Happy New Year to all Inforrm readers! The Hilary Legal Term begins on Thursday 11 January 2024 and ends on Wednesday 27 March 2024.

On 4 January 2024, more than 300 pages were unsealed from Virginia Giuffre’s 2015 defamation lawsuit against Ghislaine Maxwell, who had accused Guiffre of lying about the abuse she had suffered at Epstein’s hands. Though the case settled in 2017, US District Judge Loretta Preska held that there was no legal justification for the names of Epstein’s associates to remain redacted.

Those named in the papers are largely already known to have been associated with Epstein, to varying degrees, due to information that had previously been made public. Prince Andrew once again came under fire for his association with the disgraced financier and the allegations against him of sexual assault, which he strongly denies, were repeated in the released files. Former Presidents Donald Trump and Bill Clinton are referenced in the papers, though there are no allegations of wrongdoing against either of them. The Guardian, The Telegraph, the Independent, Sky News, BBC, Al Jazeera, AP News and Time Magazine covered the story.

Wiggin LLP published a Media Law Round Up, reviewing the case law and legislative developments in 2023.

Leading libel lawyer Richard Rampton KC died on 23 December 2023.  Inforrm had an obituary and there were also obituaries in the Telegraph and theGuardian.

Internet and Social Media

The Clean Up the Internet blog has published an article reflecting on developments for internet safety in 2023.

The police are investigating the first case of an alleged virtual rape in the metaverse. A group of strangers sexually attacked a teenager’s digital avatar through their own avatars whilst they played a virtual reality game. The complainant, whose identity has been kept confidential, did not receive any physical injuries, though officers have indicated that she may have suffered an “emotional and psychological impact.” Some have criticised the move to allocate police resources to virtual crimes, when only 2.2% of reported rapes currently result in a charge. In any event, it is not clear that it will be possible to prosecute the case under existing laws. EuroNews, Evening Standard,  the Guardian, LBC and the Daily Mail reported on the case.

Data privacy and data protection

The Information Commissioner, John Edwards, has published an updated response to the Data Protection and Digital Information (No. 2) Bill. Edwards noted that the inclusion of a significant number of new clauses at the House of Commons Report Stage amounted to “substantive new policy that has not been the subject of wider public consultation and has not had the benefit of line-by-line scrutiny.” The Commissioner expressed his approval of changes to safeguard the independence of the ICO and extend the reporting period for personal data breaches to 72 hours. However, he raised concerns about the proposed power which will require certain bodies, initially banks, to hand over the personal information of benefits recipients in order to tackle fraud. The Bill is currently in the Committee Stage of the House of Lords after its second reading on 19 December 2023. Read the Commissioner’s original response here and his updated response here. Hunton Andrews Kurth wrote a blog post on the developments.

Surveillance

A group of cross-party parliamentarians have written to the Information Commissioner to raise their concerns about the ICO’s approach to regulating facial recognition surveillance by private companies. In particular, the letter highlights two instances where the ICO declined to enforce action against the private facial recognition companies, PimEyes and Facewatch, who have violated data protection law. Read the letter in full here.

Newspaper Journalism and regulation

The regulator, Ofcom, revealed that it received 69,236 complaints in 2023, with almost 1 in 10 of those concerning the Israel Gaza conflict. The programme which received the most complaints, and is the subject of an ongoing Ofcom investigation, was Dan Wootton’s GB News show during which the actor Laurence Fox made derogatory comments about female journalist, Ava Evans, that resulted in his dismissal. Read the full breakdown here.

 IPSO

 Statements in open court and apologies

We are not aware of any statements in open court or apologies in the last two weeks.

New Issued cases

Between 18 December 2023 and 9 January 2024 there were three new cases issued in the Media and Communications List, including 2 defamation cases and one Norwich Pharmacal application.

Last month in the courts

On Monday 18 December 2023, there were applications in the case of KB-2023-001023 Piepenbrock v Michell and others before Tipples J.

On Tuesday 19 December 2023 there was a summary judgment application in the case of Sinton -v- Maybourne Hotels Ltd KB-2023-000257 before Chamberlain J.

On the same day there was a consequentials hearing in the case of LCG v OVD, QB-2022-000921.

Media law in other jurisdictions

Australia

On 18 December 2023, HHJ Clayton handed down judgement in favour of the plaintiff in the case of Spencer v McKay [2023] VCC 2238. The defendant had published a YouTube video accusing the plaintiff of being a worshipper of the Devil. The court held that the imputation was defamatory and that no defences applied. The plaintiff was awarded $85,000 in damages, which included aggravated damages, and an injunction to prevent further publication.

