The Michaelmas Legal Term ends on Wednesday 21 December 2022. The Hilary Legal Term will begin on Wednesday 11 January 2023. Inforrm will be taking a winter break. Regular posting will resume with a Law and Media Round Up on Monday 9 January 2023.
Reporters Without Borders have published their annual report identifying 533 journalists imprisoned worldwide. This record-breaking figure represents a 13.4% increase since 2021. The top five countries who have detained the most journalists are China (110), Myanmar (62), Iran (47), Vietnam (39) and Belarus (31). A further 57 journalists have been killed, marking a 18.8% rise from 2021.
IPSO has published new guidance for journalists and editors regarding the placement of corrections, clarifications and adjudications in printed media. The Editors Code of Practice, which is enforced by IPSO, states that corrections must be published “with due prominence.” The guidance seeks to clarify what is meant by “due prominence.”
The Human Error Project has published its inaugural report titled “AI Errors? Mapping the Debate on European News Media.” The report examines how the European news media are interpreting debates about algorithmic profiling and AI errors and how they cover controversial data practices and policies.
Internet and Social Media
Within a day, Twitter reversed its controversial decision to ban a number of high-profile journalists who had been reporting about Elon Musk’s takeover of the company. Musk claimed that the journalists had been suspended for revealing his personal information online by tweeting a link to a website which tracked the location of his plane. A UN spokesman voiced concern at the “arbitrary suspension” of journalists’ accounts, EuroNews reports. Vox and the BBC covered Twitter’s U-turn.
A report published by Meta has warned that, despite its attempts to remove a number of firms who scrape users’ Facebook and Instagram profiles, spyware continues to evolve and target people indiscriminately online. Meta stated that the software was regularly used to target “journalists, political opposition and human rights activists around the world.” More information is available from the Guardian and Axios.
Data privacy and data protection
By publishing its draft decision this week, the EU Commission is one step closer to finalizing the EU-US Data Privacy Framework. The draft adequacy decision found that the US provides an adequate level of protection for personal data exchanged in transatlantic data transfers. The framework sets out the obligations that companies and public authorities, including intelligence agencies, must follow when handling data transferred between the US and EU. The EU press release is available here.
Mischcon de Reya has published an article comparing the EU Digital Services Act, which came into force on 16 November 2022, with the UK government’s amended Online Safety Bill. The key differences lie in which online platforms and which types of illegal content are subject to enhanced duties. Both regimes require service providers to have “regard” to their users’ rights to freedom of expression in respect of any safety measures or content moderation.
Privacy International has published a report tracking the negative impacts of surveillance technology and policies used during the COVID 19 pandemic on activist groups and movements. The report identified five overarching trends, including the risk of abuse of personal data, the influential role of private companies and the normalization of surveillance beyond the pandemic.
Newspaper Journalism and regulation
On 13 December 2022, the negotiations between the International and European Federation of Journalists and the Spanish government culminated in the tabling of a bill titled ‘Law on the Protection of Professional Journalistic Secrecy’ in Parliament. The bill guarantees that journalists will not be forced to reveal their sources, or any facts and circumstances that could identify their sources, to courts or government authorities. More information can be found on the International Federation of Journalists’ website.
- 02303-22 A woman v gloucestershirelive, 1 Accuracy (2021), No breach – after investigation
- 09504-22 Hunter v Mail Online, 1 Accuracy (2021), 2 Privacy (2021), 10 Clandestine devices and subterfuge (2021), No breach – after investigation
- 09505-22 Hunter v Daily Mail, 1 Accuracy (2021), 2 Privacy (2021), 10 Clandestine devices and subterfuge (2021), No breach – after investigation
- Resolution Statement – 12008-22 A man v mylondon.news, 1 Accuracy (2021), 2 Privacy (2021), Resolved – IPSO Mediation
- 01193-22 A woman v metro.co.uk, 1 Accuracy (2021), No breach – after investigation
- 09362-22 Whiffin v edinburghlive.co.uk, 3 Harassment (2021), 1 Accuracy (2021), Breach – sanction: publication of correction
- 10492-22 Portes v Sunday Express, 1 Accuracy (2021), Breach – sanction: publication of correction
Statements in open court and apologies
On 13 December 2022, a statement in open court was read before Chamberlain J in the case of Sooka v Palihadwadana (QB-2021-002171). The claimant, Ms Sooka, who serves as the executive Director of the International Truth and Justice Project, was able to make a statement of fact correcting false information published about her by a former UK representative of a Sri Lankan political party after filing a data protection claim. The defendant was ordered to pay costs and damages, retract his statement and publish an apology in English and Sinhala online. This was the first case in which a statement in open court has been permitted as a remedy in a data protection case. The International Truth and Justice Project published a press release covering the outcome and Sooka’s solicitors, Hickman and Rose covered the statement in open court.
