Take 10 - 10 March 2023

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

News items

Versi v Husain [2023] EWHC 482 (KB)

HHJ Lewis has handed down a determination on meaning in the case of Versi v Husain, a claim brought by the spokesperson for the Muslim Council of Britain against academic and journalist, Ed Husain. The case concerns an exchange on Twitter about whether or not either party was entitled to contribute to a debate on Islamophobia in the West. Two interesting issues arose in the judgment: the first was the extent to which Tweets which preceded the Tweet complained of would have been read by the ordinary reasonable reader, and the second was whether criticism of a person's political views (rather than the person themselves) could be deemed to be defamatory. In respect of the first point, the Court determined that the Tweet which was quoted in the Tweet complained of (the "quote tweet"), and the Tweet which was quoted in that quote tweet were all relevant context, but the ordinary reasonable reader would not have read other Tweets in the thread which were immediately available without further clicks and which were not published contemporaneously with the Tweet complained of. Secondly, whilst D sought to argue that the Tweet was not defamatory because it was advancing a criticism as to the effect of C's views, rather than criticising C himself, the Court held that that the Tweet comprised of a criticism of C's views and furthermore, was a criticism of C having expressed those views. In determining this second question, the judge drew on the analysis of Mr Justice Warby (as he then was) at [50] of Monroe v Hopkins [2017] EWHC 433 (QB), and summarised the key points as follows: "A statement about someone’s views is only defamatory if it attributes views that would lower a person in the estimation of “right-thinking people generally”, and a statement is not defamatory if it would only tend to have an adverse effect on the attitudes to the claimant of a certain section of society" [58]. A body of law around determining meaning in Twitter cases is slowly building up, including the interesting judgment in Simon Black & ors v Lawrence Fox. RPC acts for Ed Husain.

Arron Banks v Carole Cadwalladr [2023] EWCA Civ 219

Arron Banks has successfully appealed part of the judgment on his libel claim against Carole Cadwalladr before the Court of Appeal. Ms Cadwalladr successfully defended the whole of his claim at first instance which related to a Tweet she published and a TED Talk she gave, both of which suggested Mr Banks had lied about unlawfully sourcing electoral funding from Russia for the Brexit campaign.

The Court of Appeal had to deal with three issues. Firstly, whether the finding of serious harm at the time of publication (the first phase) needed to be reassessed at the point the public interest defence fell away (the second phase). The Court agreed with the trial judge's approach that the question of serious harm needed to be assessed again at the point the defence fell away and that a finding of serious harm caused by the TED Talk in the first phase did not necessarily equate to serious harm being caused in the second phase.

Secondly, the Court of Appeal considered whether the judge’s approach to the question of whether serious harm was established at the second phase was wrong in law. The Court found that the trial judge had incorrectly relied on the fact that the Talk and Tweet would be seen only by those in Ms Cadwalladr's "echo chamber" as this was irrelevant in deciding serious harm. There was also no evidence to suggest that because it was viewed only by Ms Cadwalladr's echo chamber (and therefore by people who already did not hold Mr Banks in high regard) this meant that the reputational harm caused was of "no consequence" to Mr Banks.

Finally, the Court of Appeal had to decide if these errors in law affected the trial judge's overall finding that no serious harm had been caused to the Claimant at the second phase. The Court found that whilst the errors in law had caused the trial judge to find, incorrectly, that the TED Talk had not caused serious harm in that phase, she had been correct to find that the Tweet had not caused serious harm. The allegations in the TED Talk were serious and the Talk was widely disseminated. By contrast, whilst the Tweet conveyed the same serious allegations, since its views diminished over time as it dropped down in Ms Cadwalladr's timeline, it did not cause Mr Banks the same serious reputational harm. 

Following this appeal judgment, the claim in respect of the Tweet (for both phases) and the TED Talk during the first phase therefore remains dismissed, whilst Mr Banks was successful in showing that serious harm was caused by the TED Talk at the second phase. RPC acts for Carole Cadwalladr.

