A YouGov Poll, commissioned by the campaigning group Hacked Off, shows continuing strong public support for establishing the second part of the Leveson Inquiry and for the Government to take steps to bring all newspapers into a press regulator which meets the criteria suggested by the Leveson Inquiry. Inforrm had an article with further information here.

On Wednesday 11 December 2024 the Court of Appeal (Sharp P, Nicola Davies and Dingemans LJJ) will hand down judgment in the important misuse of private information “representative action” case of Prismall v Google.  The representative claimant is appealing against the order of Heather Williams J striking out the claim ([2023] EWHC 1169 (KB)).  It seems likely that the unsuccessful party on this appeal will seek to appeal to the Supreme Court.

Internet and Social Media

Cyberleagle has an article responding to the government’s recent draft Statement of Strategic Priorities for Ofcom under the Online Safety Act. The piece explains what safety by design means, and how it might fit in with platform and search engine duties under the Online Safety Act.

The Media Reform Coalition has published its reflections on their public panel discussion “Is Big Tech too big to regulate?”, which took place on 26 November 2024. Read their analysis here.

Clean Up the Internet has an article condoning Ofcom’s further delay to take action on user verification and promote the implementation of tools for UK users to spot and avoid fake and anonymous accounts.

Data Privacy and Data Protection

The proposed Data (Use and Access) Bill introduced by the Department for Science, Innovation and Technology has undergone feedback from the Information Commissioner’s Office (ICO) and now sits with the House of Lords in the committee stage. The ICO is receptive to the current proposal and provisions to grant the regulator additional enforcement resources, which will help ensure data breach reporting standards are consistent between the Privacy and Electronic Communications Regulations and the UK GDPR.

HawkTalk has an article considering how the Data (Use and Access) Bill will impact the lawful bases used in the context of voluntary data sharing with public bodies. The Bill creates an infrastructure of Ministerial powers that ensures voluntary data sharing to the public sector has a lawful basis; that such data sharing is not incompatible with the purpose of obtaining, and that such data sharing is, in practice, exempt from the right to object.

Surveillance

Privacy International has written to the MPs who intervened during the recent parliamentary debate on police use of facial recognition technology, calling on them to expedite the matter further by tabling questions to members of the government. More information here.

Art, Music and Copyright

The Mishcon de Reya blog has an article exploring the November 2024 decision in Samherji v Oddur Fridriksson [2024] EWHC 2892 (Ch), which highlights the delicate balancing act between freedom of expression and protection of IP, as well as the potential pathways for lawful parody and criticism. The Claimant was the Icelandic fishing company Samherji, who successfully obtained summary judgment in its claims of passing off, copyright infringement and malicious falsehood against Icelandic performance and conceptual artist Oddur Fridriksson. The subject of the claim was the Defendant’s public art hoax involving a fake UK domain name and press release (involving the use of Samherji’s logo) to draw the public’s attention to its role in an incident known as the ‘Fishrot Scandal’, relating to the activities of its former subsidiaries in Namibia. The challenge for the artist in this case was that if the use of the mark to had been unmistakably parodic, it may not have had the impact intended. Read the full article here.

Newspapers Journalism and Regulation

The Media Reform Coalition (MRC) has published its submission to Ofcom’s Public Service Media Review, which focuses on the Phase 1 assessment of how PSM has been delivered for UK audiences over the last five years. Read MRC’s headline findings and recommendations here.

The LSE Media Blog considers the findings of a recent mapping exercise of media literacy policy and practices across Europe. Investment in media literacy initiatives continues to attract policy attention in countries across Europe. In the UK, Labour is considering a new media literacy approach, while Ofcom has just launched its three-year media literacy strategy as part of its obligations under the Online Safety Act 2023. The article explains the research which suggests gaps remain in media literacy provision.

IPSO

Statements in Open Court and Apologies

On 5 December 2024, Dr Zoë Harcombe and Dr Malcolm Kendrick secured a full apology, substantial damages and their legal costs from the publisher of The Mail on Sunday in conclusion of their defamation claim. The case related to articles published in March 2019, containing allegations that Dr Harcombe and Dr Kendrick had made knowingly false statements about the cholesterol-lowering drug, statins; and that they had thereby caused large numbers of people not to take statins, causing harm to public health. A statement in open court recorded that these allegations were and are completely untrue, as The Mail on Sunday has now acknowledged. Read the Carter-Ruck press release here.

New Issued Cases

There was one data protection claim filed on the Media and Communications list last week.

Last Week in the Courts

On 2 and 3 December 2024 Saini J continued to hear the trial Smith & Jackson v Surridge (QB-2022-000858) which began on 25 November 2024.

On the same days there was the trial in the case of Ashley v The Commissioners for His Majesty’s Revenue and Customs  KB-2024-000136 before Heather Williams J.

On 2 December 2024 Aidan Eardley KC heard a pre-trial review in the breach of confidence case of Zurius v Secretary of State for Health and Social Care (QB-2020-003210).

On Tuesday 3 December 2024 there was a hearing in the case of Sahota v Middlesex Broadcasting Corporation QB-2019-000261.

As mentioned above, on Thursday 5 December 2024 there were statements in open court in Zoë Harcombe and Malcolm Kendrick v Associated Newspapers QB-2020-000799.

On the same day there was a hearing in David Kezerashvili v BBC KB-2024-00094.

