The Easter Legal Term ended on Friday 26 May 2023. The Trinity term will begin on 6 June and will end on 31 July 2023. The forthcoming week is the short, Whitsun, vacation during which the High Court and the Court of Appeal will be hearing only “vacation business”.
On 26 May 2023 the managing judge, Fancourt J, handed down judgment in the case of Grant v News Group Newspapers Ltd (Re Mobile Telephone Voicemail Interception Ligitation)  EWHC 1273 (Ch) The judge dismissed the Sun’s application for summary judgment in relation to illegal information gathering but allowed the application in relation to the phone hacking parts of the claim on “limitation” grounds. The judgment was widely reported in the media, including on the BBC Website, the Guardian, and Reuters (but not in the Sun, which preferred a story about the house used in filming “Notting Hill“)
The trial in the managed Mirror Phone Hacking Litigation continued last week before Fancourt J. Evidence was given by, among others (for the defendant), former Mirror Group CEO Sly Bailey, former Mirror Group Chairman David Grigson, former group legal director Paul Vickers, former in house lawyer Marcus Partington and (for the claimant) former No.10 communications director Alastair Campbell and actor Les Dennis. An application by the claimants to rely on new evidence was rejected by the judge (see Telegraph report [£]). Sky News had summary of the proceedings on Friday 26 May 2023.
Journalist Carole Cadwalladr is seeking permission to appeal against the costs order [pdf] in the case of Banks v Cadwalladr  EWCA Civ 219, in which she was ordered to pay 60% of Arron Bank’s costs of the trial and one third of the costs in the Court of Appeal, according to the Guardian. Several organisations, including the International Press Institute and Reporters Without Borders, have condemned the costs order for its “chilling effect” on free speech and public interest journalism. Cadwalladr stated that if her domestic appeals fail, “we believe we have a strong case to take it before the European court of human rights in Strasbourg.”
The government has revoked the invitation of chemical weapons expert, Dan Kaszeta, to give the keynote speech at a conference after a vetting process revealed that he had criticised the Conservatives’ migration policy in tweets. He is one of at least eight speakers who are prohibited from speaking at government events as a result of the Cabinet Office’s unpublished guidance on who can be given a platform. Mr Kaszeta confirmed that he had planned to speak only on his area of expertise at the conference and described the ban as a “freedom issue.” The BBC, the Guardian and The Sunday Times reported on the blacklisting.
The Divisional Court dismissed a claim for judicial review against the decision of the Westminster Magistrates Court to lift an anonymity order protecting the identity of an individual connected to a NCA forfeiture of assets claim. The Claimant’s identity will remain anonymous for a period to allow for the opportunity to appeal. Warby LJ and Mostyn J held that the first instance Judge had correctly conducted the balancing process when concluding that the requirements of open justice outweighed the claimant’s right to private life in this case. Doughty Street summarised the decision. The judgement can be read here.
A group chaired by HHJ Stuart Farquar has published a report concerning transparency in the Financial Remedies Court. The group was assembled to consider issues such as the publicity of hearings, anonymity on Family Court lists, access to documents by reporters, and publication of judgments. 5RB announced the report’s publication, which is available to read in full here.
Internet and Social Media
Meta has been fined a record €1.2bn by the Irish Data Protection Commission for infringing Article 46(1) GDPR when it continued to transfer personal data from the EU to the US following the delivery of the CJEU’s judgement in DPC v Facebook Ireland Limited and Maximillian Schrems, Case C-311/18 (16 July 2020). The DPC also ordered a suspension of further transfers of personal data to the US within five months and requires the company to make its processing operations GDPR compliant within six months. Meta is appealing the fine, which it described as “unjustified and unnecessary,” and seeking a stay of the orders. The Open Rights Group has warned that the Data Protection and Digital Information Bill could allow Meta to circumvent the suspension of EU-US data transfers. DLA Piper summarised the implications of the decision.
Data privacy and data protection
The NHS has been found to have breached data protection rules by sharing patient details with Meta, despite promises not to use confidential personal information about health and care for marketing purposes. Meta’s Pixel tool passed on intimate information about patient medical conditions, appointments and treatments without their consent. 17 of the 20 NHS trusts have pulled the tracking tool from their websites and 8 have apologised to patients. Many of the trusts stated that the tracking tool was installed to monitor recruitment or charity campaigns, meaning they were not aware that they were sending patient data to Meta. The data could have been used by Meta for targeted advertising. The ICO is conducting an investigation. The Guardian and The Evening Standard covered the story.
The Open Rights Group has published a report into how confidential medical data was handled during the COVID-19 pandemic. The report suggests that the government circumvented UK data protection safeguards and that the ICO repeatedly failed to take action in respect of the breaches. It warns that the large datasets produced during the pandemic could still be deployed in unexpected ways in the future. The ICO released a statement in response, stating that it does not share the views of the report.