On 19 December 2023, Bromwich J held that the respondents’ claim for journalistic privilege of their confidential sources be upheld in the case of Al Muderis v Nine Network Australia Pty Limited [2023] FCA 1623. The applicant sued three journalists for defamation in relation to a series of articles published which alleged that he provided negligent post-operative care to his patients. HWL Ebsworth Lawyers published an article on journalistic privilege and the arguments made by both parties at the hearing. The full defamation trial is due to continue in March 2024 before Abraham J.

 Canada

On 2 January 2024, the Supreme Court of British Columbia awarded summary judgement on the issue of quantum in favour of the plaintiff in the case of Pineau v Glacier Media Inc 2024 BCSC 4. The defendants were ordered to pay the plaintiff $72,000 in general damages and $180,000 in special damages, after admitting that an article they published in Business in Vancouver referred to the plaintiff and was defamatory.

EU

On 21 December 2023, the CJEU issued judgement in the case of Krankenversicherung Nordrhein (C-667/21). The case concerned a medical service provider (MDK) who had processed the personal health data of an incapacitated employee and passed the information to a health insurance fund. The applicant argued that his data had been unlawfully processed. The CJEU held that MDK could rely on the exception at Article 9.2(h) of the GDPR to process the employee’s sensitive personal data. The judgement is available to read here. Hunton Andrews Kurth summarised the judgement on their blog.

Hong Kong

Media tycoon and pro-democracy activist Jimmy Lai has pleaded not guilty to all charges as his trial continues in Hong Kong this week. The British national is charged with conspiracy to commit foreign collusion and conspiring to publish seditious material in relation to over 160 publications in his newspaper Apple Daily. Lai’s attempt to have the sedition charge thrown out was rejected by West Kowloon Magistrates’ Courts. The UK government issued a press release ahead of Lai’s trial. Lai’s lawyers have since filed an urgent appeal with the UN special rapporteur on torture raising evidence of the torture of a key prosecution witness. The BBC, Al Jazeera, Guardian, The Economist, ABC News, New York Times, and Financial Times reported on the case. Doughty Street Chambers published this press release on the ruling in relation to the sedition charge and another press release on the urgent appeal filed with the UN, which is available to read here.

Poland

Prime Minister Donald Tusk’s new government removed the 24-hour public news channel, TVP Info, from the air on 20 December in a bid to restore public media impartiality. Protests grew outside TVP’s offices after state media executives were dismissed and the former ruling party, PiS condemned their removal. Reuters, Financial Times, BBC, and the Guardian covered the story. The International Federation of Journalists and Reporters Without Borders have called on decision-makers in Poland to respect the editorial independence of the media.

Singapore

DLA Piper has published an article summarising the key changes proposed in the draft Cybersecurity (Amendment) Bill. A major change includes distinguishing between provider-owned and non-provider owned critical information infrastructure (CII). Non-provider-owned CII leverages a third party’s computer systems instead of its own and will be subject to specified requirements under the new law. The bill, which is available to read here, is currently open to public consultation until 15 January 2024.

United States

The Harvard Cyberlaw Clinic has filed an amicus brief in the case of Hermès International v Rothschild in the US Court of Appeals for the Second Circuit representing individual creatives and arts and cultural organisations. Digital artist, Mason Rothschild, is appealing the decision of the US District Court for the Southern District of New York, which held that he had infringed the trademark of luxury fashion brand Hermès by creating NFTs titled ‘MetaBirkins.’ Rothschild argues that the NFTs are a tribute to the brand and comment on consumerism and animal cruelty in the fashion industry. Read Harvard Cyberlaw Clinic’s press release here.

Research and Resources

Next week in the courts

 We are not aware of any media law cases listed for the first week of term.

Reserved judgements

Dyson v Channel 4, heard 15 December 2023 (HHJ Lewis)

Pacini v Dow Jones, heard 13 December 2023 (HHJ Parkes KC)

Amersi v BBC, heard 8 December 2023 (HHJ Lewis)

Shafi v New Vision TV Limited and another, heard 4 December 2023 (Johnson J)

Wilson v Mendelsohn and others, heard 4 to 8 December 2023 (HHJ Parkes KC)

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, heard 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)

This Round Up was compiled by Jasleen Chaggar who is a litigation and media paralegal at Atkins Dellow