The review conducted by Cambridgeshire Constabulary has found that the arrest of four journalists covering Just Stop Oil protests by Hertfordshire Police earlier this month may have constituted “unlawful interference” in their freedom of expression.
The review found that there were failures to adequately plan for the likely presence of media at the protests, and that officers were directed to carry out arrests by commanders without adequate rationale. The Press Gazette, Guardian, NUJ, BBC and HertsLive cover the review.
Minister for Security Tom Tugendhat has refused to accept an amendment to the Economic Crime Bill that would have given judges the power to dismiss legal cases brought against journalists if they found such cases to be strategic lawsuits against public participation (SLAPPS). Tugendhat said the problem was more of an issue for the Ministry of Justice, and that the issue was better addressed via an inclusive piece of “anti-SLAPPS legislation.”
Liam Byrne, the Labour MP for Birmingham Hodge Hill told parliament that England and Wales has “become a global centre for lawfare against people who are being so courageous and so brave in trying to bring crime to the public attention,” the Guardian reports. Byrne cited Roman Abramovich’s claim against journalist Catherine Belton over her book Putin’s People and the Kazakh mining firm ENRC suing the FT journalist Tom Burgis over his book about “dirty money” as recent examples of so-called SLAPPS. Mr Burgis won his case, which has led some legal commentators to argue that a new and specific anti-SLAPP law is unnecessary.
Internet and Social Media
The Clean Up the Internet blog has published an article that asks what Elon Musk’s “Blue Tick” experiments mean for the UK’s Online Safety Bill (OSB). The article summarises the main developments to date, and shares some first reflections on potential lessons for the OSB.
With the promise that the OSB will return to the Commons next month, the Cyberleagle blog has published a refresher article summarising what is known about the Bill so far. The piece contains some random assertions “dreamed up to tease out lesser-known features.” Click on the expandable text to find out what is true, false, half true or indeterminate.
The LSE Media Blog has a piece on the General Comment on children’s rights in relation to the digital environment, adopted by UN Committee on the Rights of the Child in early 2021. The article discusses the significance of the General Comment, and the challenges and opportunities involved with implementing it.
A claim has been filed by technology and human rights activist Tanya O’Carroll in the High Court that accuses Facebook of “surveillance advertising” and calls on the company to stop the practice. O’Carroll alleges that Facebook “violates general data protection regulations by processing and profiling her personal data that’s then tailored for the advertisements.” The MediaPost has more information here.
Meta has introduced new privacy updates for teens on Instagram and Facebook, including default privacy settings for Facebook users under 16 or 18 depending on their country of residence. Current teen users will be encouraged to select more private settings. The company is also working with the National Centre for Missing and Exploited Children to build a global platform intended to prevent teens’ intimate images from being shared online without consent, TechCrunch reports.
Art, Music and Copyright
A new Netflix series The Playlist tells the story of Spotify founder Daniel Ek, and his mission to undermine music piracy by creating a better streaming alternative. Prompted by this new series, IPKat has an article that sets out the legal background in which well-known platforms like The Pirate Bay operated and their impact on music piracy and the industry as a whole. “I realised that you can never legislate away from piracy Laws can definitely help, but it doesn’t take away the problem. The only way to solve the problem was to create a service that was better than piracy and at the same time compensates the music industry” – Eck.
Data Privacy and Data Protection
The Department for Digital, Culture, Media and Sport has announced the finalisation of the UK’s adequacy decision with South Korea. It is the first adequacy decision reached by the UK since departing the EU. The DCMS said the decision and its “new freedoms” will benefit “many small and medium sized businesses who may have avoided international data transfers to Korea due to these burdens.” The decision and subsequent legislation is expected to take force on 19 December 2022.
On 24 November 2022, Cabinet Office minister Oliver Dowden instructed central government departments to stop installing Chinese-made surveillance systems on “sensitive sites”, citing security risks. The ban covers visual surveillance equipment “produced by companies subject to the National Intelligence Law of the People’s Republic of China.’ The Financial Times and CNN have more information.
- 10070-22 Warner, Eddleston & Eddleston v mirror.co.uk, 4 Intrusion into grief or shock (2021), 2 Privacy (2021), 3 Harassment (2021), No breach – after investigation
- 10067-22 Warner, Eddleston & Eddleston v Mail Online, 4 Intrusion into grief or shock (2021), 2 Privacy (2021), 3 Harassment (2021), No breach – after investigation
- Resolution Statement – 10893-22 Lund v westerntelegraph.co.uk, 1 Accuracy, Resolved – IPSO mediation
- 11145-22 Aithal v expressandstar.com, 1 Accuracy (2021), No breach – after investigation
New Issued Cases
There were two new defamation claims issued in the Media and Communication List last week.
Last Week in the Courts
On 22 November 2022, News UK’s fight against HMRC over years of VAT paid on the digital editions of the Times, Sunday Times and Sun was heard in the Supreme Court. The publisher believes that between September 2010 and December 2016 its e-newspaper editions should have been zero-rated in the same way as print newspapers because their services were “fundamentally the same.” The Press Gazette has more information here.
