After months of uncertainty from a tight presidential and congressional election in the US, Tuesday’s result begins to set the course for 2025 and beyond.

Though a second Trump presidency means many questions remain, a Republican mandate is expected to herald broad changes to regulatory philosophy and specific shifts on issues like trade policy which may have wide-ranging implications for digital governance and technology policy.

It is expected that the Republican-led federal government will take a deregulatory approach, particularly with regard to artificial intelligence. Axios predicts safety guardrails and risk mitigation obligations will be set aside for a more pro-innovation focus, particularly against countries like China. The IAPP blog has articles considering what a second Trump presidency would mean for privacy and AI governance and digital policy.

The Transparency Project has introduced the Roundup, which sets out to correct, clarify and comment on media reports of family law, explain and comment on published family court judgments, and highlight other transparency news. 

Data Privacy and Data Protection

The Labour government has proposed reforms to data protection and e-privacy laws through the new Data (Use and Access) Bill. The DUAB follows the previous government’s unsuccessful attempts to reform these laws post-Brexit, which led to the abandonment of the Data Protection and Digital Information (No.2) Bill, in the run-up to the general election. The DLA Piper Blog has more information here. The Information Commissioner’s Office (ICO) has welcomed the Bill, considering it a “positive package of reforms” that “maintains high standards of data protection and protects people’s rights and freedoms, whilst also providing greater regulatory certainty for organizations and promoting growth and innovation in the UK economy.” The Mishcon de Reya blog has an article arguing that the DUAB could have provided an opportunity for the Government to show its commitment to a planned new “covenant” with the charity sector, by reviving a proposal to change the law and allow charities and other nonprofits to promote their services by email and text message, in the same way that profit-making companies can. The previous Data Protection and Digital Information Bill proposed to extend what is known as the electronic direct marketing “soft opt-in” to non-profits. However, a similar clause does not appear in the new Bill. Read the full article here.

On 4 November 2024, the European Data Protection Board adopted its first report under the EU-US Data Privacy Framework welcoming the efforts made by US authorities and the European Commission to implement the DPF. Read the Privacy and Information Security Law Blog’s summary here.

The ICO is seeking permission to appeal the judgment ([2024] UKUT 287 (AAC)) of the Upper Tribunal on DSG Retail Limited to the Court of Appeal. The Commissioner considers the Tribunal interpreted the law incorrectly in finding that an organisation is not required to take appropriate measures against unauthorised or unlawful processing of data by a third party, where the data is personal data in the hands of the controller but not in the hands of the third party. Read the ICO’s press release here.

The ICO has issued a series of recommendations to AI developers and providers to ensure they are better protecting job seekers’ information rights. Read their summary here.

Privacy International has an article exploring digital health, big tech and privacy. The article gives some examples of Big Tech involvement in digital health and outlines some of the tools relies on. The piece considers what sort of future a Big Tech dominated vision of digital health might hold for privacy rights, autonomy and society.

Surveillance

Privacy International has provided a written response to the College of Policing consultation on the ‘ethical use of data and technologies guidance’ through which they sought feedback on two new authorised professional practices (APP) on data ethics and data-driven technologies. More information available here.

Air fryers that gather your personal data and audio speakers “stuffed with trackers” are among examples of smart devices engaged in “excessive” surveillance, according to the consumer group Which? The Guardian has more information here.

Art, Music and Copyright

IPKat has an article analysing liability for AI-generated outputs under international, EU and UK copyright law. Empirical research shows that large generative AI models may memorise training data which includes copyright-protected. When prompted appropriately, these models may produce outputs that closely resemble such works. The blog article summarises a recent study published in the European Journal of Risk Regulation, which attempts to answer the following questions that arise out of there AI-generated reproduction:

  • Under what conditions may the resemblance between such pre-existing works or subject-matter and an AI-generated output, which in technical terms is referred to as “plagiaristic output,” be regarded as an actionable reproduction?
  • Who would be prima facie liable for the doing of such acts of reproduction? Would it be solely the user of the AI model inputting the prompt resulting in the infringing output or could it be that the developer and provider are also to be deemed liable?
  • If prima facie liability is established, who may benefit from exceptions under copyright/related rights, and under what conditions?

Newspapers, Journalism and Regulation

Matt Rogerson, director of global public policy and platform strategy at the FT and former Guardian Media Group director of public policy, has warned that that Google’s “social contract” with publishers – through which it provided value to the industry by sending traffic to their sites – has been broken. He argues that news organisations don’t have a “genuine choice” about whether to block Google from scraping their content for its AI services. This is because Google now publishes summaries of those publishers’ articles in AI Overviews at the top of many search results – and also sells data generated via its search crawler to third-party large language models (LLMs). The Press Gazette has more information here.

Over the last three weeks, news publishers have been trawling through OpenAI’s training dataset to find instances of their copyrighted work being used to train OpenAI’s models. Millions of stories published by news sites have been found and publishers are complaining that the tech company should be forced to provide the information itself. They are now asking for a court order requiring OpenAI to “identify and admit” which of their copyrighted content was used to train each of its large language models between GPT-1 and GPT-4o. The Press Gazette has more information here.

