On12 June 2024  the Supreme Court handed down the long-awaited judgement in the case of George v Cannell  [2024] UKSC 19. The issues before the court were (i) whether a claimant is required to demonstrate financial loss to establish liability under s3(1) of the Defamation Act 1952 in a claim for malicious falsehood; and (ii) whether a claimant who establishes liability can recover damages for injury to feelings arising from the falsehood, even where no financial loss occurred.

The claimant, who formerly worked as a recruitment consultant for the defendant’s agency, sued the defendant for an email she sent to her new employer, stating that she was in breach of her contract by contacting her old clients. The trial judge dismissed the claim for malicious falsehood on the basis that the claimant had not suffered any financial loss or satisfied an exception to that requirement. The Court of Appeal found in favour of the claimant ([2022] EWCA Civ 1067), holding that liability could be established where falsehoods were likely to cause financial damage, and, in such cases, a claimant could recover damages for injury to feelings. The Supreme Court allowed the appeal by a majority of three-to-two.  The result is that s3(1) allows a claimant to establish liability for malicious falsehood, if the falsehood is likely to cause financial loss, but can only recover damages for loss actually suffered.

The majority also held that damages for injury to feelings were only recoverable where financial loss had been caused by a malicious falsehood. This is because malicious falsehood is classified as an “economic tort” designed to protect financial interests, rather than “emotional wellbeing” [4]. However, Lord Hamblen and Lord Burrows dissented on this issue, arguing that if the tort of malicious falsehood is actionable per se under s3(1), then it follows that damages should also be awarded without the need for proof of financial loss. The judgement is available to read in full here and the press release can be accessed here. A summary is available from 5RB.

On 14 June 2024, the High Court handed down judgement on preliminary issues in the case of Taylor v Pathé Productions Limited & Ors [2024] EWHC 1475 (KB), relating to the 2022 film, ‘The Lost King.’ The film, written and produced by Steve Coogan, portrays the search to find Richard III’s remains and centres the narrative of Phillipa Langley who was influential in finding the buried King in a Leicester car park. The claimant, who was the former Deputy Registrar for the University of Leicester, was also dramatised in the film. ‘The Lost King’ was found by HHJ Lewis to bear the meaning that (i) the claimant knowingly misrepresented facts to the media and the public about the University’s role in finding Richard III’s remains and marginalising Langley’s role; and (ii) the claimant was “smug, unduly dismissive and patronising” towards Ms Langley in relation to the project. 5RB summarised the ruling. The BBC, Guardian, The Telegraph, Daily Mail and the Leicester Mercury covered the judgement.

Internet and Social Media

Nine social media influencers, who found fame on shows such as TOWIE and Love Island, appeared before Westminster Magistrates court this week to face charges by the Financial Conduct Authority (FCA) concerning their promotion of an unauthorised foreign exchange trading scheme online. Dubbed ‘finfluencers,’ the defendants are accused of providing unofficial advice on buying and selling contracts for high-risk derivative products, which reportedly result in 80% of customers losing their investment. The FCA said that the case was “the first prosecution of such offending.” The Guardian, Evening Standard, LBC, Sky News, and Daily Mail covered the case.

Data privacy and data protection

The ICO has announced a joint investigation with the Canadian data protection authority, OPC, into a data breach that occurred last October at the direct-to-consumer genetic testing company, 23andMe. Emphasising that the company processes “highly sensitive personal information, including genetic information which does not change over time,” the regulator confirmed that its investigation will examine the scope of information that was exposed by the breach and its potential harms; whether the company had adequate safeguards and whether 23andMe adequately notified the ICO, CPO and affected data subjects of the breach. Read the ICO’s press release here. The BBC, Guardian, CBC and Sky News reported on the announcement.

Surveillance

Privacy International has published an article titled, ‘Generative AI won’t take over the world, surveillance capitalism already has,’ which argues that targeted advertising will come to dominate generative AI, and with it, exploitation of users’ personal data and incursion on their privacy.

Newspaper Journalism and regulation

Professor Paul Wragg wrote an article for Inforrm, arguing that coverage of Dr Michael Mosley’s death by Chief News Correspondent for The Times, David Brown was insensitive and in breach of the Editors’ Code of Practice. Despite provisions in the code that publications concerning death should be ‘handled sensitively,’ Brown’s reporting featured footage posted on X of the authorities transporting Dr Mosley’s body, by sea, to the coroner’s office. Several users of the social media platform X also expressed distaste towards Brown’s intrusive coverage.

IPSO

Statements in open court and apologies

We are not aware of any statements in open court or apologies from the last week.

New Issued cases

There was one defamation (libel and slander) claim and one miscellaneous claim filed on the media and communications list last week.

Last week in the courts

On Monday 10 June 2024, there was an application hearing in Shah v Imran and others QB-2021-001140.

