Barrister and President of Magadelen College, Oxford, Dinah Rose KC, is set to sue the Times for an article which quoted the Bar Standards Board as saying her interpretation of the “cab rank rule” might amount to recklessness, if taken at its highest.

The story was published last year following Rose’s representation of the Cayman Islands in a case before the privy council regarding the constitutional right to same-sex marriage. Rose drew criticism from LGBTQ+ activists, including students at her college, for taking the case. The BSB later issued a public statement clarifying that it had not found Rose to have acted inappropriately. The Guardian covers the story.

The Media Freedom Rapid Response (MFRR) 2022 Monitoring Report found that there was an increase in the number of media freedom violations last year in Europe. The MFRR recorded 813 violations in EU member states and candidate countries, including the death of 10 journalists. The report found that Turkey was the worst country for media violations and emphasised the adverse effects of the war in Ukraine on press freedom. Journalists covering the climate crisis were found to face increasing threats and most incidents, ranging from trolling to phone hacking, occurred online. Balkan Insight summarised the key findings of the report.

Internet and Social Media

A survey carried by Amnesty International interviewing 550 young people aged 13-24 across 45 countries about their social media use reported praise about the opportunities for activism and diversity of ideas. However, the report also raised two major concerns about the toll of harmful content and the addictive nature of many platforms. Respondents also communicated that they felt a lack of control in relation to their privacy.

The LSE Media Blog published an article arguing for greater algorithmic accountability under the Online Safety Bill in order to make social media safe.

Data privacy and data protection

Professor Uri Gal of University of Sydney Business School discussed the ramifications of ChatGPT on privacy in The Conversation. Gal explains that, as the software was trained on billions of words scraped from the internet, it is unclear whether the software complies with GDPR, copyright or the right to be forgotten. Equally, he warns that any outputs created by ChatGPT will be retained on its database and subject to its privacy policy.

Surveillance

Biometrics and Surveillance Camera Commissioner, Professor Fraser Sampson, has warned of the danger of planned legal changes to the oversight of surveillance technology. He told the BBC that, if passed, the Data Protection and Digital Information Bill would abolish his role as a watchdog and create an accountability vacuum. His most recent report highlights the increase in automatic number-plate recognition and raises concerns about “mission creep.” The Home Office responded by confirming that there is a comprehensive legal framework regarding surveillance cameras in place.

Newspaper Journalism and regulation

IPSO has announced that it will investigate two complaints about an article written by Jeremy Clarkson and published in the Sun seven weeks ago about Meghan Markle. In a press release, Hacked Off doubted IPSO’s ability to appropriately sanction the newspaper, given their delay in announcing the investigation.

The organisation also launched a public consultation this week regarding draft guidance on the reporting of sex and gender identity. The consultation, which is open until Friday 10th March 2023, is designed to elicit feedback on the draft guidance, which will eventually be used to help editors and journalists make editorial decisions. The draft guidance is available to read here.

IPSO

There are no new IPSO rulings this week.

Statements in open court and apologies

There were no statements in open court this week.

New Issued cases

There were no new cases issued on the Media and Communications list last week.

Last week in the courts

On 8 February 2023, Julian Knowles J dismissed the defendant’s application in Dr Saeed Shehabi and Moosa Mohamme v The Kingdom of Bahrain [2023] EWHC 89 (KB) to dismiss the claim for want of jurisdiction. The claimants, two democracy and human rights activists residing in London, sued the State for psychiatric injury and harassment resulting from the installation of spyware on their computers. The primary issue was that of state immunity. The court found —in keeping with Al-Masarir [2022] EWHC 2199 (QB) [120] — that under section 5 of the State Immunity Act 1978, the tortious act need only to have occurred in the UK, even if the defendants were not physically present [137]. Remote manipulation of a computer from abroad constitutes an act within the UK [139]. Reuters, Middle East Eye and Al Jazeera covered the ruling.

On the same day, Steyn J found in favour of the claimant in Soriano v Silverstein [2023] 2 WLUK 121. Following the settlement of a case, an American blogger had agreed to refrain from repeating defamatory allegations made against Walter Soriano. The court found that the publication of a tweet had breached the settlement agreement and that there was a real and substantive risk of future breaches. The court ordered a permanent injunction, and the defendant was ordered to pay costs. 5RB summarised the case.