Also on 5 December 2024, judgment was handed down by Linden J dismissing the appeal Smith v Poulton & Ors [2024] EWHC 3115 (KB). The appeal was against part of an Order made by Deputy Master Irena Sabic KC on 13 May 2024. The Deputy Master refused the Third Party appellant’s (Mr Smith) application to strike out certain particulars of a course of conduct which was alleged by the Defendant (Ms Poulton) to amount to harassment. His application contended that the challenged particulars did not disclose reasonable grounds for bringing the claim and/or they were an abuse of the process of the court. Linden J agreed with the Deputy Master that the right approach was for the whole of the course of conduct alleged by Ms Poulton to be examined at trial, in the context of all of the evidence.

On Friday 6 December 2024 there was a hearing in the data protection case of Walker v Vardags KB-2023-002294.

Media Law in Other Jurisdictions

Australia

On 29 November 2024, the Australian Senate passed the Privacy and Other Legislation Amendment Bill 2024. This follows the passage of the Cyber Security Act 2024 and other cyber-security related amendments, on 25 November 2024.  The Privacy Act Bill contains key amendments to the Privacy Act 1988, most notably including a statutory tort for serious invasions of privacy. This tort will only apply (amongst other criteria) where the conduct in question was intentional or reckless, and this section of the Bill will take effect no later than six months after the Act receives Royal Asset. Read the DLA Piper, IAPP, and Privacy and Information Security Law Blog summaries for more information.

Canada

Canada’s largest media companies, including the Globe and Mail, Toronto Star, Postmedia, CBC, and Canadian Press, have filed a copyright infringement lawsuit against OpenAI, the owners of ChatGPT. The claim is the first high profile Canadian claim lodged against the popular AI service, though there have been similar claims filed elsewhere, notably including a New York Times claim launched last year. However, the Michael Geist blog analyses the weakness of the case to argue that the aim is probably settlement.

United States

On 2 December 2024, judgment was handed down dismissing the appeal in State of Washington v Meta Platforms, Inc., — P.3d —, 2024 WL 4929812 (Wash. Ct. App., Div. 1, Dec. 2, 2024). The original claim was brought in 2020 by the State of Washington against Meta, alleging violations of Washington’s Fair Campaign Practices Act. The case centred on Meta’s failure to comply with state disclosure laws, which require companies hosting political advertisements to maintain and disclose specific records of those ads. The state argued that Meta’s actions obstructed transparency in campaign finance, a cornerstone of Washington’s electoral integrity. The lower court ruled in favour of the state, finding that Meta had committed 822 violations of Washington’s disclosure law. Meta appealed the decision, arguing that the disclosure law violated the First Amendment, was pre-empted by federal law (specifically Communications Decency Act at 47 USC 230), and that the lower court had miscalculated damages. However, the appellate court upheld the lower court’s decision in full, rejecting each of Meta’s arguments. The Evan Law Blog has more information here.

The Guardian has an article imploring President Joe Biden to pardon whistleblower Reality Winner. The US air force veteran and former National Security Agency (NSA) translator was given the longest prison sentence ever given for leaking government information to the media. Winner was punished under the first Trump administration for sending an intelligence report about Russian interference in the 2016 elections to the investigative news organization the Intercept; the report indicated that Russian hackers had gained access to state-level voter information and apparently intended to use a “phishing” operation to hack it. The Cearta.ie blog also comments.

Cyber attacks linked to the Chinese government that compromised large portions of the American telecommunications network have been dubbed the “worst telecom hack” in US history by the chair of the Senate Intelligence Committee Sen. Mark Warner. The complex cyberattack, carried out by a group of Chinese hackers dubbed Salt Typhoon, began in 2022. Its purpose, according to US officials, was to give Chinese operatives persistent access to telecommunications networks across the US by compromising devices like routers and switches run by companies like AT&T, Verizon, Lumen and others. The Centre for Internet and Society blog explains Salt Typhoon. FBI officials have begun raising awareness about cyber threats from foreign actors in the wake of Salt Typhoon, encouraging Americans to start using encrypted messaging apps. Gizmodo has more information here.

Vietnam

Vietnam’s government has approved the new Law on Personal Data Protection. The law’s implementation date has been expedited to 1 July 2025. This legislation introduces stricter provisions than the existing Personal Data Protection Decree, aiming to establish a robust legal framework for regulating data usage in Vietnam’s evolving digital landscape. Vietnam Briefing has more information here.

Research and Resources

Next Week in the Courts 

Between Monday 9 and Wednesday 11 December 2024, there will be a  trial in the case of Jarmarleos Do Zurius v NHS England QB-2020-003210 before Aidan Eardley KC.

On Tuesday 10 December 2024 there will be a pre-trial review in the case of Various v News Group Newspapers 

On the same day there will be a hearing in Adams v Johnson.

As already mentioned, on Wednesday 11 December 2024, the Court of Appeal will hand down judgment in Prismall v Google.

On Thursday 12 December there will be a hearing in Wei v Long KB-2023-003483.

On Friday 13 December there will be a hearing in Thomas Cole v Marlborough College KB-2024-000127

Reserved Judgments

Ashley v The Commissioners for His Majesty’s Revenue and Customs,  heard 2 and 3 December 2024 (Heather Williams J)

Smith & Jackson v Surridge, heard 25 November – 3 December 2024 (Saini J)

Ashley v The Commissioners for His Majesty’s Revenue and Customs, heard 2-3 December 2024 (Heather Williams J)

Miller v Peake, heard 18 to 20 November 2024 (HHJ Parkes KC)

RTM v Bonne Terre Limited and another, heard 11 to 15 November 2024 (Collins Rice J)

Vince v Bailey, heard 11-12 November 2024 (Pepperall J)

Vince v Tice and Vince v Staines heard 11 November 2024 (Pepperall J)

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)

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)

Colette Allen is the host of Newscast on Dr Thomas Bennett and Professor Paul Wragg’s The Media Law Podcast (@MediaLawPodcast).