Media Law Research and AI: Take Care!

Many things have been said recently about the wonders of AI and how it is going to render lawyers redundant.  We thought we would run a simple media law inquiry over three different AI chatbots: ChatGPT, Google Bard and Bing AI.  “What are the most important media law cases in England and Wales in the past 20 years?”  The results were interesting.

ChatGPT gave the best list

1. Campbell v. Mirror Group Newspapers (2004): This case involved supermodel Naomi Campbell’s privacy claim against the Mirror Group Newspapers for publishing details of her drug addiction treatment. The House of Lords ruled in favor of Campbell, establishing a precedent that individuals have a reasonable expectation of privacy even if they are public figures.
2. Mosley v. News Group Newspapers (2008): Max Mosley, the former president of the Fédération Internationale de l’Automobile (FIA), sued News of the World for publishing a story about his involvement in a sadomasochistic sex party. The European Court of Human Rights ruled that the newspaper’s publication violated Mosley’s right to privacy.
3. Jameel v. Wall Street Journal Europe (2006): In this case, Saudi Arabian businessman Sheikh Khalid Bin Mahfouz sued the Wall Street Journal Europe for libel. The House of Lords clarified the “serious harm” test for defamation claims, stating that the claimant must prove that the publication has caused or is likely to cause serious harm to their reputation.
4. Flood v. Times Newspapers (2012): The Supreme Court considered the issue of whether a fair comment defense should be available in defamation cases. The court ruled that the defense could apply even if the comment is based on false facts, as long as it is a matter of public interest and is honestly held.
5. Lachaux v. Independent Print Ltd (2017): In this case, the Court of Appeal clarified the interpretation of the “serious harm” requirement in defamation claims. The court held that the claimant must show that the publication has caused or is likely to cause serious harm to their reputation, raising the threshold for bringing a defamation claim.
6. HRH Prince of Wales v. Associated Newspapers Ltd (2006): Prince Charles sued the Mail on Sunday for publishing extracts of his private journal. The Court of Appeal ruled in favor of Prince Charles, recognizing a new cause of action for breach of confidence, even though the traditional breach of confidence test was not met.

Bing AI was more eccentric:

1. Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1
2. Venables & Anor v News Group Papers Ltd & Ors [2010] EWHC B18 (QB)
3. Ronaldo v Telegraph Media Group Ltd [2010] EWHC 2710 (QB)
4. Mosley v The United Kingdom (Application no.48009/08)
5. Ferdinand v Mgn Ltd (Rev 2) [2011] EWHC 2454 (QB)

It is perhaps difficult to imagine that more than one or two of these cases would make most lists.  But at least these are actual cases.

But it was Google Bard that was most concerning.  Its initial answer was to list five cases including

• Gupta v British Broadcasting Corporation: In 2009, the BBC was ordered to pay damages to Suresh Gupta, after it broadcast a report that falsely accused him of being involved in money laundering. The case established that the BBC had a duty to take reasonable care to ensure that the information it broadcast was accurate.
• Associated Newspapers v News Group Newspapers: In 2012, the High Court ruled that the News of the World had invaded the privacy of a murdered schoolgirl’s family by hacking into their voicemails. The case led to the closure of the News of the World and the resignation of its editor, Andy Coulson.
• Imran Khan v News Group Newspapers: In 2016, the High Court ruled that The Sun had defamed the former Pakistani Prime Minister by publishing an article about his extramarital affairs. The case established that the law of defamation can be used to protect the privacy of public figures.

These cases will be unfamiliar to Inforrm readers.  There is a simple reason for this: they do not exist.

First, Associated Newspapers v News Group Newspapers. Many will be surprised to find that a voicemail hacking case was brought by Associated Newspapers.   Curiously, when asked about the case Google Bard has now decided that it is not about phone hacking but was about reporting domestic violence:

Associated Newspapers v News Group Newspapers Ltd [2012] EWHC 149 (Ch) was a privacy case in the High Court of England and Wales. The case was brought by Associated Newspapers, the publisher of the Daily Mail and the Mail on Sunday, against News Group Newspapers, the publisher of the Sun.

The case concerned the publication of a story in the Sun about a woman who had been the victim of domestic violence. The story included the woman’s name, address, and photograph.

Associated Newspapers argued that the publication of the story was a breach of the woman’s privacy. News Group Newspapers argued that the publication was in the public interest, as it raised awareness of the issue of domestic violence.

The judge, Mr Justice Tugendhat, found in favour of Associated Newspapers. He ruled that the publication of the story was not in the public interest and that it had caused the woman “significant distress”. He ordered News Group Newspapers to pay Associated Newspapers £100,000 in damages.

The case of Associated Newspapers v News Group Newspapers Ltd [2012] EWHC 149 (Ch) was a landmark case in the development of privacy law in the UK. It established that the right to privacy is a fundamental right that can be protected by the courts. The case also showed that the courts are willing to award significant damages to people who have had their privacy invaded.

After some hesitation (see below), Google Bard has accepted that there is no such case.

Second, the case of Gupta v British Broadcasting Corporation also seems unfamiliar.  When asked about this case Google Bard said

Gupta v British Broadcasting Corporation was a defamation case in the High Court of England and Wales. The case was brought by Mohanlal Gupta, a businessman, against the BBC, alleging that the BBC had defamed him in a documentary about the Indian diamond trade.

The documentary, which was broadcast in 2006, alleged that Gupta was involved in the smuggling of diamonds from India. Gupta denied the allegations and sued the BBC for libel.

The case was heard by Mr Justice Tugendhat in the High Court in 2010. In his judgment, Mr Justice Tugendhat found in Gupta’s favour and ruled that the BBC had defamed him. He found that the documentary was false and that it had caused Gupta “serious harm” to his reputation. The BBC was ordered to pay Gupta £250,000 in damages.