Political blog Guido Fawkes has launched a fundraising bid to help defend a libel claim brought by Ecotricity founder Dale Vince. Guido’s editor and owner Paul Staines says Guido only reported “the actual words” that green energy industrialist Vince said about Hamas during an appearance on Times Radio in March 2024. Guido usually avoids the English and Welsh legal system because he and his site’s servers are based in Ireland. However, Staines has decided not to use his usual “safe haven protection” and to “ make a stand and defend free speech and the reporting of the actual words he said.” The Press Gazette has more information here.

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 filed on the media and communication list last week.

Last Week in the Courts

On Monday 4 November 2024, there was a contempt application in the case of Pattinson v Winsor KB-2024-000256.

On the same day, Sir Peter Lane (sitting as a Judge in the High Court) heard the appeal and defendant’s application in the case of Secretary of State for Education v Marples  KA-2024-000095.

On 5 November 2024, the Court of Appeal heard the appeal in Salman Iqbal v Geo TV Limited. The court was asked to consider the correct approach to ‘public interest’ and ‘public benefit’ under s.15(3), malice under s.15(1) of the Defamation Act 1996, and whether live footage can be a ‘report’. 5RB has a summary of the issues here.

Between Tuesday 5 November and Thursday 7 November 2024, the court heard the trial in the case of Tattersall v Tattersall QB-2022-002867.

On Friday 8 November 2024, there was a consequentials hearing in the case of Hibbert v Hall KB-2023-00102.

On the same day, there was a hearing for summary judgement and public interest test in the case of Vince v Bailey KB-2024-001788.

Media Law in Other Jurisdictions

Australia

Meta and Google using user comments or reviews as part of generative AI responses to queries on restaurants or to summarise sentiment could introduce new defamation risks. Google also began rolling out  AI overviews in search results to Australian users last week that provide summaries of search results to users. Meta has recently commenced providing AI-generated summaries of comments on posts on Facebook, such as those posted by news outlets. Michael Douglas, a defamation expert and consultant at Bennett Law, told The Guardian he expected to see some cases reach court as AI was rolled out into these platforms: “If Meta sucks up comments and spits them out, and if what it spits out is defamatory, it is a publisher and potentially liable for defamation.”

Canada

The Canadian government has just announced the conclusion of its national security review of TikTok. It plans to ban the company from operating in Canada but the app will remain available. The Michael Geist blog wrote earlier this year about the need for better laws to counter the risks associated with TikTok, rather than banning the app altogether. A new article from the last week argues that while there may be good reasons to ban the app if it poses security and privacy risks that differ from those of other platforms, banning the company rather than the app may actually make matters worse since the risks associated with the app will remain but the ability to hold the company accountable will be weakened.

New Zealand

The Office of the Privacy Commissioner has appeared before the New Zealand Parliament’s Justice Committee for its annual brief. The focus of Privacy Commissioner Michael Webster was the insufficiencies of New Zealand’s current privacy law to drive better privacy practice, keep pace with the overseas regulatory approach, and address the increasing challenges presented by new technology and artificial intelligence. Read the DPA’s summary here.

United States

Records disclosed to EFF show the US government agreed to spend more than $100 million to continue monitoring people’s online activities, despite rebranding a federal program that surveils the social media activities of immigrants and foreign visitors to a more benign name. The Department of Homeland Security and its component Immigrations and Customs Enforcement largely continued an effort, originally called extreme vetting, to try to determine whether immigrants posed any threat by monitoring their social media and internet presence. The only real change appeared to be rebranding the program to be known as the Visa Lifecycle Vetting Initiative. Read the EFF’s article here.

Rudy Giuliani will appear in a New York City courtroom this week to explain why he has not surrendered his valuables as part of a $148m defamation judgment entered against him. Giuliani was to hand over assets to pay for the legal costs and award that went to the two former Georgia election workers he defamed during the fallout of the 2020 election. The Guardian has more information here.

A bodyguard at the centre of a sexual assault lawsuit against Sean Combs, aka “Diddy”, has filed a defamation claim against the accuser and her attorney, Gloria Allred, denying that he was the man who allegedly assaulted her and filmed the alleged attack. The Rolling Stones has more information here.

Research and Resources

Next Week in the Courts 

Between Monday 11 and Friday 15 November 2024, the trial will be heard in RTM v Bonne Terre Limited and another KB-2023-000775 by Collins Rice J.

On Monday 11 November 2024, there will be trials of preliminary issues in the cases of Vince v Tice (KB-2024- 001681)and Vince v Staines (KB-2024-001676) before Pepperall J.

On Tuesday 12 November 2024, the hearing in Vince v Bailey KB-2024-001788 will continue.

On Thursday 14 November 2024, the trial in University and College Union v Person(s) Unknown KB-2024-003440 will return.

On Friday 15 November 2024 there will be a CMC in Various Claimants v News Group before the managing judge, Fancourt J.

On the same day there will be a hearing of a renewed application for permission to appeal in the case of Lyles v Mullen KA-2024-000111.

Reserved Judgments

Salman Iqbal v Geo TV Limited, heard 5 November 2024 (Underhill LJ, Dingemans LJ and Warby LJ)

Secretary of State for Education v Marples, 4 November 2024, (Sir Peter Lane)

Prismall v Google UK Ltd, heard 22 October 2024 (Sharp P, Nicola Davies and Dingemans LJJ).

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 Colette Allen who is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).  She was nominated as the Next Generation Media Lawyer of the Month (November) for work on the blog and the podcast.