In the wake of the leaked details of revelations made by Prince Harry in his forthcoming book Spare, some commentators have argued that the royal may have significantly undermined his own future right to privacy. The Press Gazette notes that one of the big factors judges take into account when assessing privacy claims is the extent to which claimants have put matters into the public domain themselves. Lord Faulks KC, chairman of the Independent Press Standards Organisation (IPSO), told the BBC World at One that “most people don’t want anybody to know anything about their private life, but if they are prepared to discuss it then it is not unreasonable for the press to write about it.” The Spectator has compiled a list of five instances where Harry himself is responsible for breaching the privacy and breaking the confidences of his own family.
The Investigatory Powers Tribunal has found that Police Scotland breached a journalist’s Article 10 rights when it sought to identify the Sunday Mail’s sources for an investigation into a failed murder inquiry. The ruling emphasises that UK law enforcement agencies are banned from taking actions to identify journalistic sources without judicial oversight. The Scottish Legal, Press Gazette and Scottish Newspaper Society
Jeremy Clarkson’s column on Meghan Markle for The Sun, dated 16 December 2022, has received the most complaints in IPSO’s history. The Press Gazette reported the number of complaints to be 20,800 on 20 December 2022. Complainants accuse Clarkson of misogyny for his derogatory Game of Thrones reference. Clause 12 (discrimination) of the Editor’s Code of Practice prohibits publishers from making “prejudicial or pejorative reference to an individual’s race, colour, religion, sex, gender identity, sexual orientation or to any physical or mental illness or disability”. It also says details “of an individual’s race, colour, religion, gender identity, sexual orientation, physical or mental illness or disability” should not be described in the story unless “genuinely relevant”. Breaches of Clause 12 are rare; in most instances in which it is invoked, IPSO determines that the content does not engage it.
The Transparency Project reports on the new reporting pilot due to launch in three courts (Leeds, Cardiff and Carlisle) at the end of January 2023, which effectively reverse the presumption against the reporting of children cases. The pilot enables journalists and legal bloggers who attend hearings in those courts to publish accounts of what they have seen, read and heard.
Internet and Social Media
The Clean Up the Internet blog has published its reflections on the UK’s online safety agenda in 2022.
The Cyberleagle blog has published twenty questions about the Online Safety Bill.
The LSE Media Blog has an article explaining the implications of the lack of friction in how harmful content spreads through Instagram Stories, one of the platform’s core features.
Hackers have disclosed records and email addresses from 235 million Twitter accounts on a public forum. The information was reportedly collected using a flaw in Twitter’s system that allowed outsiders to gain access to an unlimited list of email addresses and phone numbers, the Washington Post reports
Art, Music and Copyright
The Intellectual Property Office (IPO) has published the new guidance in conjunction with Meta, saying that password sharing for streaming services like Netflix, Amazon and Disney+ breaks copyright laws. According to the IPO, the practice of password sharing is a criminal and civil offence and those doing it could theoretically face prosecution. The Guardian has more information here.
Data Privacy and Data Protection
The Panopticon blog has a short introductory article on the UK’s new adequacy decision with Korea, the first of its kind under post-Brexit UK GDPR. The Data Protection (Adequacy) (Republic of Korea) Regulations 2022 came into effect on 19 December 2022. DLA Piper also covers the adequacy decision here.
The Information Commissioner’s Office (ICO) has begun publishing information on data breach investigations on its website. Available data begins with the fourth quarter of 2021 and contains “details of personal data breaches, complaints and civil investigations.” Ropes and Gray Associate Edward Machin said the ICO’s approach could make it one of Europe’s most aggressive privacy regulators, InfoSecurity Magazine reports.
Meta banned at least seven companies engaged in “surveillance-for-hire activities” from Facebook in 2022. Meta Head of Security Policy Nathaniel Gleicher said democracies of the world need to craft legislation to criminalise companies for making commercial surveillance software, CyberScoop reports. Meta issued 13 recommendations for regulating surveillance-for-hire, which included “banning the sale of surveillance software, establishing institutions to help victims seek legal recourse and using export control lists to limit the availability of surveillance technologies.”
