Fox Corporation has agreed to pay Dominion Voting Systems $787.5 million (£630m) to settle a landmark defamation suit brought by the election technology company over claims repeatedly aired on Fox News suggesting its voting machines were involved in a conspiracy to rig the 2020 US presidential election.

The settlement is thought to be the largest libel settlement in history. The only case that has been more costly is phone-hacking, which has cost News Corp more than £1bn in total over the past decade. In a statement, Fox said: “We acknowledge the court’s rulings finding certain claims about Dominion to be false” and that the settlement “reflects Fox’s continued commitment to the highest journalistic standards.” The Guardian, BBC, Independent and Press Gazette are some of the many news outlets to cover the settlement. The Conversation has a piece explaining why the settlement is good news for all media outlets. The Inforrm Blog posted analysis of the difficulties of proving libel.

On 25 to 27 April 2023 there will be a hearing in the News Group phone hacking litigation before the managing judge,  Fancourt J.  NGN are applying to strike out claims by Hugh Grant and Prince Harry on limitation grounds.

The heads of several encrypted chat apps, including WhatsApp and Signal, have written to the government to express criticism that the proposed Online Safety Bill “poses an unprecedented threat to the privacy, safety and security of every UK citizen and the people with whom they communicate around the world, while emboldening hostile governments who may seek to draft copycat laws.” The head of WhatsApp has said the app would leave the UK before complying with a law that weakened E2E encryption. The Guardian, SkyNews and TechMonitor have more information.

Parliament is taking written comments from those with “expertise and experience or a special interest” concerning the proposed Data Protection and Digital Information Bill. The submission deadline is 10 May 2023 with the final report expected 13 June 2023.

Internet and Social Media

The UK Constitutional Law blog has an article, featured on Inforrm, on the litigation brought by the Open Rights Group and the The3million challenging the UK data protection’s so-called “immigration exemption” (DPA 2018, Sch. 2, para. 4). The contested provision disapplies all of the GDPR’s transparency rights and the rights to erasure, restriction and objection. The Court of Appeal  found the original version of this exemption to be incompatible with the  GDPR’s restrictions clause (art 23), with an (albeit suspended) declaratory order being issued to this effect, The Open Rights Group & Anor, R (On the Application Of) v The SoS Home Department & Anor (Rev2) [2021] EWCA Civ 800.

Data Privacy and Data Protection

Minister of State in the Department of Science,  Innovation and Technology Julia Lopez presented the proposed Data Protection and Digital Information Bill for its second reading in the House of Commons last week. During the exchange with members of Parliament, Lopez said the bill was “co-designed” with stakeholders “to ensure that our regulation reflects the way in which real people live their lives and run their businesses.” Lopez added current rules under the UK GDPR are “too vague, too complex and too confusing always to understand.” Read the press release here.

Surveillance

The Information Commissioner’s Office (ICO) has reprimanded Surrey and Sussex police for using an app that recorded and automatically saved more than 200,000 phone calls without individuals’ knowledge. The ICO said the app was downloaded onto the work phones of 1,015 staff members and it was “highly likely” it captured “a large variety of personal data,” the processing of which the ICO determined was “unfair and unlawful.” Both departments have been fined £1 million.

Newspapers Journalism and Regulation

The Transparency Project Blog has an article on the need to balance the Article 8 rights professionals involved in Family Court proceedings and the Article 10 rights of families who wish to criticise those professionals. The article responds to the recent decision of Abbasi & ors v Newcastle NHS Trust & ors.

IPSO

Statements in Open Court and Apologies

On 13 April, The Guardian published a retraction and apology and agreed to substantial damages and costs for the former Prime Minister of Libya, Mr Faiez Sarraj, in settlement of his libel claim. In its apology, the publisher stated “In two articles published in 2021, we wrongly stated that Libya’s former prime minister Faiez Sarraj purchased Vanuatu citizenship in January 2020, while still in office. We would like to clarify that Mr Sarraj did not purchase such citizenship.” The Doughty Street Blog has a summary here.

New Issued Cases

There were no new cases filed on the media and communications list last week.

Last Week in the Courts

On 19 April 2023, Linden J heard an application in the case of RHL v VMB.

Media Law in Other Jurisdictions

Australia

Lachlan Murdoch has dropped his lawsuit against the Australian news site Crikey days after Fox News agreed to pay Dominion Voting Systems a landmark settlement (see introduction above). Lachlan Murdoch sued Crikey for defamation in August 2022 over a column titled: “Trump is a confirmed unhinged traitor. And Murdoch is his unindicted co-conspirator.” The Independent has more information here.

