Today is the first day of the Michaelmas Legal Term and the beginning of the legal year. The Michaelmas Term will finish on 21 December 2023. This is our first round up of the new legal year and, from today, we will resume regular daily posting.
The new legal term begins with the swearing in of the new head of the judiciary, the Lady Chief Justice, Lady Carr. She is the first woman to hold this office since its creation in the 13th century. Her appointment was described by the Master of the Rolls as “a landmark in our national life”.
Parliament has passed the Online Safety Bill, which will become law as soon as it receives Royal Assent. The legislation will introduce a new regulatory regime for online platforms and search engines which target the UK, imposing wide-ranging obligations on in-scope services with serious consequences for non-compliance. The Home Office has released guidelines on the interplay between end-to-end encryption standards and children’s safety as it relates to the Online Safety Bill. Inforrm has a summary of the new legal framework here. Clean Up The Internet’s commentary can be read here.
The Attorney General has issued a contempt of court warning about publishing anything that could prejudice any future criminal investigation into Russell Brand. The warning was made despite the fact that there are currently no active proceedings in relation to allegations of sexual assault made against Brand, first reported by The Times and Sunday Times and Channel 4 Dispatches. Brand has denied criminality, saying all his relationships were consensual. Journalists have criticised the AG’s warning, arguing it has “no basis in law.” The Press Gazette explains why the Metropolitan Police’s statement does not name Brand as a result of privacy rules.
The chief executive of Britain’s leading republican movement Graham Smith is seeking a judicial review of the lawfulness of his arrest during the King’s coronation, as well as damages and an admission of fault from Scotland Yard. Smith was detained on 6 May 2023 for 14 hours. This is the first time that a court will have the chance to consider the “correct approach” to the exercise of powers given to the police days before the coronation under which they are able to arrest those suspected of “going equipped to lock on”. The Guardian, National, BBC and Independent have more information.
Two women who were arrested while attending a Sarah Everard vigil in Clapham Common, London in 2021 have been paid substantial damages and received an apology from the Metropolitan Police. The police force was criticized by women’s rights activists for its heavy handling of protesters towards the end of the event. The Evening Standard, CNN, Guardian and Reuters have more information.
The nine people who were suing the Labour party after they were named as complainants in a leaked report over antisemitism have dropped their case. The nine were suing Labour for failure to protect their data and invasion of privacy after they were identified as having made complaints about antisemitism in an 860-page document that claimed factional hostility towards Jeremy Corbyn contributed to the party’s ineffective handling of such complaints. It is unclear if an out of court settlement has been reached. The Guardian has more information here.
Former cabinet minister Sir Gavin Williamson has been ordered to apologise after an inquiry found he had bullied a colleague in texts. The Independent Expert Panel of the UK Parliament upheld an appeal by The Rt Hon. Wendy Morton MP that Sir Gavin had breached Parliament’s Bullying and Harassment Policy by sending the text messages to the former Conservative Chief Whip and determined that Sir Gavin should make a “full and unreserved apology” on the floor of the House of Commons and that he should “undertake appropriate behaviour training”. The BBC has more information here.
Internet and Social Media
As mentioned above, the Online Safety Bill has been passed by Parliament.
Data Privacy and Data Protection
The Department for Science, Innovation and Technology published a statutory instrument that amends language for “fundamental rights and freedoms” in UK data protection laws. The instrument updates references that were retained under the EU GDPR to instead reflect recognitions enshrined in UK law. The change will take effect January 2024.
New regulations have created a “UK Bridge” to the EU-US Data Privacy Framework approved by the European Commission in July 2023. Under that framework, US companies can take advantage of an opt-in certification regime enforced by the US Federal Trade Commission and Department of Transportation. The regulations will come into effect on 12 October 2023. Mishcon de Reya and DLA Piper have more information.
A former family intervention officer working in the St Helens Borough Council was convicted of “unlawfully accessing social services records.” The defendant reviewed the records of 145 people between 17 January and 17 October 2019 “without having a business need to do so.” The defendant resigned from the council prior to being convicted and was fined £509.
Greater Manchester Police are under investigation by the Information Commissioner’s Office (ICO) following a report of a data breach.
The ICO has also issued a warning to organizations regarding the need to increase data protection and security concerning sensitive information belonging to victims of domestic abuse.
Art, Music and Copyright
IPKat has an article exploring how AI relates to post-mortem personality rights.
On 12 September 2023, The European Court of Human Rights delivered its judgment in Wieder and Guarnieri v. the United Kingdom (nos. 64371/16 and 64407/16). The ECtHR ruled the privacy of two individuals was breached by a UK foreign surveillance operation. The ECtHR supported arguments by complainants that their privacy was violated by mass surveillance of communications data carried out by the UK Government Communications Headquarters. The court referred to a broader 2021 ruling against UK surveillance practices. The Financial Times, Computer Weekly and Privacy International have more information.
Newspapers Journalism and Regulation
On 18 September 2023, Ofcom concluded its investigation into an episode of Saturday Morning with Esther and Phil, which aired on GB News on 11 March 2023, finding it breached due impartiality rules. The Guardian and Sky News have more information.
Hacked Off has an article criticising the Daily Mail’s practice of attaching Black names and faces to racist articles which have been ghost-written by other journalists, calling it “a major scandal in the media industry.”