On Tuesday 11 June 2024, there was a pre-trial review hearing before Hill J in Organista v Rodrigues and another QB-2021-003806.

As mentioned above, on Wednesday 12 June 2024, the Supreme Court handed down judgment in George v Cannell and another [2024] UKSC 19

On the same day there was a preliminary issues trial before Collins Rice J in the case of Bridgen MP v Hancock MP KB-2023-002309. Independent former MP and candidate for North West Leicestershire, Andrew Bridgen, sued the former Health Secretary, Matt Hancock, for £100,000 in defamation over a tweet in which Hancock accused him of spreading “antisemitic, anti-vax, anti-scientific conspiracy theories.” Bridgen lost the Tory whip after his remarks and was widely criticised by members of all political parties. The claimant argued that the defendant’s accusations lowered Bridgen’s reputation to a “devastating extent,” whilst the defendant posited that only those “avid for scandal” would consider the tweet to refer to the claimant’s “general character or belief system.” Judgement was reserved. Sky News, The Telegraph, London Evening Standard and the Daily Mail covered the hearing.

On the same day, the High Court awarded summary judgement in favour of the defendant in the case of BW Legal Services v Trust Pilot A/S [2024] EWHC 1449 (KB). The claimant legal firm brought defamation proceedings against the defendant in relation to 20 reviews posted on its consumer review website. The High Court held that the claimant had no real prospect of establishing that the reviews caused, or were likely to cause, serious reputational harm, either as a matter of fact or by inference. Matrix summarised the judgement.

On Thursday 13 June 2024, there were hearings in Nicholas James Gwilliam v (1) Stephen Thomas Freeman (2) John William Freeman QB-2021-000981 and Tyndal v Obisulu KB-2024-001333.

On Friday 14 June 2024, there was an appeal before Saini J in McKnight v Chelsea Football Club Limited KA-2023-000099.

Media law in other jurisdictions

Australia

On 10 June 2024, the Supreme Court of Queensland handed down judgement in the case of Peros v Nationwide News Pty Ltd & Ors [2024] QSC 80. The plaintiff alleged that the defendants had defamed him on a podcast by imputing that he had murdered Shandee Blackburn. The defendants argued that the plaintiff had a poor reputation prior to the podcast, due to a widely reported coroner’s verdict which found that he had violently killed Blackburn, and that their statements did not therefore cause serious harm. Under section 10A(5) of the Defamation Act 2005, the court is required to determine the serious harm issue “as soon as practicable before the trial commences unless satisfied that there are special circumstances justifying the postponement of the determination to a later stage of the proceedings (including during the trial)” [9]. The issue before the court was whether such special circumstances applied, as the plaintiff contended. The plaintiff was unable to satisfy the court that any “special circumstances” existed which justified postponing determining the issue of special harm [15].

Azerbaijan

On 13 June 2024, the ECtHR held that here had been an infringement on the Article 10 free expression rights in the case of RFE/RL Inc. and others v Azerbaijan (Application no. 56138/18). The blanket blocking of access to four online media outlets on the basis that of their articles featured allegedly unlawful content that promoted violence and religious extremism was found not to be “prescribed by law.” Safeguards that were in place were insufficient to prevent “arbitrary interferences” or were otherwise ignored [101]. RadioFreeEurope/Radio Liberty, Turan and Media Defence covered the decision.

Canada

On 13 June 2024, the Court of Appeal for Ontario allowed the appeal in the case of Marcellin v London (Police Services Board), 2024 ONCA 468.  The claim related to four statements made by the plaintiff’s ex-wife and two former employees of not-for-profit organisations, which were alleged to have caused harm to his reputation. The court ruled that the motion judge had erred in his consideration of the respondents’ defences to the claim and in the weight he gave to the public interest in the respondents’ statements. The anti-SLAPP motion was dismissed, and the claim was allowed to proceed in its entirety.

Hong Kong

The government has blocked the passports of at least 6 pro-democracy activists who sought protection in the UK, accusing them of being “lawless wanted criminals.” Officials pointed to a national security law passed last March as the legal basis for revoking their travel documents. The activists are also banned from any business dealings in Hong Kong and the Hong Kong police have offered a reward of HK$1 million for anyone with information that could lead to the arrest of the “absconders.” The Independent, The Times, Al Jazeera, France 24, reported on the measures.

This comes in the same week as Lord Sumption stepped down from the Hong Kong Court of Final Appeal, explaining that the region is “slowly becoming a totalitarian state” with the national security law designed to “crush peaceful political dissent.” The Financial Times, BBC, Reuters, Guardian and The Times of India covered the story.

