In the case of Schrems v Meta Platforms Ireland, (4 October 2024, C-446/21) the Court of Justice for the European Union ruled that social networks cannot use all of the personal data obtained from their users for personalised advertising, without any restrictions as to the time and the type of data. Privacy campaigner, Max Schrems argued that Facebook violated data protection law by using personal data about his sexual orientation to target ads at him.

The Supreme Court of Austria referred the question to the CJEU, asking whether Schrem’s previous public statement about his sexual orientation at a panel discussion gave Facebook the authority to process his data for personalised advertising. The CJEU ruled that Facebook had no such authorisation. The CJEU’s decision is not binding on UK courts, but leaves Meta open to similar legal challenges in other jurisdictions. The CJEU’s press release is available here. The Electronic Privacy Information Center and Noyb published blogs on the ruling and the BBC, Euro News, France 24, Reuters covered the story.

On Friday 4 October 2024, Fancourt J handed down judgement on which amends to the Claimant’s Particulars of Claim would be allowed in the case of The Duke of Sussex v NGN [2024] EWHC 2526 (Ch). The court dismissed the majority of the defendant’s objections to the amends, but disallowed claims about bugs and tracking devices. Fancourt J criticised Prince Harry’s individual claim in the phone hacking litigation against News Group Newspapers, stating that “the claim at times resembles more an entrenched front in a campaign between two obdurate but well-resourced armies than a claim for misuse of private information” and is “starting to absorb more than an appropriate share of the court’s resources” [9]. The trial is due to be heard in January 2025. The Guardian, The Times, Press Gazette, The Telegraph, GB News and Deadline reported.

On 1 October 2024, Julian Assange, the founder of WikiLeaks, appeared before a Parliamentary Assembly of the Council of Europe, marking his first appearance since he was released from Belmarsh Prison in June after pleading guilty to one count of violating the Espionage Act. Assange gave his testimony before the Committee on Legal Affairs and Human Rights, who published a draft resolution last month on “the chilling effects on human rights” of Assange’s detention and conviction. The draft resolution called on the United States to investigate the alleged war crimes and human rights violations disclosed by WikiLeaks. The Council of Europe published a press release. On 2 October, the Assembly approved the draft resolution, stating that his treatment warranted his designation as a “political prisoner…for what was – in essence – newsgathering and publishing.”

Read the FT’s interview with Meredith Whittaker, President of end-to-end encrypted App, Signal, in which she advocates for “independent alternatives” to Big Tech here.

Internet and Social Media

Clean Up the Internet Blog has published an article analysing how social media fueled the recent riots following the Stockport attack. It argues that certain design features, such as lax content moderation, platform recommender systems, anonymous and fake accounts, private groups and channels and the high reach of far right influencers, have been exploited by a range of “bad actors” and proposes how these problems can be tackled through regulation.

Data privacy and data protection

The ICO has fined the Police Service of Northern Ireland £750,000 following a major data breach in which the personal information of 9,483 of its officers and staff was compromised. The breach occurred when hidden data on a spreadsheet, including surnames, initials, ranks and roles, was mistakenly shared in response to a freedom of information request. The Information Commissioner said the breach was caused by “a lack of simple internal administration procedures” and the Regulator applied the public sector approach to reduce the fine, which, ordinarily, would have been £5.6 million.

Surveillance

On 4 October 2024, the Court of Appeal handed down judgement in (1) Shehabi (2) Mohammed v Kingdom of Bahrain [2024] EWCA Civ 1158, dismissing the appeal. The underlying claim was brought by two Bahraini pro-democracy activists living in the UK, who claim that their laptops were hacked by the Bahraini state using “FinSpy” spyware. The issue in the appeal was whether a foreign state whose agents remotely install spyware on claimants in the UK, causing psychiatric injury to those being spied upon, is entitled to immunity from civil proceedings within the meaning of section 5 of the State Immunity Act 1978. At first instance, Knowles J ruled in favour of the claimants holding that the court had jurisdiction to hear the claim. The Kingdom of Bahrain appealed, arguing that the exception to state immunity under section 5 did not apply, because some of the acts were alleged to have taken place outside of Bahrain. The Court of Appeal rejected that argument and upheld Knowles J’s ruling on the basis that the personal injury alleged was caused by an act or omission in the UK. Matrix Chambers, Leigh Day and Law360 summarised the ruling and Reuters and Middle East Eye, covered the judgement.

Following the announcement of the government’s Fraud, Error and Debt Bill, a group of  privacy and rights groups, including Disability Rights UK, Age UK, Privacy International, Child Poverty Action Group and Big Brother Watch have published a joint letter to Secretary of State for Work and Pensions, Liz Kendall, expressing concerns about the “mass financial surveillance powers” that the legislation would introduce. Although the Bill is yet to be published, the Department for Work and Pensions (DWP) explained that the legislation would give them powers to request data from banks to highlight welfare fraud or error for a staff member to then investigate. The joint letter stated that the plans would lead to “suspicionless searching” which provides “neither appropriate nor effective solutions for DWP.”

