On 27 February 2023, judgment was handed down in FGX v Gaunt  EWHC 419 (KB) by Thornton J, thought to be the first civil case on intimate-image abuse (commonly referred to as “revenge porn”) of its kind.
The claim advanced against the defendant was for (i) intentionally exposing the Claimant to a foreseeable risk of injury or severe distress which resulted in injury; (ii) infringement of the Claimant’s privacy; (iii) breach of the Claimant’s confidence (misuse of private information). The Defendant failed to provide any defence to the claim. Damages were awarded to the total of £97,041.61. Bloomberg, Solicitor’s Journal and The Straits Times cover the judgment.
More news coverage has been given to the sentencing of reality TV personality Stephen Bear to 21 months in prison for sharing a private video of him having sex with his ex-girlfriend Georgia Harrison; judgment was delivered by Chelmsford Crown Court on 3 March 2023. Harrison, who waived her right to anonymity, told Chelmsford Crown Court she did not know they were being filmed and had told Bear not to share the footage. In December, a jury found him guilty of two counts of disclosing private sexual photographs and films with intent to cause distress. He was also found guilty by a majority verdict of 10 jurors to two of voyeurism. The BBC, Guardian, Telegraph and Sun carry the story.
On 28 February 2023, the Court of Appeal gave judgment in favour of appellant Aaron Banks in his defamation claim against Carol Cadwalladr, with a finding that Cadwalladr’s TED Talk had caused serious harm to his reputation (Banks v Cadwalladr  EWCA Civ 219). The claim related to allegations about the relationship between Mr Banks and the Russian government in relation to the acceptance of foreign funding, which were found to convey a meaning that Mr Banks had been dishonest about the nature of this relationship. The trial judge, Steyn J, held that the s.4 Defamation Act 2013 defence of public interest fell away after the National Crime Agency and Electoral Commission found that there was no evidence of Mr Banks receiving third party funding or acting as a third party’s agent. However, Steyn J determined that serious harm needed to be reconsidered in respect of this post-defence period, and ruled that Mr Banks’s claim failed as he had not established it.
Warby LJ, with whom Sharp P and Singh LJ agreed, held that Steyn J had been correct in principle to reconsider the issue of serious harm in relation to the period after Ms Cadwalladr’s public interest defence fell away. However, Steyn J had erred in ruling that the continuing publication of Ms Cadwalladr’s TED Talk had not caused serious harm to Mr Banks’ reputation. Held, Steyn J had had no proper basis to find that the publishees of Ms Cadwalladr’s statements were within her “echo chamber” and of “no consequence” to Mr Banks. As a result, it was wrong to find no serious harm to Mr Banks’ reputation. Serious harm was an inevitable inference from the inherent gravity of the allegation and the scale of publication. Read 5RB’s summary here. The Press Gazette, Guardian, Reporters without Borders have more information.
Journalist and ghost-writer Isabel Oakeshott has released over 100,000 WhatsApp messages from former Health Secretary Matt Hancock to The Daily Telegraph, revealing exchanges between Mr Hancock and his colleagues about COVID policy at the height of the pandemic. Mr Hancock shared these messages with Oakeshott while she was working on his Pandemic Diaries book. Oakeshott told BBC Radio 4’s Today Programme that breaking her NDA was in the public interest. The release has sparked widespread commentary on ethical journalism and misuse of private information. The following articles from The Conversation, Press Gazette, the Times and Guardian, Sky News and BBC provide a snapshot of the coverage. The Brett Wilson Media and Communication Law Blog asks whether Oakeshott’s breach of confidence can be justified? The Information Commissioner’s Office (ICO) statement can be read here.
Internet and Social Media
A UK citizen has accused YouTube of collecting the data of children under the age of 13 in a complaint to the ICO. The complaint accuses YouTube of storing information on what videos children watch, their location and what device they are using. According to the complaint, children often use their parents’ devices and that data is stored as if an adult was the individual viewing the content. YouTube has said its services are intended for persons older than 13 and should make an account with YouTube Kids. BBC has more information here.
