Amid the extraordinary political turmoil of the past week, the House of Commons held a little noticed short debate on the subject of “Lawfare and Investigative Journalism“.
A number of cases were mentioned in the debate including a case in which it was alleged that Dimitry Leus had had his name removed from a Chatham House report after what was described as a “meritless libel threat”. In response to the debate the Parliamentary Under-Secretary of State for Justice (Gareth Johnson) told the House that these matters would be dealt with in legislation which, he said, was being drafted. He said that the Government would introduce an early dismissal procedure and a new costs protection regime but warned against legislating in haste.
There was a European Anti-SLAPP Conference in Strasbourg last week. The speech of the Commissioner for Human Rights at this conference is available here.
Coingeek reports that the Oslo District Court has ruled that Magnus ‘Hodlonaut’ Granath’s Twitter campaign against Dr. Craig Wright did not amount to unlawful defamation in Norway
Amazon is facing a £900m class action claim alleging that the online retailer pushed customers towards deals which benefited the company over them. The complaint is to be heard by the Competition Appeal Tribunal and focuses on the “Buy Box” feature which is said to have promoted products sold directly by Amazon or by retailers who pay Amazon to handle their logistics. The claim argues that the recommendations were not based upon good choice or value and hid cheaper offers and better delivery options in breach of the company’s competition requirements. The Guardian covers the class action claim here.
Internet and Social Media
Ofcom has proposed to launch new guidance on how net neutrality rules should work in the UK. Net neutrality is the idea that individual users control what they do online, rather than their broadband providers restricting what they have access to. Net neutrality rules are set out in legislation, but Ofcom is responsible for monitoring broadband companies to ensure they comply.
Data privacy and data protection
Google has changed its policy to give greater control to users about the kind of ads they are able to see. Previously, users could not simply adjust their privacy settings without giving up useful features. The company will launch ‘My Ad Center’ which they claim will allow users to fine tune their advertising experience whilst retaining use of the product’s crucial features. Further information can be found in this Gizmodo article.
The Atlantic published an article about the rise of Amazon’s line of ‘ambient technology’. Amazon’s hardware chief explains that ambient tech slips into the background, collecting information and acting on it without a specific request from the user.
Newspaper Journalism and regulation
The Independent Press Standards Organisation’s 2021 annual report found that the Mail Online Breached the Editors’ Code of Practice more than any other news brand. IPSO ruled against the Mail online 15 times. The Sun, The Express and The Daily Telegraph came in second with 4 rulings against each of them. The Press Gazette reports.
The Press Gazette also covered the removal of Channel 4 News presenter, Krishnan Guru-Murthy, from the air for a week after he used an offensive profanity to describe Conservative MP Steve Baker following an interview.
New Issued cases
There was one new defamation (libel and slander) case issued in the media and communication list in the last week.
Last week in the courts
On 17 October 2022, judgement on meaning was handed down in Direct Accidents Management Ltd & Anor v Newsquest Specialist Media Ltd  EWHC 2572 (KB). The claim arose out of two articles published by the Insurance Times on its website which a personal injury law firm, Bond Turner, and a post-accident assistance vehicle company, Direct Accident Management Limited, alleged to be defamatory. Tipples J held that the ordinary meaning of the words meant that DAM charged a driver an excessive sum for a replacement vehicle; the company has taken advantage of the lack of regulation in the credit hire sector to seek to charge excessive costs and DAM is a particularly bad example of a credit hire organisation charging excessive credit hire costs . The second article alleged, inter alia, that DAM is guilty of fraud in relation to the credit hire costs it charges and that there are reasonable grounds to suspect that Bond Turner failed to act honestly and transparently in referring clients to DAM . The words complained of in both articles were found to be defamatory statements of fact [49-50, 66-67]. There was an article about the decision in Legal Futures.
On 20 October 2022 there was an application in the case of QRT v JBE to commit a defendant for contempt of court for breaching an interim non-disclosure order before Nicklin J, The application was dismissed in that no reporting restriction order had, in fact, been made and in any event the application had failed to comply with CPR 81.4(2)(h) in that it did not include a summary of the facts alleged to constitute the contempt.
Media law in other jurisdictions
The Guardian reports that Lachlan Murdoch’s application to have parts of Crikey’s defence about Fox News’s role in the January 6 riot dismissed has failed in a pre-trial hearing in the federal court.
In the case of Burston v Hanson  FCA 1235 Bromwich J ordered the leader of the One Nation party, Paul Hanson, to pay $250,000 damages to former Senator Brian Burston after she falsely claim that he had sexually abused a female staffer in his parliamentary office. There was a report of the decision on Lexology.
