A preliminary trial on meaning due to be heard last week has had to be relisted after actor Noel Clarke disinstructed his legal advisors shortly before the hearing. Clarke has filed a defamation claim against The Guardian over eight articles published in 2021 that reported sexual misconduct allegations made by several women.

Alongside a claim for general damages, the well-known actor and producer is seeking special damages of over £10 million as well as aggravated damages. The actor vehemently denies the allegations and asserts that the articles have had a “catastrophic” impact on his career. The Guardian‘s defence will be filed once meaning is determined later this year, as is now the general practice in defamation. RPC, BBC, Evening Standard, Telegraph, Deadline and Daily Mail have more information.

 On 17 July 2023 independent media outlet Byline Times published the article titled “GB News Star Dan Wootton Unmasked in Cash-for-Sexual Images Catfishing Scandal”. The story cites a range of allegations, some of which would involve criminality, made against a person identifying as “Martin Branning”.  The article alleges that Wootton himself is “Branning”. The Independent, Hacked Off, BBC, Sky News, Press Gazette and Guardian have more information. Hacked Off also comments on the media blackout in relation to the Wootton allegations, in comparison to the BBC star we now know to be Huw Edwards, who was also accused of paying for sexually explicit material from a young person. In Prospect, editor Alan Rusbridge, comments that not all sex scandals are treated equally.

On 14 July 2023, the Court of Appeal dismissed an appeal by the Chinese state broadcaster’s international division, China Global Television Network (CGTN), against a £125,000 fine handed down by Ofcom, Star China Media Ltd, R (On the Application Of) v Office of Communications [2023] EWCA Civ 843. The Press Gazette has more information here.

 Internet and Social Media

 Ofcom is seeking evidence on the research it will need to carry out to prepare advice to the government on categorising regulated services under the Online Safety Bill (OSB), which will impose different levels of obligations on in-scope services depending on the service’s size and risk. Services will be categorised as either Category 1, 2A or 2B if they meet certain thresholds set out in secondary legislation, with higher risk categories having additional obligations (e.g. producing transparency reports). This particular call for evidence seeks views on how Ofcom should measure user numbers on the relevant user-to-user parts of in-scope services and indeed what counts as a “user.” The deadline to respond to this consultation is 12 September 2023. Later this year, Ofcom will open another call for evidence on the duties that will apply to categorised services.

Data Privacy and Data Protection

The Mishcon de Reya blog has an article explaining the Atlantic Declaration and the implications of the new UK-US trade agreement. The new agreement covers various aspects of trade cooperation, setting out a series of sector-by-sector agreements on several matters, including AI regulation, electric car manufacturing, the recognition of professional qualifications, defence procurement and data protection alignment.

Surveillance

Privacy International submitted a written response to Lord David Anderson’s call for comments relating to his review of the Investigatory Powers Act 2016.

United Nations High Commissioner for Human Rights Volker Türk has said facial recognition could create “mass surveillance of our public spaces, destroying any concept of privacy.” Speaking at a recent UN Human Rights Council session, Türk  talked broadly about artificial intelligence and “its potential to strengthen authoritarian governance, operate lethal autonomous weapons, or further existing systemic bias.” Biometric Update has more information here.

Newspaper Journalism and Regulation

The BBC has won a Freedom of Information court case against Press Gazette to keep secret the amount of money it paid a consultancy to produce a report that highlighted the corporation’s value for money. The BBC declined to release the information, citing section 43(2) of the Freedom of Information Act that protects “commercial interests”. Following the Information Commissioner’s Order to release the information, the BBC appealed to the First-tier Tribunal (General Regulatory Chamber), arguing that disclosure would also “be likely to harm the commercial interests of MTM”. The tribunal found that the section 43(2) exemption was engaged “as both the commercial interests of the BBC and of MTM are affected” and that “there is a real and significant risk of prejudice to the commercial interests” of both. The Press Gazette has more information.

The BBC has amended a report which stated Nigel Farage’s Coutts bank account was closed for financial reasons, but it has so far stopped short of providing Farage with the apology he has demanded. The Press Gazette has more information here.

IPSO

There were no new IPSO rulings last week.

Statements in Open Court and Apologies

On Thursday 20 July 2023 there was a statement in open court in the case of Vine v Belfield.  There was a report of the statement in the Guardian.

