On 25 to 27 April 2023 there was a hearing in the case of Grant v NGN and Duke of Sussex NGN before Fancourt J. NGN applied to strike out claims by Hugh Grant and Prince Harry on limitation grounds. The claimants argue that the delay in filing the claims resulted from the newspaper’s concealment of its staff’s behaviour.

Hugh Grant claimed that the Sun burgled his flat, tapped his landline, hacked his voicemails and placed a tracking device in his car in order to obtain information about his private life. Prince Harry alleged that the Sun published stories which were based on unlawfully obtained and sensitive information beginning when he was only ten years old.  The Guardian, The Times and Hacked Off reported on the hearing.

During the hearing details of a settlement between Prince William and NGN emerged.   Prince Harry claimed that there had been an agreement that members of the royal family would not bring claims against the media outlet until after the conclusion of the litigation over hacking. SkyNews, The Guardian, and The Independent report on the revelations.  Prince Harry served a Draft Amended Reply [pdf] on the issue of limitation relying on the agreement to support pleas of promissory estoppel and/or estoppel by convention.  There was an Inforrm piece about the hearing.

BBC Chair, Richard Sharp resigned this week after an investigation revealed that he had failed to disclose key information about his links to former prime Minister Boris Johnson when applying for the job in 2021. The report found that Sharp had created a “potential perceived conflict of interest” by failing to declare that he had helped facilitate a £800,000 loan guarantee for the Tory prime minister and neglecting to tell his interviewers that he had already discussed the job with Johnson before applying. The BBC, The Guardian and SkyNews covered the report that lead to Sharp’s resignation.

The government has faced pressure to implement an “independent and robust” process to find Sharp’s successor. Labour leader, Sir Keir Starmer stated in an interview that his party would reform the process to ensure the BBC chair is independently appointed.

On 26 April 2023, Mrs Justice Heather Williams found in favour of the defendant in what has been described as the first case of a successful public interest defence being raised by a defendant accused of libel by their abuser. In the wake of the Me Too movement, the defendant, Mr Cresswell, published social media posts naming Mr Hay as the man who violently assaulted her ten years earlier. The court found that the defendant’s allegations were substantially true and that she had a genuine, reasonable belief that the matter was in the public interest. Bindmans LLP summarised the judgement and The Guardian covered the story.

Internet and Social Media

Clean Up the Internet have published a report entitled ‘Making It by Faking It – How Fraudsters Exploit Fake Social Media Accounts to Scam UK Users’. The report suggests that most fraud relies on identity deception, meaning that the unregulated approach to account creation and verification enables online fraud. It proposes strengthening the Online Safety Bill’s user verification duty to allow users to verify their own digital identity and filter out accounts without it.

Data privacy and data protection

The LSE Media Blog has an article highlighting the achievements and remaining challenges of the Digital Futures Commission who seek to embed children’s rights in the digital world

The Brett Wilson Media and Communication Law Blog has published an article explaining how organisations can respond to Subject Access Requests.

Surveillance

Following an admission during a parliamentary debate that the Home Office is “monitoring the activities” of “a small number of legal practitioners” who allegedly “abuse and exploit our laws” in relation to immigration legislation, OpenDemocracy used Freedom of Information requests to ask how many lawyers the government is monitoring, since when and the nature of the surveillance. The Home Office rejected the request, stating that it is not in the public interest to disclose any of the requested information. OpenDemocracy has appealed the decision.

Parliamentarians, including former Brexit Secretary David Davis, former Shadow Chancellor John McDonnell and Green MP Caroline Lucas and human rights organisations have called on the retail group owned by Mike Ashley to stop using facial recognition surveillance in their stores. The letter describes live facial recognition as “the equivalent of performing an identity check on every single customer.” Read the Big Brother Watch’s press release here.

Newspaper Journalism and regulation

The Guardian newspaper has faced backlash over a cartoon it published after Richard Sharp’s resignation as BBC Chair this week. Critics, including Boris Johnson, say the image drew on anti-Semitic tropes and was “explicitly racist”. Cartoonist Martin Rowson apologized for the “carelessness and thoughtlessness” of the depiction and the newspaper removed the cartoon from its website, explaining that it did not meet its editorial standards. The Independent, The Telegraph, and SkyNews covered the story.

Art, Music and Copyright

The copyright lawsuit brought by the heirs of the songwriter who composed Marvin Gaye’s “Let’s Get It On” continued last week in New York. The plaintiffs allege that singer-songwriter Ed Sheeran copied the melodic and rhythmic elements of the song without permission in his 2014 hit “Thinking Out Loud.” The trial, which is scheduled to last for up to two weeks, is set to continue on Monday 1 May 2023. The Independent, The Guardian and ABC News covered the trial.

IPSO

Statements in open court and apologies

On 25 April 2023, the Metropolitan Police Service and PC Colin Farmer made a statement in open court apologizing unreservedly for making untrue and inaccurate statements concerning the claimant in the case of Palmer v Farmer [2023] EWHC 976 (KB). In the same proceedings, Saini J also granted the defendants’ application to strike out the defamation and misuse of private information claims in the original claim form and refused the claimant’s application to amend those claims. The remaining data protection claim will be transferred to the County Court for trial and has been stayed whilst the parties engage in ADR at the court’s motion.