In Martin v Najem  NSWDC 479, the claimant, an Instagram food blogger, was called a paedophile and racist in a video posted by a fellow social media foodie as part of a wider campaign of abuse. The judge found that each of the imputations were self-evidently defamatory [51, 57]. The claimant was able to establish that the publication of each of the matters complained of was of a sufficient extent 64] and caused serious harm . There was no challenge to the claimant’s submissions due to the defendant’s lack of attendance at court. The case was the first time damages were assessed under the amendments to the Defamation Act 2005 (NSW) which came into force on 1 July 2021. The judge awarded damages in the sum of $300,000 including aggravated damages, plus interest of $6,656 and ordered the defendant to pay the claimant’s costs. Further, the defendant was permanently restrained from publishing the imputations concerning the claimant.
The judicial swearing-in ceremony of Justice Jagot last Monday 17 October 2022 engendered the first female majority of the High Court in Australia.
Amnesty International have called for Belgian-owned hydropower company, BUK, to drop the three defamation lawsuits it has filed against environmental activists who challenged permits granted to the company. The hearing is due to commence on Monday and BUK seeks EUR 7,500 in damages. A representative from Amnesty called the defamation claims baseless and argued that members of the public should be able to freely debate the impact of hydro-power plants on their community.
The Superior Court of Justice, Ontario handed down judgement in Marcellin v LPS et all 2022 ONSC 5886. The claimant, a former police officer for the London Police Services sued the defendants for over $4 million in damages for harassment, defamation, libel, slander, invasion of privacy, international interference in economic relations, interference with employment relations, inducement of breach of contract, intrusion on seclusion and/or negligent investigation. The defendants moved to have the action dismissed under section 137.1 of the Courts of Justice Act, R.S.O 1990. The purpose of section 137.1 is to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action . Nicholson J found that the defendants had satisfied the onus of establishing that the claims against them related to matters in the public interest, thus meeting the anti-SLAPP threshold. But for defamation, the plaintiff’s claims were all dismissed as not meeting the section 137.1(4)(a)(i) test of showing that the proceeding has substantial merit. In respect of the defamation claim, the court found that the public interest in protecting free expression outweighed the harm suffered by the plaintiff and the interest in permitting the proceedings to continue . Thus, the Judge dismissed the action against the defendants.
Media freedom organisations, including Article 19, have penned a letter to the former general secretary in the office of the Greek Prime Minister, Grigoris Dimitriadis, urging him to drop the lawsuits he filed against investigative media and journalists. The International Press Institute named Dimitriadis as ‘SLAPP Politician of the Year’.
The anti-abortion group, Precious Life, has agreed to pay a five-figure sum in respect of damages and legal costs in a claim arising out of a tweet which made a false and defamatory allegation about the owner of a Belfast café, Barbara Whearty. There was a statement in open court before McAlinden J.
The ECtHR found that the reasons provided for the decision of the Romanian national courts to restrict the applicants’ free expression did not meet the threshold of necessity under Article 10 of the Convention in Stancu and Others v. Romania. The publication reported that a senior prosecutor had failed to provide explanations for a serious miscarriage of justice. The first instance court ruled against the publishers in 2014 and ordered them to pay the prosecutor EUR 5,000.
An OnlyFans creator, Titus Low, has been fined S$3,000 for posting obscene photos and videos on the platform. In a country where it is illegal to transmit obscene materials by electronic means, the first conviction of an OnlyFans creator is precedent setting. The BBC and Independent cover the case.
Former President Trump was deposed this week for a civil lawsuit after writer E. Jean Carroll filed a lawsuit for defamation. Carroll accused Trump of raping her in the Manhattan department store, Bergdorf Goodman in the 1990s. Trump responded by calling Carroll a liar who was motivated by money and politics. A trial is scheduled for February 2023. Further information is available in this CNBC article.
The BBC reports that US chess grandmaster Hans Niemann is suing rival Magnus Carlsen for at least $100m (£89m) after the Norwegian world champion accused him of cheating. A copy of the complaint can be found here [pdf]
The New York Times reported that Kevin Spacey called his initial apology to Anthony Rapp during the Civil trial a mistake. The actor was cleared of sexual assault by a Manhattan federal court following a three-week jury trial, covered here.
The Vietnamese government has issued Decree 53 governing the storage of data within the country. The personal information of service users and the data generated by their use must be stored for a minimum of 24 months. DLA Piper provides a detailed summary of the decree’s provisions.
Research and Resources
- Sagot, Adam, ‘Preserving Immunity for Reporters of Medical Child Abuse’ (17 October 2022), Journal of the American Academy of Psychiatry and the Law 2022.
- Swannie, Bill, ‘A Critical Appraisal of the “Media Safe Harbour” in the Australian Consumer Law’ Victoria University of Wellington Legal Research Paper No. 1, 21 October 2022.
- Bloomberg, Scott, ‘Political Advertising in Virtual Reality’ (October 2022), First Amendment Law Review.
- Li, Yaojie and Wang, Ying, ‘What Do We Know About Website Privacy Policies? An Exploratory Study Based on Text Mining’ (October 2022), University of New Orleans and Northern Illinois University.