New Issued Cases

There were no new cases issued on the media and communications list last week.

Last Week in the Courts

On Monday 17 July 2023 Nicklin J, sitting at the Port Talbot Justice Centre, heard the case of Corey Lee Styles v South Wales Police [2023] EWHC 1835 (KB). Nicklin J struck out the claim “as totally without merit” [59]. After setting out the full history of the claim, he noted that the Claimants had failed to provide a proper Particulars of Claim and commented that “the Defendants are entitled to the certainty of knowing that the claim is not hanging over them indefinitely.”

On the same day Collins Rice J handed down judgment in the preliminary trial over meaning in Zia Chishti v The Telegraph Media Group [2023] EWHC 1808 (KB). Zia Chishti, founder of US tech company Afiniti, issued libel proceedings in the UK against The Telegraph Media Group following the publication of two articles online and in print in November 2021 which alleged that he was a sexual predator, which is strongly denied by Chishti. Collins Rice J considered issues relating to context, imputation, and the Chase level of the imputations, ultimately assigning the articles a Chase level 1 factual imputation and deeming the articles to be defamatory at common law. The decision is a rare occasion in which meaning has been determined without a hearing following agreement between the parties.

Also on 17 July 2023, Collins Rice J granted judgment in default to the claimant and McGee v Lewis [2023] EWHC 1813 (KB). In the spring of 2023, Ms Lewis  accused Mr McGee of sexual and other misconduct following a breakdown in their professional and personal relationship. McGee vehemently disputes the truth and fairness of these allegations. He issued a claim alleging harassment, libel and misuse of his private information, citing a large number of Lewis’ social media posts. He claims damages, costs, and injunctive relief to compel Lewis to desist from her allegations. Lewis chose not to engage with the proceedings. McGee was awarded an injunction to prevent Lewis from continuing to publish serious allegations against him [34]; the Order provides for McGee to ask he can ask the court to make further directions about financial damages [37], and awarded his costs [39].

On Tuesday 18 July 2023 there was a hearing in the case of Coopers Fire Limited v Mcloughlin.

On Tuesday 18 July to Friday 21 July 2023 there was a hearing of a strike out application in the harassment case of Zu Sayn-Wittgenstein-Sayn v Juan Carlos.  There was short note about the case on the 5RB website.

On Wednesday 19 July to 221 July 2023 the trial in the case of Ijaz v Manan was heard by Linden J.  The trial continues.

On Friday 21 July 2023 there was a hearing in the case of Iqbal v Geo TV Limited. GEO TV Limited, which broadcasts the Urdu television channel GEO News in the UK, is applying for summary judgment in a libel claim brought against it by Salman Iqbal, the founder and president of the ARY network, which also provides Urdu content to the UK. The claim arises from GEO’s coverage of a public address in the Punjab in May 2022. GEO argues that its broadcasting was protected by reporting privilege under section 15 of the Defamation Act 1996, 5RB reports.

On the same day, Heather Williams J handed down judgment in Davidoff v Hargrave [2023] EWHC 1825 (KB). The libel claim is brought by four Claimants and concerns a quote tweet and a comment posted beneath an online article. Held, the parties were not permitted to adduce extrinsic evidence on the hypothetical reasonable reader’s characteristics; and the Claimants’ reference innuendos, which had been settled by different counsel than represented the Claimants at the hearing, had been pleaded deficiently, but that they should be permitted to amend the pleadings. 5RB’s short summary can be read here and full case summary here.

Also on 21 July 2023, the Court of Appeal handed down judgment in Smith v Backhouse [2023] EWCA Civ 874. The judgment explains when the court will accept undertakings agreed by the parties as part of a settlement.  The original harassment and privacy claim concerned a sustained campaign of online harassment, which included the creation of Twitter accounts impersonating Dr Smith and offering sexual services to the public. The claim settled before trial with Dr Backhouse paying Dr Smith £49,975 in damages and over £70,000 in costs, as well as agreement to certain undertakings. Asplin LJ, with whom Warby LJ and Arnold LJ agreed, explained that there was no doubt (as the Appellant accepted) that the court may decline to accept undertakings, even where they are agreed between the parties as part of a settlement.  However, the circumstances in which the court may reject such undertakings are limited, and therefore the question was whether Nicklin J’s identification of the limited circumstances was wrong in law. Brett Wilson has more information here.

