On 6 December 2022, in the preliminary hearing for the Duke of Sussex’s libel claim against The Mail on Sunday publisher Associated Newspapers Ltd (ANL), the High Court was told that the claim will be temporarily paused to see if a settlement can be reached.
The Duke of Sussex is suing ANL over an article about his separate judicial review proceedings against the Home Office regarding security arrangements for himself and his family when they are in the UK. The Press Gazette, Independent and Reuters report.
Former BBC director general Tony Hall has said it is “simply untrue” that the BBC interview in which Harry and Meghan announced their engagement in 2017 was “rehearsed”. It is a one of a number of disputed claims made about the UK media in the first three episodes of Netflix’s Harry and Meghan documentary. The Press Gazette and Daily Mail report.
Internet and Social Media
Sir Elton John has become the latest celebrity to leave Twitter since its acquisition by Elon Musk. The singer blamed the platform’s “change in policy” around misinformation without elaborating.
The LSE Media Blog has an article on the EdTech industry, and the growing dependence of primary and secondary education on digital technologies that has led to increased cybercrime in UK schools. EdTech businesses work in a fast-paced, relatively unregulated environment and their cybersecurity measures remain largely unknown. This article focuses on the state of cybersecurity in education, mapping the challenges and identifying the needs for safety and security in education.
On 6 December 2022, the European Data Protection Board (EDPB) approved three decisions in proceedings following three complaints made against Facebook, Instagram, and WhatsApp concerning their use of targeted ads, which could signal the end of Meta’s targeted ads model. For many years, Meta has relied on contractual necessity (Article 6(1)(b) of the GDPR) as a legal basis for the processing of its users’ personal data in order to present personalised ads to them on the company’s platforms, such as Facebook or Instagram. However, according to the three decisions, which have not yet been communicated to the public, Meta will have to stop relying on its terms of service as a justification for the use of targeted ads on its platforms. DLA Piper has more information here. The Wall Street Journal also reports on the leaked decisions.
Last week, Twitter users reported certain privacy settings were not working on the platform’s iOS application. Some users said a pop-up appears stating “Some settings failed to save” when toggling direct message privacy settings. The privacy features still work online. TechCrunch has more information here.
Data Privacy and Data Protection
The UK government has published its plans to amend the Network and Information Systems Regulations 2018. The reforms will lead to many more IT companies falling within the scope of the Regulations as ‘Digital Service Providers’ and will expand incident reporting obligations. A two-tiered regime for Digital Service Providers, the details of which are not fully clear, will also be introduced. The changes have been announced just as the EU has approved implementation of the Network and Information Security Directive 2. DLA Piper has more information here.
Documents obtained by Big Brother Watch following a Freedom of Information request reveal that the Metropolitan Police unlawfully spied on children as young as 10 taking part in a climate strike protest in London. The Met were rebuked by the information commissioner’s office (ICO) for video surveillance of the March 2019 protest, which was attended by up to 10,000 children and young people, the Guardian reports.
Newspapers Journalism and Regulation
On 5 December 2022, the Press Gazette published an article arguing that the improvement seen in press behaviour since the Leveson Inquiry is not the system of press regulation that Leveson inspired, but rather the threat of criminal sanction. The next day, IPSO chief executive Charlotte Dewar responded with her explanation as to why press standards have improved post Leveson.
On 6 December 2022, Labour MP Chris Bryant gave the Hacked Off annual “Leveson Lecture”. He said news coverage of Prince Harry and Meghan Markle “knowingly monetises hatred.” He cited coverage of the Duke and Duchess of Sussex as an example of the way social media platforms had encouraged “the marketing of hatred” by the media, and argued for a range of legal changes including enforcing greater transparency around content recommendations. The Press Gazette has more information here.
Hacked Off has published its response to The Spectator’s article criticising Labour’s position on press regulation post-Leveson, headlined “Labour’s disturbing attitude to press freedom”. Hacked Off reminds readers that the Leveson system is not “state approved”. It is independently approved. It also corrects The Spectator’s interpretation of Section 40 of the Crime and Courts Act, dubbed an “anti-SLAPP” measure; Section 40 would protect newspapers from vexatious lawsuits, while guaranteeing access to justice for the public. It would do this by incentivising both defendant and claimant to use the cheap arbitration system, instead of the courts, of an independent regulator.
There were no new rulings published by IPSO in the last week.
Statements in Open Court and Apologies
The MailOnline and the Mail on Sunday have apologised to the Prime Minister of Pakistan, Shahbaz Sharif, over false and very seriously defamatory allegations published in articles on 14 July 2019 under the headline ‘Did the family of Pakistani politician who has become the poster boy for British overseas aid STEAL funds meant for earthquake victims.” Dawn News, Geo News, Daily Times and Carter Ruck report.
