Following the arrest of three journalists covering Just Stop Oil protests last week, Hertfordshire Police Chief, Constable Charlie Hall, introduced new measures to protect legitimate media reporting and commissioned an independent review of the arrests.

However, during a Police and Crime panel, Commissioner David Lloyd stated that officers were right to question the journalists as to how they knew where the demonstration was being held, the BBC reports. The College of Policing and IPSO reiterated the “moral obligation” journalists have to protect confidential sources. The Press Gazette covered the fallout from the arrests.

Following the arrests, a number of prominent free speech groups, including Liberty, Big Brother Watch and Amnesty International UK called on the government to rethink the Public Order bill, which is currently being debated in the House of Lords. The bill would introduce new powers to deal with serious disruption caused by protesters, including allowing the Secretary of State to bring civil proceedings against campaigners. The free speech groups also requested a review of the new public nuisance offence, which was formalized by the Police, Crime, Sentencing and Courts Act 2022, arguing that its scope is too broad and restrictive.

The National Security Bill was read for the first time in the House of Lords. The bill proposes to introduce new provisions to deal with threats to national security from espionage, sabotage and persons acting for foreign powers. The bill has been met with criticism by journalists, campaign groups and cross-party MPs, who argue that it will have a harmful effect on investigative reporters who may be jailed for publishing public interest information disclosed by whistleblowers. The Press Gazette covers the opposition.

The ECtHR handed down judgement in Marcinkevicius v Lithuania (Application no. 24919/20) on 15 November 2022. The Lithuanian courts held that Mr Marcinkevicius’s allegation—that one of the largest retail companies in the region of which the Applicant was a founder and shareholder, had avoided paying taxes—was false and defamatory and ordered him to retract it. The Applicant submitted that the statement complained of was a value judgement and the order to retract it was a violation of his Article 10 ECHR rights. The ECtHR stated that “questions of taxation, including allegations of large-scale tax evasion, concern a matter of public interest” [76] and reiterate the importance of reading statements contextually [85]. The court agreed that Article 10 of the ECHR had been violated which, in itself, was sufficient to give rise to non-pecuniary damages sustained by the applicant. Lithuania was ordered to pay €15,000 to the Applicant.

Internet and Social Media

After Elon Musk told workers at Twitter to prepare for “long hours at high intensity”, staff members have been leaving in droves, Reuters reports. This development follows the new CEO’s decision to fire half of the company’s estimated 3,000 employees including top management. NBC, Bloomberg and The Verge have covered the developments. Mishcon de Reya published a blog highlighting how the rapid changes at Twitter raise concerns about online safety.

Donald Trump has had his twitter account reinstated by Elon Musk, following a poll in which users narrowly voted to return the former president to the social media site. Over 15 million votes were cast returning 51.8% of ‘yes’ votes for his reinstatement. The Guardian, the Telegraph, the BBC and the Financial Times covered the poll. Trump was permanently suspended from Twitter on 8 January 2021 “due to the risk of further incitement of violence” amidst the US capitol riots. However, according to Reuters, Trump has little interest in returning to Twitter, responding “I don’t see any reason for it.”

Data privacy and data protection

The Irish Times reports that the Irish Council for Civil Liberties has said that Facebook parent Meta cannot comply with new EU data laws.

IAPP reports that Italy’s data protection authority, the Garante, has announced an investigation into the legality of some online newspapers that condition user access to agreeing to web tracking or payment

Surveillance

The Guardian has published an interview with Gus Hosein, director of Privacy International, in which he addresses the question, ‘just how advanced is camera surveillance technology and is it possible to avoid it?’.

Members of civil society who are attending Cop27 have told the Guardian that the Egyptian authorities have threatened their participation in climate conference. Attendees have reported that staff members, ostensibly employed to facilitate security, cleaning and technical matters at the event, have been actively surveilling activists. One member anonymously said, ““Unlike other Cops, everyone seems to feel afraid due to this surveillance. There’s less activity, you don’t feel the spirit of the event, a push for climate activism and against the big polluters.”

Newspaper Journalism and regulation

The London-based news outlet, Iran International Television (IITV) had planned to send seven journalists to cover the Qatar World Cup before their visas were allegedly revoked. IITV, which is critical of the Iranian government, was designated a “terrorist” organization by the country. The journalists allege that Iran pressured Qatar to revoke their visas, however a Qatari government spokesperson denied that the reporters had ever received accreditation or visa from FIFA or Qatar—despite evidence to the contrary.  The Press Gazette asked the Qatari government press office to comment on the discrepancy after seeing the journalists’ FIFA accreditations, but are yet to receive a reply.