UK crime journalists have voiced concerns about a proposal that could allow alleged victims of sexual offences to give evidence in private court hearings. The Law Commission’s proposed reform suggests excluding all media except for one reporter while evidence is heard from a complainant in a sex offence case. Currently, alleged victims in such cases frequently give evidence from behind a screen, remotely or in a pre-recorded interview. The Press Gazette has more information here.
- 19756-23 Saunders v mirror.co.uk, 2 Privacy (2021), 1 Accuracy (2021), No breach – after investigation
- 19679-23 Saunders v walesonline.co.uk, 2 Privacy (2021), 1 Accuracy (2021), No breach – after investigation
- Resolution Statement 18579-23 Reynolds v The Scottish Sun, 1 Accuracy (2021), Resolved – IPSO mediated
- 18539-23 Garnier v Tenbury Wells Advertiser, 2 Privacy (2021), 1 Accuracy (2021), No breach – after investigatio
- 17700-23 Calvert v The Daily Telegraph, 1 Accuracy (2021), 12 Discrimination (2021), No breach – after investigation
- 17342-23 Marsh v Daily Mirror, 1 Accuracy (2021), No breach – after investigation
- 17652-23 Potucek v The Daily Telegraph, 3 Harassment (2021), 1 Accuracy (2021), No breach – after investigation
- 16962-23 Shaw v The Sentinel (Stoke), 1 Accuracy (2021), No breach – after investigation
On Tuesday 3 October 2023, 11KBW is hosting a briefing session on the new Online Safety Act with leading data and internet specialist Anya Proops KC and Jamie Susskind. More information can be found here.
New Issued Cases
There were nine defamation (libel and slander) claims, four data protection claims, two misuse of private information claims, one breach of privacy claim, one injunction claim and one application to read a statement in open court filed on the media and communications list in September 2023.
Media Law in Other Jurisdictions
Australians will gain a right to sue for “serious” breaches of privacy under reforms that would also require small businesses to comply with privacy laws under the new Privacy Act. Children will also gain extra privacy protection. The Guardian has more information here.
War crime investigators at the Office of the Special Investigator will not see evidence from Ben Roberts-Smith’s defamation trial that could lead to the contamination of their probe. The Guardian has more information here.
The Federal Court would make legal history in the defamation battle between Sydney MP Alex Greenwich and former NSW One Nation leader Mark Latham if it empanelled a jury to hear the case, the Sydney Morning Herald reports.
Australians being sued for defamation may miss out on new defences depending on which state or territory law applies, prompting renewed calls for the federal government to step in to pass national defamation laws. The Sydney Morning Herald has more information here.
The Fei Chang Dao blog has published a translation of PRC academics’ critique of the proposed Public Security Administrative Punishments Law revisions. The blog also published a translation of the state sponsored media outlet Caixin’s article titled “China’s Top Academics Told to Toe Party Line With Public Statements, published 6 September 2023.
On 3 September 2023, an article titled “People’s Daily: Exaggerating the Personal Role of Leaders to an Extreme Level will Lead to Superstitious Belief in the Individual” was posted on the “The Reading Drawer” public Weixin account. It was censored within 24 hours, Fei Chang Dao reports.
A court in Cairo has sentenced a former newspaper publisher, free speech advocate and rights activist to six months in prison, in a trial observers say constitutes an attack on a leading critic of the Egyptian state. The Guardian has more information here.
Slovakia’s president, Zuzana Čaputová, a former civil rights lawyer, activist and standard bearer for progressive causes, has sued Robert Fico, the populist head of the country’s main opposition party, for spreading lies about her amid rising tensions before a key parliamentary election at the end of this month. The Guardian has more information here.
On 7 September 2023, judgment was handed down in McGettigan v Mannok Holdings  NIKB 90. The plaintiff’s claim for defamation over publications made to the Law Society for Northern Ireland’s professional conduct committee and staff was dismissed. The court held that absolute privilege applied.
The Supreme Court has agreed to decide whether Florida and Texas may prohibit large social media companies from removing posts based on the views they express, setting the stage for a major ruling on how the First Amendment applies to powerful tech platforms. The New York Times, NBC News and Law.com have more information.
Research and Resources
- Muftic, Nasir and Herenda, Tahir and Išerić, Harun and Cendic, Kristina, Analysis of the Draft Law on Amendments to the Criminal Code of Republika Srpska: Impact on Media Freedoms, Civil Society, and Freedom of Expression (2023) Mreža progresivnih inicijativa
- Lidsky, Lyrissa Barnett, Cheap Speech and the Gordian Knot of Defamation Reform (2023) 3 Journal of Free Speech L. 79 (2023), University of Florida Levin College of Law Research Paper Forthcoming
- Ibuchim Nnorom, Weje, Rights Against Media Parade and Public Identification of Criminal Suspects: The Privacy Rage (2023), Falana & Falana Chambers; Rivers State University
- Kahn, Jeffrey, Brief of Jeffrey Kahn as Amicus Curiae In Relation to the Complaints of Aptysheva, Olga, [and 20 others], for Violation of Constitutional Rights and Freedoms by Parts 1 and 2 of Article 20.3.3 Code of the Russian Federation on Administrative Offenses (2023), Amicus brief filed in Constitutional Court of the Russian Federation, St. Petersburg, Russia (2023), SMU Dedman School of Law Legal Studies Research Paper No. 618
- Faisal, Kamrul, Journalistic Exemption in the Context of Criminal Conviction and Offenses Data Under the European Data Protection Laws (2023) University of Helsinki
Next Week in the Courts
On 4 October 2023 there will be a hearing in the harassment case of Dartford BC v Golding before Nicklin J.
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).