On 1 February 2023, the Supreme Court gave judgment on the private nuisance case of Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4. By a majority of 3:2 the Court found the Tate liable in the tort of private nuisance to flat owners overlooked by the viewing gallery of Tate Modern. The claim has been remitted to the High Court for remedy.
All members of the Court agreed that as a matter of principle, it is possible for a private nuisance to exist where residential property is subject to visual intrusion. 5RB comments that the decision is a robust reassertion of the protection which the common law gives to the privacy of a home, with no need for any extension of the common law to accommodate the right of privacy guaranteed by Article 8 of the ECHR.
On the same day, judgment was handed down by Warby LJ in the appeal Riley v Sivier [2023] EWCA Civ 71. Mr Sivier appealed against Steyn J’s rejection of his public interest defence and her consequent finding that he was liable. All three of Mr Sivier’s grounds of appeal were rejected and it was held that the appeal has no real prospect of success; permission to appeal was refused.
Art, Music and Copyright
The Intellectual Property Office (IPO) has announced that, after consideration, it will not broaden the scope for unlicensed Text and Data Mining (TDM) activities. TDM describes the automated processing (aka “machine reading”) of large volumes of text and data to uncover new knowledge or insights. TDM plays a significant role in the advancement of Artificial Intelligence applications. The value of TDM processes lies in facilitating the treatment, recombination, and extraction of further knowledge from large amounts of data and text, allowing the identification of patterns and associations between seemingly unrelated pieces of information. It therefore has an interesting relationship with copyright. IPKat has more information on the IPO’s decision as it relates to TDM here.
The stock image supplier Getty Images has announced that it will be commencing a claim against Stability AI for “unlawfully copy(ing) and process(ing) millions of images protected by copyright and the associated metadata owned or represented by Getty Images.” It is unclear whether the claim relates solely to the training of the Stability AI system, or whether it includes the outputs of that system. IPKat has more information here.
Data Privacy and Data Protection
The Information Commissioner’s Office (ICO) has written to the North Ayrshire Council, which had introduced facial recognition technology (FRT) to facilitate cashless payments in canteens in nine schools, with its conclusions following investigation. The ICO found that although FRT might be capable of being deployed lawfully in schools, NAC had failed to do so. Notably, NAC had not been able to identify a lawful basis for the processing under Article 6 of the UK GDPR. It initially claimed that the processing was necessary for the performance of a task carried out in the public interest, but then altered its position to say it relied on children’s consent. Neither of these, though, in the circumstances, had been available to NAC. The ICO said that children’s consent could in principle provide the basis, but NAC had not taken adequate steps to gather it, nor to inform children about the processing. Mishcon de Reya has more information here.
10 million customers of the sportswear chain JD Sports had their data exposed in a cyberattack. The breach reportedly affected online sales data from 2018-2020, including personally identifiable information. The BBC has more information here.
The ICO has fined a former employee of automotive services company RAC £5,000 for stealing data belonging to victims of traffic accidents. An ICO investigation found data related to more than 100 road incidents on two phones seized from the former employee.
Surveillance
On 30 January 2023, the Investigatory Powers Tribunal found MI5 agents “unlawfully retained people’s intercepted data,” via the use of surveillance warrants from 2014-2019, Liberty and Privacy International v Security Service [2023] UKIPTrib1. Judge Andrew Edis said the Home Office “failed to make ‘adequate inquiries’” when it approved surveillance warrants from 2016-2019. The surveillance practice was reportedly authorized under the Investigatory Powers Act, which critics claim gives security services too much power to collect the data of innocent people. Reuters has more information here. The Privacy Perspective Blog has produced a summary of the decision here.
Harvard Business School professor emerita Shoshana Zuboff has told the Financial Times that the “Balkanisation” of efforts to curb the societal abuses of Big Tech’s surveillance-based advertising is preventing meaningful reforms; “we have fantastic scholars, researchers, advocates who are focused on privacy, others who are focused on disinformation, others who are focused on the nexus with democracy,” but these disparate parties are not pinpointing the “actual source of harm” for users. She added that democracy and surveillance capitalism cannot coexist.
