On 27 to 30 March 2023, applications by Associated News Limited (ANL) against seven claimants bringing misuse of private information actions against the Daily Mail publisher were heard by Nicklin J at London’s High Court.
ANL denies any wrong doing, but at this preliminary hearing made two objections to the claim. First, that parts of the cases should be struck out because they relied on documents that were confidential and second that the whole case should be thrown out because limitation has expired.
Inforrm had case reports of Day 1, Day 2, Day 3 and Day 4. Judgment is reserved. Hacked Off provides commentary here. The Guardian, Sunday Times, Financial Times and BBC are some of the many news outlets to provide coverage and analysis.
Nicklin J agreed to a temporary ban on reporting the names of 73 current and former Daily Mail and Mail on Sunday journalists mentioned in the Particulars of Claim. Judgment was reserved.
On 29 March 2023, the UK government published the Draft Media Bill, which includes the repeal of section 40 of the Crime and Courts Act 2013 (“CaCA”) and creates a Broadcast Code for streamers. Section 40 CaCA is a piece of legislation designed to protect newspapers from “SLAPPs” (attempts by wealthy litigants to chill investigative reporting by bringing meritless claims) and press freedom. It does this by protecting newspapers from paying claimants’ costs in claims brought against them, where the claimant could instead have used low-cost arbitration. The IMA, the leading association representing independent media publishers, has written to the Government criticising its plans to repeal section 40 CaCA. Lexology, the Press Gazette and Hacked Off have more information.
On the same day, the UK government published the AI White Paper, designed to guide the use of artificial intelligence in the UK, drive responsible innovation and maintain public trust in revolutionary technology. The regulatory framework consists of five AI principles: safety, transparency, fairness, accountability and governance, and redress. Osborne Clarke, TechMonitor, FinTech Times, Mishcon de Reya, DLA Piper, the Privacy and Information Law Blog and the Data Protection Report have more information.
Wildlife presenter Chris Packham has raised over £100,000 in donations for his defamation claim against Fieldsports Channel, which he claims created articles alleging that he faked a death threat to himself, and has generated such hatred towards him that he fears for his family’s safety. The Guardian has more information here.
Internet and Social Media
Clean up the Internet Blog has prepared an initial analysis of Meta’s “Meta Verified” pilot scheme, a paid-for verification service. Meta Verified allows users of Instagram or Facebook to gain a “blue tick” on their profile, upon completing a verification process and paying a monthly subscription fee. A crucial difference between this and Twitter’s recently introduced “Verified by Blue” appears to be that Meta Verified requires more verification. Nevertheless, the article argues this feature “reinforces the importance of independent regulation;” platforms have shown that with respect to verification, if they are left to their own devices, users will be offered a feature that prioritises income generation and data harvesting over safety.
Data Privacy and Data Protection
The Information Commissioner’s Office (ICO) is seeking feedback on draft guidance for services “likely to be accessed by children” within the scope of the UK Children’s Code. The consultation closes on 19 May 2023.
The UK Regulatory Policy Committee has published its opinion on the proposed Data Protection and Digital Information Bill. The RPC’s “fit for purpose” opinion examined the impact assessment conducted on the latest draft of the bill, including its amendments for the scientific research exemption, legitimate interest-based processing and use of existing data transfer mechanisms.
The French government has approved draft legislation to temporarily utilize “intelligent surveillance systems” during the 2024 Paris Olympics and Paralympics. The systems “combine cameras with artificial intelligence software to flag potential security concerns.” A human operator would then evaluate if a flagged security concern necessitates action. Privacy advocates opposed to the legislation said the technology could be used to erode civil liberties and allows the government to deploy the technology on an “experimental basis” at large cultural events through the end of 2024, the Associated Press reports.
Newspapers Journalism and Regulation
The College of Policing has withdrawn proposals that would have given forces the option of not naming people charged with offences after uproar among media groups. The updated guidelines, prompted by concerns about data protection rules, would have instructed police that suspects charged with offences “can be named”, while it had previously stated they “should be named.” The Press Gazette has more information here.