The Big Brother Watch has published a new report entitled “Biometric Britain”, which warns that the growth of facial recognition surveillance in the UK is “out of control”. The report found a significant increase in the use of the technology both by the police and in the private sector and recommends that it should be “urgently banned” due to widespread concerns about its accuracy, biases and the right to privacy.
Newspaper Journalism and regulation
Media organisations across the political spectrum have shunned the Conservative Party Conference over its introduction of accreditation charges for press delegates. No other political party charges for press accreditation. The fee of £137 for each journalist’s application is being challenged by news organisations, including the News Media Association, Society of Editors and News Media Coalition, on the basis that it sets an undemocratic precedent. The Guardian, The National Scot, and iNewspaper cover the story.
- 22013-22 Gibbens v manchestereveningnews.co.uk, 1 Accuracy (2021), No Breach – after investigation
- Resolution Statement – 14399-23 Windhow v newsandstar.co.uk, 1 Accuracy (2021), Resolved – IPSO mediation
Statements in open court and apologies
An apology was read in open court on 18 May 2023 before HHJ Lewis in the case of Paul Seeley v NGN Ltd QB-2022-002151. In the statement, which can be read here, NGN apologised to Paul Seeley, an NCA officer, for an article it published in July 2021 which accused him of being corrupt during criminal proceedings in which he gave evidence for the prosecution. NGN originally argued that the defence of absolute privilege applied but admitted that the articles were inaccurate and unfair. NGN also paid damages to Mr Seeley. 5RB summarised the statement in open court.
New Issued cases
There were six defamation claims and one harassment claim issued in the Media and Communication List last week.
Last week in the courts
On 22 to 26 May 2023, HHJ Lewis heard the trial in the case of Ghenavat v Lyons QB-2022-002740.
On the same days, Collins Rice J heard the trial in the case of LCG v OVD QB-2022-000921.
On 22 and 23 May 2023, the trial of MBR Acres Limited and others v FREE THE MBR BEAGLES QB-2021-003094 continued before Nicklin J.
On 22 May 2023, Tipples J heard an application in QRT v JBE QB-2022-000825.
On 23 May 2023, there was a trial of a preliminary issue on meaning in the case of Adams v Associated Newspapers Limited QB-2022-002500.
On 24 May 2023, Nicklin J made orders in the cases of Harcombe v Associated Newspaper Limited & anr QB-2020-000799 and Kendrick v Associated Newspaper Limited & anr QB-2020-00080.
On 25 May 2023, Saini J handed down judgment in Packham CBE v Wightman and others  EWHC 1256 (KB) in favour of the claimant. The TV presenter and naturalist Chris Packham sued the Editor of Country Squire Magazine over three allegations published on its website which alleged, among other things, that he had misled people in order to raise money for a tiger rescue charity. The High Court found that the accusations were not substantially true and amounted to a “hyperbolic and vitriolic smearing of Mr Packham” . The Defendants were ordered to pay Packham £90,000 in damages. The BBC, the Guardian, The Telegraph, Zelo Street reported on the judgement. Doughty Street Chambers also covered the case in their blog.
On the same day, an application was heard in the case of Davidoff v Google LLC KB-2023-000977.
Media law in other jurisdictions
On 26 May 2023, the Federal Court of Australia handed down judgement in the case of V’landys v Australian Broadcasting Corporation  FCAFC 80, dismissing the appellant’s appeal. The case concerned a special investigation report broadcast by the Australian Broadcasting Corporation entitled “The Final Race: The dark side of the horse racing industry” which the Claimant, the CEO of Racing NSW, alleged were defamatory. The court found that the first instance judge did not err in finding that the report did not convey any of the defamatory imputations alleged and dismissed the proceedings with costs.
On 24 May 2023, the Court of Appeal for Ontario, granted leave to the Canadian Civil Liberties Association (CCLA) to intervene as a friend of the court in the case of 40 Days for Life v. Dietrich, 2023 ONCA 379. The case concerns a series of videos, posted online by the Defendant, which made defamatory statements against the Claimant, 40 Days for Life, who are a Texas-based group that conduct vigils outside abortion clinics. After the Claimant commenced an action for libel, internet harassment, breach of contract, fraud and/or conspiracy, the Defendant brought an anti-SLAPP motion under section 137.1 CJA. The Defendant appeals the dismissal of her anti-SLAPP motion. The Appellant supported the CCLA’s intervention, however it was opposed by the Respondent. The Court held that the CCLA has something useful to contribute to the appeal which engages a public policy dimension, and thereby granted leave to intervene. Read the CCLA’s press release announcing their intention to intervene here.
