Take 10 – 23 May 2024

Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.

Application of defamation consent defence considered in the context of a grievance investigation

Mr Justice Linden has handed down judgment in an appeal in the case of Camacho v OCS Group UK Limited following the summary dismissal of claims in harassment, defamation, and unlawful means conspiracy. The claim relates to allegedly defamatory statements made in the course of a grievance procedure at work, which the Defendant employer argued had been consented to by the Claimant employee by virtue of her agreeing to be bound by an internal grievance policy. 

However, Linden J held that signing the employment contract did not mean that the Claimant had provided unequivocal and informed consent to then unknown allegedly defamatory statements made in the course of a hypothetical grievance. He therefore held that the Master was wrong to dismiss the defamation claim on the basis that the Defendant had an unanswerable consent defence. 

The defamation claim therefore continues. However, the judge noted that that when a statement is made in the course of a grievance investigation, it is made to a limited audience and the employer has an opportunity to determine whether or not the statements might be false or malicious. It therefore remains to be seen as to whether the Claimant will be able to surmount the threshold to prove serious harm.  

Proposed amendments deemed to be "prejudicially late" 

An application by the Claimant group in the long-running hacking litigation against NGN to make 353 amendments to the generic pleaded case has largely failed on the basis that they were inadequately pleaded, disproportionate or made "prejudicially late" (the trial is due to take place in January 2025). In the judgment, the Claimants were refused permission to (i) extend the relevant period by three years; (ii) make specific allegations against Rupert Murdoch and other senior executives personally; and (iii) rely on new private investigators on the basis that no specific wrongdoing had been alleged. Some relevant amendments were permitted.

Craig Wright's Fraud

In a scathing judgment, Mr Justice Mellor has found that computer scientist Craig Wright fraudulently claimed to be Satoshi Nakamoto, the pseudonymous creator of Bitcoin. In March, the judge declared that Wright's claim to be Satoshi was fraudulent immediately after closing submissions of a month-long trial, finding that "the evidence was overwhelming". The 231-page judgment set out 40 documents Wright forged to deceive the Court into believing his claim. Wright previously tried to use the presumption of falsity in defamation as a tool to obtain a judgment which he could rely on to prove his false claims to be Satoshi. In 2019, he sued a number of individuals, including Peter McCormack, for statements that he was fraudulently claiming to be the elusive founder of Bitcoin. In that case, Wright was found to have run a 'deliberately false case' and was awarded £1 nominal damages. RPC acts for Peter McCormack.

BBC settles slander claim with Princess Di's former chauffeur

A Statement in Open Court was read on behalf of Steve Davies, the former chauffeur of Princess Diana and the BBC last week. The claim arose out of a comment made by former BBC journalist Martin Bashir to Princess Diana at a 1995 meeting where he told her and Earl Spencer that Mr Davies was leaking information to the press. Issued almost 30 years after the words complained of were spoken, the claim follows the dramatisation of the meeting in an episode of Netflix's The Crown broadcast in 2022 and the 2021 publication of the Report of the Dyson Inquiry which found that Mr Bashir's behaviour was "deceitful" and a "serious breach" of the BBC's producer guidelines.

Calls for SRA to have higher fining power to respond to SLAPPs

As the government-backed Private Members' Bill on SLAPPs continues to make its way through Parliament, the House of Lords Select Committee on Communications and Digital have written to the Lord Chancellor to address amendments to the Bill and the use of other methods to tackle SLAPPs.  

Whilst the Bill remains in the House of Commons, the House of Lords has raised some issues early to ensure that there is sufficient time in the legislative timetable for them to be considered (although yesterday's announcement of an impending general election is certain to delay its progress). In particular, the letter supported the provision of unlimited fining powers to the SRA for all SLAPPs, as is currently the case where solicitor misconduct relates to economic crime pursuant to the Economic Crime and Corporate Transparency Act.  At present, most law firms can only be fined a maximum of £25,000.

The Select Committee's letter also suggested other amendments to the Bill, including more effective use of pre-action protocols to prevent SLAPPs at an early stage and removing references to harassment, alarm and distress in the 'ordinary course of litigation' to remove the assumption that this kind of conduct is accepted in proper and reasonable litigation.  Other calls to action beyond amendments to the Bill included extensions of the SRA's powers to outsourced firms such as PR firms and tighter AML regulations which extend to payment for solicitors' legal advice on public interest cases.