- 12028-22 Cook v northwichguardian.co.uk, 9 Reporting of Crime (2021), 4 Intrusion into grief or shock (2021), 2 Privacy (2021), 1 Accuracy (2021), No breach – after investigation
- Resolution Statement – 11036-22 Cross v Daily Mail, 1 Accuracy (2021), Resolved – IPSO mediation
- 12003-22 A man v The Spectator, 1 Accuracy (2021), No breach – after investigation
Statements in Open Court and Apologies
On 28 March 2023, Laila McKenzie, the founder of Lady of the House, an organisation promoting, celebrating and championing women in dance music, and Silvana Kill published the following joint statement in respect of content published on social media by Ms Kill in 2022;
“An internal dispute arose between us in October 2022, which with the help of legal representation has now been resolved. We now look forward to moving on from this episode and continuing to work for our respective organisations and associations.”
New Issued Cases
There were four new cases issued in the Media and Communications List last week – two defamation cases and two claims for breach of confidence.
Last Week in the Courts
As already mentioned, on 27 to 30 March 2023, Nicklin J heard applications in the case of Various Claimants v Associated Newspapers.
On 27 March 2023, Heather Williams J heard an application in the case of Kirk and Others v Associated Newspapers.
On 28 March 2023, there was a hearing in the case of Brown v Channel 5. On the same day, there was also a hearing in the case of Leeds and Another v Warwick.
On 29 March 2023, judgment was handed down by Saini J in the3million & Anor, R (On the Application Of) v Secretary of State for the Home Department & Anor  EWHC 713 (Admin). The ruling found the “immigration exemption” in the Data Protection Act 2018 to be illegal. The ruling came after EU rights group The3Million and Open Rights Group originally brought the complaint. The ICO was an “interested party” to the case and previously said the guidance issued by the government regarding the exemption lacked clarity. The Information Commissioner has lauded the judgment, saying protecting the privacy rights of “people (who) may not even be aware those rights exist” was a core function of the ICO.
On 30 March 2023, there were hearings in the case of Packham CBE v Wightman and others.
On the same day, judgment was handed down by Master Cook in Muhammad v Daily The News International & Ors (Rev1)  EWHC 674 (KB). This related to an application made by the Second to Fourth Defendants under CPR r 11 to contest the jurisdiction of the Court and of a cross application by Mr Muhammad under section 32A of the Limitation Act to extend the one-year limitation period which is applicable to libel claims. The Claimant’s 32A application was dismissed and the Second to Fourth Defendants were entitled to an order that service of the claim form be set aside under CPR r 11(6).
On 31 March 2023, judgment was handed down in the Court of Appeal in Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust  EWCA Civ 331. The appeals concern the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order made in end-of-life proceedings in the High Court preventing the naming of doctors. The appeal was allowed the orders discharged. The two trusts have yet to say whether they will seek to challenge the appeal court ruling in the Supreme Court. The BBC, Law360 and Northern Echo cover the ruling.
On the same day Ritchie J handed down judgment in the case of Armstrong Watson LLP v Persons Unknown  EWHC 762 (KB) setting out his reasons for granting a without notice injunction at a private hearing in a case where the claimant law firm had been subject to a hack of its IT systems and a subsequent blackmail attempt.
There was also a hearing in the case of LCG and others v OVD and others.
Media Law in Other Jurisdictions
Nedlands Council will not fund a defence for a controversial councillor who is being sued in the Supreme Court for defamation. The West Australian has more information here.
Erin Molan and Daily Mail Australia have settled the defamation case between them with each side paying their own legal costs, the Guardian reports.
On 27 March 2023, a without notice interim injunction was granted in Bruneau v Quinn, 2023 ABKB 177 (CanLII).
On the same day, the Supreme Court of British Columbia handed down judgment in Cooper Creek Cedar Ltd. v Ogden 2023 BCSC 465 (CanLII). Cooper Creek Cedar application for a Norwich order that several third parties, including Facebook Canada and Meta, provide information regarding a number of social media accounts and a website associated with Last Stand West Kootenay was dismissed. The court was not convinced that Cooper Creek had a bona fide claim against the persons controlling these social media accounts. Further, the court found that the third party media companies are not the only practical source for the information sought .