The Press Gazette has an article examining two lawsuits, one in the US and on in the UK, which accuse Google’s advertising technology of gaining control of the digital advertising market, and could lead to billion GBP/USD payouts for publishers.
Data Privacy and Data Protection
The Secretary of State for Science, Innovation and Technology Michelle Donelan has refuted a reported pause on consideration of the proposed Data Protection and Digital Information Bill. Donelan said the proposal is set to be reintroduced to the House of Commons the week of 6 March 2023.
DLA Piper provides an update on the EU-US adequacy decision for the US and the EU-US Data Privacy Framework.
The HawkTalk blog has published its latest post on the public consultation on proposals to support data sharing for the purpose of digital identity verification. The article argues that the Consultation has too much missing for it to be treated as a reliable representation of what is being proposed.
Newspapers Journalism and Regulation
Writing on the Information Law and Policy Centre Blog, Dr Peter Coe explains some of the reasons behind the new Impress Standards Code, the Press Recognition Panel approved regulator of the UK press, which was launched on 16 February 2023 and will come into force on the 1 April 2023. Coe also explains some of the key changes.
The Press Gazette has an article by lawyer JJ Shaw examining the potential legal and ethical implications of using AI in the newsroom.
There were no new IPSO rulings issued last week.
Statements in Open Court and Apologies
There were no statements in open court or apologies made last week.
New Issued Cases
There was one defamation (libel and slander) claim and one Data Protection claim filed on the media and communications list last week.
Last Week in the Courts
On 27 and 28 February 2023, Nicklin J heard applications in the case of CR and others v Paymaster (1836) Limited trading as Equiniti.
As mentioned above, on 28 February 2023, the Court of Appeal found in favour of Aaron Banks and ruled that Carol Cadwalladr’s TED talk had caused serious harm to his reputation ( EWCA Civ 219).
On the same day, judgment was handed down in Lonestar Communications Corporation LLC v Kaye & Ors  EWHC 421 (Comm). The Claimant was the victim of a campaign of cyber-attacks (the DDOS Attacks). Held, Mr Kaye, Mr Marziano and Mr Polani (collectively the Individual Defendants) were liable in tort to Lonestar for the DDOS Attacks; the Third Defendant (Cellcom BVI) and Fifth Defendant (Orange Liberia) were vicariously liable for their actions. Damages were awarded against each of the Individual Defendants, Orange Liberia and Cellcom BVI in the sum of $3,602,349 lost profits and $707,738.36 unnecessary expenditure, and further entitled to punitive damages of $170,000 against Mr Marziano. Orange Liberia is entitled to 100% contribution from each of the Individual Defendants, and 50% contribution from Cellcom BVI.
Also on 28 February 2023, there was a hearing in the case of Global Processing Services (UK) Limited v Yanpolsky and another.
On 1 March 2023, judgment was handed down in Bukhari v Bukhari  EWHC 427 (KB) by Steyn J. The parties are cousins. The claimant’s application for an order striking out the defendant’s defence, or alternatively entering summary judgment for the claimant, on his claim for libel and harassment was rejected. The claim relates to 249 tweets published by the defendant between early September 2019 to 20 March 2020, and 21 videos published during the same period. The claimant relied on a subset of these publications in respect of the libel claim. Steyn J has given the defendant a further opportunity to amend the draft Amended Defence and remedy the defects that I have identified.
