The ICO is seeking permission to appeal the ruling on Clearview AI Inc handed down by the First Tier Tribunal (Information Rights) on 17 October 2023. The tribunal reversed the £7.5 million penalty notice issued by the ICO against the facial image database company on the basis that the UK GDPR did not apply to companies processing data as a service to foreign law enforcement agencies. The Commissioner argues that the FTT incorrectly interpreted the law, as Clearview itself was not processing data for the purpose of foreign law enforcement. Read the ICO’s statement here.
Journalist Carole Cadwalladr has confirmed that she will be lodging an application in the European Court of Human Rights on the basis that the order that she pay 60% of Arron Banks’ costs following his successful libel action against her is a violation of her Article 10 rights. She points out that the court held that 90% of the publications that Mr Banks sued over were held to be lawful public interest speech. There was a report in the Guardian.
On Monday 20 November, the US DC Circuit Court of Appeals is due to hear former President Trump’s appeal against the gag order imposed on him last month in the criminal case against him for his alleged attempts to subvert the results of the 2020 election. The gag order restricts him from targeting court staff, witnesses and prosecutors outside the courtroom. Trump will argue that the order violates his first amendment rights to free speech. In anticipation of the hearing, the Appeals court has temporarily suspended the gag order in his criminal case, in addition to the gag order in the civil case against him in New York. CNN, NBC, Reuters and Forbes covered the story.
BBC Radio 4 hosted a discussion on the implications of a ‘digital pound’ on its show, Anti-Social with Adam Fleming. The show explored the nature of central bank digital currencies, how they are different from existing payment methods and the associated privacy and surveillance concerns. Listen to the episode here.
Mischon de Reya published a blog post summarising the risks and actions discussed at the recent AI Safety Summit.
Internet and Social Media
After Elon Musk endorsed an antisemitic and racist post on X, formerly known as Twitter, advertisers including IBM, Apple and Disney have paused their spending on advertising on the platform. Musk has threatened to sue Media Matters, who reported the antisemitic content they found on X and have stated that they would defend any litigation. The BBC, Forbes, The Times, the Guardian, the Independent and the New York Times, reported on the story.
Data privacy and data protection
A medical secretary employed by the NHS has been found guilty and fined for unlawfully accessing the medical records of more than 150 patients. Ms Alborghetti pleaded guilty to obtaining personal data in breach of the DPA 2018 before the Worcester Magistrates’ Court after viewing personal records on more than 1,800 occasions within a three-month period. The BBC covered the story. Read the ICO press release here.
The House of Commons Library published a research briefing on the progress of the Data Protection and Digital Information Bill. The bill will proceed to the remaining stages in the House of Commons on 29 November 2023. Read the amended version of the bill here.
The online surveillance company Social Links is using ChatGPT to perform “sentiment analysis” and assess the mood of social media users to predict behaviour, according to Forbes. The company held a presentation at a homeland security conference in Paris, where it demonstrated the tool’s ability to pick out commonly-discussed topics, track protest movements and search for facial recognition matches once someone has been flagged.
Newspaper Journalism and regulation
Staff at the Telegraph have been warned in the official policy that using ChatGPT will result in the same sanctions as plagiarism, according to the Press Gazette. AI-generated text will only be permitted to be published in limited circumstances with the permission of top editors and the legal department at the newspaper.
Rupert Murdoch handed over the reins of his media empire to his son, Lachlan, in his last AGM speech as Chairman of NewsCorp. Press Gazette published the closing statement, in which Murdoch acknowledged the opportunities and challenges of generative AI and praised his son as an adherent to the “social purpose of journalism”.
- 19498-23 Newman v The Sunday Telegraph, 1 Accuracy (2021), No breach – after investigation
- 19587-23 Ward v The Sun, 1 Accuracy (2021), No breach – after investigation
- 19768-23 Bliss v The Times, 1 Accuracy (2021), No breach – after investigation
- 20285-23 Khan v The Sun, 1 Accuracy (2021), No breach – after investigation
- 20455-23 Chafe v Knutsford Guardian, 12 Discrimination (2021), 1 Accuracy (2021), Breach – sanction: action as offered by publication
- Satisfactory Remedy – 20464-23 Garland v Cambrian News, 1 Accuracy (2021), Resolved – satisfactory remedy
- Resolution Statement – 20701-23 Seifalian v The Jewish Chronicle, 1 Accuracy (2021), Resolved – IPSO mediation
Statements in open court and apologies
There were no statements in open court or apologies last week.
New Issued cases
There were no new claims filed on the media and communication list in the last week.
Last week in the courts
On 13 November 2023, Deputy Judge Alegre dismissed the claimant’s application for delivery up of the defendant’s laptop in the misuse of private information case of Pearson v Harpin. The claimant, who is the creator of the MyVoucherCodes company, alleges that his former partner shared sensitive details about him in a damaging anonymous email smear campaign. The case is set to be heard at full trial. The Daily Mail reported on the case.
On 15 November 2023, there was a hearing in the injunction claim in Orb X International Ltd v Emery KB-2023-004114.