Last Thursday, the Media team's Sami Thompson spoke on a panel at the inaugural ThoughtLeaders4 Media Disputes conference alongside Adam Cannon (NGN), Franz Wild (The Bureau of Investigative Journalism) and Gideon Benaim (Simkins) on the subject of SLAPPs.

Ofcom considering statutory sanction to GB News on impartiality breaches

Ofcom has announced that it is launching an investigation into whether it should issue a statutory sanction to GB News following a breach of the due impartiality rules in the People's Forum: The Prime Minister programme, which Ofcom stated represented "a serious and repeated breach of these rules".  Whilst the regulator recognised that given the nature of the programme, Conservative Party views would be prevalent, it said that GB News did not take sufficient steps to ensure a wide range of significant views were given due weight. 

Ofcom plans to conduct its investigation and determine whether a statutory sanction is warranted within two months. As part of the process, GB News will be provided with a Preliminary View and an opportunity to make written and oral representations to Ofcom.  GB News rejected Ofcom's findings and said the investigation was "an alarming development in its attempt to silence us by standing in the way of a forum that allows the public to question politicians directly". It has also said that it is challenging the decision.

Ofcom on the impartiality rules at the Communications and Digital Committee 

In other broadcasting related news, Ofcom's Chief Executive, Dame Melanie Dawes, appeared at the Communications and Digital Committee's inquiry on 'The Future of News' last week. The Chief Executive took the opportunity to respond to criticism that Ofcom has been inconsistent in applying impartiality guidelines. Dame Melanie noted that Ofcom relied on the importance of assessing the context of each programme as impartiality "is in the eye of the beholder somewhat", meaning clear guidelines of what is permitted cannot be drawn for certain in advance and a degree of flexibility is often required.  Ofcom additionally stressed that any impartiality decisions are not guided by the channel it comes from, and that they issue rulings "without fear or favour".

Ofcom and Twitch work together to improve protections for children  

On 13 May, Ofcom announced the result of its "period of compliance remediation" with Twitch, the video sharing platform, following concerns regarding Twitch's sufficient measures to prevent children watching videos on 'Restricted Material', which is defined under the Communications Act 2003 as adult content and other video material which might impair the physical, mental and moral development of children.  

Twitch made various changes to its platform in the compliance period, including restricting access to content classed as containing sexual themes and gambling for registered under-18 and logged-out viewers, removal of content under certain classifications from the home page and additions to its Guide for Parents and Educators. These changes have been deemed by Ofcom to be sufficient to avoid the commencement of a formal investigation. 

AI updates: data security, accessibility, and legislation 

The ICO has launched a consultation on the impact of generative AI on the rights of data subjects. The regulator is seeking views from organisations who are developing generative AI, particularly in respect of the measures they are taking to enable individuals to exercise their data subject rights.   The consultation is open until 10 June and we anticipate the responses will be used to take the temperature of whether further guidance is needed for these organisations who may be utilising personal data from a range of existing sources. The Department for Science, Innovation and Technology has also launched its own consultation on cyber security in AI, which is open until 10 July and will likely feed into a voluntary Code of Practice on this subject matter.

Meanwhile, the EU AI Act has been approved by the Council of Europe and the Artificial Intelligence (Regulation) Private Members' Bill has moved back to the House of Commons after having its third reading in the House of Lords. Given the current government's pro-innovation approach to technology, there is no indication of when or whether UK legislation (rather than regulation) will be enacted.  

RPC @ London Tech Week

On the subject of pro-innovation, London Tech Week is around the corner, and RPC will be hosting several in-person sessions on 12 and13 June 2024. There will be a particular focus on consumer technology on 12 June, and you can register to attend here.

Quote of the fortnight:

"We have heard repeated concerns that law firms may engage private intelligence firms or PR firms to survey, intimidate or smear defendants... We believe that the Government should therefore consider extending the remit of the SRA to ensure the activities commissioned directly by solicitors may be subject to regulatory oversight. This would help prevent law firms from simply outsourcing activities that breach the SRA’s professional standards." – House of Lords Select Committee on Communications and Digital.