The Chief Constable of Hertfordshire has promised an investigation into the arrests of journalists covering climate protests, amid accusations the force was threatening press freedom and an intervention by Downing Street.
A total of eight journalists are thought to have been arrested covering actions by Just Stop Oil, three in Hertfordshire during this last round of protests. The Press Gazette, Evening Standard, Independent, and BBC cover the latest arrests. The Press Gazette also carries a warning from Justice, the law reform organisation, that the arrest of journalists “might become commonplace” should the forthcoming Public Order Bill pass into law.
The arrest of journalists covering climate action protests is also discussed in the latest Media Law Podcast: Newscast, which develops the analysis of the freedom of expression rights of the protestors, as well as the press.
Internet and Social Media
Senior members of Twitter’s privacy and security teams have resigned from the company. Twitter Chief Information Security Officer Lea Kissner, Chief Privacy Officer Damien Kieran and Chief Compliance Officer Marianne Fogarty reportedly tendered their resignations on 9 November 2022. Kissner also announced their departure via Twitter post. A US Federal Trade Commission spokesperson said the agency is monitoring the situation and that its prior consent order with the platform “gives us new tools to ensure (regulatory) compliance, and we are prepared to use them.” TechCrunch has more information here.
The governments of Canada, Singapore and the UK jointly announced commitments to increased cybersecurity measures for internet of things devices.
Art, Music and Copyright
Manchester Mayor Andy Burnham has called the City Council’s decision not to lift the Noise Abatement Notice issued to the Night and Day Café music venue an “embarrassment.” The venue, which has hosted the likes of the Arctic Monkeys and Ed Sheeran, was issued with the order after complaints of noise going on late into the night from residents in recently built nearby flats. The venue has a 4am licence. Night and Day is appealing the notice. A three-day hearing is scheduled for the end of this month. The Manchester Evening News has more information here.
IPKat has produced a book review of Intellectual Property Protection for AI-Generated Creations: Europe, United States, Australia and Japan, by Ana Ramalho, Copyright Counsel at Google, and a Guest Lecturer at Leiden University. The book asks whether AI-generated creations are protectable, via either copyright or patent.
The same blog also covers the recent decision of Juventus F.C. (No 32072/2022) in the Rome Court of First Instance, which was asked whether the unauthorized production (minting), advertising, and offer for sale of a non-fungible token (NFT) infringe one’s own trade mark rights. The Court found that it could.
Data Privacy and Data Protection
The HalkTalk blog has an article criticising Michelle Donelan’s conference speech following her return to DCMS as Secretary of State, in which she claimed that the “bureaucratic nature” of the GDPR Britain “inherited from the EU” is “still limiting the potential of our businesses,” causing them to lose over 8% of their profits. The blog makes two comments in response:
- “Wow!! Over 8% of profits! How much did that cost the economy? Donelan failed to give the number; this blog does.
- Donelan has ditched the previous Secretary of State’s inflated claims that the DPDI Bill saved over £1 billion.”
DLA Piper has an article on the Information Commissioner’s Office (ICO) recommendations on lawful methods of using personal information and artificial intelligence.
The ICO has reprimanded the Department for Education over the misuse of personal data belonging to 28 million children. An ICO investigation found a database of children’s records was used by gambling companies. Commissioner John Edwards said he did not issue a warranted £10 million fine “as any money paid in fines is returned to government, and so the impact would have been minimal.”
The ICO has also announced a public consultation on how the regulator prioritizes freedom of information complaints.
Members of European Parliament have criticised the UK’s plans to overhaul its data protection laws and risk the EU-UK adequacy. A recent meeting between MEPs and UK officials left EU representatives sceptical of the direction of proposed UK GDPR reform, described as being “all about growth and innovation and nothing about human rights,” Politico reports.
The privacy advocacy group Big Brother Watch has lodged a complaint with the ICO over the facial recognition image database PimEyes. PimEyes reportedly allows users to search for facial images on the internet. Big Brother Watch said in its complaint to the ICO that PimEyes enabled “surveillance and stalking on a scale previously unimaginable.” PimEyes CEO Giorgi Gobronidze said the database did not pose as many stalking risks as social media services. The BBC has more information here.
Newspapers Journalism and Regulation
The Canary was forced to accept that it had breached its standards more times than any of the 200 other publishers in Impress’ network last year, according to the regulator’s 2021 annual report. The Press Gazette has more information here.
There were no new rulings from IPSO in the last week.
New Issued Cases
There was one defamation (libel and slander) claim filed on the media and communications list last week.
Last Week in the Courts
On 7 November 2022, judgment was handed down in the case of AB v Chief Constable of British Transport Police  EWHC 2749 (KB) by Mr Justice Johnson. The appeal was against a finding by His Honour Judge Sephton KC that the retention of police records of a complaint of inappropriate touching by AB amounted to a breach of Article 8 ECHR. The reports were not an accurate account of what had happened. The police were ordered to delete the records. AB was awarded damages totalling £36,000 . One of the issues raised by the appeal concerns the approach that a judge should take when deciding if police crime reports are accurate within the meaning of data protection legislation. The appellant’s submission that the judge was wrong to make a finding of fact was rejected ; This was a private law claim for damages. AB’s case was that the police records were inaccurate, and their retention was a disproportionate interference with his article 8 rights. The issues for the judge to resolve included whether the police records are accurate and whether their retention is a disproportionate interference with AB’s right to respect for private life. It was necessary for the judge to make findings of fact to resolve the issues that were before him. This was done via the usual exchange of witness statements, with witnesses called and cross-examined. The judge needed to make findings of fact to decide whether the police records are accurate. Furthermore, the judge needed to establish the basic facts in order to assess the question of proportionality .
