Human Rights Watch has warned that the UK is about to be labelled a human rights abuser if it continues to clamp down on protest rights and work towards the replacement of the Human Rights Act with the Bill of Rights.
Yasmine Ahmen, UK director at Human Rights Watch warned “from your right to protest to your ability to hold institutions to account, fundamental and hard-won rights are being systematically dismantled.”
Prince Harry has revealed that reforming the British press is now his life’s work. During his ITV interview with Tom Bradby ahead of the publication of his memoir Spare, he said he believes his legal actions against The Sun, Mirror and Daily Mail has the potential to shut the outlets down. He believes that this is the reason behind the negative press coverage of his family in recent years, which has been driven by retaliation and intimidation. The Press Gazette, Guardian and BBC cover the interview.
The Privacy Perspective has published an article on Driver v CPS  EWHC 2500 KB, arguing that the case is illustrative of a set of facts where the legitimate starting point of a reasonable expectation of privacy in respect of a criminal investigation at pre-charge stage under English law can be can be departed from.
Internet and Social Media
The Brett Wilson Media and Communication Blog has published an article on proving the extent of Twibel claims following three of the most high-profile libel trials in England and Wales in 2022 (Banks v Cadwalladr  EWHC 1417 (QB), Wright v McCormack  EWHC 2068 (QB), Riley v Sivier  EWHC 2891 (KB)). In nearly all defamation cases involving publications on social media, the parties disagree as to the actual extent of publication, which is relevant principally to the issues of serious harm and damages. Such disputes have tended to arise because precise viewing statistics for social media posts have not been available. However, since December 2022 view counts for tweets are visible for all users on iOS and Android devices and via the Web. The article asks what this change means for libel lawyers attempting to show how many publishees have read a tweet.
The Independent mistakenly reported a joke claim that Prince Harry sought consolation from his family troubles in Jamaican dancehall music. The article, titled “Prince Harry says listening to Jamaican artist Shenseea ‘got him through dark times’”, purported to quote from the prince’s autobiography Spare. In fact, the quote was fake, published four days earlier in a tweet by user @thereturnofBWA, whose Twitter bio states: “Everything I say is untrue and satire.” The mistake comes months after the newspaper erroneously reported that pseudonymous writer Elena Ferrante had died following claims shared by a hoax Twitter account. The Press Gazette has more information here.
Data Privacy and Data Protection
The UK and US governments jointly announced the results of the inaugural US-UK Comprehensive Dialogue on Technology and Data. Read the government press release here.
Meta said its Facebook and Instagram platforms will tighten restrictions on data available to advertisers to target teens. From February, advertisers will no longer be able to access a user’s gender or posts they have engaged with for targeted advertising. Instead, only a user’s age and location will be available. Meta also said teenagers will be offered new options in Facebook and Instagram settings to “see less” of certain types of ads, the Guardian reports.
Meta has sued to block a surveillance company from using Facebook and Instagram, alleging the firm, which has partnered with law enforcement, created tens of thousands of fake accounts to collect user data. The Guardian and Engadget report.
- 10430-22 North v The Times, 1 Accuracy (2021), No breach – after investigation
- 11061-22 Maclennan v dailyrecord.co.uk, 2 Privacy (2021), 9 Reporting of crime (2021), 10 Clandestine devices and subterfuge (2021), No breach – after investigation
- 11288-22 Baillie v The Mail on Sunday, 12 Discrimination (2021) 3 Harassment (2021), 1 Accuracy (2021), 9 Reporting of crime (2021), No breach – after investigation
- 11417-22 Dollimore v Daily Mail, 1 Accuracy (2021), No breach – after investigation
New Issued Cases
There was one defamation (libel and slander) claim and one Miscellaneous claim issued in the Media and Communications list last week.
Last Week in the Courts
On 10 January 2023, Nicklin J heard an application in the case of Amersi v Leslie.
On 11 January 2023, judgment was handed down by Master Davison in FKJ v RVT & Ors  EWHC 3 (KB). This is a misuse of private information (MPI) claim relating to the defendant’s possession and retention of the claimant’s private Whatsapp messages to her now husband and female best friend. The messages were used as evidence against her during her unsuccessful claim in the Employment Tribunal against the defendants, in which she alleged (principally) sex discrimination, unfair dismissal and wrongful dismissal. The claimant alleges that RVT hacked into her WhatsApp messages by setting up the computer-based “WhatsApp Web.” The defendants’ explanation for possession is twofold. First, a substantial quantity of messages were found on the claimant’s work laptop when it was reviewed in January 2018 to establish why the claimant was attempting to login after she was dismissed. Second, two further tranches of messages had been received via letters from an anonymous source. The second letter provided updated logs of the claimant’s messages with BRB and KNF from 22 December 2017, i.e. the day after her dismissal, to April 2018.
