On 17 May 2023, the Court of Appeal issued the costs order [pdf] in the long running Banks v Cadwalladr case ( EWCA Civ 219). Journalist Carole Cadwalladr has been ordered to pay 60% of Arron Banks’s costs of the trial and one third of the costs in the Court of Appeal after his partial libel victory on appeal.
Cadwalladr has already been ordered to pay £35,000 in damages over her claim in a Ted Talk that Banks told lies about a “covert relationship” with Russia. The Inforrm summary can be read here. The Press Gazette and BBC report the ruling. The International Press Institute has described the costs order as a “dark day for press freedom” and Reporters Without Borders have criticised it as setting a “chilling precedent for public interest journalism.” The Media Law Podcast discusses the costs order in their latest Newscast.
Former Mirror journalists Omid Scobie and Graham Johnson gave evidence last week in the ongoing trial brought by several high-profile individuals, including Prince Harry and Sir Elton John, against the Mirror Group Newspapers for alleged phone hacking. The Press Gazette has summarised the evidence given by Scobie and Johnson. Evidence was also heard from the private investigators Steve Whittamore and Daniel Portley-Hanks, whose services had been used by MGN. On Friday 19 May 2023, the trial heard from former Daily Mirror news editor Anthony Harwood, who told the court he had no knowledge of phone hacking or other unlawful information-gathering. The Press Gazette summary can be read here.
The news outlets have been allowed to name businessman and Conservative Party donor Javad Marandi as a “person of importance” in proceedings linked to the “Azerbaijani Laundromat” investigation, although he denies any wrongdoing and has not been sanctioned in any way. The Court of Appeal approved of the decision to lift the anonymity order at the start of April, but Marandi remained anonymous to allow for opportunity to appeal. The Press Gazette and Guardian describe the naming of Marandi as a victory for open justice.
The House of Lords Secondary Legislation Scrutiny Committee (“SLSC”) has identified a re-attempt by the Government to amend the Public Order Act 1986 to lower the threshold for police intervention in respect of protests that was already rejected in January 2023 in the Public Order Bill—now the Public Order Act 2023. The draft Public Order Act 1986 (Serious Disruption to Life in the Community Regulations 2023, if they come into effect, will allow police in England and Wales to impose restrictions on protests and processions that cause “more than minor” hindrance to day-to-day activities for other people. The changes would also allow the police to take into account the cumulative effect of repeated protests. The changes amend sections 12 and 14 of the Public Order Act 1986 effectively alter the meaning of the threshold criterion of causing “serious disruption to the life of the community” in respect of processions and assemblies by defining that term in a way that imposes a lower threshold than its ordinary words suggest. The UK Constitutional Law Blog provides a summary of, and commentary on, the SLSC report here.
Internet and Social Media
Ireland’s Data Protection Commission has referred TikTok to the European Data Protection Board to decide if the video sharing app violated the EU GDPR by allegedly mishandling children’s data. Politico has more information here.
Data privacy and data protection
The HawkTalk blog explains how the Digital Protection and Digital Information (No.2) Bill (DPDI (No 2) Bill) overturns the third-party direct marketing rules in relation to data subject’s consent that have applied since the DPA1984, with the effect that third-party marketeers will be able to lawfully rely on legitimate interest for such marketing.
Colchester City Council has accused the outsourcing company Capita of “unsafe storage of personal data” following a data breach. Colchester council said Capita “failed to maintain the necessary standards for data protection” after files containing benefits data from 2019-20 and 2020-21 were found on a unsecured Amazon Data Bucket controlled by the outsourcer. The council is “considering what further action may be appropriate,” the Financial Times reports.
The Information Commissioner’s Office (ICO) has reprimanded Plymouth City Council and Norfolk County Council for failing to respond to the public when asked for personal information held about them – known as a Subject Access Request (SAR). Both councils repeatedly failed to meet the legal deadline of one to three months for responding to a SAR. The ICO has issued a reprimand to both councils, instructing them to take steps to ensure that the public receive their personal information within the statutory period.
The Biometrics and Surveillance Camera (BSC) Commissioner has raised concerns around a lack of provisions for certain biometrics and “non-data protection issues” related to public space surveillance within the DPDI (No 2) Bill. Interim findings of an independent analysis commissioned by the BSC department “suggest that there may be significant gaps were the Bill to proceed in its current form.”