On the same day, judgment was handed down by the Court of Appeal in Soriano v Forensic News LLC & Ors  EWCA Civ 223. This case raises one important issue as to this court’s proper approach to defendants, who seek to use foreign court procedures to gather evidence to support their defence to litigation here. In the build up to the preliminary hearing, the defendants applied to the District Court for the Southern District of New York (the DCSDNY) on 6 December 2022 for an order requiring HSBC Bank USA NA (HSBC USA) to produce two very broad categories of banking documents relating to Mr Soriano’s companies in reliance on 28 USC §1782 (the 1782 application). Mr Soriano’s application in January 2023 for an anti-suit injunction on the grounds that it was vexatious, oppressive and unconscionable and would interfere with the efficient conduct of these proceedings was dismissed by Murray J. Mr Soriano raised five grounds of appeal. Mr Andrew Fulton KC, leading counsel for Mr Soriano, argued that the cardinal principle was that English law regarded it as wrong for a libel defendant to be given the opportunity to scour the books and records of the person he has defamed before particularising a defence .
The appeal was dismissed. At paragraph , court held that the principles applicable to a 1782 application do not depart from, or interfere with, the procedure of the English court “by seeking to exercise a right potentially available to them under the Federal law of the United States”. The principles applicable to libel proceedings in this context are no different from those applicable to other civil proceedings; the defendant is able to gather evidence in any lawful manner. The apparently undesirable breadth of the order sought is a matter for the DCSDNY applying its own principles. It will, however, realise from this judgment that such a broad order would be unlikely to be granted here.
On the same day there was a hearing in the case of Johnson v Hammond.
On 2 March 2023, judgment was handed down by the Court of Appeal in Warburton v Chief Constable of Avon and Somerset Constabulary  EWCA Civ 209. The appellant (Mr Warburton) claims damages and injunctive relief against the respondent police force (Avon & Somerset) for alleged breaches of the Data Protection Acts 1998. Earlier Defamation Proceedings had been settled on 11 July 2019 when Mr Warburton accepted a Part 36 offer from Avon & Somerset to settle the whole of the Defamation Proceedings for £20,000.
The appeal was against the trial Judge’s decision to strike out the pre-July 2019 DPA claims, and was brought on two grounds namely:
- i) that the Judge was wrong to hold that the pre-July 2019 DPA claim had not been “raised” or “brought forward” by Mr Warburton in the Defamation Proceedings. Mr Warburton argued he had set out that claim in draft amendments to the Particulars of Claim in the Defamation Proceedings, which had been provided to Avon & Somerset and put before the court, although permission to amend had not been granted by the date of the settlement.
- ii) the Judge failed to recognise that the effect of accepting a Part 36 offer is the settlement of the pleaded claim, and only that claim, wrongly considering the pre-settlement correspondence. Mr Warburton contends that it was not an abuse for him to take advantage of Avon & Somerset’s “litigation mistake”.
Both grounds were dismissed as having no merit,  .
Media Law in Other Jurisdictions
On 3 March 2023, the damages payable by Australian Financial Review to Papua New Guinean politician were reduced by $80,000 due to “regrettable oversight” of mitigating effect of confidential settlement in other defamation proceedings, Duma v Fairfax Media Publications Pty Limited (No 4)  FCA 159.
The Daily Mail Australia has appealed to the Federal Court over its $150,000 defamation loss against Erin Molan, citing new evidence. News.com.au has more information here.
DLA Piper provides an update on the Australian Government’s 2023-2030 Australian Cyber Security Strategy following the launch of the discussion paper this week.
On 27 February 2023, the Court of Appeal handed down judgment dismissed the appeal in McAndrew v Launceston Property Finance DAC & Anor (Unapproved)  IECA 43. The claim related to possession proceedings by the defendant in which the plaintiff alleges they were defamed. The judge at first instance found “insofar as it goes, the claim seems to be that because the defendants asserted a legal right to the plaintiff’s property which I can only assume relates to the demand for possession, that they defamed the defendant. Now, how that can be the case in circumstances where as I clearly held the appointment of [the second defendant] was valid and entirely lawful, it is impossible to discern any basis upon which that could be suggested to be a defamation of the plaintiff.” In respect of the plea that the defendants trespassed on the plaintiff’s property and defamed him when they were in theft of his property, again, the Judge found this plea “totally unexplained, no particulars of any kind, good bad or indifferent are given”. The Court of Appeal found that the trial judge had properly addressed the defendants’ application to strike out the plaintiff’s statement of claim.