- Lefrere, Vincent, et al, ‘Does Privacy Regulation Harm Content Providers? A Longitudinal Analysis of the Impact of the GDPR’ (October 2022).
- Moses, Lyria, ‘Oversight of Police Intelligence: A Complex Web, But is it Enough?’ (October 2022), Osgoode Hall Law Journal (Forthcoming).
- Kigwiru, Vellah, ‘Deepfake Technology and Elections in Kenya: Can Legislation Combat the Harm Posed by Deepfakes?’ (September 2022).
- Rao, Ashwini, et al, ‘Expecting the Unexpected: Understanding Mismatched Privacy Expectations Online’ (October 2022), SOUPS 2016 – Proceedings of the 12th Symposium on Usable Privacy and Security 77-96, June 2016.
- Almuhimedi, Hazim, et al, ‘Your Location has Been Shared 5,398 Times!: A Field Study on Mobile App Privacy Nudging’ (October 2022), CHI 2015: Proceedings of the 33rd Annual Conference on Human Factors in Computing Systems 787-796.
- Wexler, Rebecca, ‘The Global Cloud, the Criminally Accused, and Executive Versus Judicial Compulsory Process Powers’ (October 2022), Texas Law Review (Forthcoming).
- Bruin, Ruben de, ‘A Comparative Analysis of the EU and U.S. Data Privacy Regimes and the Potential for Convergence’ (October 2022) University of Luxembourg Law Research Paper No. 2022-007.
- Kemp, Katherine, ‘‘A Rose by Any Other Unique Identifier’: Regulating Consumer Data Tracking and Anonymisation Claims’ (August 2022), Competition Policy International TechReg Chronicle 21.
- Nwauche, Enyinna, ‘Does South Africa’s Proposed State Ownership of Data Make Any Sense?’ (October 2022) The Centre for African Legal Studies Research Paper Series 2022-04.
- Cong, William Lin and Mayer, Simon, ‘Antitrust, Regulation and User Union in the Era of Digital Platforms and Big Data’ (June 2022).
- Slobogin, Christopher, ‘Virtual Searches: Regulating the Covert World of Technological Policing’ (October 2022) New York University Press.
- Carugati, Christophe, ‘Overview of Privacy in Cases Relevant to Competition’ (October 2022).
- Obar, Jonathan and Oeldorf-Hirsch, Anne, ‘Older Adults and ‘The Biggest Lie on the Internet’: From Ignoring Social Media Policies to the Privacy Paradox’ (October 2022), International Journal of Communication, 16, 4779-4800.
- Elmurodov, Akmal, ‘Dynamic IP address and privacy: do police need a court order to access subscriber information?’ (October 2022).
- Desai, Deven, et al, ‘Using Algorithms to Tame Discrimination: A Path to Algorithmic Diversity, Equity, and Inclusion’ (October 2022) UC Davis Law Review (Forthcoming).
- Kun, Eyup, ‘Exploring the Role of Data Protection Impact Assessments in the Use of Facial Recognition Technologies: From Accountability to Meta-Regulation’ (2022).
- Jasserand, Catherine, ‘Experiments with Facial Recognition Technologies in Public Spaces: In Search of an EU Governance Framework’ (September 2022), Chapter 12 in ‘Handbook on the Politics and Governance of Big Data and Artificial Intelligence – Elgar Handbooks in Political Science series – edited by Andrej Zwitter & Oskar J. Gstrein, 2023 (Forthcoming).
- Artiaga, Juan Paolo, ‘The Sub Judice Rule in the Philippines as an Interference in the Right to the Freedom of Expression: Determining Tensions and Defining Legal Standards to Address Conflicting Interests’ (2021), Asian-Pacific Law & Policy Journal, Vol. 22, No. 2, 2021.
- Steiger, Dominik, ‘Protecting Democratic Elections Against Online Influence via ‘Fake News’ and Hate Speech’ (January 2022), Theory and Practice of the European Convention on Human Rights (pp. 165-214).
- Gherbaoui, Tarik and Scheinin, Martin, ‘A Dual Challenge to Human Rights Law: Online Terrorist Content and Governmental Orders to Remove it’ (September 2022).
Next week in the courts
From Monday 24 October 2022 to Thursday 27 October 2022, there will be a four day trial before Collins Rice J in Sivananthan -v- Vasikaran QB-2020-002381.
On Tuesday 25 October 2022, there will be a hearing in the case of XXX v Persons Unknown QB-2022-001083.
On Wednesday 26 October 2022, there will be a hearing in the case of Smith v Backhouse QB-2021-004686
On Thursday 27 October 2022, there will be a hearing in the case of Wolverhampton City Council v Kevin Poole KB-2022-003361.
On Friday 28 October 2022 Nicklin J will hand down judgment in the case of Hayden v Associated Newspapers.
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)
This Round Up was compiled by Jasleen Chaggar who is a complex litigation paralegal at Gherson Solicitors