- Resolution Statement – 14832-23 Hyman v Sunday Mirror, 1 Accuracy (2021), 2 Privacy (2021), 4 Intrusion into grief or shock (2021), Resolved – IPSO mediation
Statements in open court and apologies
On 16 May 2023, a statement in open court was read in resolution of the defamation case Campbell v MGN Limited QB-2020-003829. MGN has agreed to pay “a significant sum” in damages to royal commentator Lady Colin Campbell over an article that claimed she went on TV to defend Jeffrey Epstein’s “right to rape children”. In truth Campbell had appeared on talk show Good Morning Britain and said “The offence with which [Epstein] was charged and for which he was imprisoned, was ‘soliciting prostitution from minors’. That is not the same thing as paedophilia. Soliciting prostitution from minors. Prostitution.” MGN published a correction and apology to Campbell, saying: “We accept that it was entirely wrong to accuse her of having appeared on the programme to defend Jeffrey Epstein or his ‘right to rape children’ or to misquote her. The Press Gazette has more information here.
On the same day, a statement was read out in resolution of the defamation case Dinah Rose KC v (1) Jonathan Ames (2) Times Media Ltd KB 2023-000485. The case concerned an article published by The Times on 21 November 2022 titled Law chiefs rule against college head in gay row, which falsely claimed that Ms Rose had wrongly claimed she was professionally obliged to take on a same-sex marriage case in the Cayman Islands and had acted recklessly. The Bar Standards Board issued a public statement clarifying that no regulatory action was taken against Ms Rose and that she had acted in accordance with her professional obligations. The Times has apologised to Ms Rose and agreed to pay substantial damages and her legal costs. 5RB, Joshua Rozenburg KC (hon) and The Guardian report the statement.
On 18 May 2023, a statement in open court was read in resolution of Seeley v News Group Newspapers Limited QB-2022-002151. The Sun has apologised to Paul Seeley, an officer with a law enforcement agency, and paid him damages for an article published on 14 July 2021. The article reported on criminal proceedings at which Mr Seeley had given evidence for the prosecution, focusing on an allegation which had been put to Mr Seeley in cross-examination. The articles, in substance, accused Mr Seeley of being corrupt. NGN Ltd initially contended that the defence of absolute privilege applied but has now accepted that the articles were unfair and inaccurate. Read the 5RB summary here.
New Issued cases
There was one defamation and one data protection claim were issued in the Media and Communication List last week. The defamation claim was brought by Andrew Bridgen MP against former health minister, Matt Hancock MP.
Last week in the courts
On 15 May 2023, Nicklin J continued to hear the trial of MBR Acres Ltd v Free MBR Beagles.
On the same day, there was a case management hearing in the case of Kirk v Associated Newspapers.
On 16 May 2023, there was a pre-trial review hearing in the case of Leeds and another v Burgess and others.
On 17 May 2023, there was an application in the case of Food Hub Limited v Persons Unknown.
On 18 May 2023 there was a trial of preliminary issues in the case of Carr v Carr. On the same day, there were hearings on applications for injunctions in the cases of Payone v Logo and Searl v Dimova-Handley.
On 19 May 2023, the Court of Appeal handed down judgment dismissing the appeal in Stoute v News Group Newspapers  EWCA Civ 523. It was held that Johnson J made no error in concluding that it was unlikely Mr and Mrs Stoute would be able to establish that they had a reasonable expectation of privacy in respect of the publication of the photographs taken of them by paparazzi on a public beach and published by News Group Newspapers. Alternatively, he had made no error in concluding that the balance of the risk of injustice favoured the refusal of the interim injunction. The 5RB summary can be read here.
Media law in other jurisdictions
One Nation leader Pauline Hanson is appealing against a court order to pay her former colleague $250,000 after she was found to have defamed him last year through “seriously damaging” comments made on Nine’s Today Show in March 2019. The Guardian has more information here.
The ABC will seek to rely in part on a new public interest defence to fight a defamation suit brought against it by former federal Liberal political staffer Bruce Lehrmann over a National Press Club address by Brittany Higgins. Lehrmann filed defamation proceedings against the national broadcaster in April, two months after he filed separate actions against Network Ten and News Corp. The Sydney Morning Herald has more information here.
The founders of an Australian drought charity have won a defamation case over comments made on social media. Judge David Kent said the comments on Facebook conveyed imputations its founders were “greedy and unprincipled”. The matter will return to the District Court for an assessment of damages. ABC News has more information here.
The head of Canada’s news industry trade body Paul Deegan has told publishers in other countries not to be “intimidated” by threats from Google and Facebook as more jurisdictions pursue legislation to force the duopoly to pay for news. Google and Facebook have both issued stark warnings to Canada’s politicians and publishers in response to the Online News Act. Google has experimented with blocking some users’ access to news, while Facebook has said the bill could force it to remove news from its platforms in Canada. The Press Gazette has more information here.
The Michael Geist blog has published its response to the Canadian government’s consultations on Bill C-11, the Online Streaming Act.
With China’s amended Anti-Espionage Law set to take effect from 1 July 2023, DLA Piper explains what should international businesses should do to respond to the new risks.
