Law and Media Round Up – 7 November 2022 [Updated]

The government came under fire after The Mail on Sunday reported that former Prime Minister Liz Truss had her phone hacked by spies suspected of working for Russian President, Vladimir Putin whilst she was foreign secretary.

Although the breach was discovered this summer during the Conservative Leadership election, details were suppressed by then-Prime Minister, Boris Johnson and Cabinet Secretary, Simon Case. The BBC, Politico, Independent and Financial Times covered calls for the government to launch an investigation. Meanwhile, Politics Home reported Food Minister, Mark Spencer’s defence of the government’s cybersecurity practices.

In an apparently unrelated story, a Sunday Times “sting” operation exposed the activities of an Indian “hack for hire” organisation alleged to have hacked the computers of VIPs on a large scale.  The hackers are said to have targeted journalists, politicians and critics of the Qatar world cup.

Johnny Depp has filed an appeal in the Court of Appeals of Virginia to reverse judgement on Amber Heard’s counterclaim for which he was ordered to pay $2 million to his former spouse. In their 1 June 2022 verdict, the jury found that Ms Heard defamed Mr Depp, and awarded him $10 million in compensatory and $5 million in punitive damages. The jury found in favour of Ms Heard in respect of one of the three statements complained of in her counterclaim. The appeal filing states that Heard failed to present evidence that the author of the statement, for which Depp was found vicariously liable, had acted with actual malice. Deadline reports.

The LSE Media Blog featured an article by Dr Sebastián Lehuedé, postdoctoral scholar at the Centre of Governance and Human Rights, highlighting Big Tech’s problematic environmental record. Whilst Artificial Intelligence is often hailed as a powerful tool in combatting the climate crisis, Lehuedé explains that data centres require increasingly high amounts of energy and water in order to operate.

The law firm, Schillings have released a documentary about online privacy, big technology and its impacts on society. The 40-minute documentary Accept All: Unacceptable addresses the question, “Why should we care about online privacy?” The piece was commissioned by Schillings with the support of think tank Demos and consumer rights organisation Rightly. It is available to view on YouTube.

The Advertising Standards Authority have upheld a complaint concerning a media campaign by Match.com which comprised of three clips that were held to be sexist and perpetuate harmful gender stereotypes. The videos, which showed a woman performing domestic chores as loving gestures for her partner, breached the CAP code which states that adverts must not include nor reinforce gender stereotypes that are likely to cause serious harm, or offence. More information can be found on the JMW Solicitors LLP Blog.

Internet and Social Media

After Elon Musk bought the social network site Twitter last week, he unveiled plans to charge users $19.99 per month (since reduced to $8) to have a blue tick, symbolizing that they are verified. The blue tick is currently offered to users “of public interest” at no charge as a mark of their notability and authenticity. Whilst some welcomed the change as an opportunity to improve the platform’s features, the proposal has been met with backlash from others. CNN stated that it was unlikely to pay for all its employees verification costs and author Stephen King voiced that he would leave Twitter if the plan goes ahead.

Chinese-owned social video app, TikTok has updated its privacy policy to inform European users that their data can be accessed by employees outside of the continent. The move comes after political and regulatory concerns about Chinese access to user information on the platform, the Guardian reports.

Data privacy and data protection

The Open Rights Group has published five policy papers and three blogs on the topic of Digital rights Post-Brexit. The dossier is intended to “help policy makers in Europe and the UK begin a discussion about the potential effects of EU-UK divergence.”

Surveillance

Researchers from the Minderoo Centre for Technology and Democracy at Cambridge University have published a report which concludes that the minimum ethical and legal standards for the governance of technology are not met in the current use of facial recognition technology by the police. The report conducts a “sociotechnical audit” to evaluate the use of facial recognition and argues that it may, in its current form, “infringe upon human rights such as the right to privacy.” A summary by the Guardian can be found here.

Newspaper Journalism and regulation

The BBC has ruled that several remarks made by News presenter, Martine Croxall breached their impartiality rules, the Press Gazette reports. Croxall was taken off the air on 24 October 2022, after she was alleged to have shown bias when Boris Johnson pulled out of the Tory leadership contest. The BBC stated that Croxall’s remarks and lack of challenge to opinions expressed by programme guests meant that there was a significant risk that the audience would “infer an editorial position on the part of the BBC.”