India

The Delhi authorities have granted permission to allow the prosecution of novelist, Arundhati Roy, for making “provocative speeches” under the Unlawful Activities (Prevention) Act (UAPA) in relation to comments she made about Kashmir in 2010. Roy expressed opinions that Kashmir, which is a disputed terrorist, is not an “integral” part of India and is accused of advocating for Kashmir’s secession. The UAPA is an anti-terrorism law that, according to critics, has been used to silence critics, activists, journalists, academics and Kashmiri civilians. The Guardian, The Independent, The Washington Post, Eastern Eye, The Indian Express and the Hindustan Times covered the development.

The Delhi High Court ordered that defamatory tweets about the journalist and TV presenter, Rajat Sharma, be removed from X, formerly Twitter. Sharma sought damages and a permanent injunction after several Congressmembers accused him of using abusive language during a televised political debate and shared edited footage of him on social media. LawBeat, India TV News, Hindustan Times, Deccan Herald and Bar and Bench covered the decision. The judgement is available to read here.

Ireland

The Sunday Independent successfully defended a defamation claim brought by Enoch Burke, the imprisoned Evangelical Christian teacher, which alleged that he had been moved from his cell as he was “annoying other prisoners” by expressing his religious beliefs. Burke had been serving a prison sentence after he breached a court order that restrained him from visiting St Wilson’s Hospital School, from where he had been suspended and dismissed for refusing to refer to a student using they/them pronouns. The court held that although the words complained of in the article were untrue, they were incapable of causing injury to his reputation. The Irish Times, RTE, The Irish Post, and The Irish Independent covered the judgement.

Portugal

On 11 June 2024, the ECtHR handed down judgement in the case of Ferreira Victorino de Queirós v Portugal (Application no. 23063/18). The court found that there had been an infringement of the Article 10 free expression rights of a journalist who was convicted for defamation after writing an article published in daily newspaper Jornal de Notícias about a criminal investigation into a teacher for sexual abuse charges. The article was published whilst criminal investigations were ongoing, disclosed the suspect’s first name and the initial of his surname, and included the factual basis for the charges. It was held that the domestic court failed to balance the competing interests in accordance with case law and the interference with the applicant’s right to impart information was not a “pressing social need.”

United States

A bankruptcy Judge has ordered the liquidation of Alex Jones’s personal assets to pay the $1.5 billion in legal damages he owes to the families of Sandy Hook victims in relation to defamatory claims he made that the 2012 school shooting was a hoax. However, despite requests from the families, the court did not allow the liquidation of Jones’s media company, Free Speech Systems, which own his Infowars brand. The families had argued that Jones was using his social media accounts to reduce the value of his company, but Jones’s lawyers characterised the request as a “procedurally improper” attempt to “silence him.” The BBC, Reuters, The Guardian, The Independent, Forbes and NBC News covered the decision.

The President’s son, Hunter Biden, has dropped his lawsuit against Rudy Guliani and attorney, Robert Costello, having accused them of violating the Federal Computer Fraud and Abuse Act by hacking and manipulating the laptop he left a repair shop. The laptop, which contained highly intimate and exposing images and videos of Biden was seized and shared by Republicans who he held “primarily responsible” for the “total annihilation” of his digital privacy. The Hill, The National Review and Bloomberg Law News reported on the development.

Research and Resources

Next week in the courts

On 17 June 2024 there will be a preliminary issues trial before Steyn J in the case of Hawrami v Journalism Development Network Inc and others, QB-2022-001596.

On the same day there will be PTR  in the case of Bates v Rubuython KB-2023-002975 before Collins Rice J and a disposal hearing in the case of Codnor v Thorpe QB-2020-004564  before Richard Spearman KC.

On Wednesday 19 June there will be a hearing in the defamation case of Leeds and another v Warwick QB-2021-001977.

On Wednesday and Thursday 19 to 20 June 2024 there will be a strike out application in the data protection case of  Dowding v The Character Group PLC KB-2023-003510 .

On Thursday 20 June 2024 the UK Supreme Court (Lords Reed, Sales, Hamblen, Burrows and Richards)  will hand down judgment in the case of Mueen-Uddin v Secretary of State for the Home Department, heard 1 and 2 November 2023.

There will also be a hearing in the case of Gill v Lawn Tennis Association Limited KB-2024-000501 and a committal application in the case of Titan Wealth Holdings Limited & Ors v Marian Okunola KB-2024-000960.

On Friday 21 June 2024 there will be a return date hearing in the injunction application in RBT v YLA KB-2024-001672 and a hearing in the privacy case of Hibbert & Others v Hall KA-2024-000059.

Reserved judgements

Bridgen MP v Hancock MP, heard 12 June 2024 (Collins Rice J)

Versi v Husain (AKA Ed Husain), heard 7 June 2024 (Susie Alegre)

Vince v Associated Newspapers, heard 19 February 2024 (HHJ Lewis)

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

 (UK Supreme Court)

Harcombe v Associated Newspapers, heard 3 to 7 and 10 to 11 July 2023 (Nicklin 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