New Issued cases
There were two new defamation (libel and slander) claims issued in the Media and Communication List last week.
Judgment in the case of Hodson v Persons Unknown & Others, heard on 12 and 13 July 2022 (Jay J) was handed down on 25 July 2022 ( EWHC 1960 (QB)). The claim succeeded, distress damages of £11,500 were awarded.
Last week in the courts
On Monday 12 to Thursday 15 December 2022 Julian Knowles J heard the trial in the case of Aaronson (aka “Dominic Ford”) v Stones (aka “Mickey Taylor”) (QB-2021-001538). The claimant sued the defendant in libel for allegations of multiple rapes published on social media. More information is available on 5RB’s website.
On 13 December 2022, Saini J heard argument in the case of Smith v Talk Talk Telecom (QB-2020-003019).
Media law in other jurisdictions
A Kenyan constitutional rights group and two Ethiopian researchers have filed a suit in a Nairobi High Court against Meta for their failure to effectively moderate Facebook’s content during Ethiopia’s civil war. The claimants allege that the promotion of hateful and dangerous content on the social network site stoked ethnic violence. The group seek $1.6 billion in a fund for victims and are asking the court to deliver a legal first by ordering changes to Facebook’s algorithm. NPR, Al Jazeera and CNN cover the claim.
On 14 December 2022, Judge Clayton handed down judgement in Hoser v Herald & Weekly Times  VCC 2213. The claimant sued the author and publisher of seven articles written about his proceedings in the Magistrates’ Court of Victoria. The court held that proceedings had been improperly commenced and struck out the claim as an abuse of process.
On the same day, Gibson DCJ decided to grant leave for the plaintiff to amend his statement of claim in Woolf v Brandt  NSWDC 623.
On 15 December 2022, the claimant was ordered to pay the defendant’s costs in Zimmerman v Perkiss (No 3)  NSWDC 635 on an indemnity basis. The original proceedings were covered in this Inforrm blog post.
On 16 December 2022, Rothman J granted leave to the claimant to file a fourth amended statement of claim so that it pleads further and better particulars that reflect a material fact in Newman v Whittington  NSWSC 1725.
On 16 December 2022, judgement was handed down by the Court of Appeal for British Columbia in Pineau v KMI Publishing and Events Ltd 2022 BCCA 426. The appellant appealed the decision of the trial judge to award $60,000 in general damages for a defamatory article published by the defendants. The court allowed the appeal, finding that the trial judge had erred by failing to take into account the circulation of the defamatory article via hyperlink by the respondents. However, the Court of Appeal rejected the arguments that the trial judge had erred by failing to award aggravated and punitive damages and by requiring expert evidence to prove the appellant suffered from a mental disorder and lost employment opportunities as a result of the libel. The trial award was substituted for $120,000 in general damages.
On 15 December, MEPs passed a resolution condemning the human rights violations against anti-COVID-19 protesters in China, citing their concerns about the erosion of free expression, association, assembly, press and media and the intensification of mass surveillance. The European Parliament called for stronger sanctions against Chinese official and entities responsible for crimes against humanity.
Jimmy Lai, a media magnate and founder of pro-democracy Hong Kong newspaper Apple Daily, has been sentenced to imprisonment for five years and nine months for breaching a lease contract. He faces more serious charges of conspiracy to publish seditious material and collusion with foreign powers. Lai’s lawyer stated that the multiple cases were designed to silence and discredit [Lai] and send a clear message to others that they should not dare to criticise the Chinese or Hong Kong authorities”. The BBC, the Guardian, the Wall Street Journal covered the sentence and upcoming national security trial.
The LSE Media Blog has published an article analysing the impact of Singapore’s proposed online safety laws on the country’s youth. Sharanya Shanmugam, Research Associate at the Centre for AI and Data Governance at Singapore Management University’s Yong Pung How School of Law argues that the proposed policy which grants power to the Singaporean authorities to disable extremely harmful content is too paternalistic. She suggests that the correct approach should not only protect young internet users, but also enshrine their dignity, privacy, right to participation and access to information. The proposed bill can be found here.