Newspapers Journalism and Regulation
Head of Editorial at the new media publication gal-dem Suyin Haynes has written an article explaining why her publication chose to be independently regulated. Suyin explains that one of the main motivations for joining IMPRESS was to “professionalise our journalism.” Read her full article on the Hacked Off blog’s 10 Years of Press Freedom series here.
Another article in the Hacked Off 10 Years of Press Freedom series is Steve Topple’s piece on why the co-operative media outlet The Canary chose to join IMPRESS. Download the Hacked Off 10 Years of Press Freedom Report here.
IPSO
- 11998-22 Higginson v cheshire-live.co.uk, 1 Accuracy (2021), Breach – sanction: action as offered by publication
- 11997-22 Higginson v manchestereveningnews.co.uk, 1 Accuracy (2021), Breach – sanction: action as offered by publication
- 11996-22 Higginson v liverpoolecho.co.uk, 1 Accuracy (2021) Breach – sanction: action as offered by publication
- 11525-22 Mitchison v express.co.uk, 1 Accuracy (2021), Breach – sanction: action as offered by publication
- 10205-22 British Pakistani Christians Ltd v The Sun, 6 Children (2021), 1 Accuracy (2021), No breach – after investigation
New Issued Cases
There were no new cases issued on the Media and Communications list last week.
Last Week in the Courts
On Tuesday 31 January 2023 Collins Rice J heard an application in the case of Nagi v Sinniah Santhiramoulsan.
As mentioned above, on 1 February 2023, the Supreme Court gave judgment in Fearn & Ors v Board of Trustees of the Tate Gallery [2023] UKSC 4 and the Court of Appeal gave judgment in Riley v Sivier [2023] EWCA Civ 71.
On the same day, Chamberlain J heard an application in the case of VLM v LPB.
On Thursday 2 February 2023 Murray J heard an application in the case of Stokoe Partnership v Dechert LLP.
Media Law in Other Jurisdictions
Australia
On 1 February 2023, the Federal Court of New South Wales gave judgment on meaning for the publications identified in the amended statement of claim in Russell v Australian Broadcasting Corporation [2023] FCA 38. The case concerns allegations of war crimes by Mr Russell while on tour in Afghanistan. The respondents deny that the pleaded imputations or any other defamatory imputations were carried, but accept that all the pleaded imputations, if carried, are defamatory. They also rely upon the defences of substantial truth, contextual truth and public interest pursuant to ss.25, 26 and 29A of the Defamation Act 2005.
On 3 February 2023, judgment was handed down in the Supreme Court of South Australia in Duffy v Google LLC [2023] SASC 13. The applicant alleges that the respondent published material defamatory of her by way of providing as search results on google.com and google.com.au two URLs to a third-party website, referred to as RoR1 and RoR2, and three associated search result snippets. Held, both RoR1 and RoR2, and all three snippets, on google.com.au were defamatory and were published by inference to unknown third parties; there was no sufficient evidence that RoR1 or RoR2 were accessed on google.com in Australia and hence it cannot be accepted on the balance of probabilities that they were published in Australia; Google is proven to have participated in the communication of RoR1 and RoR2 in Australia on google.com.au so as to render it liable as a secondary publisher; the defences of innocent dissemination and triviality fail; the parties are to be heard on the issue of consequential damages, before questions of costs arise.
The federal court has granted Lachlan Murdoch leave to expand his defamation case against Crikey and add the Private Media chairman, Eric Beecher, and its chief executive, Will Hayward, as respondents. The defamation claim relates to an article published in June last year that named the Murdoch family as an “unindicted co-conspirator” in the US Capitol attack. The Guardian has more information here.
Canada
On 1 February 2023, two new sections of the British Columbia Freedom of Information and Protection of Privacy Act (“FIPPA”) came into force. All public bodies governed by FIPPA in the province of British Columbia are now required to report privacy breaches to individuals and the Office of the Information and Privacy Commissioner and develop a “privacy management program”. DLA Piper has more information here.