IPSO

Statements in open court and apologies

Channel 5 has apologized to Ms Amel Fridhi in open court for her appearance in the TV show, ‘Can’t Pay? We’ll Take it Away!’ Ms Fridhi claimed that the use of bodycams and microphones by High Court Enforcement Agents whilst she was evicted from her home, and subsequent broadcast of this footage by Channel 5 was a misuse of her private information. The show aired with Ms Fridhi’s face unobscured to 7.9 million viewers, and with her face blurred to a further 6.3 million people. Channel 5 settled the claim, paying the claimant substantial damages and costs, apologising in open court and undertaking not to broadcast the programme again. 5RB provide more information.

The Daily Mail has settled a defamation claim brought by a former girlfriend of Prince Andrew, Koo Stark. The newspaper wrongly characterized Ms Stark’s role in a 1976 film as pornographic. In addition to the open statement in court, the newspaper published an apology, accepting that there was no truth in the allegations, and paid the claimant substantial damages. The Press Gazette and the Guardian covered the case.

New Issued cases

There was one new case issued in the Media and Communications List this week, a data protection claim.

Last week in the courts

On 16 November 2022, the long awaited judgement in the case of Riley v Sivier [2022] EWHC 2891 was handed down by Steyn J. Countdown presenter, Rachel Riley was the subject of an article by blogger, Mike Sivier who accused her of embarking upon an online campaign of abuse and harassment of a 16-year-old girl, Rose. The Twitter exchange between Riley and Rose is available here. In January 2021, Justice Collins Rice struck out the defendant’s three defences of public interest, truth and honest opinion [4]. However, upon appeal, the Court of Appeal held that the public interest defence should be assessed at trial.

Steyn J held that serious harm was established due to the gravity of the libel and the extent of publication to around 50,000 people [125]. Sivier’s public interest defence failed as his failure to undertake reasonable enquiries rendered his belief that publication was in the public interest unreasonable [62-63]. Riley was awarded damages of £50,000 and a permanent injunction, requiring Mr Sivier to remove and not repeat the article. 5RB summarized the judgement and the Press Gazette covered the case.

On 18 November 2022, judgement was handed down in the controversial case of Sivananthan v Vasikaran [2022] EWHC 2938 (KB) by Collins Rice J. The claimant and defendant are both prominent members of the Tamil community and members of the British Tamil Conservatives. The pair’s relationship became increasingly fraught over a period of year as the defendant felt that the claimant was putting his own interests before those of the Tamil community. The statements complained of were a series of Whatsapp messages sent by Mr Vasikaran to a group of influential Tamil political activists. Justice Collins Rice held that Dr Sivananthan failed to discharge his burden under section 1 of the Defamation Act 2013 to establish that the words complained of caused serious harm to his reputation. The claimant relied on a wholly inferential case where the words complained of were published to a small group of individuals [53-54]. The judge made clear that although an inferential case is possible, there must still be “sufficient evidence of actual reputational impact” [90]. The words complained of were therefore found not to be defamatory and judgement was given for the defendant.

On 16 November 2022, Poole J handed down judgement in X (re catastrophic injury: collection and storage of sperm) [2022] EWCOP 48, following an urgent application in the Court of Protection heard out of hours. V and Y sought a declaration that it would be lawful for a doctor to retrieve the sperm of their son (“X”), who was in intensive care with no prospect of recovery, for storage purposes, with a view to using it for conception in future. In accordance with s1(5) of the Mental Capacity Act 2005, Poole J considered whether the act would be in X’s best interests and whether it would meet the requirements for consent under schedule 3 to the Human Fertilisation and Embryology Act 1990.  Poole J stated that “the process of collecting sperm from an unconscious individual is an invasion of privacy” and the decision to become a parent engages one’s Article 8 ECHR rights [30]. Given the absence of evidence that X would have wanted the operation to take place, the court dismissed the application.

Events

The Electronic Frontier Foundation (EFF) is hosting a virtual talk on “Contemporary First Amendment Politics” at the California State University. Veridiana Alimonti, Associate Director for Latin American Policy at EFF will be offering a Latin American perspective on the balance to be struck between free expression and privacy. Register here.

 Media law in other jurisdictions

Australia

Data Security experts have described a decision by the Victorian government to send contact tracing data to the Australian Criminal Intelligence Commission (ACIC) in July 2020 as “dubious” and “outrageous”, the Guardian reports. The government had hoped that a controversial data mining platform, Palantir, would identify the source of mystery cases. An ACIC spokesperson confirmed that the data met all legal requirements, but digital security expert, Dr Suelette Dreyfus raised concerns that “we’ve received no assurances that any derivative analyses or databases have been destroyed”.