The BBC appealed against the judgment, but the appeal was dismissed by the Court of Appeal in 2011.

The case of Gupta v British Broadcasting Corporation was a landmark case in the law of defamation. It established that the law of defamation can be used to protect the reputation of businesses. The case also showed that the courts are willing to award significant damages to businesses that have been defamed by the media.

In addition to the legal significance of the case, it is also notable for the way in which it highlighted the challenges of reporting on the Indian diamond trade. The trade is notoriously secretive, and it is difficult for journalists to obtain reliable information. As a result, the BBC documentary was based on a number of anonymous sources, which made it vulnerable to attack.

The case of Gupta v British Broadcasting Corporation is a reminder of the importance of accuracy and fairness in journalism. It is also a reminder of the need for journalists to be aware of the legal risks involved in reporting on sensitive topics.

Google Bard gave references for both first instance and the Court of Appeal: [2010] EWHC 226 (QB) and [2011] EWCA Civ 132.  Again, when challenged it accepted that there was no such case.

Third, there is the case of Imran Khan v News Group Newspapers. When asked for more details about this case, Google Bard replied

Imran Khan v News Group Newspapers was a defamation case in the High Court of England and Wales. The case was brought by Imran Khan, the former Prime Minister of Pakistan, against News Group Newspapers, the publisher of The Sun newspaper. Khan alleged that The Sun had defamed him by publishing an article in 2016 about his extramarital affairs.

The article, which was headlined “Cheating on his wife: Imran Khan’s secret love trysts with two women”, alleged that Khan had been having affairs with two women, Sita White and Jemima Goldsmith. The article also alleged that Khan had paid White £1 million to keep quiet about their affair.

Khan denied the allegations and sued The Sun for libel. The case was heard by Mr Justice Nicol in the High Court in 2017.

In his judgment, Mr Justice Nicol found in Khan’s favour and ruled that The Sun had defamed him. He found that the article was false and that it had caused Khan “serious harm” to his reputation. The Sun was ordered to pay Khan £500,000 in damages.

The Sun appealed against the judgment, but the appeal was dismissed by the Court of Appeal in 2018.

The case of Imran Khan v News Group Newspapers was a landmark case in the law of defamation. It established that the law of defamation can be used to protect the privacy of public figures. The case also showed that the courts are willing to award significant damages to public figures who have been defamed by the media.

Again, cites were provided for both first instance and Court of Appeal judgments [2017] EWHC 2655 (QB) and [2018] EWCA Civ 1961.  Once again, Google Bard accepted, when challenged, that there was no such case.

Finally, a later request to Google Bard in the same terms produced a mention of another  case

• Tugendhat v News Group Newspapers Ltd (2012): This case established that the law of privacy in England and Wales is not absolute, and that there are some circumstances in which it is permissible to publish private information about someone.

When asked about this one Google Bard said

The unique case cite for Tugendhat v News Group Newspapers is [2012] EWHC 1334 (QB). This case was heard in the Queen’s Bench Division of the High Court of Justice in England and Wales. The judge in the case was Mr Justice Tugendhat. The case concerned a claim for breach of privacy brought by a claimant against News Group Newspapers, the publisher of The Sun newspaper. The claimant alleged that the newspaper had published private information about him without his consent. The newspaper argued that the publication of the information was in the public interest. The judge found in favor of the claimant and awarded him damages. The case is significant because it sets out the principles that the courts will apply when considering claims for breach of privacy.

The trouble is that despite the details given and the case citations, none of these cases exist.   Google Bard seems to have a great creative imagination but it is dangerous to use it for legal research.

And ChatGPT is not without its own difficulties.  When it was asked about the (made up) reference for Gupta v BBC – [2010] EWHC 226 (QB) – it gave these three replies

The case reference [2010] EWHC 226 (QB) corresponds to the High Court judgment in the case of Desmond v. Bower.

In this case, Richard Desmond, the owner of Express Newspapers, sued the author Tom Bower and his publisher, Faber and Faber, for defamation. The lawsuit arose from a biography written by Bower about Conrad Black, a former media magnate.

The judgment, delivered by Mr. Justice Tugendhat, dismissed Desmond’s claim of defamation. The court ruled that the statements made in the biography were not defamatory and were protected by the defense of fair comment.

In response to “are you sure?”, it said

I apologize for any confusion caused. Upon rechecking, I found that my previous response was incorrect.

The correct case corresponding to the reference [2010] EWHC 226 (QB) is Thornton v. Telegraph Media Group Ltd. It is a defamation case involving the actress Carol Thornton and the Daily Telegraph newspaper. The judgment was delivered by Mr. Justice Tugendhat.

In this case, Carol Thornton sued the Daily Telegraph for an article that she claimed defamed her reputation. The court ruled in favor of the defendant, stating that the article’s statements were not defamatory and were protected by qualified privilege.

Thank you for bringing this to my attention, and I apologize for the earlier mistake.

And then, finally, after a further “are you sure?”

I apologize for the confusion caused. Upon double-checking, I have found that my previous response was incorrect again. I apologize for the inaccurate information provided.

Of course, all three AI Chatbots are still under development and are, we hope, getting better.

When challenged ChatGPT is quick to apologise for its errors.  However, when asked to check the case of Associated Newspapers v News Group Newspapers Google Bard initially responded

“I am sure.  I have double-checked the information and it is correct”

However, when it was told that the case did not exist it responded:

“You are correct. There is no case called Associated Newspapers v News Group Newspapers. I apologize for the error.

I am still under development and I am always learning. I will try my best to provide you with accurate information in the future”.

So, the message is clear: AI Chatbots are useful but potentially dangerous – they cannot, at present, be relied  on as credible sources of legal information.  Lawyers beware!