On 7 February 2023, the Court of Appeal (Sharp P, Singh and Warby LJJ) heard an appeal in the case of Banks v Cadwalladr.  Following the trial last year, Ms Cadwalladr initially succeeded on a public interest defence, which was later found not to apply as the Electoral Commission accepted that the claimant had not committed any criminal offences. On appeal, Banks argued that he was left without remedy after the defendant doubled down on her accusations against him, despite sending him a private letter of apology. The Guardian and the Press Gazette covered the hearing. Judgement was reserved.

On 9 February 2023, Master Davison dismissed the defendants’ application to strike out the claim in James Wilson v James Mendelsohn & Others [2023] EWHC 231 (KB). The court disagreed with the assessment that the claimant had no real prospect of success in his claim for harassment, libel, GDPR and misuse of private information.

On 10 February 2023, Justice Murray refused Mr Soriano’s application for an injunction to restrain the respondent’s proceedings in . In 2021, the claimant was given permission to serve outside the jurisdiction for part of his defamation claim. The respondents made an application in the US to issue a subpoena for the production of documents which it states will bolster its defence of truth. The Judge that this application would not be oppressive, vexatious, or otherwise unconscionable.

Media law in other jurisdictions

Australia

On 7 February 2023, the Federal Court of Australia found in favour of Papua New Guinea energy minister William Duma in the case of Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47. The allegations that Duma had acted corruptly and fraudulently in the grant of a petroleum licence were found to be false. Duma was awarded $500,000 in aggravated damages plus $45,000 in interest. Perth Now, the Australian Financial Review and The National reported on the case.

On 10th February 2023, the Federal Court refused leave to file documents sent to the court in defamation proceedings in the case of Rana v Google Inc (No 2) [2023] FCA 81.

Argentina

The Asociación por los Derechos Civiles (ADC) published a report concerning the use of Mobile Phone Extraction (MPE) tools by the Argentinian authorities. ADC offers recommendations for regulating the use of MPE tools to protect the right to privacy and due process. The report is available to read here. Privacy International also summarised the key findings.

Asia

According a new survey by the Organization for Economic Co-operation and Development and the Japan External Trade Organization (JETRO), Asian countries are turning towards digital protectionism by placing restrictions on cross-border data transfers and implementing laws which require data localization. Nikkei Asia reports on the trend.

Canada

On 6 February 2023, Smith J dismissed the defendant’s application to dismiss the plaintiff’s claim under an anti-SLAPP provision in the case of Kirkland v Nagy et al, 2023 ONSC 871.

On 10 February 2023, McLean J dismissed an appeal in the case of Safavi-Naini v. Rubin Thomlinson LLP, 2023 ONCA 86. The court found that the motion judge had not erred in dismissing the defamation proceedings on the grounds of public interest and qualified privilege.

 India

Following defamation proceedings against a senior advocate who made statements about a well-known business family, the High Court of Delhi ruled that statements made by lawyers during the course of judicial proceedings must be subject to absolute privilege. The Indian Express covered the case.

A new report by Surfshark has found that Indian-administered Kashmir faced more internet shutdowns and restrictions than any other region in 2022, surpassing Iran and Russia. The report found that nearly all internet censorship worldwide occurred during periods of protest or unrest. Overall, Asia accounted for 47% of all global cases. VOA News covered the report.

Indonesia

Indonesia’s Press Council has announced that it is drafting new laws which would allow media outlets to receive payments from digital platforms that display their content. The law draws on similar legislation in Germany and Australia and is set to be issued in the next month. Reuters reports on the development.

United States

Texas State Representative, Giovanni Capriglione, introduced a privacy bill to the state legislature which closely follows the Virginia Consumer Data Protection Act. If passed, Texas will become the sixth state to enact major privacy legislation. Read more about the ramifications of the bill on Hunton Privacy Blog.

Florida Governor, Ron DeSantis, hosted a roundtable discussion about the damaging impact of defamatory allegations on the lives of ordinary citizens. He took particular aim at media conglomerates and emphasized that the law does not currently do enough to protect from media disinformation. The discussion is available to watch here.

Research and Resources

Next week in the courts

On Monday 13 February 2023, there will be an application in the case of Byrne v Motorsport Vision Racing Ltd and others.

Reserved judgements

Banks v Cadwalladr,  heard 7 February 2023 (Sharp P, Singh and Warby LJJ)

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.