On 1 December 2023, Mr Justice Jay handed down judgement in favour of the defendant in the case of Dyson v MGN Limited [2023] EWHC 3092 (KB). The defendant published an article which characterised Sir James  as “the vacuum cleaner tycoon who championed Vote Leave due to the economic opportunities…before moving his global head office to Singapore.  In other words kids, talk the talk, then screw your country, and if anyone complains tell them to suck it up“..

In a judgement of 26 July 2022, Nicklin J held that the defamatory meaning was that the Claimant was a hypocrite who had screwed the country and set a poor moral example to young people ([2022] EWHC 2469 (QB)). The Judge held that that the defence of honest opinion applied [144] and that the claimant had not suffered serious harm [156]-[159]. The Financial Times, BBC, Mirror, Independent, Guardian and Press Gazette commented on the outcome.

The latest book from journalist and royal reporter, Omid Scobie was embroiled in controversy this week, when the Dutch translation of the publication named two members of the royal family who were alleged in 2021 to have speculated about the skin colour of Prince Harry’s unborn son. Scobie stated that he had not included the names to comply with libel laws and asserted that the allegations had been printed in error. The Dutch version has been pulled from the shelves and an investigation into the error has begun.

On 29 November 2023, broadcaster, Piers Morgan revealed the names printed in the Dutch version on his talk show, emphasising that he believed the claims were false.  The Press Gazette suggested that Morgan is likely to be protected by the “bane and antidote defence” should any libel action be pursued. The BBC, Telegraph, Guardian, Huffington Post, Daily Mail, EuroNews and the Independent covered the story.

The Data Protection and Digital Information Bill has passed through the House of Commons and will now proceed to the House of Lords for consideration. There were over 120 amendments to the bill, which were put to a vote on 29 November 2023. The bill is designed to reduce the burden of compliance with the GDPR for companies and reform the ICO. It includes provisions for digital verification services and the flow of personal data for law enforcement and national security purposes. The Open Rights Group have raised concerns about an amendment that would allow the DWP to review the bank accounts of welfare recipients with a view to detecting fraud. The IAPP summarised the current proposals. Both the Public Law Project and the Big Brother Watch argue that the bill will weaken existing data protection laws.

On 27 November 2023, the UK published the first guidelines for secure AI system development. 18 international security agencies signed the guidelines which aim to ensure the secure design, development and deployment of the technology. The National Cyber Security Centre published this press release. The guidance is available to read here.

Internet and Social Media

A coalition of Attorney-Generals in the US are leading a lawsuit against Meta, for designing and deploying “harmful features on Instagram and Facebook that addict children and teens to their mental and physical detriment.” In a press release published on 27 November 2023, the complaint has been largely redacted. The coalition allege that, despite internal resistance, the CEO Mark Zuckerberg vetoed the proposal to ban image filters that experts agreed were harmful to users’ mental health and that the company unlawfully collects the data of millions of children under age 13. More information is available from CNBC, AP News, BBC, Financial Times, the Guardian and TechCrunch.

Data privacy and data protection

NHS England is facing a lawsuit by four organisations – Foxglove, Doctors’ Association UK, National Pensioners’ Convention, and Just Treatment – in relation to its creation of a Federated Data Platform which will be used to information between trusts. The contract, which has been awarded to US spytech firm, Palantir, has been awarded to help reduce the backlog of patients waiting for care. However, critics worry that it could lead to breaches of sensitive patient personal data or the sale of information to third parties. The group seek a judicial review of NHS England’s decision, arguing that it has no legal basis for doing so. More information is available from the Guardian and the International Association of Privacy Professionals.

The ICO has reprimanded NHS Fife for allowing an unauthorised person to gain access to a ward and view the personal information of 14 patients. The interloper was wrongly handed a document containing the personal data and helped to administer care to a patient due to the absence of ID checks and formal processes. NHS Fife has neither been able to identify the person who took the information nor secure its return due to a lack of CCTV footage. NHS Fife has since introduced new measures for signing out documents containing patient data and updated its ID processes.