The International and European Federation of Journalists have co-signed an open letter to US President Biden calling for him to pardon WikiLeaks founder, Julian Assange. Assange is currently in the UK facing extradition to the US where he may be jailed for up to 175 years. The IFJ argues that Assange’s extradition would have a “chilling effect” stating, “the case sets a dangerous precedent that members of the media, in any country, can now be targeted by governments, anywhere in the world, to answer for publishing information in the public interest.”
Research and Resources
- Smith, Marcus and Urbas, Gregor, Evolving Legal Responses to Social Media: Litigation, Legislation and System Architecture (December 2022), ANU Journal of Law and Technology.
- Sucker, Franziska and Beyleveld, Alexander, Cross-border Data Flows in Africa: Policy Considerations for the AfCFTA Protocol Digital Trade (2022), Wits School of Law, Mandela Institute, Centre for the Study of the Economies of Africa.
- Beales, Howard. J and Stivers, Andrew, An Information Economy Without Data (November 2022).
- Erdos, David, Towards Effective Supervisory Oversight? Analysing UK Regulatory Enforcement of Data Protection and Electronic Privacy Rights and the Government’s Statutory Reform Plans (2022), University of Cambridge Faculty of Law Research Paper No.16/2022.
- Lavi, Michal, Crises, Creep, and the Surveillance State (2022), Seton Hall Law Review, Vol 53, No.2.
- Veraldi, Jacquelyn. D and Gstrein, Oskar. J, Nothing to Hide? Transparency Requirements, Accountability and Privacy in Investment Migration (2022), Forthcoming in ‘Investment Migration in Europe and the World’, edited by Dimitry Kochenov, Madeleine Sumpton & Martijn van den Brink—Hart Publishing.
- Kapoor, Aditya, Cyber Threat Vulnerability for Business Intelligence in Big Data (2022).
- Gallese, Chiara, Predictive Justice in Light of the New AI Act Proposal (2022).
- Oyakhare, Patrick, Complying with GDPR: The Difficulties American Big Techs Face (2022).
- Amadi, Joseph. A, The Legal Framework for Data Protection in Nigeria (2022).
- Chirita, Anca. D, A Regulatory Approach to Digital Markets: Is the Digital Markets Act Fit For Purpose? (2022) Durham Law School Research Paper October 2022.
- Chilson, Neil and Thierer, Adam. D, The Coming Onslaught of ‘Algorithmic Fairness’ Regulations (November 2022), The Regulatory Transparency Project of the Federalist Society.
- Dincer, Melodi and Crawford, Kate, Comments of the Knowing Machines Research Project to the Federal Trade Commission Regarding the Trade Regulation Rule on Commercial Surveillance and Data Security (November 2022), Federal Trade Commission Rulemaking Docket FTC-2022-0053.
- Bogue, Russell, Democratic Privacy (2022), 39 Journal of Applied Philosophy.
- Mateescu, Alexandra, Electronic Visit Verification: The Weight of Surveillance and the Fracturing of Care (2022), Data & Society Research Institute.
- Obar, Jonathan. A, Unpacking “the Biggest Lie on the Internet”: Assessing the Length of Terms of Service and Privacy Policies for 70 Digital Services (2022).
- Voss, Gregory. W, The Concept of Accountability in the Context of the Evolving Role of ENISA in Data Protection, ePrivacy and Cybersecurity (2021), Technocracy and the Law: Accountability, Governance and Expertise 247-284, edited by Alessandra Arcuri and Florin Coman-Kund—Routledge).
- Corrales Compagnucci, Marcel, et al, Non-Fungible Tokens as a Framework for Sustainable Innovation in Pharmaceutical R&D: A Smart Contract-Based Platform for Data Sharing and Rightsholder Protection (December 2022).
- Lo, P. Y., Reactivated and Re-energised: The Sedition Offences in ‘New Era’ Hong Kong (December 2022), Forthcoming in Hong Kong Law Journal, Vol 52, Part 3.
- Quintais, João Pedro, Appelman, Naomi and Fahy, Ronan, Using Terms and Conditions to Apply Fundamental Rights to Content Moderation (November 2022). Forthcoming in German Law Journal.
- Onyekonwu, Ifeatu, A Discourse on the Legislation Prohibiting Cyber Stalking in Nigeria (June 2021).
Next week in the courts
On 19 December 2022, Collins Rice J will hand down judgment in the case of Ismaik v Fadaat Media Limited.
On 20 December 2022, Chamberlain J will hear costs applications in Wright v McCormack (QB-2019-001430).
Aaronson v Stones, heard 12-15 December 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