Israel
Judicial reforms in Israel are raising concerns in the EU and could impact data flows between the two. CTech has more information here.
Italy
The Italian Supreme Court has ruled that digital art is protectable under copyright. IPKat has more information here.
United States
On 1 February 1, the Federal Trade Commission announced that it entered into a proposed order with GoodRx, a telehealth and prescription drug discount provider, for violations of the FTC’s Health Breach Notification Rule stemming from GoodRx’s unauthorized disclosures of consumers’ personal health information to third party advertisers and other companies. This is the first enforcement action taken under the FTC’s Health Breach Notification Rule, which was issued in 2009. The Privacy and Information Security Law Blog and Norton Rose Fulbright cover the recent moves to restrict the sharing of health data with third parties, specifically when that data is shared with online advertisers.
House Republican Rep. Chris Stewart (R-Utah), is introducing a bill to ban kids and teens under 16 from using social media. The measure would require companies to verify users’ ages and allow parents to sue them if they fail to keep those under 16 off their sites. It would also empower federal and state agencies to enforce the standards. The Washington Post has more information here.
Research and Resources
- Matamoros-Fernández, Bartolo, Troynar, Humour as an online safety issue: Exploring solutions to help platforms better address this form of expression (2023)Internet Policy Review Vol 12(1)
- Horder, Jeremy, Should Political Speech Be Prohibited When It Involves Lies? (2022), LSE Law – Policy Briefing Paper
- Lavi, Michal, Manipulating, Lying, and Engineering the Future (2023), Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 33(2)
- Cameron, Jamie, Renewing Freedom of Expression, Part Two: From the Contextual Approach to Proportionality Balancing (2023). Osgoode Legal Studies Research Paper Forthcoming, Supreme Court Law Review (2d) Forthcoming
- Lukas, Arnold J. F., Machine Data, Personal Data, Sensitive Data and Artificial Intelligence. the Interplay of Privacy Enhancing Technologies with the GDPR (2023), Johannes Gutenberg University Mainz; Deutsche Bank AG
- Kerr, Orin S., Terms of Service and Fourth Amendment Rights (2023), University of California, Berkeley School of Law
- Vranaki, Asma A.I., Regulating Social Network Sites: Data Protection, Copyright and Power ( 2022) Edward Elgar Publishing
- Greenleaf, Graham, Proposed US Federal Data Privacy Law Offers Strong Protections but only to US Residents (2022) 179 Privacy Laws & Business International Report
- Kohl, Uta, Data Protection Law Revealed: The Right to be Forgotten and Two Western Cultures of Privacy (2023), Forthcoming, International and Comparative Law Quarterly
- Rahman, Andin Aditya and Greenleaf, Graham, Indonesia Enacts Personal Data Protection Act, with a DPA (2022) 179 Privacy Laws & Business International Report
- Greenleaf, Graham, Bangladesh’s Data Protection Bill (2022) 179 Privacy Laws & Business International Report
- Keller, Julia, Eavesdropping: The Forgotten Public Nuisance (2022), Independent
- O’Sullivan, Kevin, Online Copyright and the GDPR: Assessing the European Regulatory Landscape for Enforcing Copyright at the User Level (2022), European Intellectual Property Review 2022 Vol 44(11)
Next Week in the Courts
On Monday 6 February 2023 there was a statement in open court before Murray J in the case of Hassan v News Group Newspapers Limited and others
On the same day the same judge heard in an application in the case of Soriano v Forensic News LLC and others.
On 7 February 2023 Steyn J heard the trial in Soriano v Silverstein. Judgment was handed down on 8 February 2023.
Reserved Judgments.
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 Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).
For information, the judgment in “Shah v Saddique” which is listed as a reserved judgment was handed down on 26 January 2023: Shah v Imran (2023) EWHC 120 (KB). (Saddique is the 2nd defendant.)