On 16 October 2023, Steyn J will hear applications in the case of Donald Trump v Orbis Business Intelligence. The former President contends that the so-called “Steele Dossier” produced by the defendant breached his data protection rights. The defendant has applied to strike out the claim as an abuse of the process. The New York Times has a full report. There are also reports in the Guardian and the Independent.
On Tuesday 10 October 2023 the Court of Appeal handed down judgment in the data protection case of R (on the application of Delo) v The Information Commissioner  EWCA Civ 1141. The appeal was about the Commissioner’s responsibilities when a data subject lodges a complaint that a data controller has infringed data protection law. Warby LJ, with whom Laing LJ and Peter Jackson LJ agreed, upheld the conclusion that the legislative scheme requires the Commissioner to receive and consider a complaint and then provides the Commissioner with a broad discretion as to whether to conduct a further investigation and, if so, to what extent . The Court of Appeal did not find the Commissioner had acted unlawfully and dismissed the second ground as well. The ICO has welcomed the Court of Appeal’s ruling.
In R (Craighead) v Secretary of State for Defence  EWHC 2413 (Admin), the Court of Appeal upheld a decision that the Ministry of Justice’s refusal to provide the “express prior authority in writing” needed to allow a former SAS soldier to tell his story was not incompatible with his Article 10 right to freedom of expression. This week, the Panopticon Blog published an article summarising the case in light of Mr Craighead’s announcement that he intends to appeal.
Data Privacy and Data Protection
Genetic data belonging to approximately 1 million users of genetic testing service 23andMe has surfaced on the dark web. The data included first and last names, gender, and individual ancestry evaluation details. The information posted specifically targeted individuals with Ashkenazi Jewish ancestry. A 23andMe spokesperson did not classify the incident as a hack, claiming purchased or leaked user credentials allowed improper access to the database, NBC News reports.
An investigation from The Wall Street Journal has uncovered how some data brokers buy information generated from advertisements on mobile phones and sell that information to government contractors for surveillance purposes. Cloud-based data intelligence platform Near Intelligence reportedly did not have permission to resell its data. Internal emails also suggested Near was facilitating a “massive illegal data dump” involving EU data going to US government entities.
A report from Amnesty International and the European Investigative Collaborations accuses the EU of being unable to effectively regulate spyware and surveillance technologies. The groups say the European Commission and the Council of the European Union do not enforce their own export laws and need to limit the sale of such technology until more stringent regulations are in place. Euractiv has more information here.
- 11643-22 The family of Matthew Lavin v wigantoday.net, 5 Reporting a suicide (2021), 4 Intrusion into grief or shock (2021), 2 Privacy (2021), No breach, after investigation
- 12060-22 The family of Matthew Lavin v Daily Post, 5 Reporting a suicide (2021), 4 Intrusion into grief or shock (2021), 2 Privacy (2021), No breach, after investigation
- 12061-22 The family of Matthew Lavin v liverpoolecho.co.uk, 5 Reporting a suicide (2021), 4 Intrusion into grief or shock (2021), 2 Privacy (2021), No breach, after investigation
- 12063-22 The family of Matthew Lavin v Iancs.live, 5 Reporting a suicide (2021), 4 Intrusion into grief or shock (2021), 2 Privacy (2021), No breach, after investigation
- 12062-22 The family of Matthew Lavin v manchestereveningnews.co.uk, 5 Reporting a suicide (2021), 4 Intrusion into grief or shock (2021), 2 Privacy (2021), No breach, after investigation
- 18439-23 Spain v Mail Online, 10 Clandestine devices and subterfuge (2021), 2 Privacy (2021), 1 Accuracy (2021), 6 Children (2021), No breach – after investigation
- Resolution Statement – 19437-23 Prior v The Courier, 1 Accuracy (2021), Resolved – IPSO mediation
- Resolution Statement – 20250-23 Funky Monkey v penarthtimes.co.uk, 1 Accuracy (2021), Resolved – IPSO mediation
- Resolution Statement – 20397-23 British Medical Association v The Sun on Sunday, 1 Accuracy (2021), Resolved – IPSO mediation
Statements in Open Court and Apologies
On Wednesday 11 October 2023, Hill J heard that The Mirror has paid substantial damages, in the sum of £65,000, to the former Prime Minister of Libya in settlement of Mr Faiez Serrag’s libel claim. Mr Serrag’s claim was brought over an article from July 2021, in which The Mirror had identified him as the Prime Minister of Libya “under Colonel Gaddafi” and claimed that he had bought a passport of the microstate Vanuatu to distance himself from that past. The Mirror’s retraction and apology can be read here. Doughty Street Chambers has a summary here.
