On Tuesday 21 November 2023, Counsel for the claimants in Lawrence & Ors v Associated Newspapers Ltd (ANL) told the High Court that they intend to ask ministers for permission to use confidential Leveson Inquiry documents in their legal action against the publisher of the Daily Mail. Earlier this month, Nicklin J ruled that the legal challenges could continue but could not use information drawn from ledgers given by ANL to the Leveson Inquiry into press standards in 2011 and 2012 [2023] EWHC 2789 (KB).

The ledgers were found to be subject to a Section 19 Inquiries Act 2005 restriction. Section 19 does not give the court power to permit the use of documents that have been provided in breach of a restriction order under section 19. After the conclusion of an enquiry, only the relevant minister can revoke or vary the order.   At the hearing Nicklin J ordered ANL to pay the Claimants’ costs of the limitation application, and the Claimants to pay 75% of ANL’s costs of the restriction order application. He rejected a submission that the Claimants should pay those costs on the indemnity basis. Temporary reporting restrictions sought by ANL and granted at the March hearing concerning restriction order-related material remain in force for the time being. The BBC, 5RB and Press Gazette have more information.

On 22 November 2023, the Court of Appeal (Bean, Andrew and Lewis LLJ) handed down judgment in Department for Business and Trade v Information Commissioner  [2023] EWCA Civ 1378. The Court found against the Information Commissioner’s Office (ICO) in a Freedom of Information Act 2000 appeal regarding the ability to aggregate public interest factors for and against disclosure when applying exemptions under the Act. The Panopticon Blog explains why the confirmation that the ‘aggregation’ of public interests for exemptions under FOIA is permissible is so exciting. Read the ICO’s statement in response to the Court of Appeal’s judgment here.

The Brett Wilson Media and Communications Law Blog has an article analysing whether AI is an effective tool for legal research. The conclusion: not yet.

Internet and Social Media

The Panopticon Blog has launched its podcast. Listen to Anya Proops KC on the Online Safety Act via Apple, Spotify, Podcast Index, Podchaser.

The Information Commissioner has warned some of the UK’s top websites they will face enforcement action if they do not make changes to comply with data protection law. Some websites do not give users fair choices over whether or not to be tracked for personalised advertising. The ICO has previously issued guidance for organisations to make it as easy for users to “Reject All” advertising cookies as it is to “Accept All”. Websites can still display adverts when users reject all tracking, but must not tailor these to the person browsing. Read the ICO’s latest statement here.

Data Privacy and Data Protection

The International Data Transfer Expert Council has introduced an independent report to the Department for Science, Innovation and Technology with recommendations on the goals for sustainable international data transfers. The report details the importance of collaboration with the EU on personal data protection. The council’s goal is to “foster a more consistent global dialogue about where surveillance and government access could pose a risk of harm.”

EPIC has urged the Department of Education to invest in strong privacy safeguards when funding EdTech through the Seedlings to Scale Program.

Surveillance

The Strasbourg Observes blog has a post on the September 2023 decision of Wieder and Guarnieri v. the UK, in which the ECtHR was asked if persons outside an ECHR Contracting State fall within the Convention’s territorial jurisdiction if their electronic communications were (or were at risk of being) intercepted, searched and examined by that State’s intelligence agencies operating within its borders for the purposes of a complaint under Article 8 ECHR? The post argues the Court’s answer was “laconic and largely undertheorised” and missed out the opportunity to send a clear message about transborder surveillance.

Newspapers Journalism and Regulation

Hacked Off has called for an IPSO investigation into the press coverage of the Nicola Bulley investigation. CEO Nathan Sparkes commented the “speculative and ultimately untrue press reports on the case significantly complicated the investigation.” Referring to the independent external review of Lancashire Constabulary’s operational response to the reported missing person, Sparkes notes that the report cites coverage in the Daily Star, The Sun, The Daily Mirror and The Independent as “speculation and opinion”, which distorted the public’s understanding of the case. More detail can be read here. The ICO statement in response to the independent review of the Lancashire constabulary’s operation can be read here.

