Our last Law and Media Round Up was on 31 July 2023 and regular weekly round ups will not resume until the beginning of the Michaelmas term on 2 October 2023.  Although we are in the English summer legal vacation there are still a number of media and law developments in this jurisdiction and abroad.  In this special Summer Round Up we gather some of these together to keep our readers up to date.

The film and TV industry-wide strikes by screen writers and actors are in their fourth and second months, respectively. Actors and writers in Hollywood are striking for a number of reasons, including pay, working conditions, and concerns about artificial intelligence (AI). Writers are worried about control over AI in the screenwriting process, while actors have fears about AI replicas of themselves being used without adequate compensation. Sky News Daily Podcast discusses the AI concerns, and The Guardian sets out an “everything you need to know.”

Former Tory MP Antoinette Sandbach has threatened the University of Cambridge with legal action after a third-year PhD history student named her as a descendant of merchants who enslaved his ancestors. Malik Al Nasir claims he has been pressed to remove a reference in his work to Antoinette Sandbach. Sandbach has said she supports and appreciates the importance of Al Nasir’s work but raised concerns that she was being singled out in an online Ted talk given by him. Al Nasir said “the fact that Antoinette Sandbach descends directly from Samuel Sandbach, one of the richest and most prolific slave merchants in Britain, in the 18th and 19th century, is a fact that emerged from the research.” The Guardian has more information here.

On 31 July 2023, the Court of Appeal (Criminal Division) refused permission to appeal against the sentences of two Just Stop Oil protestors who scaled the bridge at the Dartford crossing, R. v Trowland & Anor [2023] EWCA Crim 919. Morgan Trowland and Marcus Decker challenged the “extraordinary length” of their sentences, arguing they were unprecedented and disproportionate for non-violent protest. Lady Justice Carr admitted the sentences were severe, but added “we have concluded that they were not manifestly excessive; nor did they amount to a disproportionate interference with their rights of freedom of expression and assembly.” The Guardian and Media Law Podcast: Newscast have more information.

On 4 August 2023, the Court of Appeal handed down judgment in National Council for Civil Liberties, R (On the Application Of) v Secretary of State for the Home Department & Anor [2023] EWCA Civ 926. Safeguards under the Investigatory Powers Act for journalistic material gathered in bulk by UK intelligence agencies will be re-examined in the High Court. The Court of Appeal found one part of the Investigatory Powers Act 2016 – dubbed the Snoopers’ Charter by critics – should be reconsidered after Liberty appealed a 2019 High Court judgment that dismissed its challenge to the Government’s mass surveillance powers. The Court of Appeal directed the matter to return to the High Court to decide whether the act provides “adequate safeguards for the protection of a journalist’s sources or confidential journalistic material in relation to communications obtained by means of a bulk equipment interference warrant”. Read Liberty’s response to the judgment here. The Press Gazette and Independent also cover the judgment.

We Work founder Adam Neumann is seeking a £25,000 donation to charity from The Spectator over the publication of a story, since amended, that he alleges was defamatory. The article complained of had said that Neumann “defrauded” investors in We Work and likened him to convicted fraudster Elizabeth Holmes. The original article has since been updated to remove any suggestion of criminal wrongdoing. The Press Gazette has more information here.

Internet and Social Media

Google has updated its policies on personal explicit images to allow users to request removal from web searches. In addition to the policy change, Google simplified the submission form for individuals to request search results for previously created and uploaded explicit content be taken down. The Guardian has more information here.

Secretary of State for Science, Innovation and Technology Michelle Donelan pushed back against Big Tech claims that the proposed Online Safety Bill will breach users’ privacy. Donelan said she is a proponent for privacy, but breaking end-to-end encryption to fight child exploitation is an exception. Reuters has more information here.

X, the social network that used to be known as Twitter, updated its privacy policy to include collection of users’ biometric data. The new policy claims the collection of biometric information is “for safety, security, and identification purposes.” X does not define what it considers biometric, though other companies have used the term to describe data gleaned from a person’s face, eyes and fingerprints.

New research indicates that human moderators can be an effective way to reduce and control harmful online content. The LSE Media Blog has more information here.

Data Privacy and Data Protection

The Open Rights Group has accused Parliament of weakening provisions governing data subject access requests in the proposed Data Protection and Digital Information Bill. The bill’s DSAR language previously mirrored the EU General Data Protection Regulation, which allows organizations to charge for a DSAR only under “manifestly unfounded or excessive” conditions. However, the changed language allows organizations to charge for a DSAR in the UK under “vexatious or excessive” conditions. The Guardian has more information here.