President of Turkey, Recep Tayyip Erdogan, has denounced the detention of Turkish journalists by German forces, calling it a “violation of the freedom of the press.” The German Security Forces raided the homes of two senior reporters at the pro-government newspaper the Daily Sabah, without issuing a notice. The Public Prosecutor’s office in Darmstadt stated that the search formed part of a preliminary investigation. The German government “firmly” rejected the Turkish government’s accusations of restrictions on the freedom of the press. Reuters, Al Jazeera, DW and the Daily Sabah covered the story.
The International Federation of Journalists have called on the Iranian authorities to hold the trial of two journalists who reported the death of Mahsa Amini in open court. The trial of Niloofar Hamedi and Elahe Mohammadi, who are accused of spying, is due to take place at the end of May. Reports of Amini’s death in custody sparked demonstrations throughout Iran in September 2022. The journalists have been imprisoned since breaking the story and face the death penalty.
The first-ever Personal Data Protection Decree has been passed in Vietnam and is scheduled to take effect from 1 July 2023. The Decree consolidates the country’s existing data protection regulatory framework and includes compliance requirements and rules relating to cross-border transfer of personal data. DLA Piper summarised the new provisions.
On 6 June 2023, the Open Rights Group is holding an online launch of its report, which is mentioned above. Register for the event here.
Research and Resources
- Heriot, Gail L., The Roots of Wokeness: Title VII Damage Remedies as Potential Drivers of Attitudes Toward Identity Politics and Free Expression (2023), Texas Review of Law & Politics, Vol. 27, No. 1, 2022, San Diego Legal Studies Paper No. 23-021.
- Davidson, Matt, The Digital Iron Curtain: First Amendment Rights in the Digital World (2023).
- Hine, Emmie, Content Moderation in the Metaverse Could Be a New Frontier to Attack Freedom of Expression (2023), Philosophy and Technology, Forthcoming.
- Zheng, Guan and Shu, Jinchun, In the Name of Protection—A Critical Analysis of China’s Legal Framework of Children’s Personal Information Protection in the Digital Era.
- 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, 2023.
- Estrellado, Carie Justine and Miranda, John Christian, Artificial Intelligence in the Philippine Educational Context: Circumspection and Future Inquiries (2023), International Journal of Scientific and Research Publications, Volume 13, Issue 5, May 2023.
- Karanicolas, Michael, Challenging Minority Rule: Developing AI Standards that Serve the Majority World (2023), UCLA Law Review – Discourse (Forthcoming).
- Corren, Ella, The Consent Burden in Consumer and Digital Markets (2023), Harvard Journal of Law & Technology, Forthcoming.
- Ciuriak, Dan, The Investment Canada Act Reforms and the Digital Transformation (2023).
- Gstrein, Oskar Josef, Data Autonomy: Recalibrating Strategic Autonomy and Digital Sovereignty (2023), Draft prepared for European Foreign Affairs Review, special edition on ‘Comprehensive Security: The Legal Contours of EU’s Strategic Autonomy’, 2023 Forthcoming.
- Elliott, Gavin, How Much Dead-Hand Control Is Too Much? Why Biometric Data Privacy Laws Need Expanding (2023), Estate Planning and Community Property Law Journal, Vol. 15:1, 2023.
- Davidson, Matt, The Digital Iron Curtain: First Amendment Rights in the Digital World (2023).
- Sebastian, Glorin, Privacy and Data Protection in ChatGPT and Other AI Chatbots: Strategies for Securing User Information (2023).
- Yu, Xiaowei, The Identifiability Problem in Transnational Privacy Regulation (2023), Vanderbilt Journal of Transnational Law, Forthcoming.
- Duan, Charles and Grimmelmann, James and Grimmelmann, James, Content Moderation on End-to-End Encrypted Systems: A Legal Analysis (2023).
- Jimoh, Mujib, The Place of Digital Surveillance under the African Charter on Human and Peoples’ Rights and the African Human Rights System in the Era of Technology (2023), African Journal of Legal Issues in Technology, Vol. 1, Forthcoming.
- Koolen, Christof and Wuyts, Kim and Joosen, Wouter and Valcke, Peggy, From Insight to Compliance: The Concept of ‘Appropriate Technical and Organisational Measures’ in EU Cybersecurity Law (2023).
- Islam, Md. Toriqul, An Assessment of Privacy Regime in Bangladesh: A Legal Analysis (2022), UUM Journal of Legal Studies, 13(2), 77–108.
- Burri, Mira, Digital Trade Law and Human Rights (2023), AJIL Unbound 117 (2023), 110-115.
- Ghoshray, Jennifer, Drones in Indian Sky: When Minimalistic Regulatory Paradigm Meets Constitutional Liberty of Citizens (2022).
Next week in the courts
We are not aware of any media and communications listed during the legal vacation.
Ghenavat v Lyons, heard 25-26 May 2023 (HHJ Lewis)
LCG v OVD, heard 25-26 May 2023 (Collins Rice 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)
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)
This Round Up was compiled by Jasleen Chaggar who is studying the BPC at the University of Law.