New Issued Cases
There were two new cases issued in the Media and Communications List last week, both claims for misuse of private information.
Last Week in the Courts
On Monday 5 December 2022, Griffiths J heard the trial in the defamation case of ABC v Palmer (QB-2021-001857). Judgment was handed down on 7 December 2022 ( EWHC 3128 (KB)). The claim was dismissed.
As mentioned above, on 6 December 2022 a preliminary hearing was heard in the Duke of Sussex’s libel claim against Associated Newspapers Ltd.
On Wednesday 7 December 2022, there was a hearing in the case of Schlumberger v Gibbs and another (QB-2019-004261).
On the same day, judgment was handed down in Dixon v North Bristol NHS Trust  EWHC 3127 (KB) by Nicklin J. The judgment deals with the Claimant’s application for an interim injunction to restrain the Defendant from providing two documents to a limited category of persons. The Claimant alleges that the Proposed Disclosure would be (a) a breach of contract; (b) a breach of confidence and/or misuse of private information; and (c) a breach of the Claimant’s data protection rights under GDPR and Data Protection Act 2018. Held, injunction refused. The claimant failed to show that he was likely to demonstrate that the proposed disclosure should not be allowed on any of the legal bases advanced. The claimant fell short of the threshold imposed by s.12(3) Human Rights Act 1998, that the court must be satisfied that the applicant is likely to establish that publication should not be allowed.
On Thursday 8 December 2022, there were hearings in the cases of Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point (SEBDO) & anr (QB-2019-002482) and O’Connor v Ministry of Justice and another (QB-2021-004474).
On Friday 9 December 2022 there will be a hearing in the case of Mincione v GEDI Gruppo Editoriale S.p.A. (QB-2020-004499).
Media Law in Other Jurisdictions
The Australian Attorneys-General have agreed in principle on NSW-led reforms to the defamation liability of internet intermediaries for third party content. This includes a new innocent dissemination defence subject to a simple complaints process. Read the press statement here. The Sydney Morning Herald reports here.
The European Commission is set to publish its draft adequacy decision for EU-US data flows as early as 12 December 2022. The draft decision represents approval of US commitments under the proposed EU-US Data Privacy Framework concerning intelligence agencies’ access to EU personal data, Politico Pro reports.
The European Union’s General Court has ruled against a request by WhatsApp Ireland to annul a binding decision by the European Data Protection Board that led to a $267 million EU General Data Protection Regulation fine, TechCrunch reports.
On Monday 5 December 2022, judgment was handed down in the High Court of Ireland in Moore v Harris & Anor; Morris v Harris & Anor (Approved)  IEHC 677. The judgment concerned applications by each of the plaintiffs in their respective proceedings for “Norwich Pharmacal” type orders against both defendants, seeking disclosure of the identity of, or information in connection with, Twitter accounts which the plaintiffs allege have defamed them. Held, balance of justice requires the disclosure of the identity of the alleged wrongdoers, and outweighs any requirements of privacy of alleged wrongdoers who seek to avail of anonymity . There was no evidential basis on which to order disclosure in relation to “retweets” from any of the named accounts.
Research and Resources
- Johnson, Garrett, Economic Research on Privacy Regulation: Lessons from the Gdpr and Beyond (2022), NBER Working Paper No. w30705
- Agrawal, Chelcie, Censorship of Over The Top Platforms in India: A Comparative Study of India and Singapore (2022), University of Petroleum & Energy Studies
- Fernando, Jayantha and Wickramasinghe, Sanduni and Wickramasinghe, Sanduni, Sri Lanka Personal Data Protection Legislation – An Overview (2022), Queen Mary, University of London
- Slane, Andrea, Privacy Protective Roadblocks and Speedbumps Restraining Law Enforcement Use of Facial Recognition Software in Canada, (2021) 69 Criminal Law Quarterly
- De Minico, Giovanna, The Challenge of the Virtual World for Independent Authorities (2022), European Public Law, Forthcoming
- Langenbucher, Katja C., Consumer Credit in The Age of AI – Beyond Anti-Discrimination Law (2022), SAFE Working Paper No. 369
- Tan, Teck Yong, Online Privacy, Search History and Outside Option (2022), University of Nebraska at Lincoln – Department of Economics
Next Week in the Courts
On Monday 12 to Thursday 15 December 2022 Julian Knowles J will hear the trial in the case of Aaronson (aka “Dominic Ford”) v Stones (aka “Mickey Taylor”) (QB-2021-001538).
On 13 December 2022 Saini J will hear argument in the case of Smith v Talk Talk Telecom (QB-2020-003019).
On the same day there will be a statement in open court in the case of Sooka v Palihadwadana (QB-2021-002171) before Chamberlain 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).