The defendants’ application to strike out the claim as an abuse of process was refused . Their application for summary judgment on the counterclaim and for an interim payment of £250,000 and/or for conditions to be imposed requiring the claimant to pay money into court on account of the costs of the defendants’ defending the claim and bringing the counterclaim (totalling £450,000) was refused. It was clear that RVT’s objective was to bankrupt the claimant and/or prevent her from continuing her claim . Summary judgment on the new tort of malicious prosecution was also refused . The claim will proceed to trial. Brett Wilson has produced another summary here.
On 12 January 2023 there was a directions hearing in the case of Wright v McCormack before Nicklin J.
On 13 January 2023 Murray J heard CMCs in the cases of Al Sadeq v Dechert LLP and Quzmar v Dechert LLP.
Matrix Law Conference, “Media and Communications Law: What you need to know?” will take place on 16 March 2003 at the Royal College of Physicians between 14.00 and 19.00. To book tickets click here.
11 KBW’s Information Law Conference will be taking place on 24 April 2023. This will provide insights and updates across the information law spectrum. To book a place email RSVP@11kb .com.
Media Law in Other Jurisdictions
Two childcare operators charged with fraudulently manipulating government subsidies with “phantom children” in a well-publicised Australian Federal Police (AFP) raid are seeking millions of dollars in compensation after the case was later dropped. Ola Ouda and her partner Amgad Shehada are bringing a defamation action that claims the AFP botched its investigation into their $10 million childcare business, which collapsed after the charges were made public, The Age reports.
The Federal Court has quietly updated its internal rules, restricting who can access certain court documents – including journalists – until the case has appeared in court. The Financial Review has more information here.
West Australian Liberal Senator Linda Reynolds has launched defamation action against publishing house HarperCollins and journalist Aaron Patrick, demanding a book detailing recent political controversies including Brittany Higgins’ rape allegations be pulled from the shelves. WAtoday has more information here.
TikTok has been given a €5 million penalty by France’s data protection watchdog CNIL for breaking its rules on cookie consent. TechCrunch has more information here.
Wired has published an article discussing Iran’s use of facial recognition technologies to identify female protestors who refuse to wear a hijab.
The Italian Supreme Court has issued an important judgment on the interplay between IP and freedom of expression (38165/2022, CO.GE.DI. International – Compagnia Generale Distribuzione s.p.a. v Zorro Productions Inc). The judgment follows a 15+ year legal battle over the character of Zorro, and provides important guidance on the requirements and limits of parody under both copyright and trade mark law. IPKat has more information here.
The Tokyo District Court has sentenced Junichi Yuri to one year in prison, suspended for five years, and 29 days of detention without labor for defaming Takuya Matsunaga through tweets in March 2022 that accused the bereaved man of campaigning only to garner attention for himself. Matsunaga’s wife and daughter were killed in a high-profile 2019 car accident in Tokyo. Japan Today has more information here.
The Data Protection report blog has published an article on five key developments in cybersecurity and data protection in 2022 for Southeast Asia. The list features Indonesia’s and Thailand’s new data privacy laws, Malaysia’s changes to personal data protection, Singapore’s Cybersecurity Act 2018 and the country’s privacy developments.
Research and Resources
- Douglas, Michael and Graville, Catherine and Carroll, Robyn, The Evolution and Devolution of the Offer to Make Amends Regime in Australian Defamation Law (2023) UNSW Law Journal (Forthcoming)
- Bloch-Wehba, Hannah, The Rise, Fall, and Rise of Cyber Civil Libertarianism (2023), Feminist Cyberlaw (Meg Leta Jones and Amanda Levendowski, eds.), University of California Press (Forthcoming)
- Douglas, Michael, Compelling Production of a Defamatory Draft (2023) Australian Law Journal (Forthcoming)
- Ó Fathaigh, Ronan and Voorhoof, Dirk, Freedom of Expression and the EU’s Ban on Russia Today: A Dangerous Rubicon Crossed (2022), Communications Law, 2022, Volume 27, Issue 4
- Solove, Daniel J., Data Is What Data Does: Regulating Use, Harm, and Risk Instead of Sensitive Data (2023), Management Journal for Advanced Research, Volume 2 Issue 6
- Park, Eunice, Reproductive Health Care Data Free or For Sale: Post-Roe Surveillance and the ‘Three Corners’ of Privacy Legislation Needed (2023), NYU Review of Law & Social Change (Forthcoming)
Next Week in the Courts
On Monday 16 January 2023 there will be a trial of preliminary issue in the case of Shah v Saddique & others (QB-2021-001140) before Steyn J.
On Tuesday 17 January 2023 there will be a hearing in the case of Stoute & anr v News Group Newspapers Ltd (KB-2023-000058).
Amersi v Leslie, heard 10 January 2023 (Nicklin J)
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).
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