Newspapers Journalism and Regulation
The Information Commissioner’s John Edwards has responded to criticism launched at the ICO’s newly created Journalism Code of Practice. A letter sent to government by three national newspaper editors in December 2022 suggested that the code would “shackle” the media. Edwards explains that this is far from the case. The ICO codes do not create new law, but simply explain what is required under the existing law. There is nothing in the code that constitutes a limit on the freedom of the press.
- 11191-21 Sharif v The Jewish Chronicle, 12 Discrimination (2021), 2 Privacy (2021), 1 Accuracy (2021), 3 Harassment (2021), No breach – after investigation
- 11103-22 A woman v The Daily Telegraph, 1 Accuracy (2021), No breach – after investigation
- 10895-22 Various v The Daily Telegraph, 1 Accuracy (2021), Breach – sanction: publication of correction
- 10780-22 Raeburn v southwalesguardian, 1 Accuracy (2021), Breach – sanction: publication of correction
- 10348-22 Malster v Mail Online, 2 Privacy (2021), 1 Accuracy (2021), No breach – after investigation
- 02390-22 Williams v dailystar.co.uk, 1 Accuracy (2021), 3 Harassment (2021), No breach – after investigation
- 02389-22 Williams v dailyrecord.co.uk, 1 Accuracy (2021), 3 Harassment (2021), No breach – after investigation
- 02388-22 Williams v express.co.uk 1 Accuracy (2021), 3 Harassment (2021), No breach – after investigation
- 02387-22 Williams v The Sun,1 Accuracy (2021), 3 Harassment (2021), 2 Privacy (2021) No breach – after investigation
- 02264-22 Williams v The Daily Post, 1 Accuracy (2021), 3 Harassment (2021), No breach – after investigation
New Issued Cases
Between 19 December 2022 and 9 January 2023 there were three new cases issued in the Media and Communications List, 2 defamation cases and one Norwich Pharmacal application.
Last Month in the Courts
On 19 December 2022 Collins Rice J handed down judgment in the case of Ismaik v Fadaat Media Limited  EWHC 3260 (KB). Mr Ismaik brought defamation proceedings against Fadaat Media over two versions of an article it published in Arabic in the Al-Araby newspaper, and on its website, on 21st October 2021. Held, the only defamatory element of the article was that Mr Ismaik was convicted in Jordan in financial cases involving petty sums of money; and that he was prosecuted in a major money laundering case. These are allegations of fact, the former at Chase level 1 and the latter at Chase level 2 .
The elements of the article that were found to bear the meaning that Mr Ismaik “advances political views which are extremist, right-wing ‘Zionist’ views, contrary to the best political interests of Palestinians and Jordanians,” that are “incomprehensible” for a Jordanian of Palestinian descent to advance , was not defamatory. In reaching this conclusion, Collins Rice J found that an “ordinary, reasonable reader would recognise the judgment they were being invited to make … as depending wholly on their own political outlook. If they agreed with the journalist’s general polemic, they might join him in thinking ill of Mr Ismaik. If they did not, they might consider this an unpleasant piece of journalism not content with making political argument unadorned with personal sneering and conspiracy theory, and which says more about the writer than it does about Mr Ismaik” .
On 20 December 2022, Chamberlain J heard costs applications in Wright v McCormack. He handed down judgment the following day ( EWHC 3343 (KB)). He required Dr Wright to attend a directions hearing in relation to contempt proceedings for disclosing information concerning an embargoed judgment, declined to accept an undertaking or grant an injunction, refused permission to appeal and (with the exception of two earlier orders) ordered Dr Wright to pay the costs of the proceedings on the indemnity basis.