The Information Commissioner’s Office (ICO) issued a formal reprimand to the NHS in Lanarkshire for reportedly sharing patient data over WhatsApp.

The ICO has issued the first phase of its guidance on biometrics use, which is now open for public consultation through to the 20 October 2023. The second phase of the guidance will be issued early in 2024 and will focus on biometric classification and data protection, plus a call for evidence.

The HawkTalk blog explains how the development methodology for producing a Code of Practice for the DPDI Bill is institutionally biased in favour of the controller, and this bias risks infecting all Codes of Practice produced by this methodology.

Music and Copyright

IPKat provides a summary of the three cases brought in the United States claiming that the song Thinking Out Loud performed by Ed Sheeran, copied Let’s Get It On performed by Marvin Gaye. These cases have been on-going for five years. A summary judgment was previously denied. A US Federal Court in Manhattan dismissed the claim following trial in April 2023. However, notice of appeal has been filed but the grounds are as yet unclear.

Newspapers Journalism and Regulation

Hacked Off published a new report featuring expert perspectives on misogyny in the press. The press summary can be read here.

Copyright theft affecting news publishers in the UK and around the world is “through the roof” as content farmers are thought to be getting ever “more brazen,” the Press Gazette reports. Content licensing organisation NLA Media Access has successfully fought for the removal of around 700,000 stolen news articles in 2023 so far – up from about 20,000 in 2020 and 50,000 in 2021.

GB News is facing four new impartiality investigations from broadcast regulator Ofcom. The complaints relate to: Two editions of Friday Morning with Esther and Phil (presented by husband and wife Conservative MPs Esther McVey and Philip Davies); “State of the Nation”, a programme presented by another Tory MP, Jacob Rees-Mogg; and an episode of the Laurence Fox show which was guest presented by Martin Daubney. The Press Gazette has more information here.

IPSO

New Issued Cases

Since 31 July 2023 there have been 16 new claims issued in the Media and Communications List: 8 defamation (libel and slander) claims, three Norwich Pharmacal Order applications, one misuse of private information claim, one data protection claim and two miscellaneous claims and one pre-action injunction application.

Last Month in the Courts

On 7 August 2023, the First Tier Tribunal (General Regulatory Chamber) handed down its decision in Downes v Information Commissioner [2023] UKFTT 666 (GRC). The appeal was against the Information Commissioner’s decision to allow the release of correspondence between the London Borough of Croydon (“LB Croydon”) and a firm of solicitors. LB Croydon was suspected of using public funds to obtain legal advice for what could reasonably be considered a private matter, namely a proposed libel action. The Local Authorities (Indemnities for Members and Officers) Order 2004 (legislation.gov.uk) article 6(3) states: “No indemnity may be provided under this Order in relation to the making by the member or officer indemnified of any claim in relation to an alleged defamation of that member or officer but may be provided in relation to the defence by that member or officer of any allegation of defamation made against him”. While the Commissioner agreed there was a strong public interest in protecting LB Croydon’s ability to access full and frank legal advice, they also recognised that there is a public interest in knowing more about what advice LB Croydon received; particularly given the apparent ban on councils taking action on behalf of individual council officers or members who believe they have been libelled [22]. The appeal was dismissed. Held, the public interest in disclosure of the withheld information was outweighed by the significance and importance of maintaining the protection afforded by legal professional privilege.

On 15 August 2023, Collins Rice J handed down judgment in the misuse of private information and harassment claim of LCG & Ors v OVD & Ors [2023] EWHC 2058 (KB) (heard 25-26 May, 5-8 June 2023). The claim related to a family breakdown in which images of Ms C1’s private Instagram account were shared with her father, Mr C2, in what Mr C2 alleged was a blackmail attempt and part of a harassment campaign. Collins Rice J found Ms C1 had a reasonable expectation of privacy in these images. Mr C2 did not have an independent right; the autonomous control Ms C1 expected to be able to assert over her images was precisely to control access from her father [273]. While that autonomy was partially lost in the two episodes of disclosure to Mr C2, that did not wholly exhaust and extinguish Ms C1’s expectation of privacy. To that extent, there was some identity of interest between Ms C1 and Mr C2 in preventing further disclosure and limiting the damage. But Mr C2’s expectation of privacy in these images was wholly parasitic on, and subordinate to, his daughter’s. The disclosure of the images by Mr D1 to Mr C2 was not found to be unlawful, but rather communication within a family setting and therefore protected by Article 10 ECHR. However, Ms C1 and Mr C2 did succeed in establishing the liability of the unknown author(s) of the blackmail message for misuse of their private information. The author of that message plainly had no legal right capable of being asserted against the claimants’ protected expectations of privacy [276]. The claimants were entitled to injunctive relief to the extent of their success, but their claim was otherwise dismissed.