Media Law in Other Jurisdictions

Australia

A Melbourne couple have failed in an attempt to sue a former federal police commander after they claimed he maliciously defamed them in a press conference about an alleged multi-million dollar fraud. The West Australian and Yahoo have more information.

China

On 17 July 2023, the People’s Republic of China media outlet Caixin published an article titled “In the First Quarter of 2023, the Number of Cremated Remains in Zhejiang Province Increased by 72.7% Year-on-Year.” The Fei Chang Dao blog shows how it was censored.

Europe

The Strasbourg Observes blog has published an article on the judgment in the case of Sanchez v France from May this year.  The Grand Chamber explored the limits of freedom of expression in the context of hate speech in an election-related setting and intermediary liability for actors on the internet. The Court significantly expanded the liability for intermediaries for third-party content on the internet compared to earlier case law in Delfi v Estonia. The article argues that Sanchez v France takes an untenable position regarding third-party liability for content on social media.

WhatsApp has switched its legal basis for processing personal data under the EU General Data Protection Regulation. A €5.5 million fine issued by Ireland’s Data Protection Commission in January found WhatsApp’s prior “contract” legal basis insufficient and the app was ordered to find a new one. WhatsApp will now use the “legitimate interest” legal basis, which a spokesperson said, “does not change our commitment to user privacy” nor “the way we treat user data.” Euractiv has more information here.

Norway 

Norway’s data protection authority, Datatilsynet, is placing a three-month ban on surveillance-based behavioural advertising by Facebook and Instagram. The DPA, which said it believes Meta’s profiling practices “are illegal,” will impose a fine of NOK1 million per day if the company does not comply. The order does not prohibit the operation of Facebook or Instagram in Norway, or behavioural advertising targeted to users who give valid consent. The Privacy and Information Law blog has more information here.

United States

 A federal judge has dismissed Donald Trump’s request for a new trial in a civil case in which a jury found him liable for sexually abusing and defaming columnist E Jean Carroll. Mr Trump was ordered to pay $5m (£3.9m) in damages, which he argued was excessive based on the jury’s verdict. The judge ruled that the jury’s verdict was not a “miscarriage of justice”, the BBC reports.

 On 18 July 2023, the Ninth Circuit handed down judgment in favour of Amazon in the breach of contract and Consumer Protection Act claim of Haywood v Amazon.com, Inc., 2023 WL 4585362. The claim related to book reviews made by the claimant which Amazon removed. The claimant asserted that Amazon wrongfully removed the claimant’s reviews and did not adequately explain its actions. The CPA violation centred on Amazon’s insufficient explanations and inconsistent policy enforcement. Amazon sought to dismiss the complaint, arguing there was no legal basis for the breach of contract claim, the other claim lacked merit, and that both the Section 230 and the First Amendment protect Amazon from liability. The court granted Amazon’s motion. The Evan Law blog and Technology and Marketing Law blog have more information.

Research and Resources

Next Week in the Courts 

The trial in the harassment case of Ijaz v Manan will continue before Linden J on 24 to 27 July 2023

On Tuesday 25 July 2023 the Court of Appeal (Dingemans, Birss and Warby LJJ) will hand down judgment in the case of Dyson v Channel 4.

On the same day there will be a directions hearing in the case of Kent Police v Taylor before Nicklin J.

On Wednesday 26 July 2023 judgment will be handed down in the case of Wright v McCormack, heard 15 June 2023 (Singh, Andrews and Warby LJJ)

On Thursday 27 July 2023 there will be a hearing in the libel cases of Jusan Technologies Ltd v. (1) The Bureau of Investigative Journalism (2) Telegraph Media Group Ltd  and  Jusan Technologies Ltd v. Open Democracy Ltd before Nicklin J.

On the same day, Tipples J will hand down judgment on meaning in the case of Adams v Associated Newspapers (heard 23 May 2023).

Reserved Judgments

Harcombe v Associated Newspapers, heard 3 to 7 and 10 to 11 July 2023 (Nicklin J)

YSL v Surrey and Borders Partnership NHS Foundation Trust, heard 14-15 June 2023 (Julian Knowles J)

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)

MBR Acres v FREE THE MBR BEAGLES,  heard 24-28 April 2023, 2-5, 9, 11-12, 15, 17-18, 22-23 May 2023 (Nicklin 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)

 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).