On 27 June 2023 the House of Lords approved an amendment to the Economic Crime and Corporate Transparency Bill which aims to tackle “strategic litigation against public participation” (“SLAPPs”); the use of defamation law to silence critics. The amendment was only published the week before and was not subjected to any consultation, white paper or select committee report. Inforrm had an article arguing that the amendment is ill thought out.
The press complaints handler IPSO has published its ruling on Jeremy Clarkson’s article in The Sun attacking Meghan Markle, the Duchess of Sussex, which prompted an unprecedented 25,100 complaints. Of the four grounds of complaint it agreed to consider, IPSO upheld one; discrimination on grounds of sex. Harassment, inaccuracy and racial discrimination were dismissed. Inforrm has more information on the decision here. Hacked Off’s responses can be read here and here. The Press Gazette and Zelo Street also provide commentary.
The European Implementation Network is calling on NGOs to express their interest to participate in a new project Protecting Freedom of Expression by Supporting the Implementation of ECtHR judgments. The project is aimed at protecting the right to free speech in every country in Europe where there is a ECtHR judgment pending implementation. More information here.
Warby LJ has been appointed as a Judicial Commissioner of the Judicial Appointments Commission, the independent body responsible for the selection of candidates for judicial office in tribunals and courts in England and Wales. Warby LJ’s three-year term will run from 1 June 2023. 5RB has more information here.
Internet and Social Media
The European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs produced a study examining the “commercial, industrial and military applications of (the) metaverse.” The report explored the “opportunities as well as significant concerns for everyday life, health, work, and security.” Additionally, the report offered suggestions for potential future legislation “promoting fundamental principles of law, legislative and judicial oversight, applied comprehensively across a broad range of policies.”
Data Privacy and Data Protection
On 22 June 2023, the Upper Tribunal confirmed the civil standard of proof applied in information law litigation with the judgment in Doorstep Dispensaree Lts v Information Commissioner  UKUT 123 (AAC). The Panopticon blog has more information here.
The Information Commissioner’s Office (ICO) has issued an enforcement notice to Croydon Council for its poor handling of requests made under the Freedom of Information Act 2000. The independent regulator has accused the council of “failing their residents.”
UK private businesses are using facial recognition technology more than other countries, the New York Times reports. There is an overall increase in the private use of these technologies worldwide, specifically to combat minor crimes and create watchlists largely unbeknownst to individuals being surveilled.
Newspapers Journalism and Regulation
The Telegraph, Sunday Telegraph and Spectator are up for sale after Lloyds Banking Group seized control of the titles’ parent firm and placed it in the hands of receivers. Sky News, Press Gazette and The Guardian have more information.
- 17450-23 a woman v Greenock Telegraph, 1 Accuracy (2021), 2 Privacy (2021), 4 Intrusion into grief or shock (2021), 9 Reporting of crime (2021), 11 victim of sexual assault (2021), Breach – sanction: publication of adjudication
- 10016-23 The Islamic Centre of England v The Jewish Chronicle, 1 Accuracy (2021), 12 Discrimination (2021), No breach – after investigation
- 16770-23 Abbas v Mail Online, 1 Accuracy (2021), 2 Privacy (2021), 6 Children (2021), Breach – sanction: publication of adjudication
- 17365-23 Smith v The Times, 1 Accuracy (2021), No breach – after investigation
- 17972-23 Welford v mirror.co.uk, 2 Privacy (2021), 1 Accuracy (2021), 6 Children (2021), No breach – after investigation
- 17973-23 Welford v dailystar.co.uk, 2 Privacy (2021), 1 Accuracy (2021), 6 Children (2021), No breach – after investigation
- 18626-22 The Fawcett society and The WILDE Foundation v The Sun, 3 Harassment (2021), 12 Discrimination (2021), 1 Accuracy (2021), Breach – sanction: publication of adjudication
Statements in Open Court and Apologies
We are not aware of any statements read in open court last week.
New Issued Cases
There were no new issued cases in the Media and Communications list last week.
Last Week in the Courts
Fancourt J heard closing submissions in the trial of Various Claimants v MGN. Lawyers for MGN told the court the company has “paid a very heavy price” for the hacking scandal, while advocates for Prince Harry argued he was entitled to £320,000 in aggravated damages. Judgment was reserved.
On 26 June 2023, Dr Than Wai, a retired ophthalmologist, was awarded £30,000 libel damages on an indemnity basis for allegations that he was a “stoolie” made by Dr Kywe on the ‘Moe Joe News’ Facebook page. Brett Wilson and 5RB have more information.