Nonetheless, the police records in this case were intended to reflect the information that was provided to the police, rather than the underlying facts as to what happened. On this issue, the High Court reached a different conclusion from the Judge at first instance, with the result that the Occurrence Summary Reports (OSRs) were held to be accurate. To this narrow extent, the appeal succeeded .
On the same day, the libel trial of Ware v French was vacated after the Press Gang editor Paddy French withdrew his defence. The Panomara journalist John Ware is seeking additional damages following the last-minute withdrawal and applying for an injunction to prevent French from repeating any of the defamatory allegations complained of. Mr Justice Saini found the article carried the meaning that Ware was a “rogue journalist who had engaged in dirty tricks aimed at harming the Labour Party’s chances of winning the General Election by authoring and presenting an edition of Panorama in which he presented a biased and knowingly false presentation of the extent and nature of anti-Semitism within the party, deliberately ignoring contrary evidence”. The Press Gazette has more information here.
On 8 November 2022 there was a hearing in the case of Smith v Backhouse. Nicklin J refused to accept certain undertakings offered by the defendant in a harassment case but gave the claimant permission to appeal.
On 9 November 2022 there were hearings in the cases of Sharif v Associated Newspapers Limited and LCG and others v OVD and others.
On 10 November 2022 there was a hearing in the case of MBR Acres Ltd v Curtin.
Media Law in Other Jurisdictions
Mick Gatto’s defamation claim against ABC has come to an end with the High Court declining to hear the case, finding it to have little prospect of success. The claim related to an article published by the national broadcaster, which Gatto alleged implied he was a hitman and murderer. The Guardian has more information here.
On 10 November 2022, judgment was handed down in Mulholland & Anor v Langdon  VCC 1848. Two local election candidates were awarded $55,000 aggravated damages and $25,000 aggravated damages respectively against another candidate arising from defamatory leaflet.
On 9 November 2022, the appeal in Bangash v Patel, 2022 ONCA 763 (CanLII) was dismissed. The appeal related to an anti-SLAPP motion that had been granted to the respondent pursuant to s.137 of the Courts and Justice Act RSO 1990. The first two of the grounds of appeal were dismissed, namely (i) that the motion judge had erred in determining that there were no grounds to believe that the claim had substantial merit; (ii) that the motion judge erred in his weighing exercise. As a result, there was no need to address the appellant’s third ground relating to the “no valid defence” prong of the test under s. 137.1(4).
The Michael Geist blog has an article on why the Online News Act (Bill C-18) undermines an independent press even as it purports to protect it.
On 13 November 2022, judgment was handed down in favour of the claimant in the trespass and defamation claim of Sauck v Carr 2022 BCSC 1949. Mr Carr was ordered to pay Mr Sauck a total of $253,500.
France’s data protection authority CNIL has become the latest European regulator to warn World Cup attendees to use a “burner phone” in Qatar. Concern arises over the two mobile tracking applications — a COVID-19 tracking app and the official mobile app of the World Cup —developed by Qatar, both of which researchers believe contain spyware. Politico has more information here.
The Evan Law blog has an article on Yuksel v Twitter 2022 WL 16748612 N.D. California, delivered on 7 November 2022. The issues for the court was to determine were whether, by terminating claimant’s account, Twitter had (1) breached its contract with claimant, and (2) violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Twitter moved to dismiss the breach of contract and RICO claims. The court granted the motion because Section 230 barred the claims and because the claimant failed to plausibly allege the claims.
Research and Resources
- Aufderheide, Patricia and Sinnreich, Aram, The Copyright Claims Board: Good News or Bad News for Communication Scholars? (2022), International Journal of Communication
- Bayer, Judit, Procedural Rights as Safeguard for Human Rights in Platform Regulation (2022) Policy & Internet
- Gilman, Michele E., Beyond Window Dressing: Public Participation for Marginalized Communities in the Datafied Society (2022), Fordham Law Review, Vol. 91
- Kevins, Jerameel and Brian, Kibet, Defining Data Protection in Kenya: Challenges, Perspectives and Opportunities (2022), University of Nairobi, School of Law
- Stuart, Allyson Haynes, Privacy in Discovery After Dobbs (2022), Virginia Journal of Law and Technology, Forthcoming
- Jarecki, John, Privacy in the Panopticon: The Fourth Amendment Case Against Perpetual Surveillance (2022), Vol. 48. No 1. University of Dayton Law Review 2022
Next Week in the Courts
On 14 November 2022 Collins Rice J will hear an application in the case of Parsons v Garnett (QB-2022-000547).
On 15 November 2022, there will be a statement in open court in the case of Fridhi -v- Channel 5 Broadcasting Limited (QB-2022-001713) before Collins Rice J.
On the same day Heather Williams J will hear an application in the case of Soriano -v- Silverstein (QB-2021-004262)
On 16 November 2022 there will be hearings in the cases of Frati -v- Bowen-Carter (QB-2021-002600) and Versi -v- Husain (QB-2021-004234).
On 17 November 2022 there will be hearings in the cases of Pendragon plc -v- Persons Unknown (KB-2022-003537), Stark v Associated Newspapers Limited and another (QB-2021-004098) and Smith -v- Surridge and others (QB-2022-000858) Jackson -v- Surridge and other (QB-2022-000862).
Ware v French, heard 7 November 2022 (Julian Knowles J)
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 Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).