A talk by a UK preacher at an event at Trinity College Dublin on Friday has been cancelled due to security fears. Mohammed Hijab had been due to speak at an event organised by the college’s Muslim Students Association on the topic of “hedonism”. Mr Hijab’s invitation to speak on the college’s campus was criticised by students who said they planned to stage a protest should the event go ahead. It is understood the group made a request to college authorities for security support but was turned down due to a lack of adequate notice. Cearta.ie has more information here.
Turkey’s data protection authority, the Kişisel Verileri Koruma Kurumu, fined TikTok 1.75 million liralar for insufficiently protecting users from unlawful data processing, Reuters reports. The KVKK said the fine resulted from TikTok “not taking all necessary measures to ensure the appropriate level of security to prevent unlawful processing of personal data.” Reuters has more information here.
Research and Resources
- LaPlante, Emily, You Have the Right to Remain Silent, Your Lyrics May Be Used Against You in the Court of Law: The Entertainment and the Introduction of Artistic Expression as Evidence (2022), Southern University Law Center – Southern University Law Center, Southern University Law Review, Students
- Banisar, David, The European Court of Human Rights Protects Luxleaks Whistleblower (2023), Corporate Crime Observatory
- Heyman, Steven J., Hate-Speech Bans Are Consonant with Liberal Principles (2023), The Oxford Handbook of Hate Speech, edited by Eric Heinze, Natalie Alkiviadou, Tom Herrenberg, Sejal Parmar and Ioanna Tourkochoriti (Oxford University Press)
- Tilley, Cristina, The First Amendment and the Second Sex (2023), Arizona Law Review, Vol. 65(1)
- Quintais, João Pedro and De Gregorio, Giovanni and Vieira Magalhães, João, How Platforms Govern Users’ Copyright-Protected Content: Exploring the Power of Private Ordering and Its Implications (2023) 48 Computer Law and Security Review
- Falletti, Elena, Algorithmic Discrimination and Privacy Protection (2023), Carlo Cattaneo – LIUC University
- Nikolin, Dan, When Seeing is No Longer Believing: Is Australian Privacy Law Ready for Deep Fakes? (2022), Independent
- Ravid, Itay, The Right to Social Expungement (2023), 60(2) Am. Crim. L. Rev. ____ (Forthcoming)
- Goldman, Eric, Amicus Brief on the Constitutionality of the California Age-Appropriate Design Code’s Age Assurance Requirement (NetChoice v. Bonta) (2023), Santa Clara University – School of Law
- Kashman, Star, Google Dorking or Legal Hacking: From the CIA Compromise to Your Cameras at Home, We Are Not As Safe As We Think (2023), Washington Journal of Law, Technology & Arts, Vol. 18(2)
- Margulies, Peter, Adjudicating Algorithms: Accountability in Regulation of Surveillance, Privacy, and Discrimination (2023), Roger Williams Univ. Legal Studies Paper No. 216
Next Week in the Courts
On 6 March 2023 Nicklin J will hear an application in the case of Kirk v Associated Newspapers.
[Update] On 8 March 2023 there will be a Pre-Trial Review in the case of Various Claimants v MGN before Fancourt J. The trial is due to commence on 9 May 2023 and is listed for 6-8 weeks.
On 10 March 2023 there will be a contempt application in the case of Miller -v- Peake QB-2022-.001106.
AEP and others v The Labour Party, 21 to 23 February 2023 (Chamberlain J)
Hay v Cresswell, heard 20 to 23 February 2023 (Heather Williams J)
Amersi v Leslie, heard 10 January 2023 (Nicklin J)
Aaronson v Stones, heard 12-15 December 2022 (Julian Knowles 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).