Independent MP, Andrew Bridgen, has said he will sue the former Health Secretary, Matt Hancock, for £100,000 in defamation over a tweet in which Hancock accused him of spreading “antisemitic, anti-vax, anti-scientific conspiracy theories.” Bridgen lost the Tory whip after his remarks and was widely criticised by members of all political parties. Bridgen’s case is supported by the Bad Law Project and the Reclaim Party. The Guardian, the Evening Standard and the Independent covered the threatened action.
Saturday, 28 January 2023 marked data protection day. To mark the occasion, Baker McKenzie’s Global Data Privacy and Security Team covered key data protection and privacy developments and trends for 2023 around the globe. Mayer Brown also published an article anticipating the developments in technology, data privacy, cybersecurity and IP we can expect to see in 2023. The article highlights new legal questions such as ‘who owns the intellectual property rights to an AI program’ and deals with the potential impact of the EU Artificial Intelligence Act. The blog post is available here.
Conservative MP, Bob Seely has put forward a private member’s bill to enable courts in England and Wales to penalize wealthy individuals who use vexatious litigation to silence critics in what are known as SLAPPs. Seely hopes that legislation will stop “legalized gangsterism” employed by wealthy oligarchs and politicians hoping “to spy, to snoop, to smear, and to sue” their critics. The Guardian and Law360 cover the bill.
Internet and Social Media
Buzzfeed is set to use AI to generate articles specifically tailored for individual readers. The site’s CEO told staff in a memo that users would be invited to enter in an input, such as “tell us an endearing flaw you have,” then an article would be written based on their response. The Wall Street Journal and the Press Gazette reported on the development.
Data privacy and data protection
The ICO has released guidance to help small and medium UK businesses improve their data protection practices. The tips include knowing how to deal with subject access requests and having a data breach action plan in place. The guidance is available here.
Mischon de Reya have published a blog post titled ‘Is the UK riding on the EU’s coat tails when it comes to data adequacy?’ The article suggests that, post-Brexit, the UK is less able to forge international agreements relating to the transfer of personal data, as countries are more reluctant to negotiate with the UK, if doing so would prejudice their negotiations with the EU.
The privacy campaigning organization, Big Brother Watch have published a report titled ‘Ministry of Truth: The Secretive Government Units Spying on Your Speech.’ The investigation tracked five units designed to tackle fake news, which were found to have monitored comments that criticised the government, including statements made by Sir Kier Starmer, academics from Oxford University and UCL, and the Big Brother Watch staff. Read the report here.
The Observer interviewed Karen Levy with regard to her upcoming book ‘Data Driven’, which explores how digital surveillance is impacting the life and work of long-haul truck drivers. Levy extrapolates from her research on truck drivers to consider the impact of surveillance methods in all types of workplaces, the road, policing and modern sports. The interview is available here.
An Italian fashion-tech startup has claimed that its new range of knitwear can hide its wearers from surveillance cameras by tricking AI into identifying them as animals. The firm, Cap-able, describes its Manifesto Collection as ‘a wearable algorithm to protect identity,’ Metro reports. The collection can be viewed here.
Newspaper Journalism and regulation
According to the Index on Censorship, the UK is ranked in the third tier of countries for freedom of expression, due to the “chilling effect” of government policies, policing and SLAPPs, the Guardian reports. The UK was graded as only ‘partially open’ in respect of academic, media and digital freedom, ranking below almost all other Western European countries.
- 10769-22 Edwards v gazette-news.co.uk, 1 Accuracy (2021), 3 Harassment (2021), 12 Discrimination (2021), Breach – sanction: publication of correction
- 11100-22 Banks v theboltonnews.co.uk, 12 Discrimination (2021), 3 Harassment (2021), 2 Privacy (2021), No breach – after investigation
- 11622-22 Duncan v The Sun on Sunday, 1 Accuracy (2021), Breach – sanction: action as offered by publication
Statements in open court and apologies
There were no statements or apologies in open court this week.
New Issued cases
There were two harassment claims issued in the Media and Communications list last week.
Last week in the courts
On 22 January 2023, Steyn J heard an application in the case of Bukhari v Bukhari (QB-2020-001139).