On 15 November 2022, judgement was handed down in DMP v Sydney Local Health District [2022] NSWCATAP 357. The Applicant, a third-year medical student due to start work at a hospital in the Sydney Local Health District, sought to have his medical records deleted after he was able to access them during a training session. Five months later, his patient record was eventually deactivated. Thereafter, the Applicant made three applications to the New South Wales Civil and Administrative Tribunal (NCAT) seeking to review the hospital’s conduct in respsect of the Health Privacy Principles, however the Tribunal made orders not to take action on those applications. The claimant appealed those three decisions. The judge addressed several matters of law and held that the delay in providing reasons did not affect the quality of the NCAT’s decision [60]; the tribunal dealt with the Applicant’s written submissions adequately [77]; there was no denial of procedural fairness [84]; and the tribunal did not review conduct by the hospital which was beyond its jurisdiction [91]. The court did therefore not grant leave to appeal and the appeal was dismissed.

Canada

On 17 November 2022, a claim was struck out as an abuse of the Court and the Defendants in Mennes v Alberta 2022 ABKB 763. The plaintiff, Ms Mennes, claimed that the process by which the Alberta Teacher’s Association undertook disciplinary proceedings against her was illegal, false, corrupt, defamatory and criminal. The plaintiff sought $10 million in damages for, amongst other harms, loss of reputation and loss of enjoyment of life. Ms Mennes failed to address the fatal defects of her claim as reported in Mennes v Alberta, 2022 ABKB 666 [Mennes #1]. The statement of claim was therefore struck out for inadequate pleadings, collateral attack, failure to establish tort liability, busybody litigation and impossible remedies. Ms Mennes was ordered to pay $5,000 in costs.

India

On 18 November 2022, the redrafted Digital Personal Data Protection Bill was published, three months after the Indian government withdrew the initial draft. The legislation sets out the rights and duties of ‘digitial nagriks’ (digital citizens) as well as the regulations that companies must follow. The bill proposes to introduce hefty penalties for non-compliance governed by the Data Protection Board of India. However the board’s remit has been watered down since the initial draft and government agencies are excused from the most taxing compliance requirements. The Indian Express lays out the seven principles underpinning the bill here and explains how it measures up to other jurisdictions here. The government will accept public consultations until 17 December 2022.

Ireland

Following the resignation of Twitter’s chief privacy officer and a swathe of firings, the company has been summoned to meet with the EU data protection watchdog next week, Bloomberg reports. Ireland’s Data Protection Commission (DPC) leads oversight of Twitter under the EU’s GDPR.

Irish businessman, Ronnie Delany has filed a claim for damages for defamation and conspiracy in respect of letters published to individuals in Ireland by senior members of the Qatari royal family and several companies that own luxury hotels. In a hearing on 13 November 2022, counsel for the defendants indicated that they may bring a motion submitting that the Irish courts are the wrong jurisdiction in which to assess Delaney’s claim. Mr Justice O’Moore schedule an exchange of documents between the parties and adjourned the court until December. More information can be found in this Irish Times article.

Italy

On 15 November 2022, the first hearing in a defamation trial brought by Italy’s Prime Minister, Giorgia Meloni against journalist and political commentator, Roberto Saviano took place. At a time when Meloni was still leader of the Brother of Italy opposition, Saviano criticized the now PM’s hardline anti-immigrant stance, during an appearance on a current affairs show in December 2020. The trial is regarded as a test case for the use of defamation claims in stifling free speech. The Deadline provides coverage.

United States

A Los Angeles court has dismissed a defamation claim filed by producer, Chris Nelson against musician, Phoebe Bridgers under California’s “anti-Slapp” law. The Judge accepted the submissions of the defendant’s lawyers that the $3.8 million lawsuit sought to “chill Ms Bridger’s allegations of abusive conduct.” This is the second claim by Nelson this year to be dismissed in respect of the first amendment. The Guardian covers the case.

Research and Resources

Next week in the courts

On 24 November 2022, there will be a hearing in the case of Piepenbrock -v- LSE and Others (QB-2021-003782).

On 25 November 2022, there will be a hearing in the case of Ismaik -v- Fadaat Media Limited (QB-2022-002298).

Reserved judgments

Ware v French, heard 7 November 2022 (Julian Knowles 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