On 25 August 2023, the Court of Appeal handed down judgment in Blake & Ors v Fox [2023] EWCA Civ 1000. The original claim related to a dispute on Twitter in October 2020 in which three individuals posted tweets about the defendant which used the word “racist”. Mr Fox responded by tweeting about each of them using the word “paedophile”. They sued him for libel and Fox counterclaimed. The Court of Appeal was asked to review the first instance decisions made by Nicklin J on three preliminary issues: the natural and ordinary meanings of the tweets complained of; whether they were statements of fact or opinion; and, in the case of the defendant’s tweets, whether they were defamatory at common law. Held, Mr Fox’s appeal against the judge’s findings in respect of the claimants’ tweets and his appeal against the judge’s findings in respect of his own tweets in response to those of Mr Blake and Mr Seymour were dismissed. Mr Fox’s appeal against the judge’s findings about his response to Ms Thorp’s tweet was allowed, and her claim was dismissed as a result.

A temporary reporting restriction on the details of earnings by Labour member of the House of Lords Lord David Evans and a former Deputy Prime Minister of Kazakhstan Yerbol Orynbayev has been granted by the High Court. Lord Evans and Mr Orynbayev objected to some details of their earnings being made publicly available during litigation involving an “investment holding company” they have links to and three media organisations. Jusan Technologies has sued The Bureau of Investigative Journalism, Telegraph Media Group and Open Democracy for libel. The Press Gazette has more information here.

Media Law in Other Jurisdictions

Australia

Heston Russell’s claim against ABC has drawn to a close. The claim is based on two online news articles, a television news item and a radio broadcast published in 2020 and 2021 about alleged actions in Afghanistan in 2012 of the November platoon, which Russell commanded. ABC News and The Sydney Morning Herald covered closing arguments.

Canada

The Federal Court has dismissed the Privacy Commissioner’s claims that Facebook breached the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada (Privacy Commissioner) v. Facebook, Inc., 2023 FC 533. The Privacy Commissioner claimed Facebook contravened PIPEDA by sharing its users’ personal information with a third party application that hosted and integrated its application on the Facebook platform and sold user data to various research firms. Facebook allows third parties to build their applications on its platform and, in doing so, allows third party applications to receive user information when users interact with the applications.  The question of Facebook’s responsibility over the user’s data in the hands of third parties and how these parties utilize that data was a fundamental issue in the case. The Federal Court held that there was a lack of evidentiary basis to claim that Facebook contravened PIPEDA. The Court clarified the interpretation of “meaningful consent” under PIPEDA as well as Facebook’s safeguarding obligations in disclosing user information to third-party applications. The Social Media Law Bulletin has more information here. The Lexology summary can be read here.

China

The Fei Chang Dao blog has published translations of former civil rights lawyer Ding Jiaxi’s subversion indictment and the Shandong Xiaolin Law Firm’s Petition to Abolish Offense Used to Prosecute Pure Speech Crimes. There is also an article exploring the impact on freedom of expression of the proposed revisions to the Public Security Administrative Punishments Law.

India

India has passed its Digital Personal Data Protection Act The Economic Times of India has more information here. The Privacy and Information Security Law Blog has more information here.

Poland

A Polish privacy and security researcher has filed a complaint against OpenAI with Poland’s data protection authority, the Urząd Ochrony Danych Osobowych, alleging the company violated several articles of the EU General Data Protection Regulation. The complaint alleges the company’s generative artificial intelligence system, ChatGPT, violates the GDPR in terms of “lawful basis, transparency, fairness, data access rights, and privacy by design,” TechCrunch reports.

Research and Resources

Reserved Judgments

Ijaz v Manan heard 19 to 27 July 2023 (Linden J)

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)

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).