Australia’s most-decorated living soldier, Ben Roberts-Smith, lost his defamation case against three newspapers that accused him of war crimes in Afghanistan. The full 742 page, 2618 paragraph judgment, Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555, was published  on 5 June 2023.

The trial was the first time a court has assessed accusations of war crimes by Australian forces. The Sydney Morning Herald, The Age and The Canberra Times were sued over articles alleging Roberts-Smith killed unarmed prisoners. Roberts-Smith argued five of the killings reported by the newspapers had occurred legally during combat, and the sixth did not happen at all.

On 1 June 2023, Justice Anthony Besanko found four of the six murder allegations were substantially true. These included:

  • A handcuffed farmer the soldier had kicked off a cliff – a fall which knocked out the man’s teeth, before he was subsequently shot dead;
  • A captured Taliban fighter who was shot at least 10 times in the back, before his prosthetic leg was taken as a trophy and later used by troops as a drinking vessel;
  • Two murders which were ordered or agreed to by Roberts-Smith to initiate or “blood” rookie soldiers.

This defamation case – dubbed by some as “the trial of the century” – lasted 110 days and was rumoured to have cost up to A$25m ($16.3m, £13.2m). Evidence was heard from over 40 witnesses, including Afghan villagers, a government minister and a string of current and former SAS soldiers. The BBC, Independent, Aljazeera, Sky News, report the verdict. Commentary can be found in The Guardian here,  here and here, as well as the Conversation, Sydney Morning Herald and Inforrm.

The Trinity Legal Term will begin tomorrow, Tuesday 6 June 2023 and will end on 31 July 2023.

The Mirror Group phone hacking trial will continue on 6 June 2023 before Fancourt J.  One of the claimants, the Duke of Sussex, will be giving evidence – the first senior member of the Royal Family to give evidence since the then Prince of Wales gave evidence in the Royal Baccarat cases in 1891.   The Guardian has an “explainer”, “What’s at stake for Prince Harry as he gives evidence in phone-hacking trial?“.  There is also a piece  on the Reuters site, “Factbox: Why is Prince Harry giving evidence in court?”

Internet and Social Media

Websites of twenty NHS trusts are collecting browser information and sharing details about patients’ medical conditions, appointments and treatments with Facebook through a Meta Pixel tool, The Guardian reports. The Information Commissioner’s Office (ICO) is investigating.

Data Privacy and Data Protection

A report published by the Open Rights Group claims the ICO failed to act in response to government breaches of data protection regulations related to the COVID-19 health programs NHS Test and Trace, NHS Contact Tracing App and NHS Datastore. In a statement, the ICO said it disagrees with the report, noting its “priority during the pandemic was to ensure organisations understood how data protection law could facilitate action at a time of emergency.”

The ICO has released its opinion on the proposed Data Protection and Digital Information Bill. The Information Commissioner has indicated that the bill “has moved to a position where I can fully support it.” Read the full response here.

The ICO has announced updates to its Children’s Code guidance concerning education technology providers and services. The updates aim to clarify when an EdTech provider or product falls within the scope of the Children’s Code. The scope is clarified to include services “likely to be accessed by children on a direct-to-consumer basis” and those “provided to children through a school, where the EdTech provider influences the nature and purpose of the processing of children’s personal information.”

Surveillance

The Guardian has run an article on the impact of employee surveillance as monitoring software becomes more common place.

Newspapers Journalism and Regulation

On 30 May 2023, Sir Brian Leveson criticised the lack of progress on implementing the recommendations of the Leveson Inquiry Part One. He told BBC Radio 4’s World at One that the value of Part Two had “substantially increased”. Read the Hacked Off summary here.

The Transparency Project has published a piece criticising two recent instances where a journalist and a legal blogger were told by different family courts they did not have a right to attend. The article writes that these “were not decisions based on objections by a party or any rationale, but seemingly through ignorance of the rules.”

IPSO

Statements in Open Court and Apologies

There were no statements read out in open out last week.

New Issued Cases

There were three Defamation (libel and slander) claims, one Misuse of Private Information claim and two Miscellaneous Media and Communications List claims issued last week.

Last Week in the Courts

We are not aware of any media and communications heard during last week’s legal vacation.

Media Law in Other Jurisdictions

Australia

As mentioned above, Ben Roberts-Smith has lost his defamation case against three newspapers that accused him of war crimes in Afghanistan, Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 (summary judgment). The full judgment will be delivered on 5 June 2023 following a commonwealth application to delay publication because of national security concerns.

Former federal Liberal political staffer Bruce Lehrmann has dropped his defamation case against News Corp after the parties reached an out-of-court settlement. The Sydney Morning Herald has more information here.