New Issued Cases
There was one injunction application and one defamation claim filed in the Media and Communications List last week.
Last Week in the Courts
The trial in Miller v Turner continued before Collins Rice J, concluding on Wednesday 11 October 2023.
On Monday 9 October 2023 Johnson J heard a pre-trial review in the case of Dyson v MGN Limited.
As mentioned above, on Tuesday 10 October 2023 the Court of Appeal handed down judgment in the data protection case of R (on the application of Delo) v The Information Commissioner  EWCA Civ 1141.
On the same day there was a statement in open court in the case of Kellie-Jay Keen-Minshull v Associated Newspapers Limited.
On Wednesday 11 October 2023 there was a hearing in the case of Jusan Technologies Limited v openDemocracy Limited.
On Tuesday 12 October 2023, the Privy Council handed down judgment in the case of General of Trinidad and Tobago v Maharaj  UKPC 36. The decision concerned a decision of the Court of Appeal of the Republic of Trinidad which held that the Sedition Act 1920 is consistent with the country’s 1976 Constitution. The appellant pursued the appeal on behalf of his father who hosted a call-in talk show and who had his Broadcasting premises searched after making statements on his talk show which the Telecommunications Authority called “divisive and inciteful.” The Privy Council dismissed the appeal, holding that the Act is not overly broad since there is an implied requirement for an intention to incite violence or disorder.
On the same day there was a hearing in the data protection case of Bennett -v- Equifax Ltd. The case was compromised with a Tomlin Order
On 13 October 2023, Julian Knowles J handed handed down judgment in Aaronson v Stones  EWHC 2399 (KB). Jack Aaronson was awarded £110,000 in damages after being accused on social media of being responsible for multiple rapes. Mr Stones’ defences of truth and publication on matter of public interest were rejected. 5RB has a summary here.
On the same day there was a hearing in the cases of Bukhari -v- Bukhari before Julian Knowles J. There was also a hearing in the case of Secretary of State for Defence v Persons Unknown.
5RB and Hiscox are hosting a joint panel discussion on the Risks and Opportunities of Generative AI on Wednesday 18 October 2023. More information here.
The European Data Protection Supervisor will host an online seminar 23 October 2023 discussing the European Commission’s proposed child sexual abuse material regulation. The seminar will focus on the privacy concerns that have arisen in wake of the proposal and the “feasibility of envisaged measure.”
Registration for the annual Helsinki Information Law Moot Court information law competition is now open for team registration. Students from around the world will cover areas of concern with artificial intelligence chatbots, protection of vulnerable data subjects and EU-US data transfers. Registration closes 31 October 2023.
Media Law in Other Jurisdictions
A high-profile man accused of raping a woman in Toowoomba has lost a legal battle to maintain his anonymity but his identity will remain secret pending an appeal. An interim order preventing his name from being published will remain in place until 17 October 2023. The Guardian has more information here.
On 11 October 2023, the Supreme Court of British Columbia handed down judgment in Pereira v Klonarakis, 2023 BCSC 1760 (CanLII). The appeal was dismissed, the plaintiff failed to establish that the harm resulting from the expressions outweighs the harmful effects on freedom of expression .