IPSO

• 01443-22 Risk Management Authority v Scottish Daily Mail, 1 Accuracy (2021), Breach- Sanction: publication of correction
• 02093-22 Boreland v Sunday Life, 1 Accuracy (2021), Breach – sanction: action as offered by publication
• 09950-22 Hay v The Sunday Times, 1 Accuracy (2021), No Breach – after investigation
• 10346-22 Greco v somersetlive.co.uk, 1 Accuracy (2021), Breach – sanction: action as offered by publication
• Satisfactory Remedy – 11461-22 Walter-Frayling v herefordtimes.com, 1 Accuracy (2021), 9 Reporting of Crime (2021), 12 Discrimination (2021), Decision: Resolved – satisfactory remedy

Statements in open court and apologies

Mirror Group Newspapers have settled the phone hacking case launched against them in 2018 by Mr Cunningham, the former fiancé of Atomic Kitten star, Kerry Katona. Cunningham claimed that the paper intercepted his personal voicemail messages and published 36 articles containing private information obtained through phone hacking. MGN admitted liability for the misuse of Cunningham’s private information on five occasions, and agreed to pay significant damages, legal costs and read an apology in the High Court. The apology can be found here. More information is available from the Press Gazette and Ham & High.

Tennis player Nick Kyrgios has settled a defamation claim filed by a spectator, Anna Palus, whom he accused of having “about 700 drinks” during this year’s Wimbledon final. Kyrgios apologised to Palus, accepting that his belief was mistaken and adding that he had donated £20,000 to Great Ormond Street Hospital to “make amends.” The Guardian covers the story.

New Issued cases

Over the past week, there were four defamation (libel and slander) claims issued on the Media and Communications List.

Last week in the courts

On 31 October 2022, Nicklin J dismissed the libel claim brought by Sir James Dyson against Channel 4 and ITN in Dyson & Ors v Channel Four Television Corporation and Anor [2022] EWHC 2718 (KB). The broadcast alleged that a company in South East Asia that manufactured Dyson products abused and mistreated its employees. Dyson argued that the programme defamed him and two of his companies– Dyson Technology and Dyson Ltd –by suggesting they were complicit in the abuse. The court found that although the programme referred to Dyson, the comments complained of were not defamatory, as “the Broadcast is simply not about him, and no ordinary reasonable viewer could conclude that he was being in any way criticised” [60]. It remained open to the other two claimants, or other companies in the Dyson Group, to revise their claims, as the programme’s meaning in relation to their claims had not yet been decided. The Guardian and the Evening Standard provide coverage.

On 1 November 2022, there was a trial of preliminary issues in the case of Blake v Fox.  Nicklin J held that tweets by actor Laurence Fox were defamatory allegations of fact.  There was a report of the hearing on MailOnline.

On 4 November 2022, HHJ Paul Matthews allowed the application for an order to require the parties to comply with a third party debt order in Brake & Anor v Guy & Ors [2022] EWHC 2797 (Ch). This application arose in the context of protracted employment litigation, during which a husband and wife, the Brakes, made a claim of alleged misuse of confidential information and infringement of privacy against the Guy Parties. At the first instance, the Brakes’ claimed failed and on 2 March 2022, the Court of Appeal dismissed an appeal. The Court of Appeal ordered the Brakes to pay the costs of the the Guy Parties’ appeal. The court directed the parties to file written submissions on 8 November 2022 and reply submissions on 10 November 2022 to allow the Judge to decide the matter on paper.

Events

Law firm, Mischcon de Reya is set to host the annual National Association of Data Protection and Freedom of Information Officers (NADPO) conference on 22 November 2022. The keynote speaker, UK Information Commissioner John Edwards will be joined by Professor Victoria Nash of the Oxford Internet Institute, Professor Lilian Edwards of Newcastle University and the Ada Lovelace Institute, Maurice Frankel of the Campaign for Freedom of Information, Alan Payne KC and Aaron Moss of 5 Essex Court and Stewart Room, NADPO’s president.

Media law in other jurisdictions

Australia

On 3 November 2022, there was a hearing in the case of Kelly v Hilton [No 2] [2022] WASC 374, in which leave was granted to allow the first plaintiff and defendant to use documents obtained in the proceedings for the limited purpose of use in a connected defamation action.

A bill which is set to amend the Privacy Act 1988 (Cth) has been tabled in Parliament by the Attorney General. The bill, which was drafted in response to the recent Optus and Medibank data breaches, proposes to increase maximum penalties for serious or repeated privacy breaches. JWS provide a summary of the proposed reforms.

A report by the e-safety Commissioner, Julie Inman Grant, outlining a plan to prevent minors from accessing adult content online has been pushed back from its scheduled release date in December to March 2023. However, digital rights groups have voiced concerns over plans requiring identification documents to be submitted to host sites as proof of age. The Guardian provides more information.

Canada

On 3 November 2022, the plaintiff’s claim in Bajwa v Workers Compensation Board, 2022 BCSC 1926 was dismissed and the claims against both defendants were struck out. The plaintiff was investigated by the Workers Compensation Board (“WCB”) for using forged documents to obtain contracts and was acquitted on 17 March 2017. Following his acquittal, he filed a defamation claim against the WCB and Attorney General of British Columbia in connection with the charges on 15 March 2019. The judge ruled that there was no genuine issue for trial as merely stating “a person has been charged with a criminal offence is not in itself defamatory” [24].