Canada

On 1 June 2023, the Superior Court of Justice Divisional Court handed down judgment in Corion v Plummer, 2023 ONSC 3249.  The appeal of a decision to dismiss an action in defamation in relation to communication sent to the appellant’s wife that accused the appellant of being gay was dismissed.  The claim pleaded that the text message was sent for the purpose of diminishing the appellant in the eyes of his wife and his church community in general.  The Deputy Judge dismissed the claim because the appellant had failed to establish that the impugned words, that he was gay, were objectively defamatory. The Appellant submitted that the Deputy Judge erred in the analysis of whether the publication of words that described the Appellant as being gay were defamatory. The Divisional Court held that the trial judge correctly applied the test for defamation; she considered relevant markers of community acceptance towards persons who describe themselves as or who are described as gay.  She distinguished between the attitudes held by members of the Appellant’s church, which is a smaller subset of the greater community.  In doing so, she made no error in law [22].

Meta has announced that will test blocking news sharing in Canada on its platforms Facebook and Instagram in response to Bill C-18’s system of mandated payments for links. The Michael Geist blog has more information here.

China

The Fei Chang Dao blog has translated the conviction Wang Aizhong as “disturbing the peace” following his detention on 28 May 2023. The court did not specify what Wang Aizhong shared on social media that disturbed the peace. His last three tweets prior to his detention were:

  • A retweet of a post by the New York Times linking to the Chinese language version of an article titled “Biden Orders Intelligence Inquiry Into Origins of Virus.”
  • Wang wrote “Someone logged into my telegram account. Their attacks on private communication software and surveillance is getting more and more insane.
  • A quotetweeted a post by the Wall Street Journal to the Chinese language version of an article titled “Belarus Faces EU Flight Ban for Grounding Ryanair Plane With Dissident.” Wang added “Some folks really have guts. Certain other countries could stand to learn something from them.”

Denmark

IPKat covers a recent ruling in the Danish Supreme Court that shakes up the boundaries of copyright and parody in Denmark. The Supreme Court’s decision hinged on the principle of parody, a vital element of Danish and Nordic tradition within copyright law, intrinsically linked to freedom of speech. Read the post here.

Ghana

Minister for Finance Ken Ofori-Atta has instituted legal action against radio and TV show host Captain Smart over comments that Ofori-Atta was a direct beneficiary of recently released bailout funds from a global lender. A High Court writ dated 2 June 2023 reveals that the minister is seeking GH 10 million in damages. GhanaWeb has more information here.

Hong Kong

United Nations (UN) experts have expressed “grave concern” regarding the arrest, detention and multiple prosecutions against pro-democracy advocate and media owner, Jimmy Lai, and his newspaper which has now been shut down, Apply Daily. In a formal communication sent by the UN experts to the People’s Republic of China (PRC), the experts urged the PRC to take all necessary interim measures “to halt the alleged violations [of Jimmy Lai’s rights] and prevent their re-occurrence” and to hold to account any person or persons responsible for violating Jimmy Lai’s fundamental rights and freedoms. The Doughty Street blog has more information here.

Ireland

Ireland’s Data Protection Commission is expected to serve Microsoft with a US$425 million EU GDPR fine over LinkedIn’s targeted advertising practices. The DPC reportedly issued a preliminary decision in April over the matter but the final decision has yet to be formally announced. Microsoft issued an investor statement confirming the fine and undetermined timeline for the final decision, saying it will “dispute the legal basis for, and the amount of, the proposed fine and will continue to defend its compliance with GDPR,” Silicon Republic reports.

Russia

On 1 June 2023, Russia’s Federal Security Service (FSB) released a statement claiming to uncover an American espionage operation that compromised thousands of iPhones using sophisticated surveillance software. Reuters has more information here. Apple has denied the surveillance claims made by the FSB, Reuters reports.

Research and Resources

Next Week in the Courts [Updated]

As already mentioned, the trial in the case of Various Claimants v MGN before Fancourt J will continue all week, beginning on Monday 5 June 2023.

On Tuesday 6 June to Friday 9 June 2023 the trial in LCG v OVD will continue before Collins Rice J.

On Wednesday 7 June 2023, Nicklin J will hand down judgment in the case of Amersi v Leslie.

On Thursday 8 June 2023 there will be a statement in open court in the case of TJM v West Yorkshire Police.

On Friday 9 June 2023 there will be a hearing in the case of Styles v South Wales Police.

Reserved Judgments

Ghenavat v Lyons, heard 25 to 26 May 2023 (HHJ Lewis)

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 Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).