On 22 December 2022, Griffiths J handed down judgment in the case of Mincione v Gedi Gruppo Editoriale SPA  EWHC 3268 (KB) He determined that various articles and a Video made various defamatory allegations about the claimant.
On the same day Nicklin J handed down a further judgment in the case of MBR Acres Ltd & Ors v Free The MBR Beagles & Ors  EWHC 3338 (KB). The claimants’ application to vary the interim injunction was dismissed. He also held that Gillian McGivern had not become a defendant to the proceedings as she had not be effectually served with the Claim Form in accordance with the terms of the alternative service order.
On 23 December 2022, Hill J handed down judgment in Soriano v Societe D’Exploitation De L’Hebdomadaire Le Point (Sebdo) & Anor  EWHC 3370 (KB). Mr Soranio is bringing a claim for libel arising out of the publication in Le Point, a French language political and news magazine. The claimant’s application for specific disclosure of information about the first Defendant’s subscribers who have accessed the article within England and Wales was approved.
On 30 December 2022 Pepperall J handed down judgment in the case of Tayler v HarperCollins  EWHC 3376 (KB) (heard on 28 June 2022). He determined that the book included the allegation that the claimant had arranged Jeffrey Epstein’s massages by a succession of underage girls and that this was a defamatory allegation of fact.
11 KBW’s Information Law Conference will be taking place on 24 April 2023. 11KBW’s market-leading specialists will provide insights and updates across the information law spectrum. To book a place email RSVP@11kbw.com.
Media Law in Other Jurisdictions
Multiple media outlets have received legal letters from lawyers for Bruce Lehrmann as the former Coalition staffer begins potential defamation action over coverage of allegations by Brittany Higgins that she was raped in Parliament House in 2019. Guardian Australia has more information here.
Lachlan Murdoch is seeking to expand his lawsuit against Crikey to pursue the chairman and chief executive of its publishing company. The Sydney Morning Herald has more information here.
Leaders of the European Commission, the Council of the European Union and European Parliament signed a declaration on EU digital rights and principles that highlights “the EU’s commitment to a secure, safe and sustainable digital transformation.” The declaration comprises six chapters focused on EU core values and fundamental rights and aims to “guide policy makers and companies dealing with new technologies.” Institutions also put emphasis on the declaration fostering “control about how personal data is used and with whom it is shared.”
On 23 December 2023, judgment was handed down in Lobov v McGregor  IEHC 724 by Mr Justice Garrett Simons in the High Court of Ireland. The claimant’s application was to restrain the publication of allegedly defamatory statements on Twitter. The court was not satisfied that the statement, namely that the claimant was a “rat,” was inherently defamatory . Furthermore, the context and circumstances in which it was published, notably on Twitter, meant that the hypothetical reasonable reader would not have attributed the meaning described by the claimant; that the claimant is an informer; a person who has betrayed somebody; a person who reveals confidential information; and a person who double crosses  .
The Netherlands’ Minister for Digitalisation has announced that the Dutch data protection authority, Autoriteit Persoonsgegevens, will strengthen supervision of algorithms that process personal data. Under the new regime, the AP will monitor algorithms for transparency, discrimination and arbitrariness, IAPP reports.
Concerns have been raised over a proposal to require notification of third-party access to personal data within New Zealand’s Privacy Act. The country’s Ministry for Children has warned the changes could put children, who have “an expectation of confidentiality,” in danger. The Ministry of Social Development said it regularly shares information regarding safety concerns with the Ministry for Children. It is possible that an obligation to disclose information about that sharing could result in physical harm to individuals. RNZ has more information here.
Independent Ugandan media house Monitor Publications has announced it is appealing to the country’s Supreme Court against a controversial damages ruling for defaming a senior government official over a mega corruption case. Monitor Publications was ordered to pay $120,000 in damages to Pius Bigirimana over a string of articles published from 2012 to 2015. This is believed to be the biggest financial ruling against the media in Uganda. Barron’s has more information here.