On 24 November 2022, judgment was entered in default by Collins Rice J in the ransomware case of Pendragon v Person(s) Unknown  EWHC 2985 (KB) [pdf], with a permanent injunction granted to the claimant. The case concerned the defendant(s) unauthorised access to the claimant’s (a UK automotive retailer) IT systems, and the defendant(s)’ subsequent threat to publicise a large number of illegally obtained confidential electronic documents unless a ransom was paid. The 5RB summary can be read here.
On the same day, there was a hearing in the case of Piepenbrock v LSE and Others (QB-2021-003782).
On 25 November 2022, judgment was handed down in favour of the claimant in the defamation claim of Gooderson v Qureshi  EWHC 2977 (KB). The Claim related to twenty-one posts that appeared on Google Reviews, Yell.com, Allagents.com, Tameside Directory and 192.com in the period May – July 2020. The posts purported to review the services provided by the FTBC and Mr Gooderson in very critical terms; and they were made in 13 different names or diminutives of the names. The claimant’s case was that the posts were defamatory and that they were published by the defendant in retaliation to a dispute over the sale of two properties and the claimant’s refusal to refund his £5,000 deposit. The defendant denied that he was responsible for making these posts and counterclaimed for the value of his deposit on the basis of misrepresentation and/or unjust enrichment; the counterclaim was struck out following multiple breaches of court orders. Held, liability has been established in relation to Posts 1 – 20. The defendant was responsible for their publication, they referred to the claimant and they were defamatory at common law and the statutory “serious harm” test is satisfied . Compensatory damages, including aggravated damages, were awarded to the sum of £42,500, along with injunctive relief restraining the defendant from publishing further comments .
On the same day, there was a hearing in the case of Ismaik v Fadaat Media Limited (QB-2022-002298).
On 29 November 2022, 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
On 21 November 2022, judgment was handed down in Wellington v Metcalf  VCC 1759 by Clayton J. The claimant, a local councillor, was awarded $100,000 aggravated damages over defamatory Facebook posts by the defendant ratepayer and unsuccessful council candidate.
The Norton Rose Fulbright blog has an article that attempts to provide insight to businesses attempting to assess the relative risks and regulatory limits with metaverse marketing.
On 21 November 2022, judgment was handed down in Marks v Allen, 2022 BCSC 2024. The allegedly defamatory statements consist of the following: a) Multiple posts by Mr. Allen on the HHS News & Views Facebook group webpage between March 2018–December 2019; b) A letter written by Mr. Allen on November 8, 2018 to a lawyer for HHS in response to a letter sent by the lawyer to Mr. Allen; and c) Two emails sent by Mr. Allen to the HHS Chamber of Commerce in June 2019 and November 2019. Held, the May 2018 post, 25th August 2019 post, and the third of the 10th September, 2019 posts were dismissed. The remaining claims will proceed to trial.
On 23 November 2022, the judgment was handed down in favour of the defendants’ in Indigenous Tourism Association of Canada v Canadian Broadcasting Corporation, 2022 BCSC 2030. The claimants, Indigenous Tourism Association of Canada (ITAC) and its Chief Executive Officer, Keith Henry, brought the claim over an article published on CBC’s news website and a video that aired on CBC’s television programme “The National.” The publications concerned ITAC’s allocation and distribution of COVID-19 stimulus funding to Indigenous tourism operators across Canada. The publications were part of a broader series of investigative reporting by CBC that tracked billions of dollars in federal government spending over the course of the COVID-19 pandemic. CBC and Mr. Barrera application to have the claimants’ claim dismissed under s. 4 of the Protection of Public Participation Act (public interest) was allowed and the defamation action was dismissed.
Scotland is set to pilot a digital identity platform with Disclosure Scotland in early 2023. Disclosure Scotland users will be able to use secure sign-on and online identity verification. According to Scotland’s Policy Lead for Digital Identity, the objective is to make it quicker and easier for people to apply to Scottish public services. Computer Weekly has more information here.
Research and Resources
- Kotani, Junko, Regulation of Sexual Expression in Japan: Criminalisation of Non-Consensual Distribution of Private Sexual Images and Beyond (2022), Australian Journal of Asian Law
- Nwosu, Chiemeka, Should One Accept the Cookies? Exploring the Privacy Concerns in Digital Advertising in Nigeria (2022), Independent
- Orwat, Carsten and Bareis, Jascha and Folberth, Anja and Jahnel, Jutta and Wadephul, Christian, Normative Challenges of Risk Regulation of Artificial Intelligence and Automated Decision-Making (2022), Karlsruhe Institute of Technology – Institute for Technology Assessment and Systems Analysis
Next Week in the Courts
On 28 November 2022, HHJ Lewis will hear an application in the case of Frati v Bowen-Carter.
On the same day Collins Rice J will hand down judgment in the case of Parsons v Garnett (heard 14 November 2022).
On 30 November 2022 Julian Knowles J will hand down judgment in the case of Ware v French (heard 7 November 2022).
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).