IPSO

Statements in Open Court and Apologies

On 21 November 2023, there was a statement in open court in the libel claim Jerry Hague v Times Media Ltd. The article complained of alleged that Jerry Hague, a former partner at Yorkshire and Derbyshire firm Graysons, had been “found guilty of professional misconduct for dishonestly misleading sick ex-miners seeking compensation.” The article referred to a £5,000 fine imposed by the Solicitors Disciplinary Tribunal in 2010. The statement corrected that “In its determination against Graysons, the SDT stated that: Graysons (and by implication Mr Hague) did not “act in any way unethically in relation to the work it undertook”; had “provided a good high level of professional service to their clients”. The Times said it “sincerely apologises to Mr Hague for publishing the false allegations” and agreed to pay substantial damages and costs. The Law Gazette has more information here. The 5RB summary can be read here.

New Issued Cases

There was one harassment claim issued on the Media and Communications List last week.

Last Week in the Courts

On Tuesday 21 November 2023 the libel trial in the case of Dyson v MGN Ltd begun before Jay J. Dyson claims the “highly vitriolic” Mirror article suggesting that he is a hypocrite who “screwed” the country damaged his reputation. The trial concluded on 23 November, judgment was reserved. The Press Gazette has more information here. The 5RB summary can be read here.

As mentioned above, on the same day there was a consequentials hearing in the case of Baroness Lawrence and ors v Associated Newspapers before Nicklin J. There was also a hearing in the case of Price v Newsquest Media Group.

The libel trial in the case of Blake v Fox begun on 22 November 2023 before Collins Rice J.  It is listed for 8 days. The 5RB summary can be read here.

On 23 November 2023, the Court of Appeal (Underhill and Warby LJJ) refused permission to appeal against a judgment and order in which businessman and Conservative party donor Mohamed Amersi sought to amend his particulars of claim. Amersi brought a defamation claim against former MP Charlotte Leslie saying documents that contained defamatory allegations against him were shared with and forwarded to influential individuals. The case was brought after Amersi dropped a claim against Leslie that the memos breached data protection law. In a judgment in June, Nicklin J said that, in conducting proceedings in the way he had, Amersi had ‘exhausted’ any claim he might have, adding ‘this claim is at an end’. The Law Society Gazette has more information here.

On 24 November 2023, judgment was handed down on a series of interlocutory applications in the defamation and data protection claim Hemming v Poulton [2023] EWHC 3001 (KB). The aspects of the First Application which seek permission to amend the particulars of claim was successful, but the aspect which seeks permission to add the new defamation claims were dismissed. The Second Application to disapply limitation under relating to Publications 2-4 was dismissed. The Defendant was granted permission to amend the Defence and Counterclaim but not to withdraw a previous admission. The application to lift the stay on the KB claim was declined, but was not struck out as an abuse of process.

Media Law in Other Jurisdictions

Australia

The defamation trial brought by Bruce Lehrmann continues. Lehrmann is suing Network Ten and Lisa Wilkinson over a programme which aired allegations of sexual assault against Liberal party junior staffer Brittany Higgins. Higgins dropped her criminal complaint for rape in April 2019, citing fears over the impact it would have on her employment.  The Guardian covers Lehrmann’s oral testimony last week here, here and here.

Italy

Italy’s data protection authority has begun a fact-finding investigation into the practice of gathering large amounts of personal data online for use in training artificial intelligence (AI) algorithms. Earlier this year, it briefly banned popular chatbot ChatGPT from operating in Italy over a suspected breach of privacy rules. Reuters has more information here.

United States

X, formerly known as Twitter, has filed a federal defamation suit in Texas against Media Matters for America, accusing the media watchdog group of kicking off an advertiser exodus with a “harmful” article alleging the social network let top brands display ads near antisemitic and pro-Nazi posts. The Independent has more information here.

Research and Resources

Next Week in the Courts 

The trial in Blake v Fox continues on 27 November 2023 until 1 December 2023 before Collins Rice J.

On the same day there will be a remedies hearing in the libel case of Rashed v Deane before Tipples J and HHJ Lewis will hand down judgment in Iqbal v Geo TV Limited

On Tuesday 28 November 2023 there will be the hearing of an appeal in the case of Hayes v Liberal Democrats.

On Thursday 30 November 2023 there will be an interim judgment application in the case of Virdee v Kapoor and judgments will be handed down in the cases of Payone v Logo and Mincione v GEDI Gruppo Editoriale S.p.A..

Reserved Judgments

Dyson v MGN, heard 21 to 23 November 2023 (Jay J)

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 Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).