Newspaper Journalism and regulation

The High Court has given GB News permission to challenge an Ofcom decision that it breached the Regulator’s impartiality rules in a Q&A programme in which Rishi Sunak answered audience questions, whilst he was still Prime Minister. However, Chamberlain J refused to prevent Ofcom from sanctioning the broadcaster, as “there is a significant public interest in allowing Ofcom to complete its process and publish its decision. The Regulator also committed to not publishing any sanction until the case has been heard. The Evening Standard, The Telegraph, Press Gazette, The Herald and GB News reported on the ruling.

Hacked Off has published an article exploring the current press regulatory landscape and perceptions of regulatory practices. It highlights several issues, including public skepticism and distrust of mainstream media outlets, the lack of visibility and awareness of regulatory bodies and challenge of regulating online news, and argues for stronger regulatory frameworks that restore public trust in the press.

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 misuse of private information claim and one data protection claim filed on the media and communications list last week.

Last week in the courts

On Wednesday 2 October 2024 there was a hearing of an application for permission to appeal before Kerr J in the defamation case of Savva v Riedweg and another KA-2024-000049.

On Thursday 3 October and Friday 4 October 2024, there was a trial before Hill J in the case of Oliver v Duffy KB-2023-002483.

On 4 October 2024 there was a pre-trial review before Julian Knowles J in the defamation case of Tattersall v Tattersall QB-2022-002867.

As mentioned above, on Friday 4 October 2024, Fancourt J handed down a ruling in the case of The Duke of Sussex v NGN [2024] EWHC 2526 (Ch).

Media law in other jurisdictions

Australia

On 1 October 2024, the Supreme Court of New South Wales handed down judgement in the case of Gayed v Virgin Mary & St Markorious Coptic Orthodox Church [2024] NSWSC 1232.  The plaintiff, who attends the Coptic Orthodox Church, alleges that the defendants sent an email, on behalf of the Church, to 2,000 parishioners accusing him of being involved in both fraud and theft from parishioners and the commission of a murder. The Court concluded that the claim is not an abuse of process as the plaintiff is “concerned for his reputation,” dismissed the defendants’ motion for summary dismissal and granted the plaintiff’s motion for leave to file an amended statement of claim.

Canada

On 2 October 2024, the Court of King’s Bench of Alberta dismissed the defendant’s application to strike out the plaintiff’s claim on the basis of delay in the case of Oleksyn v Hi Line Farm Equipment Ltd, 2024 ABKB 584. The plaintiff alleges that he was defamed by an employee of the defendants. The court held that there had not been a period of three years where no significant advance occurred, nor did the current circumstances warrant exercising judicial discretion to dismiss the action.

On 3 October 2024, the Court of Appeal for Ontario handed down judgement in favour of the appellant in the case of Hamer v Jane Doe, 2024 ONCA 721. The claimants, who operate a cat rescue and adoption service, appealed the dismissal of their action by the motion judge. The underlying claim concerns posts and comments made about the rescue service on a Facebook page, alleging that they mistreat the cats under their care and that the Director has mental health issues. The judge allowed the appeal, holding that the motion judge failed to apply the correct approach in determining whether the action could be dismissed, by focusing only on the respondents’ freedom of expression and losing sight of the appellant’s right to protect their reputation.

Ireland

The Investigatory Powers Tribunal has begun hearing a case brought by two journalists who were arrested over the suspected theft of files, whilst they were investigating the Loughinisland killings for documentary in 2018. The Tribunal will rule on whether the police surveillance operation which monitored the journalists to identify their sources and targeted an official at the office of Northern Ireland’s Police Ombudsman, who was believed to be a source, was lawful. The BBC and Computer Weekly covered the hearing.

Italy

Barrons reports that Italian Prime Minister Giorgia Meloni has withdrawn a defamation suit against a historian who called the far-right leader a “neo-Nazi at heart”,

Singapore

The younger brother of Singapore’s former prime minister Lee Hsien Loong paid more than SGD 600,000 (US$466,000) in damages to two Indian-origin ministers for making defamatory allegations against them on a social media site.

United States

Netflix’s motion to dismiss the libel claim brought by Fiona Harvey arising out of the series “Baby Reindeer” has failed.  There were reports in, amongst, others Rolling Stone and on the BBC Website.

ESPN reported that boxing promoter Eddie Hearn’s defamation lawsuit against Jake Paul is proceeding after a U.S. District Court judge in New York denied a motion to dismiss the case

Research and Resources

Next week in the courts

On Monday 7 October 2024, there will be a trial before Aidan Eardley KC (sitting as a Deputy Judge in the High Court) in the defamation case of Bates v Rubython and another KB-2023-002975.

On the same day there will be a PTR in the case of  Atole Timothy Enaholo v Claims Governance Totally PLC and another QB-2022-001025 before Kerr J.

On Tuesday 8 October 2024 there will be a PTR in the case of Northcott v Hundeyin KB-2023-002761.

On Wednesday 9 October and Thursday 10 October 2024 there will be a trial in the harassment case of Titan Wealth Holdings Limited and others v Okunola KB-2024-000960.

On Friday 11 October 2024 there will be a Statement in Open Court in the case of Vine v Barton KB-2024-000733.

Reserved judgements

Oliver v Duffy, heard 3 and 4 October (Hill J)

Dowding v The Character Group PLC 19 and 20 June 2024 (Richard Spearman KC)

Codnor v Thorpe, 17 June 2024 (Richard Spearman KC).

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