Ireland

The Guardian have settled a libel case filed by two Irish fishers, which had been ongoing for almost seven years. The paper published allegations made by a Filipino deckhand about the working conditions onboard the Labardie Fisher vessel in 2015. The case was due to be heard in the high court in Dublin on 8 November 2022, however the Guardian paid a €50,000 lodgement to the claimants. No costs, damages or admissions of liability were made, and a Guardian spokesperson reiterated “we have vigorously defended our journalism since publication.” The investigation remains available online, as originally published, and can be read here.

Northern Ireland

Unite the Union has apologised for publishing online and disseminating to the media untrue statements about Nick Coburn CBE, Managing Director of Ulster Carpets. The apology can be read here.

Research and Resources

• Levi, Lili, “Disinformation and the Defamation Renaissance: A Misleading Promise of ‘Truth’” (September 2022), 57 U. Rich. L. Rev.
• Chawla, Ajay, “Aspects of Cyber Defamation in Digital Era” (October 2022).
• Küçükgül, Can and Özer, Özalp and Wang, Shouqiang, “Recommender Systems under Privacy Protection” (October 2022).
• Ross, Bertrall L., and Spencer, Douglas, “Voter Data, Democratic Inequality and the Risk of Political Violence” (August 2022), Cornell Law Review, Vol. 107, No.3.
• Birnhack, Michael and Morse, Tal, “Digital Remains: Property or Privacy?” (2023) International Journal of Law and Information Technology, forthcoming.
• Khalil, Randall, “Aerial Trespass and the Fourth Amendment” (October 2022), Michigan Law Review, forthcoming.
• Meister, Michela and Levy, Karen, “Digital Security and Reproductive Rights: Lessons for Feminist Cyberlaw” (October 2022) Feminist Cyberlaw, University of California Press, forthcoming.
• Malhotra, Shefali and Rai, Shivangi, “To What Effect? COVID-19 MOvile Apps, Public Health and the Need for Sound Policy” (October 2022).
• Greenleaf, Graham, “China’s Standard Contractual Clauses: Restricted Use and Complex Terms” (2022), 178 Privacy Laws & Business International Report, 1, 6-7.
• Martini, Mario and Drews, Christian, “Making Choice Meaningful – Tackling Dark Patterns in Cookie and Consent Banners through European Data Privacy Law” (October 2022).
• Yilma, Kinfe, “African Union’s Data Policy Framework and Data Protection in Africa” (October 2022), Journal of Data Protection and Privacy, Vol. 5, No. 3 (2022).
• Ogbuefi, Nnubia, “Contact Tracing and Its Approach to Privacy Under Europe and Canada’s Privacy Laws” (2021).
• Rasheed, Ayesha, “Reviving the Dormant Commerce Clause to Protect Interstate Online Discourse” (October 2022), Yale Journal of Law & Technology, forthcoming.
• Li, Shuping, “The Criminalization of Cryptocurrency Operation in China: Limits of Private Money Reconsidered” (2022), Hong Kong Law Journal, Volume 23 Part 1 (2023).
• Erdos, David, “The Court of Justice’s Data Protection Case Law Deepens: Exploring Digi on purpose and storage limitation and Koalitsia on the scope of the GDPR and DPA powers including vis-à-vis the media” (November 2022), University of Cambridge Faculty of Law, Research Paper No. 15/2022.
• Lim, Daryl, “Life After Google v Oracle: Three Reflections on a Theme” (November 2022), IP Theory 2022.
• Klöber, Hannah, “The Regulation of Personal Data Accuracy in China’s Public Social Credit System” (October 2022).
• Bonadio, Enrico and et al., “Implications of Artificial Intelligence in Action – A Jamaican Perspective” (September 2022), European Intellectual Property Review.
• Demir, Esra, “Legal Uncertainty on the Protection of Human Biological Data: Can the Identification of an Owner Be a Protection?” (2022).
• Swetu, Mrisho, “The Position of Electronic and Postal Communication (Online Content) Regulations in Protecting Freedom of Expression in Tanzania” (October 2022).
• Post, Robert, “The Unfortunate Consequences of a Misguided Free Speech Principle” (October 2022).
• Major, Blair, “Religious Proselytization in Canadian Law: The Residue in the Periphery” (2020), 98 Supreme Court Law Review 213.

Next week in the courts

On 7 November 2022, Johnson J will hand down judgement in the case of Chief Constable of British Transport Police v AB (QA-2022-MAN-000003).

On 7 November 2022 there will be the trial in the case of Ware v French (QB-2020-002233) before Julian Knowles J.

[Update]

On 8 November 2022 there will be a hearing in the case of Smith -v- Backhouse (QB-2021-004686).

On 9 November 2022 there will be hearings in the cases of Sharif -v- Associated Newspapers Limited (QB-2020-000336) and LCG and others v OVD and others (QB-2022-000921).

On 10 November 2022 there will be a hearing  in the case of MBR Acres Ltd -v- Curtin (QB-2021-003094).

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