On the same day, the same court handed down judgment in George v Bella Bella Community School Society, 2023 BCSC 1767. The defendant’s application for summary judgment on the defamation aspects of the claim was dismissed; the issues concerning defamation will be adjudicated.
Marine Le Pen has been convicted of defamation against a French NGO helping migrants, Cimade, which she had accused of being accomplices to smugglers. She was ordered to pay €500 and sustain court costs. Euronews has more information here.
Italy’s highest court has ordered a retrial after Amanda Knox appealed for the dropping of the slander conviction she received for wrongly accusing a bar owner of murdering the British student Meredith Kercher. Knox, along with her Italian ex-boyfriend Raffaele Sollecito, spent four years in prison after initially being convicted of the murder. She made the request on the basis of a ruling by the European court of human rights in 2019 that found that her defence rights had been violated during police questioning in 2007. The challenge to the conviction has also been enabled by a reform to the code of criminal procedure made by the government of the then Italian prime minister Mario Draghi in 2022. The Guardian has more information here.
A court in Rome will deliver a verdict this week in a criminal defamation trial against the Italian anti-mafia author Roberto Saviano for calling the prime minister, Giorgia Meloni, a “bastard”. Savani has already been fined €1000 for the libel. The case has attracted international attention and criticism of Italy’s draconian defamation laws. Saviano, who has lived under police protection since the publication of his bestselling book Gomorrah, faces up to three years in prison if found guilty at Rome’s criminal court next week. The Guardian has more information here.
Research and Resources
- Dempere, Juan and Modugu, Kennedy Prince and Hesham, Allam and Ramasamy, Lakshmana, The impact of ChatGPT on higher education (2023) Frontiers of Education, 8:1206936.
- Hariharan, Jeevan, The View from the Top: Visual Intrusion as Nuisance in Fearn v Tate Gallery (2023) Modern Law Review (Forthcoming).
- de la Durantaye, Katharina, Shaping the Right to Privacy. The Interplay between Karlsruhe, Strasbourg, and Luxembourg (2023) M. Fornasier/M.G. Stanzione, The European Convention on Human Rights and its Implications on National Private Law, Intersentia, Cambridge 2023, 119-136.
- Tokson, Matthew J., Government Purchases of Private Data (2023) Wake Forest Law Review, Forthcoming.
- Giladi Shtub, Tamar, G2B Data Sharing as Government Subsidies: Industrial Policy 4.0? (2023) North Carolina Journal of International Law and Commercial Regulation, Forthcoming.
Next Week in the Courts
As already mentioned, on 16 October 2023, Steyn J will hear applications in the case of Trump v Orbis Business Intelligence.
On the same day, Collins Rice J will hear a pre-trial review in the data protection case of Webster v Her Majesty’s Revenue & Customs.
On Tuesday 17 October and Wednesday 18 October 2023 the UK Supreme Court (Lords Hodge, Hamblen, Leggatt, Burrows and Richards) will hear the appeal in George v Cannell.
On Tuesday 17 October 2023 Linden J will hand down judgment in the case of Ijaz v Manan.
On Tuesday 17 October and Wednesday 18 October 2023 Hill J will hear an application in the case of Hemming v Poulton.
On Wednesday 18 October 2023 Johnson J will hand down judgment in the cases of Jusan Technologies Limited v The Bureau of Investigative Journalism and Jusan Technologies Limited v Open Democracy Limited.
On the same day there will be a hearing in the case of Taylor -v- Crouch and another before Nicklin J.
On Thursday 19 October 2023 there will be a hearing in the case of BBG v Persons Unknown before Nicklin J.
On the same day there will be a hearing in the case of Ghenavat v Lyons, dealing with “Costs and Consequentials” before HHJ Lewis (Sitting at the Central Family Court).
On Friday 20 October 2023 there will hearings in the cases of Secretary of State for Defence v Persons Unknown, Camacho -v- OCS Group UK Limited and QRT -v- JBE.
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)
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)
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).