A recent federal court ruling demonstrates how easy it is to become subject to a copyright infringement lawsuit because of the background of a photo posted on social media to promote a business, Petersen v. Diesel Power Gear LLC, (S.D.N.Y. Dec. 21, 2022) (2022 WL 17832314). The Social Media Bulletin has more information here.
Amber Heard has withdrawn her appeal against a 2022 jury’s verdict that she had defamed her ex-husband Jonny Depp in an article in which she called herself a victim of abuse. Lawyers for Depp told the BBC she will pay $1m (£820,000) in a settlement of their defamation suit. Ms Heard said the decision was “not an act of concession,” rather she had made the choice to settle “having lost faith in the American legal system”. The BBC, Sky News and Guardian report.
Research and Resources
- Lavi, Michal, Sharing ‘Bad Shaming’ on Social Networks (2022), THE LEGAL ASPECTS OF SHAMING: AN ANCIENT SANCTION IN THE MODERN WORLD (Meital Pinto and Guy Seidman eds, Edward Elgar Publishing Ltd), Forthcoming 2023,
- Joshi, Komal, Cyber Crimes Against Women (2022), GLS University
- Khalid, Fatima and Javed, Ali and Ul ain, Qurat and Ilyas, Hafsa and Irtaza, Aun, Dfgnn: An Interpretable and Generalized Graph Neural Network for Deepfakes Detection (2022), University of Engineering and Technology
- Trakman, Leon, The Cost of Free Speech: Is Your Personal Data Safe? (2022), 16(4) ICL Journal
- Antoniuk, Mykola, Does the EU Trademark Regulation offer sufficient space for using reputable trademarks in commercial creative content in a non- infringing manner? (2022), Maastricht University
- Widiatedja, Parikesit and Mishra, Neha, Establishing an Independent Data Protection Authority in Indonesia: A Future-Forward Perspective (2022), International Review of Law, Computers & Technology , Forthcoming
- Li, Chaoqun, The Legal Implications for International Data Transfers in the Outsourcing Contracts Following the CJEU’s Schrems II Decision (2022), Technische Universität Dresden
- Richards, Neil M. and Hartzog, Woodrow and Francis, Jordan, Comments of the Cordell Institute on the Prevalence of Commercial Surveillance and Data Security Practices that Harm Consumers (2022), Comment Submitted by Cordell Institute for Policy in Medicine & Law at Washington University in St. Louis
- Gstrein, Oskar Josef, The Right to be Forgotten in 2022: Luxembourg Judges Keep Surfing the Legislative Void (2022), Verfassungsblog
- Shankar, Srivats, Fourth Amendment Constraints on Automated Surveillance Technology in the Public to Safeguard the Right of an Individual to be ‘Secure in Their Person’ (2022), 18 J. BUS & TECH. L. (Forthcoming 2023)
- Yilma, Kinfe, On Ethiopia’s Digital ID Bill, Data Privacy, Warts and All (2022), Mizan Law Review, Vol. 16, No. 2, Forthcoming
- Prakash G, Aswathy, Escape From The Modern Panopticon: Children’s Right to be Forgotten In The Internet Age (2022), Saveetha school of law; Saveetha University
Next Week in the Courts
On 10 January 2023 Nicklin J will hear an application in the case of Amersi v Leslie.
On 12 January 2023 there will be a directions hearing in the case of Wright v McCormack before Nicklin J.
On 13 January 2023 Murray J will hear CMCs in the cases of Al Sadeq v Dechert LLP and Quzmar v Dechert LLP
Aaronson v Stones, heard 12-15 December 2022 (Julian Knowles J)
Nagi v Santhiramoulesan, heard on 11 July 2022 (Johnson J)
Daedone v BBC, heard on 7 July 2022 (Pepperall J)
Shah v Ahmed, heard on 4 July 2022 (Collins Rice 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).