New Issued cases

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

Last week in the courts

On 24 April 2023, Linden J granted an injunction following the hack of the claimant’s IT system in the case of Armstrong Watson LLP v Persons Unknown [2023] EWHC 921 (KB). The unknown defendants, who sought to blackmail the company by threatening to release the information to buyers on the dark web, did not comply with Richie J’s interim injunctive order or engage with the proceedings.

On the same day, Linden J heard the trial of a preliminary issue in the libel case of Evans v McMahon and Kerr J heard an appeal in the case of Samuels v Laycock.

On 25 April 2023, Chamberlain J handed down judgement in the data protection case of Ali v Chief Constable of Bedfordshire Police.

As already mentioned, on 25 to 27 April 2023 there was a hearing in the case of Grant v NGN and Duke of Sussex NGN before Fancourt J.

As mentioned above, on 26 April 2023, Heather Williams J handed down judgement in the case of Hay v Cresswell [2023] EWHC 882 (KB). The court was satisfied that Ms Cresswell had proved on a balance of probabilities that she was violently sexually assaulted [172] and that the claimant was the perpetrator [183]. The judge also accepted that (i) the prevalence of sexual abuse in the tattoo industry, (ii) the need to protect women from sexual abuse, and (iii) the failure to prosecute sexual abuse cases were all topics which constitute a matter in the public interest [201]. The defendant was held to have a genuine and reasonable belief that the publications were in the public interest, given the inadequacies of the police response and the growth of the MeToo movement. The usual expectation that a successful public interest defence would require the publisher to contact the subject of their defamatory statements and maintain a balanced tone was found to be unnecessary in a case where a sexual assault survivor makes allegations [211]. The claim was dismissed and Mr Hay was ordered to pay costs.

On 26 to 28 April 2023, Nicklin J heard the trial in the case of MBR Acres Ltd v Free MBR Beagles QB-2021-003094. The trial is listed for 4 to 5 weeks and continues next week. On the same days, Heather Williams J heard the libel trial in the case of Mehmood v Up and Coming TV Limited.

On 26 April 2023, Chamberlain J granted an anonymity order in respect of two of the claimant’s names and all of the claimants’ addresses in public versions of the claim form and statements of case in the case of AEP and others v The Labour Party [2023] EWHC 935 (KB). The case concerns an action against the Labour party for the publication of personal data in an anti-Semitism report.

On 28 April 2023 Master Davison heard an application to set aside judgment and remedies hearing in the case of Wai v Kywe KB-2022-004807.

Media law in other jurisdictions

Australia

On 27 April 2023, Abadee DCJ refused the defendant’s application for a temporary stay in the case of Gee v Jamieson [2023] NSWDC 123.

On 28 April 2023, Lee J exercised his discretion to extend the limitation period, which had expired, up until the commencement of proceedings in the case of Lehrmann v Network Ten Pty Limited [2023] FCA 385. The applicant argued that he delayed bringing the civil proceedings due to legal advice he received to defer until the conclusion of any criminal investigation. Lehrmann is suing the Network Ten and News Corp for their reporting of the rape allegations made against him by his colleague, Brittany Higgins, in February 2021. ABC News, The Guardian, The Sydney Morning Herald and The New Daily covered the decision.

Canada

On 24 April 2023, Henderson J handed down his judgement in respect of damages and costs in the case of Seafarers’ International Union of Canada v. Mitchelitis, 2023 ONSC 2456.

Hong Kong

The All-Party Parliamentary Group on Hong Kong has published its report on ‘Media Freedom in Hong Kong: the case of Jimmy Lai and Apple Daily.’ The report found that the targeting of Jimmy Lai, the founder of one of Hong Kong’s most popular newspapers, Apple Daily, is emblematic of the suppression of free expression and curtailment of independent media in the region. Jimmy Lai is a pro-democracy campaigner and well-known media entrepreneur who is a vocal critic of the Chinese government’s human rights violations. He faces trial in September this year on charges of sedition in relation to his journalistic activities. The Doughty Street Blog has a summary here.

India

The Hindustan Times has reported that the government has received over 20,000 responses from the public since last November in reply to its proposed digital data protection law. Usually, the government receives around 2,000 suggestions in response to a draft bill. The bill was controversial for a number of its provisions which gave the government exemptions from privacy protections.

 

Research and Resources

Next week in the courts

On 2 May 2023, Nicklin J will continue to hear the trial in the case of MBR Acres Ltd v Free MBR Beagles QB-2021-003094.

On the same day Saini J will hear the trial in the case of Packham CBE v Wightman and others QB-2021-001227 and Collins Rice J will hear a case management hearing in the case of Nagi v Santhiramoulesan QB-2021-002658.

Reserved judgements

Grant v NGN and Duke of Sussex NGN heard on 25-27 April 2023 (Fancourt J)

Mehmood v Up and Coming TV Limited, heard 26-28 April 2023 (Heather Williams J)

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)

Amersi v Leslie, heard 10 January 2023 (Nicklin J)

Aaronson v Stones, heard 12-15 December 2022 (Julian Knowles J)

This Round Up was compiled by Jasleen Chaggar who is studying the BPC at the University of Law.