IP Kat has an article on a recent decision in Self Care IP Holdings v Allergan Australia [2023] HCA8, that represents a significant departure from the approach taken in many jurisdictions regarding the role of reputation in a trademark infringement dispute.

Australia’s highest court emphatically rejected the relevance of reputation in either the allegedly infringing or infringed mark is relevant to the assessment of deceptive similarity, ruling that PROTOX and “instant BOTOX alternative” do not infringe the registered trade mark BOTOX.

Canada

On 19 April 2023, the appeal was dismissed in Linkletter v Proctorio, Incorporated, 2023 BCCA 160 (CanLII). The judge did not err in finding that the breach of confidence claim had substantial merit and that Mr. Linkletter had no valid defence, nor in his consideration of the breach of copyright claim. Whether sharing a controlled link to an unlisted video amounts to a publication rather than a mere reference is a novel question which should not be ruled out at this early stage of the proceeding. Nor is it evident that Mr. Linkletter’s obligation to keep the links confidential should be overridden by YouTube’s terms of service. Finally, the judge appropriately weighed the public interest.

The Michael Geist blog explains how the Canadian government has erred in its understanding of the law as it finally makes the case for why it is rejecting the Bill C-11 User Content Regulation Fix.

China

The Fei Chang Dao blog has an article setting out the number of people who have been punished for political religious speech in China between 1998 and 2020.

Europe

In C‑775/21 and C‑826/21, Blue Air and UPFR, the CJEU ruled that broadcasting music on a plane or train is a communication to the public, but installing relevant equipment is not under Article 3 of the InfoSoc Directive. IPKat provides analysis here.

OpenAI faces challenges in complying with EU data protection laws due to its use of data to train its ChatGPT models. OpenAI would have to prove consent or “legitimate interest” as a legal basis for collecting data to train its algorithms to comply with the EU GDPR. MIT Technology Review has more information here.

Germany

Michael Schumacher’s family are planning legal action against a German weekly magazine over an ‘interview’ with the seven-time Formula One champion that was generated by artificial intelligence. RTE has more information here.

Ireland

Ireland Data Protection Commissioner is expected to release their final decision in Meta’s EU-US data transfers case by 12 May 2023. The DPC can offer its decision after the European Data Protection Board announced the finalisation of its binding Article 65 decision on the matter. The Irish Times has more information here.

Russia

On 18 April 2023, a Russian court rejected the appeal of against the pre-trial detention of US journalist Evan Gershkovich. He was arrested in the city of Yekaterinburg while working for the Wall Street Journal newspaper and charged with spying. The BBC has more information here. 

United States

The Data Protection Report has an article on the Executive Order signed by President Biden at the end of last month prohibiting executive departments and agencies of the US Government from using commercial spyware where they determine that such use poses significant counterintelligence or security risks to the US Government or significant risk of improper use by a foreign government or person.

On 17 April 2023, the Washington State House concurred to the State Senate’s amendments to Washington State House Bill 1155, the My Health My Data Act. If enacted, the Act would be the first comprehensive consumer health information privacy law in the United States. The Privacy and Information Security Law Blog has more information here.

Research and Resources

Next Week in the Courts [Updated]

On 24 April 2023 Nicklin J will hear the trial in the case of MBR Acres Ltd v Free MBR Beagles. [This trial has now been adjourned to 26 April 2023.  The trial is listed for 4 to 5 weeks]

On the same day Chamberlain J will hand down judgment in the case of AEP and others v The Labour Party, (heard 21 to 23 February 2023), Linden J will hand down judgment in the case of Armstrong Watson LLP v Persons Unknown and will hear the trial of a preliminary issue in the libel case of Evans v McMahon.  Kerr J will hear an appeal in the case of Samuels v Laycock.

On 25 April 2023 there will be a statement in open court in the case of Palmer v Farmer before Saini J.

On the same day Chamberlain J will hand down judgment in the data protection case of Ali v Chief Constable of Bedfordshire Police

As already mentioned, on 25 to 27 April 2023, Fancourt J will hear applications in the case of Grant v NGN and Duke of Sussex v NGN.

On 26 to 28 April 2023 there will be a trial in the libel case of Mehmood v Up and Coming TV Limited.

On 28 April 2023 there will be a remedies hearing and application to set aside judgment before Master Davison in the case of Wai v Kywe.

Reserved Judgments

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)

Crosbie v Ley, heard 21 and 22 March 2023 (Julian Knowles J)

Duke of Sussex v Associated Newspapers Limited, heard 17 March 2023 (Nicklin 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).