On 24 January 2023, Tipples J handed down a long awaited judgment in respect of the preliminary issues in the case of BW Legal Services Ltd v Trustpilot A/S  EWHC 6 (KB). The statements complained of are 20 reviews published by a reviewer on the defendant’s website relating to the claimant’s specialist debt recovery law firm business. The court found that all 20 of the reviews complained of contained defamatory allegations to the effect that the claimant chased the reviewer for a debt that was not owed.
On 25 January 2023, there was a hearing in the case of Forensic Risk Ltd v Akisanya (KB-2022-004582).
On 16 January 2023, there was a trial of preliminary issues in the case of Murtaza Ali Shah v Mohammed Imran and others  EWHC 120 (KB). On 26 January 2023, Justice Steyn held that a set of YouTube videos, tweets and a change.org petition, by political activists supporting former Pakistani Prime Minister, Imran Khan, contained defamatory allegations against a Pakistani journalist residing in London.
On 26 January 2023, Justice Pepperall ruled on an application by the BBC seeking to have an amendment, which added further claimants to the claim, disallowed on the basis that the claimants were time barred in Nicole Daedone & Ors v BBC  EWHC 106 (KB). The claim is made in respect of a BBC podcast entitled “The Orgasm Cult” in which the activities of a sexual wellness company, One Taste, its CEO, Nicole Daedone, and employee, Rachel Cherwitz are alleged to amount to a destructive sex cult responsible for serious criminal acts. Ms Daedone, Ms Cherwitz and OneTaste were added to the claim in a reamended claim form and sought a direction by cross-application to disapply the time limit. The court disallowed the addition of Ms Daedone and OneTaste to the claim due to their failure to adequately explain the delay. Ms Cherwitz, however, was permitted to join the claim, as she was unaware of the original claim and did not, unlike the Ms Daedone and OneTaste, make a deliberate decision not to join the proceedings when the claim was issued. There was a report of the hearing on Variety and Law360. The BBC podcast is available to listen to here.
Media law in other jurisdictions
On 27 January 2023, Lee J dismissed both the proceedings, which were commenced out of time, and the applicant’s application to stay the proceedings pending the conclusion of a criminal proceedings brought against him in Landrey v Nine Network Australia Pty Ltd  FCA 27. The applicant was ordered to pay costs.
On 23 January 2023, judgement was handed down on a summary basis in Bordeaux Developments Corporation v Hu, 2023 ABKB 44. The plaintiffs were awarded $20,000 in general damages and $3,300 in punitive damages in respect of a smear campaign undertaken by the defendant following a legal dispute.
Human Rights Watch have called on the Cameroonian authorities to conduct an investigation into the murder of a prominent investigative journalist, Martinez Zogo, who had frequently exposed corruption. In the days leading up to his death, he revealed the threats he faced whilst speaking live on radio. The Cameroonian government released a statement confirming that Zogo had “endured significant bodily harm”.
The Ministry of Information and Broadcasting announced that it had ordered Twitter and YouTube to block links to a BBC documentary criticizing Prime Minister Narendra Modi, using emergency powers. The Indian government has also proposed a new amendment to the IT Rules which will require platforms to take down content which the government deems to be “fake or false.” The International Press Institute and an op-ed in The Washington Post raised concerns about the expansion of India’s online censorship.
A security lapse in an app which is operated by India’s Education Ministry exposed the personal data of millions of students and teachers for more than a year, Wired reports. The data included data subjects’ full names, phone numbers and email addresses and was available to hackers and scammers. Human Rights Watch spoke to the co-founder of the intelligence software company that spotted the breach.
On 23 January 2023, the Kyrgyz Ministry of Culture filed a lawsuit to force Radio Free Europe/Radio Liberty’s Kyrgyz service to cease its operations after the outlet covered a border conflict between Kyrgyzstan and Tajikistan last October. The media outlet filed a legal appeal. Human Rights Watch called on the government to withdraw its lawsuit.
On 23 January 2023, the ECtHR found that the decision to place restrictions on a children’s storybook which presented same-sex relationships infringed on the Article 10 free expression rights of its author. The applicant relied on Article 14 of the ECHR in conjunction with Article 10. The court held that Article 10 had been violated as the purpose of the restrictions was to limit access by children to information which depicted same-sex relationships and such laws reinforced stigma and prejudice and encouraged homophobia . Lithuania was ordered to pay 12,000 EUR in non-pecuniary damages and 5,000 EUR in costs.