The ICO has also reprimanded Charnwood Borough Council for releasing the new address of a victim of domestic abuse to her ex-partner in a letter sent to the home they formerly shared. The ICO has encouraged other organisations to learn from the incident by ensuring alerts are placed on sensitive files, there is a proper process for address changes and that refresher data protection training is conducted.

Surveillance

Big Brother Watch have published a report titled, CBDC – A Privacy Eroding Pound, which warns that a central bank digital pound could facilitate financial surveillance and exacerbate financial exclusion. The civil society organisation has called on the Government to consider the privacy issues associated with a central bank digital currency more deeply before proceeding. The press release is available to read here and the report can be found here.

IPSO

Statements in open court and apologies

Comedian, David Walliams has settled his claim against the Britain’s Got Talent production company, Fremantle, for misuse of his private information and breach of the UK GDPR and DPA 2018. The former talent show judge made offensive and sexually explicit comments about contestants which were leaked by the company in a transcript to the Guardian. He alleged that he had suffered psychiatric harm and financial loss, for which Fremantle has now apologized. Fremantle stated, “We are sincerely sorry that his private conversations when a judge on Britain’s Got Talent were published, and the great distress this caused David [sic].”  The Independent, Guardian, Telegraph, Sky News, Evening Standard, the Huffington Post and Deadline reported on the outcome.

New Issued cases

There were no new claims filed in the Media and Communication List in the last week.

Last week in the courts

Between 27 November and 1 December 2023, Collins Rice J continued to hear the trial in the case of Blake v Fox. The defendant, Laurence Fox, had advocated a boycott of Sainsbury’s on social media for its policy of offering a safe space to black members of staff during Black History Month. In response, each claimant tweeted that Fox was “a racist” and in response Fox called them each a “paedophile.” Fox counterclaims against the initial tweets published by the claimants. Counsel for the claimants argued that the defendant was responsible for any harm to his reputation through his own comments, whilst Counsel for the defendant argued that there was no real harm caused, other than upsetting trolling. The Guardian, BBC and the Daily Mail covered the case and 5RB provided a summary.

On 27 November 2023, HHJ Lewis dismissed the defendant’s application for summary judgement in the case of Iqbal v Geo TV Limited [2023] EWHC 3024 (KB). The founder and president of an Urdu-language TV channel, ARY Network, sued the defendant TV channel for its coverage of a Pakistan Muslim League political rally, during which he was criticised for his closeness with former Prime Minister Imran Khan. The defendant argued that the broadcast was subject to reporting privilege under the Defamation Act 1996 and that the publication was on a matter of public interest. HHJ Lewis held that a full trial was needed to decide whether these defences could be made out. The Press Gazette covered the decision.

From 27 to 29 November 2023, the FTT heard the trial in the case of Coombs v ICO and The Buckinghamshire Grammar Schools. Following several errors in the 11+ exam, Buckinghamshire Grammar Schools implemented a statistical solution devised by the company who develop the tests. Mr Coombs made a FOI request concerning the details of the statistical solution, which Buckinghamshire Grammar Schools refused on the basis of the confidentiality and commercial interests exemptions. In this re-hearing of the Appellant’s appeal, the court had to decide whether the FOI request was lawfully denied. 5RB summarised the case.

On 28 November 2023, there was an appeal hearing in the case of Hayes v Liberal Democrats.

On 30 November 2023, Nicklin J heard an interim judgement application in the harassment case of Virdee v Kapoor.

On the same day, Lane J granted the claimant’s application to strike out the defendant’s witness statement in Payone v Logo [2023] EWHC 3038 (KB). The defendant, a former employee of the claimant, had retained and distributed confidential information concerning his work and the claimant’s customers. The court held that the defendant’s witness statement should be struck out in its entirety with permission to file and serve a counterclaim within 14 days.