On 27 June 2023, the Court of Appeal (Dingemans, Birss and Warby LJJ) heard the claimants’ appeal in the case of Dyson v Channel 4. The appeal was livestreamed here and here. Judgment was reserved. There was a report of the case in the Press Gazette.
On 29 June 2023, Collins Rice J granted an injunction in the case of WFZ v BBC  EWHC 1618 (KB) restraining publication by the BBC of a report in a form which identified the claimant as the subject of active criminal proceedings. The application for an injunction was heard on 14 and 19 June 2023. Inforrm has a summary here. The Press Gazette summary can be read here.
Media Law in Other Jurisdictions
Ben Roberts-Smith will pay defendants’ legal costs in his failed defamation case, ABC reports.
Google has announced that it will block news links in Canada in response to the mandated payment for links approach established in Bill C-18. The decision, which the company says will be implemented before the law takes effect, will cover search, Google News, and Google Discover. The Michael Geist blog has more information here. The Press Gazette also covers the announcement.
On 29 June 2023, judgment was handed down in R v Dent, 2023 ONCA 460. The case concerned a conviction of publishing defamatory libel, contrary to s. 300 of the Criminal Code. Held, the conviction appeal was dismissed but leave to appeal the sentence was granted. The trial judge recognised that Ms Dent engaged in a serious and sustained attack designed to ruin Mr Lalonde’s life, but then permitted his concern for incarcerating the mother of a child to overwhelm his analysis and adopted a conditional sentence on the strength of a persuasive precedent, without closely considering the suitability of that sentence in the case before him. These errors warrant intervention and the imposition of a lesser sentence.
The Fei Chan Dao blog has published a translation of a Notice expelling Zhang Guilin, Former Director of the State-Owned Assets Supervision and Administration Commission of the Beijing People’s Government, from the Party and Public Office for “serious violations of discipline and law.” The Notice accuses Guilin of reading books with “political problems.” Read the full translation here.
The same blog has also published a translation of the judgment in Liu Feiyue Political Cartoon Case; read here.
On 22 June 2023, the French data regulator CNIL announced a €40 million sanction against Criteo, one of the world’s largest AdTech companies, for failing to ensure that data subjects had provided their consent to processing, failing to sufficiently inform them and to enable them to exercise their rights. Read Privacy International’s, the privacy rights activists that brought the claim, Press Release and Analysis.
Italy’s data protection authority Garante has fined Rome’s city council and third-party property management firm Ama a combined €415,000 over privacy violations related to sensitive data breaches of individuals who have undergone abortions. The Garante found the city council was allowing the Ama to disclose the names of mothers on aborted foetuses’ gravestones without consent and ordered information burial documents and medical certificates be sealed. Reuters has more information here.
Cearta.ie has an article on the recent settlement in Carey v Independent News & Media, in which former Minister Pat Carey was identifiable from an Irish Independent article reporting a Guarda investigation into allegations of child sexual abuse against an un-named former Minister. Carey was never arrested and, following investigation, no charges were brought against him. The article finds settlement “inevitable” given the UK decision in Bloomberg LP v ZXC  AC 1158 AC.
Ireland’s Commercial Court has extended Meta’s interim stay on the order from the Irish Data Protection Commission to suspend its EU-US data transfers. Meta was fined €1.2 billion by the DPC in May 2023 and ordered to cease all data transfers of EU citizens’ data to the US. The Irish Times has more information here.
An amendment to a procedural bill could allow for Ireland’s Data Protection Commission to make all of its procedures confidential. The provision was added as an amendment to the “Courts and Civil Law (Miscellaneous Provisions) Bill 2022” by Department of Justice Minister of State James Browne. If approved, the DPC would have the discretion to bar publication of information pertaining to its proceedings, Euractiv reports.
Donald Trump has sued E Jean Carroll for defamation, alleging she falsely accused him of rape after a jury in a civil trial found that he sexually abused her. Trump’s counterclaim against Carroll in Manhattan federal court on 27 June 2023 cited Carroll’s statements on the CNN cable news channel after the verdict, and comes after a jury’s finding in May that he sexually abused and defamed Carroll, but the jury did not find that he raped her. The Guardian has more information here.
A federal court has dismissed chess player Hans Niemann’s $150m defamation lawsuit against fellow chess star Magnus Carlsen, which alleged Carlsen and Chess.com had falsely accused him of cheating. ABC News, Sky News, Chess.com and BBC have more information.
The US Secretary of Commerce Gina Raimondo has announced the National Institute of Standards and Technology will launch a new generative artificial intelligence working group. The working group will build on the success of the NIST AI Risk Management Framework and focus on the technology’s development.
