined a further four companies a total of £370,000 for making more than 820,000 predatory marketing calls to registered Telephone Preference Service customers.
Privacy advocates are worried about the use of surveillance technology to track women seeking abortions in US states that have banned and restricted the procedure following the Supreme Court decision which overturned Roe v Wade. The Electronic Frontier Foundation points to the threat posed by automated license plate readers, whilst the Telegraph reports similar fears in China, Hungary and Poland.
Newspaper Journalism and regulation
Mishcon de Reya considers what role TV producers should play in challenging domestic abuse in reality TV shows in light of the Domestic Abuse Act 2021 and new OFCOM rules designed to protect participants.
- 03055-22 Lane v walesonline.co.uk, 1 accuracy (2021), 3 harassment (2021), No breach – after investigation
- Resolution Statement – 10567-22 Marson v express.co.uk, 1 accuracy (2021), Resolved – IPSO mediation
Statements in open court and apologies
The co-founder of Jewish Voice for Labour, Naomi Wimborne-Idrissi, unreservedly apologized in open court to journalist John Ware for her false comments about his far-right political leanings which she made after he presented a BBC Panorama program investigating anti-Semitism in the Labour party. Wimborne-Idrissi’s apology concludes a libel action and the JVL’s appeal for substantial funds suggests that the group were ordered to pay costs and damages. Read 5RB’s summary here.
New Issued cases
Over the past week, there were two defamation (libel and slander) claims, four claims on the misuse of private information and two data protection claims issued on the Media and Communications List . These included the three claims against Associated Newspapers already mentioned.
Last week in the courts
In the final chapter of the ‘Wagatha Christie’ saga, Rebekah Vardy has been ordered by Mrs Justice Steyn to pay Coleen Rooney make an interim payment of £800,000 for legal costs. The costs are to be paid on an indemnity basis due to the destruction or deletion of evidence by the claimant. Read more information from 5RB here.
On Thursday 6 October 2022 there was a trial of preliminary issues in the case of Sir James Dyson and Ors v Channel 4 News. The claim concerned a news broadcast which alleged that workers at a factory supplying goods to Dyson had been exploited. There was a report of the hearing in the Guardian. Judgment was reserved
Judge Lynn Griffin dismissed an appeal in Peter Beswick v Information Commissioner  UKFTT 360 (GRC). The appellant had sought information concerning the Novichok poisonings in Wiltshire from the South Western Ambulance Service NHS Foundation Trust. The Trust withheld the information in line with exemptions under the Freedom of Information Act 2000. The ICO found that the Trust had correctly applied the provision and that maintaining the s24 exemption would be in the public interest. The court held that the ICO had not wrongfully exercised its discretion in upholding the s24 exemption, as, on balance, the national security risks associated with disclosure were greater than public interest in transparency. The full judgement can be found here.
Johnson J settled the issue of costs in contempt of court proceedings in the context of a breach of data claim lodged by the Ocado Group.
Media law in other jurisdictions
Two important cases have been decided concerning the serious harm threshold introduced by the 2021 defamation law reforms. In Rader v Haines  NSWCA 198, the appellant’s in-laws wrote to his parents explaining that they would no longer pay their grandchildren’s school fees and commented on their son-in-law’s poor behaviour towards his estranged wife. The New South Wales Court of Appeal dismissed an appeal on the basis that the first instance judge did not err in concluding that the serious harm threshold was not met, and that qualified privilege applied.
Two days later, Judge Gibson dismissed proceedings in Zimmerman v Perkiss (No.2)  NSWDC 458. The owner of a dog salon sent defamatory remarks about a former employee to the claiamant’s new boss, Ms McPherson. As McPherson was the sole recipient of the messages and they did not cause any long-lasting adverse effects to the claimant, the Judge decided that the serious harm threshold was not met. The Judgement can be found here. An analysis of the implications for the serious harm element in both cases can be found here.
A data breach which exposed the personal data of more than 10 million customers has resulted in 51% of Australians supporting data privacy reforms to curtail the amount of information private companies can collect, the Guardian reports.
The ECtHR found that there had been no infringement on the Article 10 free expression rights of an Azerbaijani newspaper which was found to have published defamatory statements about a high-ranking public official. The newspaper’s argument that it was acting as a ‘public watchdog’ failed because it had not acted in good faith and could not provide evidence for its allegations.
Canada’s proposed C-27 bill, which is currently in its second reading, proposes to strengthen protections for minors by increasing the standard of diligence in the collection and processing of their personal data. Dentons analyses the new provisions.
MEPs began debating the EU Artificial Intelligence Act this week with much of the discussion centring around the use of biometric recognition technologies, Euractiv reports. The initial ban on real-time identification technologies was tempered with exceptions in the case of kidnappings and terrorist attacks.
On 4 October 2022, judgment was handed down in Chakhmakhchyan and Oganesyan v Russia in favour of the applicants. The applicants had been convicted for fraud against a major airline following a closed hearing which partly took place in the location where the applicants were being detained due to reasons of state security. The ECtHR held that the insufficient reasoning behind the decision to hold the hearings in camera and the failure to consider a less strict measure violated the Article 6 rights of both applicants. Additionally, the interception of the second applicant’s audio and video communications violated his Article 8 rights.
