Doughty Street Chambers has announced the sudden and unexpected death of leading media law silk, Heather Rogers KC. She was one of the most highly respected and brilliant members of the media law bar and an editor of the leading textbook, Duncan and Neill. She contributed to this blog on many occasions. She will be sorely missed by her colleagues and her many friends inside and outside the law.
On 16 October 2023, Steyn J heard applications in the case of Trump v Orbis Business Intelligence. Former US President, Donald Trump, claims that the “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, arguing that it was not responsible for the publication of the report and that the claim was brought too late. The former president indicated his willingness to give evidence at the High Court in relation to what he described as the “wholly untrue” allegations contained in the report. Judgment was reserved. The Independent, Financial Times, Guardian and Reuters reported on the hearing.
The National World website has debuted the UK’s first AI-generated weather presenter, Press Gazette reports. The unnamed newsreader narrates an accompanying text bulletin following similar AI features having been debuted in Kuwait, China, India and Greece.
The Brett Wilson Media Law blog published an article analysing the current case law relating to the serious harm provision under s. 1 of the Defamation Act 2013, which is available to read here.
Internet and Social Media
The social media accounts of ordinary teaching staff are being monitored by the government, the Observer has revealed. The Department of Education has been keeping files on posts from education experts, teaching staff and teaching assistants which criticise education policies. The DfE responded to the investigation by stating it would not be appropriate to comment on individual cases.
Data privacy and data protection
The FTT has overturned the enforcement notice and £7.5 million Penalty Notice issued by the ICO to the American facial recognition company, Clearview AI, last year. The company was fined for taking more than 20 billion images of people in the UK found online and on social media to feed its facial recognition database. The original enforcement notice can be found here. The FTT overturned the ICO’s decision on the basis that the UK GDPR did not apply to the data processing and the Commissioner therefore had no jurisdiction. The judgment is available here.
DLA Piper published a blog on the EU’s Network and Information Systems Directive which is due to be implemented in one year. The article examines who will be caught by the enhanced cybersecurity obligations under the new provisions.
The Kensington and Chelsea Council have admitted to trialing surveillance software on two housing estates in North Kensington after OpenDemocracy reported it was the only council in the country to do so, the BBC reports. The Council stated that the 60-day trial was intended to “keep residents safe” and will not be implemented without further consultation.
Newspaper Journalism and regulation
IPSO published its annual report for 2022, which covers the launch of its five-year strategy and an independent external review of its work. The report also addresses its response to the largest single complaint the organization has received to date in respect of a piece written by Jeremy Clarkson about the Duchess of Sussex and published in the Sun newspaper. Read the full report here.
- 18363-23 Ali v Telegraph & Argus, 4 Intrusion into grief or shock (2021), 1 Accuracy (2021), No breach – after investigation
- Resolution Statement – 20131-23 Rothon v lancasterguardian.co.uk, 3 Harassment (2021), 1 Accuracy (2021), 2 Privacy (2021), Resolved – IPSO mediation
- Resolution Statement – 20132-23 Rothon v lancashiretelegraph.co.uk, 2 Privacy (2021), 3 Harassment (2021), 1 Accuracy (2021), Resolved – IPSO mediation
Statements in open court and apologies
There were no statements in open court or published apologies this week.
New Issued cases
There were two new defamation claims and one part 7 claim filed in the Media and Communications List last week
Last week in the courts
As mentioned above, on 16 October 2023, Steyn J heard applications in the case of Trump v Orbis Business Intelligence.
On the same day, Collins Rice J made an order following a pre-trial review in the data protection case of Webster v HMRC.
On 17 October 2023 Linden J handed down judgment in the case of Ijaz v Manan  EWHC 2574 (KB). The court dismissed the claimant’s claims in harassment on the basis that it lacked the seriousness and persistence required, ultimately being viewed by the claimant as eccentric rather than harmful. The claimant’s defamation claim was not made out as it failed to meet the threshold of causing serious reputational harm.
As mentioned above, on 17 October 2023, the FTT allowed the appeal in the data protection case of Clearview AI Inc v ICO  UKFTT 00819 (GRC), overturning the ICO’s enforcement notice and fine.
On 17 and 18 October 2023, the UK Supreme Court (Lords Hodge, Hamblen, Leggatt, Burrows and Richards) heard the appeal in the case of George v Cannell. The claimant, who formerly worked as a recruitment consultant for the defendant’s agency, sued the defendant after she sent an email to her new employer stating that she was in breach of her contract by contacting her old clients. The issue in the case is what the claimant must demonstrate in order to rely on s3(1) of the Defamation Act 1952 in a claim for malicious falsehood. The trial judge dismissed the claim for malicious falsehood on the basis that the claimant had not proved special damage or satisfied an exception to that requirement. The Court of Appeal found in favour of the claimant in this judgement, which the defendants now appeal to the Supreme Court. Thomson Heath analysed the Court of Appeal decision. The Supreme Court case summary is available here.
On the same days, there was a hearing in the case of Hemming v Poulton.
On 18 October 2023 Johnson J handed down judgment on preliminary issues in the cases of Jusan Technologies Limited v The Bureau of Investigative Journalism and Jusan Technologies Limited (JTL) v Open Democracy Limited. The defendants had reported that the former president of Kazakhstan was linked to the claimant company in two separate articles published last year. The court held that the meaning conveyed in the two articles was suggestive of JTL’s complicity and active involvement in hiding the former president’s assets. 5RB provided a summary of the decision.