On 17 May 2023, the European Data Protection Board (EDPB) adopted the final version of its Guidelines on facial recognition technologies in the area of law enforcement. The Guidelines address lawmakers at the EU and EU Member State level, and law enforcement authorities and their officers implementing and using facial recognition technology. The Privacy and Information Security Law Blog has more information here.
The European Commission is evaluating a proposal by the largest telecoms in Europe to force websites and apps to pay broadband companies like Telefonica, Orange, and Deutsche Telekom. Europeans already pay their ISP to access the internet for whatever purpose; this proposal would see ISPs paid twice for the same service. The Centre for Internet and Society blog has an article explaining why these network fees are “unnecessary, attack the open internet, and directly violate both net neutrality principles and the EU’s net neutrality law.”
The Council of Europe has published a new report on the freedom of artistic expression in Europe, Free to create: artistic freedom in Europe. The report includes an overview of the state of artistic freedom in Europe and the global and ECHR standards. It also contains discussion of topical issues, ranging from the status of artists to self-censorship. The ECHR Blog has a summary of the report here.
France’s Constitutional Court has ruled that the government can proceed with installing artificial intelligence-powered surveillance cameras ahead of the 2024 Olympics in Paris. In its decision, the court ruled the installation of the cameras did not erode privacy rights because human operators will “permanently control (of) ‘the development, implementation and possible evolution of algorithmic processing.'” The cameras are trained “to spot suspicious behaviour,” such as abandoned luggage or identify crowd stampedes. By law the system would remain in place until March 2025. Politico has more information here.
The Delhi High Court has issued a notice to the BBC seeking its response in a defamation case over a documentary on Indian Prime Minister Narendra Modi that questioned his leadership during the 2002 Gujarat riots. Reuters, Aljazeera, Independent and Guardian have more information.
Research and Resources
- Huq, Aziz Z., On the Genealogy of Intimate Digital Harm (2023), Michigan Law Review, Vol. 122, Forthcoming
- Weinrib, Laura, Law, History, and the Interwar ACLU’s Jewish Lawyers (2023), In Between and Across: Legal History Without Borders (Jacob Katz Cogan & Kenneth Mack, eds., Oxford University Press, Forthcoming)
- Alochio, Luiz, Contra a Cultura do Cancelamento (Against the Cancel Culture) (2023), Independent
- Ries, Brett V., Don’t Be A Drag: How Drag Bans Can Violate the First Amendment (2023), Duke University School of Law
- , Nissha, Right to Privacy and Data Protection Issues in India – An Analysis (2023), Independent
- Unger, Wayne, The Constitutionality of Brain Searches (2023), Hastings Constitutional Law Quarterly, Vol. 50, No. 4, 2023
- Johnson, Gbemende, Government Transparency and Judicial Deference: An Outcomes-Based Overview of Freedom of Information Act Litigation in the U.S. Supreme Court (2023), Forthcoming in Edward Elgar Research Handbook on The Law and Political Systems
- Burri, Mira, Privacy and Data Protection in Trade Agreements (2023), Forthcoming in Encyclopedia of International Economic Law, edited by Krista Nadakavukaren Schefer and Thomas Cottier (Cheltenham: Edward Elgar, 2023)
- Agapito, Jereco Jims, User Perceptions and Privacy Concerns Related to Using ChatGPT in Conversational AI Systems (2023), Eastern Visayas State University Ormoc City
- Frazier, Kevin, Privacy Lost: How the Montana Supreme Court Undercuts the Right of Privacy (2023), Seattle Journal of Technology, Environmental & Innovation Law, Volume 13 Issue 2
Next week in the courts
The trial in the case of Ghenavat -v- Lyons QB-2022-002740 will be heard by HHJ Lewis between 22 and 26 May 2023
The trial in the case of LCG -v- OVD QB-2022-000921 will be heard by Collins Rice J between 22 and 26 May 2023.
The trial of MBR Acres Limited and others v FREE THE MBR BEAGLES QB-2021-003094 will continue on 22-23 May 2023 before Nicklin J.
On 22 May 2023, Tipples J will hear an application in QRT v JBE QB-2022-000825.
On 23 May 2023, there will be the trial of a preliminary issue on meaning in the case of Adams -v- Associated Newspapers Limited QB-2022-002500.
On 24 May 2023, pre-trial reviews will be heard in Harcombe v Associated Newspaper Limited & anr QB-2020-000799 and Kendrick v Associated Newspaper Limited & anr QB-2020-00080.
On 25 May 2023, judgment will be delivered in Packham CBE v Wightman and others QB-2021-001227.
On the same day, an application will be heard in Davidoff -v- Google LLC KB-2023-000977.
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)
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 Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).
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