On 26 June 2023, the 5th Circuit Court handed down judgment in Doe v Snap, Inc., 2023 WL 4174061 finding the instant messaging app Snapchat is not liable for enabling a teacher to groom a minor student. Relying on Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008), the court affirmed the lower court’s finding that the student’s claims against Snapchat were based on the teacher’s messages. Accordingly, Snapchat was immune from liability because this provision of federal law – under the doctrine of the MySpace case – provides “immunity … to Web-based service providers for all claims stemming from their publication of information created by third parties.” The Evan Law blog has more information here.
A class-action lawsuit against OpenAI has been filed in San Francisco for alleged copyright violations. The claim alleges OpenAI’s chatbot ChatGPT violated the copyrights and privacy of “countless people” when it scraped users’ internet data, such as social media comments and blog posts, to train its algorithms, The Washington Post reports. Law.com also reports the claim.
A federal class action has accused Madison Square Garden Entertainment Corp. of violating New York City’s biometric privacy ordinance and a state privacy law through a facial recognition system it used to provide security at its entertainment venues, a new proposed federal class action alleged. Bloomberg law has more information here.
On 30 June 2023, the day before the regulations were scheduled to go into effect, the Superior Court of California halted the enforcement of the California regulations that had been finalised on 29 March 2023 until 29 March 2024. The Data Protection Report has more information here.
Research and Resources
- Shany, Yuval, The Definition of Peaceful Assembly (2023), Oxford Handbook of Peaceful Assembly, edited by Tabatha Abu El-Haj, Michael Hamilton, Thomas Probert and Sharath Srinivasan
- Eder, Niklas, Making Systemic Risk Assessments Work: How the DSA Creates a Virtuous Loop to Address the Societal Harms of Content Moderation (2023), Information Society Project – Yale Law School; Humboldt University, Law School; University of Leipzig, Law School
- Sharma, Sukarm, Rescuing Article 19 from the ‘Golden Triangle’: An Empirical Analysis of the Application of the Exception Clauses under Article 19 (2023), 15 NUJS L. Rev. 3-4 (2022)
- Fan, Mary, Big Data Searches and the Future of Criminal Procedure (2023), Texas Law Review, Vol. 102
- DiRusso, Alyssa A. and McFarlin, Timothy, Identity Appropriation and Wealth Transfer: Twain, Cord, and the Post-Mortem Right of Publicity (2023) 48 American College of Trust & Estate Counsel Law Journal 41
- Savin, Andrej, The New Framework for Transatlantic Data Transfers (2023), Copenhagen Business School, CBS LAW Research Paper No. 23-01
- Brantley, Kyle, The Algorithm’s Alright: Trusting Big Tech’s Image Match in the Wake of Wilson (2023), Wake Forest Law Review, Vol. 58, No. 2, 2023
- Fairbanks, Robert, Eyes in the Sky: The Dangers of Dragnet Government Surveillance, the Inadequacy of the Mosaic Theory, and the Need for a Legislative Solution (2023), Albany Law Journal of Science and Technology, Vol. 33.2 2023
- Horowitz, Bernard and Check, Terence, TikTok v. Trump: The Uncertain Future of National Security-Based Restrictions on Data Trade (2022), Journal of National Security Law and Policy, Vol.13:61
Next Week in the Courts
On 3 July 2023 the trial in the preliminary issue trial in the case of Harcombe v Associated Newspapers will begin before Nicklin J. The case is listed for 7 days. The case is listed to conclude on 11 July 2023.
On the same day Collins Rice J will hear a pre-trial review in the harassment case of Miller v Turner.
On Tuesday 4 July 2023 there will be a hearing in the defamation case of Davidoff v Hargrave.
On Wednesday 5 July 2023 statements in open court in the cases of Campbell v Channel 5 and Foh-Amoaning v Channel 5 will be read.
On Thursday 6 July 2023 there will be a hearing of an application for an injunction in the case of Specialty Coffee Association Limited and another v Odushola..
Dyson v Channel 4, heard on 27 June 2023 (Dingemans, Birss and Warby LJJ)
Clarke v Rose, heard on 19 and 20 June 2023 (Steyn J)
YSL -v- Surrey and Borders Partnership NHS Foundation Trust, heard 14-15 June 2023 (Julian Knowles J)
Wright v McCormack, heard 15 June 2023 (Singh, Andrews and Warby LJJ)
Brachers LLP and another v Lingard, heard 16 June 2023 (judge)
LCG v OVD, heard 25-26 May, 5-8 June 2023 (Collins Rice J)
Ghenavat v Lyons, heard 25 to 26 May 2023 (HHJ Lewis)
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)
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).