On the same day there was a hearing in the case of Taylor v Crouch and another before Nicklin J.
On the same day, a hearing took place before Nicklin J in the case of BBG v Persons Unknown.
On 20 October 2023, Julian Knowles J heard a renewed application for permission to appeal in the case of Camacho v OCS Group UK Limited.
Media law in other jurisdictions
On 16 October 2023, judgement was handed down in the case of Russell v Australian Broadcasting Corporation (No 3)  FCA 1123. The case involved two online news articles, a television and radio broadcast that implicated former major in the Australian Special Forces, Heston Russell, in war crimes that were alleged to have taken place in Afghanistan in 2012. Lee J held that the although the publisher believed publication of the matter was in the public interest, the belief was not reasonable in the circumstances . The claimant was awarded $390,000 in compensatory damages but was not awarded aggravated damages. The Guardian, ABC and Daily Mail covered the ruling, which was the first time that the public interest defence was tested in a full trial since it came into force in July 2021.
The CJEU ruled that a Bulgarian law which imposed a five-year prison sentence for infringement of a trademark was incompatible with EU law. The case was referred by a Bulgarian district court after an entrepreneur was accused of selling counterfeit clothing featuring globally recognised trademarks. The CJEU held that the provision undermined Article 49(3) of the Charter of Fundamental Rights of the EU as the penalty was disproportionately severe. IPKat published an article on its blog explaining the decision.
On 17 October 2023, the Supreme Court of Newfoundland and Labrador granted permission to amend the statement of defence in the case of Way v. Johnson, 2023 NLSC 135.
On 18 October 2023, the Court of Appeal for Ontario handed down judgement in the case of Volpe v. Wong-Tam, 2023 ONCA 680. The appellants sued the defendants for defamation after they took action to have the City of Toronto stop advertising in the appeallant’s newspaper in the midst of their ongoing debate over Roman Catholic teachings on sexuality and gender. At first instance, the claim was dismissed as a strategic or abusive SLAPP. The Court of Appeal dismissed the appeal and upheld the decision on the basis that all parties involved in the litigation were engaged in political speech on matters of public interest and there were no grounds to believe that the defence of fair comment would fail.
Copyright and libraries expert Victoria Owen appeared on the Law Bytes Podcast to discuss the implications of the Canadian Copyright Act. Listen to the episode here.
On 20 October, the Israeli government approved a regulation to temporarily shut down foreign news channels which ‘undermine national security, public order or serve as a basis for enemy propaganda.’ The Times of Israel reported that the communications minister will be able to order TV providers to stop broadcasting a designated news outlet, close its offices in Israel and shut down or restrict access to its website. The International Federation of Journalists has called on Israel to review its decision on the basis of the public’s right to know and media pluralism.
Socially Aware Blog provided a summary of the recent decision of a federal district court in Delaware to reject an application for summary judgement in the case of Thomson Reuters Enterprise Centre GmbH et al v Ross Intelligence Inc. The claimant alleged that the defendant had used copyrighted legal summaries to train its AI system. The article offers an insight into how courts are dealing with the issue of whether the defence of fair-use applies to copyrighted material used in this context.
On 19 October 2023, the Federal Communications Committee (FCC) voted to adopt a Notice asking for comments on its plans to restore net neutrality. This comes after the FCC abolished net neutrality protections in 2017 under the Trump administration. The principle of net neutrality means that Internet Service Providers are required to allow access to all content and applications without favouring or blocking particular sites. The Center for Internet and Society at Stanford Law School published a blog post addressing the policy change.
Research and Resources
- G’sell, Florence and Martin-Bariteau, Florian, L’impact des blockchains sur les droits de l’homme, la démocratie et l’État de droit (The Impact of Blockchains for Human Rights, Democracy and the Rule of Law) (2022), Rapport, Conseil de l’Europe (2022).
- Huang, (Robin) Hui and LI, Xiyuan, China’s Pursuit of Central Bank Digital Currency: Reasons, Prospects and Implications (2023), Banking and Finance Law Review (2023) Vol 39 No. 3 , The Chinese University of Hong Kong Faculty of Law Research Paper No. 2023-28.
- Moy, Laura, The Underappreciated Role of Unavoidability in U.S. Privacy Law (2023), Columbia Science and Technology Law Review, Forthcoming.
- Quigley, Grace, ‘I Want to Talk to the Manager:’ Labor Law in the Automated Workplace (2023), 74 Labor Law Journal 116 (2023).
- Brenncke, Martin, Regulating Dark Patterns (2023), Notre Dame Journal of International & Comparative Law, forthcoming.
- Palmiotto, Francesca, When is a Decision Automated? A Taxonomy for a Fundamental Rights Analysis (2023), Forthcoming in German Law Journal.
- Sganga, Caterina, Sui Generis Protection of Non-Creative Databases (2023), in E.Bonadio, P. Goold (eds), The Cambridge Handbook of Investment-Driven Intellectual Property, Cambridge University Press, 2023, pp.27-53.
Next week in the courts
On Wednesday 25 October 2023 there will be hearings in the cases of Kent Police -v- Taylor and Gammon -v- Riley.
On Thursday 26 October 2023 there will be a hearing in the defamation case of Noel Clarke -v- Guardian News and Media .
George v Cannell and another, heard 17-18 October 2023 (Supreme Court)
Trump v Orbis Intelligence, head 16 October 2023 (Steyn 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 Jasleen Chaggar who is a litigation and media paralegal at Atkins Dellow