In a significant decision overturning an earlier ruling of the High Court, the Singapore Court of Appeal has clarified that loss or damage in the context of a private action under section 32(1) of the Personal Data Protection Act extends to emotional distress. The judgement can be found here, along with analysis of the case by Dentons and Rose Fulbright. In addition, companies found to be in breach of the PDPA now also face substantially higher financial penalties of up to 10% of their annual turnover, DLA Piper explains.
President Biden has signed an Executive Order implementing an EU-US data privacy framework for transferring data. The White House published a fact sheet which is available here, and the Future of Privacy Forum’s CEO published a statement which can be read here. Politico notes that the Order establishes a Data Protection Review Court within the Department of Justice, to whom EU citizens can appeal about the collection and use of their data by US intelligence agencies.
Former President, Donald Trump, has sued the TV network, CNN, for defamation in a 29-page lawsuit which seeks $475 million in punitive damages for a “series of ever-more scandalous, false, and defamatory labels,” the New York Times reports.
Jurors have begun deliberations in the Alex Jones defamation trial, Reuters reports. The victims’ families filed a lawsuit against the conspiracy theorist who, for years, spread claims that the Sandy Hook massacre was a hoax staged by the government to undermine the second amendment right to guns.
Research and Resources
- Schafer, Matthew and Kosseff, Jeff, Protecting Free Speech in a Post-Sullivan World (2022), Federal Communications Law Journal
- Naidu, Gobind and Mansori, Shaheen, ESG and Data Governance in the Digital Era; How to Minimize the Risks of Cybersecurity, Privacy Infringement and Data Loss of Customers (2022), Social Science and Humanities Open
- Abraha, Halefom. H, A Pragmatic Compromise? The Role of Article 88 GDPR in Upholding Privacy in the Workplace (2022), International Data Privacy Law Journal
- Cochrane, Tim, Digital Privacy Rights and CLOUD Act Agreements (2022), Brooklyn Journal of International Law, Vol 47
- Trzaskowski, Jan, GDPR Compliant Processing of Big Data in Small Business (2021), in Carsten Lund Pedersen, Adam Lindgreen, Thomas Ritter & Torsten Ringberg (eds), Big Data in Small Business – Data-Driven Growth in Small and Medium-Sized Enterprises (Edward Elgar 2021), Chapter 2
- Karaarslan, Enis and Koç, Serhat and Akın, Gökhan, Personal Data Privacy Status in Citizenship Number Based E-Government Systems (2010), İzmir Bilişim Hukuk Kurultayı, 1-8
- Coutinho, Francisco. P, Data Retention in Portugal: Big Brother is (No Longer) Watching, (2022), Forthcoming in Inês Quadros e Miguel Gorjão-Henriques
- Biswas, Nandini and McDonald, Sean, Reconciling Data, Privacy and Competition in the 21st Century: India’s Battle with Personal Data Protection (2021)
- Aggarwal, Nikita, AI, Fintech, and the Evolving Regulation of Consumer Financial Privacy (2022), Forthcoming in Oxford Handbook of AI Governance
- Tokson, Matthew, Telephone Pole Cameras Under Fourth Amendment Law (2022), Forthcoming in Ohio State Law Journal, Vol 84
- Dabas, Deeksha and Bhatt, Hitesh, Trajectory of Blockchain Technology in India: From Use Cases to Data Protection Regime (2022), Sambodhi Indological Research Journal
- Pinheiro, Luís de Lima, The Spatial Reach of Injunctions for Privacy and Personal Data Protection on the Internet Revisited (2022) Centro de Investigacao de Direito Privado
- Gültekin-Várkonyi, Dr. Gizem, Predictive Policing and Bias in a Nutshell: Technical and Practical Aspects of Personal Data Processing for Law Enforcement Purposes (2022), Digital Criminal Justice: A Studybook Selected Topics for Learners and Researchers
- Coombs, Elizabeth and Abraha, Halefom, Governance of AI and Gender: Building on International Human Rights Law and Relevant Regional Frameworks (2022) in ‘Handbook on the Politics and Governance of Big Data and Artificial Intelligence
- Aloisi, Antonio, Regulating Algorithmic Management at Work in the European Union: Data Protection, Non-Discrimination and Collective Rights (2022), Forthcoming in International Journal of Comparative Labour Law and Industrial Relations
- Canto Moniz, Graça, Is There Anything Left of the Portuguese Law Implementing the GDPR?: The Decision of the Portuguese Supervisory Authority (2020), Personal Data Protection and Legal Developments in the European Union
- Hutchinson, Camden, Freedom of Expression: Values and Harms (2022), Forthcoming in Alberta Law Review
- Ullah, Asad. Dr, Punishment of Blasphemy in Criminal Justice System of Pakistan and International Human Rights Law: A Comparative Analysis, (2022), Malakand University Research Journal of Islamic Studies
- Oliver, Peter J and Oliver, Peter J, What Fundamental Rights, if Any, Should Companies Enjoy? A Comparative Perspective (August 28, 2022). Revue Européenne du Droit
- Kulick, Andreas, Corporations as Interpreters and Adjudicators of International Human Rights Norms – Meta‘s Oversight Board and Beyond (2022), Forthcoming in the Law and Practice of International Courts and Tribunals 2022
Next week in the courts
On 11 October 2022 there will be a hearing in the case of Mincione v RCS Media Group.
There will also be a hearing in the case of Smith v Backhouse.
Dyson v Channel 4 News, heard on 6 October 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 Jasleen Chaggar who is a complex litigation paralegal at Gherson Solicitors