On the same day, Murray J refused the claimant’s application to strike out the defendant’s defence of truth in the defamation case of Mincione v GEDI Gruppo Editoriale S.p.A [2023] EWHC 3029 (KB). A summary of the case is available from 5RB.

As mentioned above, Jay J handed down judgement in favour of the defendant in the case of Dyson v MGN Limited [2023] EWHC 3092 (KB) on 1 December 2023.

On the same day, there was a remedies hearing before Tipples J in the libel case of Rashed v Deane.

Media law in other jurisdictions

Canada

On 27 November 2023, the Ontario Superior Court of Justice awarded summary judgement in favour of the plaintiff in the case of D’Alessio v Chowdhury 2023 ONSC 6075. The plaintiffs formerly acted as counsel for the defendant. The defendant posted a review online which alleged that the plaintiff was incompetent, untrustworthy and negligent. The defendant did not further any defence and instead argued that the proceedings were an abuse of process. J Sutherland ordered the defendant to pay $20,000 in damages in addition to costs.

Following the passage of the Online News Act, which is due to come into effect by 19 December 2023, Google has agreed to pay news outlets CA$100m to use their content. Google initially opposed the law which requires the browser and Facebook to compensate news publishers for content that they host. Meta has so far refused to pay and removed news content from its platforms earlier this year in opposition to the bill. Press Gazette and Global News covered the story. Michael Geist published an analysis of the payment on his blog, suggesting that, though the deal was a good outcome, it was not achieved through good policymaking.

New Zealand

Deputy Prime Minister Winston Peters has criticised a $55 million government-funded public interest journalism fund that was established to protect media organisations after COVID and has accused participating reporters of bribery and corruption. He also claimed that he is ‘at war’ with the media. His comments have led to criticism from journalists who argue he is spreading misinformation and supporting conspiracy theories.  Media outlet, Stuff reported on the allegations and the International Federation of Journalists condemned the claims.

Serbia

Security researchers have revealed that two Serbian pro-democracy activists were the targets of hacks using military grade spyware. The attempts failed because the targets had updated their Apple iPhones with the latest iOS software. One of the activists commented that he believed the hack was attempted to intimidate or discredit their work by finding something compromising against them. Access Now, the Citizen Lab and Amnesty International were among the organisations who conducted the investigation. The Guardian, The Washington Post and EurActiv covered the story.

United States

Democratic Senator, Mark Warner has introduced a bipartisan bill that may renew a controversial surveillance program called section 702. Under the section 702 program, the NSA gathers emails and text messages from US tech companies in cases where one of the parties to the exchange is based abroad. The bill does not require agents to obtain a warrant for probable cause to query these communications.  Civil liberties campaigners argue that this will endanger Americans through “backdoor” searches. The Washington Post, NBC, The Record and Politico reported the story. Electronic Frontier Foundation and the Center for Democracy and Technology raised concerns about the implications of the program for privacy.

Research and Resources

Next week in the courts

On 4 December 2023, there will be a hearing before Nicklin J in the case of Davidoff and others v Brown QB-2020-002760.

On the same day, Johnson J will hear the trial in the case of Shafi v New Vision TV Limited and another QB-2021-00443.6

On 4 to 8 December 2023 HHJ Parkes KC will hear the trial in the case of Wilson v Mendelsohn and others QB-2021-002673.

On Tuesday 5 December 2023 there will be a hearing before Fancourt J  in the case of Various Claimants v NGN dealing with consequentials following the settlement of all the claims listed for hearing in January 2024.  There will be a large number of statements in open court.

On Friday 8 December 2023 there will be a trial of a preliminary issue on meaning in the case of Amersi v BBC.

Reserved judgements

Blake v Fox, heard 21-24, 27 -30 November and 1 December 2023 (Collins Rice 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 Jasleen Chaggar who is a litigation and media paralegal at Atkins Dellow