On 16 November 2023, Chamberlain J heard an application for dismissal in the defamation case of Mir v Hussain KB-2022-004194.
On 17 November 2023, Griffiths J hand down judgment following the trial of a preliminary issue on meaning in the case of Alam v Guardian News and Media Ltd  EWHC 2847 (QB), finding that the words complained of bore meanings which were defamatory at common law and were statements of fact.
There was also a pre-trial review before Collins Rice J in the defamation claim of Wilson v Mendelsohn and others QB-2021-002673.
Media law in other jurisdictions
On 15 November 2023, HHJ Clayton handed down judgement in the defamation case of Iskander v Barcos  VCC 2074. The defendant was alleged to have defamed the plaintiff in a Facebook post that suggested he scammed his customers. The defendant failed to file a defence and the court awarded $90,000 in general and aggravated damages.
The defamation trial in the case of Bondar v Neufeld opened on 14 November 2023 in the British Columbia Supreme Court. It is listed for 6 days.
The Department of Finance has announced a review of Defamation Law in Northern Ireland and is asking those with an interest to share their views. The review will run from 13 November 2023 until 26 January 2024. Following this the department will formally report on its findings. A copy of the review can be found here [pdf]
The Philippine Center for Investigative Journalism (PCIJ) was forced to suspend its website during a hacking attack. There have been a number of reports of cyberattacks targeting Filipino government websites and databases in recent years, though the PCIJ suggest this is the most serious. The motive for the attack is unknown. The National Union of Journalists of the Philippines’s post on X is available to read here.
President Putin has pardoned the former detective Sergei Khadzhikurbanov for his role in the assassination of the investigative journalist and Kremlin critic, Anna Politkovskaya, in 2006. Khadzhikurbanov was sentenced to 20 years in prison, however he was granted an early release after completing a six-month military contract fighting in Ukraine. Politkovskaya’s family and the paper she worked for, Novaya Gazeta, both condemned the early release in this joint statement. The Guardian, BBC, CBS, AP News, Radio Free Europe, France 24, Al Jazeera and the Independent covered the story.
Trinidad and Tobago
Former Progressive Empowerment Party (PEP) political leader Phillip Edward Alexander has been ordered to pay T$850,000 (£100,000) damages to Patriotic Front political leader Mickela Panday for defamation. Rampersand J said “The court is of the respectful view that the statement was malicious and was designed to sensationalise an obvious untruth that was fabricated for personal political gain and to denigrate and disparage the claimant.”
The Socially Aware blog has published an article examining the case law relating to section 230 of the Communications Decency Act 1996, which shields online service providers from liability in relation to user-generated content.
Research and Resources
- Choi, Daeeun and Lowry, Paul Benjamin, Balancing the Commitment to the Common Good and the Protection of Personal Privacy: Consumer Adoption of Sustainable, Smart Connected Cars (2023), Information & Management (I&M).
- Rosati, Eleonora, No Step-Free Copyright Exceptions: The Role of the Three-step in Defining Permitted Uses of Protected Content (including TDM for AI-Training Purposes) (2023), Faculty of Law, Stockholm University Research Paper No. 123.
- Wodi, Alexander, The EU General Data Protection Regulation (GDPR): Five Years After and the Future of Data Privacy Protection in Review (2023).
- Kabir, Md Shahin and Alam, Mohammad Nazmul and Mustofa, Mohammad Jahid, Information Privacy Analysis: The USA Perspective (2023), International Journal for Research in Applied Science & Engineering Technology (IJRASET) ISSN: 2321-9653; IC Value: 45.98; SJ Impact Factor: 7.538 Volume 11 Issue X Oct 2023.
- Arun, P., A Soft Tone with a Tiger Claw: A Critical Commentary on the Digital Personal Data Protection Bill, 2022 (2023), Economic & Political Weekly, Vol. 58, No. 6 (2023), 10-14.
- Angel, María P., Privacy’s Algorithmic Turn (2023), 30 B.U. J. SCI. & TECH. L., Forthcoming.
- Colnago, Jessica and Cranor, Lorrie Faith and Acquisti, Alessandro, Is There a Reverse Privacy Paradox? An Exploratory Analysis of Gaps Between Privacy Perspectives and Privacy-Seeking Behaviors (2023), Proceedings on Privacy Enhancing Technologies Symposium 2023, 455-476.
Next week in the courts
On Tuesday 21 November 2023 at the libel trial in the case of Dyson v MGN Ltd will begin. It is listed for 5 days.
On the same day there will be a consequentials hearing in the case of Baroness Lawrence and ors v Associated Newspapers before Nicklin J, a hearing in the case of Price v Newsquest Media Group and a statement in open court in the case of Jerry Hague v Times Media Ltd.
The libel trial in the case of Blake v Fox will begin on 22 November 2023. It is listed for 8 days.
Mueen-Uddin v Secretary of State for the Home Department, heard 1 and 2 November 2023 (Supreme Court).
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)
Various Claimants v MGN, heard June and July 2023 (Fancourt 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)
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