Republic of Srpska
Journalists have raised concerns about a warning issued by the President of the Republic of Srpska that he would reintroduce defamation and insults as criminal offences. The journalists argue that making defamation a crime would undermine press freedom and lead to abuse of the legal system to intimidate journalists. The International and European Federations of Journalists issued a press release, which is available to read here.
The Japan Times reported on the increasingly common use of monitoring technologies to keep track of the elderly population in Singapore and other Asian nations. Supporters of the trend, which includes fitting senior citizens with wearable GPS tags and installing motion sensors and CCTV cameras in their homes, sat that it helps keeps vulnerable older people safe. However, technology experts have argued that it intrusive and will lead to data breaches.
On 26 January 2023, the US Court of Appeal for the Second Circuit issued an opinion in the case of ACLU v ICE (No. 21-1233) in which it required federal agencies to retain relational information when producing public records from a database. As a result, the ACLU will be able to receive a digital key to track individual cases in a large set of spreadsheets which the Immigration and Customs Enforcement agency handed over in response to a Freedom of Information Act request. The opinion is available to read here. Harvard Cyberlaw Clinic discussed the implications of the decision.
Research and Resources
- Tenzer, Leslie. G, Destroying Defamation (2023)
- Arora, Himanshu, Short Note on ‘Right to Privacy and Human Rights Considerations’ (2022).
- Solove, Daniel J., Murky Consent: An Approach to the Fictions of Consent in Privacy Law (2023).
- Custers, Bart, et al, The Role of Consent in an Algorithmic Society – Its Evolution, Scope, Failings and Re-conceptualization (2022). n. In: Kostas, E., Leenes, R., & Kamara, I (2022) Research Handbook on EU data protection. Edward Elgar Publishing, 455–473.
- Niševič, Maja and Sears, Alan M. and Fosch Villaronga, Eduard and Custers, Bart, Understanding the Legal Bases for Automated Decision-Making Under the GDPR (2022). In: Kostas, E., Leenes, R. & Kamara, I (2022) Research Handbook on EU data protection. Edward Elgar Publishing, 435–454.
- Westkamp, Guido, Digital Copyright Enforcement after Article 17 DSMD: Platform Liability between Privacy, Property and Subjective Access Rights (2022), Zeitschrift für Geistiges Eigentum, Intellectual Property Journal 4.
- Wuermeling, Ulrich and Oldani, Isabella, Regulation of International Data Transfers in Clouds: The Impact of the GDPR (2022).
- Zeide, Elana, Big Proctor: Online Proctoring Problems and How FERPA Can Promote Student Data Due Process (2023). Notre Dame Journal on Emerging Technologies, Volume 3, Issue 1.
- Aloisi, Antonio and De Stefano, Valerio, Between Risk Mitigation and Labour Rights Enforcement: Assessing the Transatlantic Race to Govern AI-Driven Decision-Making through a Comparative Lens (2023), European Labour Law Journal (Forthcoming).
- Lobel, Orly, The Law of AI for Good (2023). San Diego Legal Studies Paper No. 23-001.
- Fenster, Mark, How Reputational Nondisclosure Agreements Fail (Or, In Praise of Breach) (2023).
Next week in the courts
On Tuesday 31 January 2023 Collins Rice J will hear an application in the case of Nagi v Sinniah Santhiramoulsan
On Wednesday 1 February 2023 Chamberlain J will hear an application in the case of VLM v LPB.
On Thursday 2 February 2023 Murray J will hear an application in the case of Stokoe Partnership v Dechert LLP.
Shah v Saddique, heard 16 January 2023 (Steyn J)
Amersi v Leslie, heard 10 January 2023 (Nicklin J)
Aaronson v Stones, heard 12-15 December 2022 (Julian Knowles J)
Shah v Ahmed, heard on 4 July 2022 (Collins Rice J)
LCG v OVD, heard on 4 May 2022 (Murray J)
This Round Up was compiled by Jasleen Chaggar who is studying the BPC at the University of Law.