On 31 March 2023, a court sentenced Qin Yongpei to five years imprisonment and three years deprivation of political rights for inciting subversion of state power on the grounds that he used social media to “sow doubt amongst the populace about our country’s State regime and socialist system.” Qin Yongpei was a civil rights lawyer who became a target of police investigations in 2015. While the court’s judgment did not specify which social media posts caused such doubts to be sown, the police’s prosecution recommendation listed the content of several Sina Weibo and Twitter posts that it deemed “reactionary.” The Fei Chang Dao Blog provides a full translation here.
The European Data Protection Board will continue its debate on the Ireland Data Protection Commission case regarding lawfulness of Meta’s EU-US data transfers at its plenary meeting 28 March. The full agenda can be found here.
On 30 March 2023, the European Court of Justice ruled on the requirements for national legal bases regarding employee data protection in the context of a referral procedure. Employers in Germany have so far extensively relied on Sec. 26 (1) sentence 1 Federal Data Protection Act (BDSG) as the legal basis for processing personal data of their employees. This practice should now be reviewed and – where necessary – adjusted. DLA Piper has more information here.
On 29 March 2023, approval was given to the publication of the general scheme of the Defamation (Amendment) Bill, a major reform to defamation laws that will abolish juries in High Court actions, clamp down on “libel tourism” and make it easier to access information about anonymous posters online. The Irish Times and Irish Legal News have more information.
The Data Protection Commission has published its 2022 Annual Report, highlighting the DPC’s progress on (i) ongoing large-scale inquiries (in particular against social media platforms), (ii) defence of cross-border decisions, and (iii) increased interaction with the European Data Protection Board. Two-thirds of the GDPR fines issued by EU data protection authorities last year where from the DPC, illustrating a continued commitment to enforcement.
On 30 March 2023, the Digital Identity Services Trust Framework Bill passed its final reading in New Zealand’s House of Representatives. The Digital Identity Services Trust Framework Act will come into effect on 1 July 2024. It is a ‘flagship initiative’ under the current Government’s Digital Strategy for Aotearoa New Zealand, and will establish a voluntary accreditation scheme for digital identity service providers, similar to existing frameworks in the United Kingdom, Canada and Australia. DLA Piper has more information here.
On 30 March 2023, the California Privacy Protection Agency announced that California’s Office of Administrative Law approved the substantive rulemaking package to implement the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020. The Privacy and Information Law Blog has more information here.
The Centre for Internet and Society published Riana Pfefferkorn’s prepared remarks for a presentation at a private workshop on children’s online safety policy.
Research and Resources
- Goldenfein, Jake and McGuigan, Lee, Managed Sovereigns: How Inconsistent Accounts of the Human Rationalize Platform Advertising (2023), Journal of Law and Political Economy, Forthcoming
- LoMonte, Frank and Jones, Rachel, Blowing the Whistle on NIL Secrecy: College Athlete Endorsement Agreements and State Freedom-of-Information Laws (2023), Temple Law Review, Vol. 95(257)
- Schwanen, Daniel, Calibrating Competition Policy for the Digital Age (2023), C.D. Howe Institute Commentary 636
- Owens, Lisa Lucile, Concentrated Surveillance without Constitutional Privacy: Law, Inequality, and Public Housing (2023), 34 (1) Stan. L. & Pol’y Rev 131
- Takhshid, Zahra, Quantum Privacy (2023), The Cambridge Handbook on Emerging Issues At The Intersection of Commercial Law and Technology, (Forthcoming, Cambridge University Press)
- Kemp, Katharine, Your Body, Our Data: Unfair and Unsafe Privacy Practices of Popular Fertility Apps (2023), University of New South Wales (UNSW) – UNSW Law & Justice
Next Week in the Courts
On 3 and 4 April 2023 Warby LJ and Nicklin J will hear an application to commit in the case of Wright v McCormack.
[Update]. On Tuesday 4 April 2023, Murray J will hand down judgment in the case of Simon Bard Parkes v Hall.
On Wednesday 5 April 2023 there will be a hearing in the case of Wright v McCormack.
Various Claimants v Associated Newspapers, heard 27 to 30 March 2023 (Nicklin J)
Prismall v (1) Google (2) Deep Mind, heard 21 and 22 March 2023 (Heather Williams J).
Duke of Sussex v Associated Newspapers Limited, heard 17 March 2023 (Nicklin J)
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).