Elon Musk has completed his $44bn takeover of Twitter. Musk, a self-styled “free speech absolutist”, has been a long time critic of Twitter’s management and moderation policies. On completion of the deal, he tweeted that “the bird is freed.” This announcement comes after months of legal wrangling and an attempt by Musk to withdraw from the deal.

Musk has said there will be no change to the platform’s content moderation policy yet, the BBC reports. Earlier this year, Inforrm had an article that argued against the free speech absolutism that Musk claims to represent. The BBC, Washington Post and Reuters report the completion of the deal. The Guardian reports on Twitter users’ reaction, and Musk’s suggestion that the platform could split into strands where users can stage online rows.

There is a post on the Doughty Street Chambers website concerning the settlement of the Millett v Corbyn libel action, entitled Richard Millett Discontinues Libel Action Against Jeremy Corbyn MP.

On 28 October 2022 the journalist Paddy French issued a press release stating that he will take no further part in the Ware v French libel action but will concentrate on producing a full report on the BBC Panorama programme about the Labour Party and anti-semitism.

The LSE Media Blog has produced a book review of Damian Tambini’s Media Freedom, which reflects on the history of media in the US, UK and Europe in order to develop a new theory of media freedom. Alana Smith writes that this cogent and contemporary response to the evolving issues surrounding media freedom is a captivating read for media policymakers, researchers, students and practitioners.

Internet and Social Media

The Online Safety Bill has been withdrawn from the House of Commons schedule next week. The delay has been criticised by internet safety groups as further failure to protect children from physical and online abuse. The Guardian and Politics Home have more information.

Art, Music and Copyright

IPKat has produced a book review of Competition Policy and the Music Industries, A Business Model Perspective by Jenny Kanellopoulou, Senior Lecturer in Law at Manchester Metropolitan University, whose research focuses on intellectual property and competition policy.

Data Privacy and Data Protection

On 24 October 2022, the Information Commissioner’s Office (ICO) issued a penalty notice to Interserve Group Limited, a construction company, imposing a fine of £4.4m for violations of the GDPR (the violations were pre-Brexit). The ICO found that Interserve had failed to put appropriate technical and organisational measures in place to secure personal data (in contravention of Articles 5(1)(f) and 32 GDPR) for a period of 20 months.

Some companies are using digital simulations of celebrities created with deepfake technology in advertisements, with or without the celebrities’ permission. While the technology can help brands produce faster, cheaper content, Slack Shack Films owner Daynen Biggs, who produces deepfake videos, acknowledges it “does have the potential to be extremely harmful. We are always careful that what we are creating is not damaging or deceitful, but an entertaining and fun way to share a message.” The Wall Street Journal reports.

In a letter to the CEO of Tesco, members of the Irish Council for Civil Liberties criticise the store’s new practice of barring customers who have not enrolled in its loyalty program. The letter claims Tesco’s loyalty program is illegal under UK GDPR, as it “entails extensive data collection and processing” and “infringes the principle of data minimisation set out in Article 5(C) of the UK GDPR.”

The ICO has warned organisations to assess the public risks of using emotion analysis technologies before implementing these systems. Organisations that do not act responsibly, posing risks to vulnerable people, or fail to meet ICO expectations will be investigated.

Surveillance

Cybersecurity experts at the Norwegian broadcasting corporation NRK have warned FIFA World Cup attendees not to carry their smartphones on their person at the event. Host nation Qatar are insisting attendees download two mobile applications called Ehteraz, a COVID-19 tracking app, and Hayya, the official app of the World Cup for tickets and public transportation. NRK researchers found Hayya “seeks access to share your personal information without almost any restrictions,” and Ehteraz has “several access requirements.” India Times and ITWire cover the story.

On 26 October 2022, Privacy International gave evidence for a second time before the European Parliament Committee of Inquiry to investigate the use of Pegasus and equivalent surveillance spyware. Read the key advocacy points here.

Newspapers Journalism and Regulation

Unity News Network has been kicked out of the press regulatory scheme Impress following an investigation into its coverage of the war in Ukraine and COVID-19 vaccines. Impress said the content collectively amounted to a “systematic breach” of its standards code, the Press Gazette reports.

BBC News presenter Martine Croxall has been taken off air amid claims that she showed bias after Boris Johnson pulled out of the Tory leadership contest. During her introduction to Sunday night’s edition of The Papers, which aired approximately 90 minutes after Johnson withdrew from the Tory leadership race, Croxall said “Well this is all very exciting, isn’t it? Am I allowed to be gleeful? Well I am.” The Press Gazette has more information here.

IPSO

New Issued Cases

There were no new cases issued on the Media and Communications list last week.

Last Week in the Courts

Between 24 and 27 October 2022, the trial of Sivananthan -v- Vasikaran was held before Collins Rice J.  Judgment was reserved.

On 25 October 2022, there was a hearing in the case of XXX v Persons Unknown.

On 26 October 2022, there was a hearing in the case of Smith v Backhouse.

On 27 October 2022, there was a hearing in the case of Wolverhampton City Council v Kevin Poole.

On 28 October 2022 Nicklin J handed down judgment in Hayden v Associated Newspapers [2022] EWHC 2693 (KB). The judgment dismissed the claimant’s application for an order requiring the respondent to identify a person who obtained a copy of a Court order made in earlier proceedings between the claimant and the defendant, which related to an article in the Mail on Sunday. The claimant’s claim for defamation was dismissed in March 2020 with an order that she pay the defendant’s costs. In February 2022, Master Davidson ordered the claimant to attend court to provide information about her means in order to enforce the order for costs that remained unpaid (“Davidson Order”). Four days later, on 15 February 2022, an anonymous user posted a copy of the Davidson Order on the website kiwifarms.net (“KiwiFarms Post”) alongside a message that deliberately misgendered the claimant, who is transsexual. Nicklin J refused Norwich Pharmacal relief on the grounds that the KiwiFarms Post did not itself disclose wrongdoing sufficient to sustain a Norwich Pharmacal order. The wrongdoing alleged by the claimant was harassment. However, the KiwiFarms Post was held to be “unremarkable” [70]. It was also not a forgone conclusion that proof that X obtained the Davidson Order amounted to proof that X was the anonymous KiwiFarms poster [71]. Second, the “respondent’s provision of a copy of the Davison Order – in discharge of the duty under CPR 5.4C(1) – no more “facilitated” the KiwiFarms Post than would a stationery shop selling someone a pen and paper “facilitate” the sending of a defamatory letter” [73]. The respondent’s involvement was insufficient to justify a Norwhich Pharmacal order against it.

Media Law in Other Jurisdictions

Australia

On 25 October 2022, the appeal against the summary judgment granted in favour of the respondent that dismissed the appellant’s defamation claim in ZOLLO v THE COMMISSIONER FOR CONSUMER AFFAIRS [2022] SADC 126 was dismissed.

On 27 October 2022, the defamation claim in Randell v McLachlain [2022] NSWDC 506 was struck out because the claimant failed to provide proper particulars in relation to serious harm in her statement of claim.

On the same day the defendant’s application for summary dismissal of Nyasulu v Naikelekele [2022] NSWDC 507 was dismissed. The claim relates to a series of twelve posts on the prophetic ministry Streams International’s Facebook page, which are alleged to convey imputations of use of satanic or demonic power. The defendant’s reliance on the “consensus requirement” (a statement can only be defamatory if it imputes some conduct or quality that would seriously harm the claimant’s reputation in the eyes of “right-thinking members of society generally”) to argue that it does not cause someone serious harm to accuse them of being a “demonic prophet of Satan” in the twenty-first century failed; reference to twenty-first century standards is no basis to assert that certain terms are now no longer defamatory [35].

India

The federal Technology Ministry is updating its intermediary internet guidelines to push social media companies to take down controversial content and help with legal probes. Bloomberg has more information here.

United States

The satirical publication The Onion has filed an amicus curiae brief with the Supreme Court in support of Anthony Novak, who was arrested in 2015 and charged with using a computer to disrupt police operations. The disruption was said to arise from Novak’s decision to create a satirical Facebook page identical in appearance to that of the police department in the city of Parma, Ohio. The Onion’s brief professes that the right to use satire is under threat. Inforrm published an article discussing why the brief’s defence of satire should be heard by the Supreme Court.

The rapper Cardi B has successfully defended a copyright suit brought against her over the “raunchy” cover art for Gansta Bitch Vol 1. The image showed Cardi sitting in the back of limo with a man’s head between her legs, whose back featured a tiger and serpent tattoo that was added during the editing process. Both parties said the distinct body art was found on the internet. Kevin Michael Brophy claimed the image was a misappropriation of his likeness, as the tattoos looked nearly identical to his own. He argued that the Photoshopped art has led many to believe that Brophy was the man on the cover; as a result, the man suffered anxiety and reputational harm. Lawyers for Cardi argued that any mistaken identity was self-inflicted, as no member of the public or any friend of Brophy mistook him for the man on the cover of the mixtape before he filed the lawsuit in 2017. They added that the man in the cover art was black and had hair, while the claimant was white and bald.

Inforrm has an article on the recent Supreme Court decision in New York State Rifle and Pistol Association v Bruen 597 US (2022) (Opinion pdf | Cornell | Justia | SCOTUSblog), and what it means for the country’s speech precedents set out in New York Co v Sullivan 376 US 254 (1964).

Research and Resources

Next Week in the Courts 

On 31 October 2022, Nicklin J will hand down judgment in the case of Dyson v Channel 4 News (heard on 6 October 2022).

On the same day there will be a hearing in the case of Ameyaw v PricewaterhouseCoopers Services Limited and others (QB-2022-000033)

On 1 November 2022 there will be a statement in open court in the case of Ali Omari v City AM Limited (KB-2022-003189) before Nicklin J.

On the same day the same judge will hear a preliminary issues trial in the case of Blake -v- Fox (QB-2021-001248).

On 3 November 2022 there will be a hearing in the case of Global Processing Services (UK) Limited v Yanpolsky and another (QB-2022-000181).

On 4 November 2022 there will a hearing in the case of CPH -v- ARN (QB-2021-003630).

Reserved Judgments

Sivananthan v Vasikaran, heard 24-27 October 2022 (Collins Rice 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