FGX v Stuart Gaunt [2023] EWHC 419 (KB) : £100k damages awarded to victim of "revenge porn" 

Mrs Justice Thornton has awarded the Claimant in what she termed an "image-based abuse" action £60,000 in general damages as well as £37,041.61 in special damages to reflect consequential financial losses. The unnamed Claimant was clandestinely filmed in her bathroom by her ex-boyfriend, Stuart Gaunt, via a hidden microscopic camera. The Defendant later went on to upload the images to a pornographic website alongside a photo of her face. Mr Gaunt was previously convicted of voyeurism and other sexual offences in 2020, for which he received a suspended two-year sentence and was required to sign the sex offenders' register for 10 years. Thornton J's award reflects the Claimant's development of PTSD and a personality disorder consistent with the long-term psychological trauma developed by victims of rape. Furthermore, Mr Gaunt's lack of cooperation in the proceedings, such as the absence of a defence, limited the Claimant's ability to ascertain the magnitude of the images' publication, which caused further emotional stress. Thornton J particularly highlighted further "aggravating features" including the "needless" publication of the Claimant's face as well as payment being obtained by the Defendant in return for supplying the images. The Judge deemed the impact suffered by the Claimant "akin to the impacts of sexual assault" despite the abuse being image-based rather than physical. As this is a claim that is a first of its kind, Thornton J used the principle in ABC and WH v Willock to determine damages in relation to harm inflicted intentionally. 

Stoute v News Group Newspapers Ltd [2023] EWHC 232 (KB) 

This was a judgment on the return date of an injunction previously granted to the Claimants, a couple who won a £2 billion government contract to supply personal protective equipment (PPE) to the NHS during the Covid-19 pandemic. The Claimants had originally sought an injunction preventing the Sun newspaper from publishing pictures of them, their boat and their holiday home. The High Court granted an injunction in relation to the pictures of their assets but not of themselves. On the return date, the Claimants applied for injunctive relief again in relation to the pictures of themselves. They argued that the pictures published were different to those shown to the Court, as they showed more of their bodies, and therefore the injunction had been decided on an incorrect basis. They also claimed that they had a reasonable expectation of privacy when these pictures were taken, having been engaged in a private activity albeit in a public place. The Defendant argued that the application sought to re-litigate issues that had already been decided. 

The High Court held that making a repeat application for an injunction on the return date of a previous application is not an abuse of process and the Court has discretion to hear it if there is "good reason" to do so. Good reasons here included that the Claimants had made their earlier application for an injunction on short notice and that had the Claimants been shown the version of the photos published their evidence would have been different. Nevertheless, it held that the Claimants did not have a reasonable expectation of privacy since the pictures only showed what others on the beach would have seen that day and because of the "performative" nature of their arrival i.e. by jet ski. On the balance of convenience the Court found that since the photos had already been published the damage had already occurred and therefore the balance fell in favour of allowing continued publication of these photos. This judgment contains useful analysis about the purpose of a return date, and in what circumstances it might be used to reconsider the application. It also illustrates the current state of privacy law on photographs taken in public places.

Soriano v Forensic News LLC & Ors [2023] EWCA Civ 223

The Court of Appeal has handed down the latest judgment in relation to the long-running litigation brough by Mr Walter Tzvi, Soriano. Mr Soriano is an Anglo-Israeli businessman with British citizenship and residency who issued proceedings in various causes of action including libel and misuse of private information against various US-based Defendants. The Defendants made an application to the District Court for the Southern District of New York seeking disclosure of various documents from a bank connected to Mr Soriano in order to enable them to prove their truth defence. This application was made pursuant to a rule permitting the court in New York to assist an applicant with collecting evidence to support their case in proceedings outside the jurisdiction.

Mr Soriano applied to the English courts for an injunction to stop the first and second Defendants from making their disclosure application on the ground that it would be "vexatious, oppressive and unconscionable" and it would interfere with the proceedings. At first instance, this application was dismissed. On appeal, Soriano presented five grounds of appeal, including that in applying for disclosure outside of the jurisdiction, the Defendants were trying to get around the rules on disclosure in this jurisdiction, which only entitle defendants in libel proceedings to disclosure relating to the case as pleaded. In dismissing Mr Soriano's appeal, the Court of Appeal held that whilst the Court could grant an anti-suit injunction where it thought the defendant was acting unconscionably, this was not the case here. The Defendants were simply exercising a right open to them under US law which any party to any High Court proceedings, be it libel or other civil proceedings, would be entitled to do. 

Warburton v Chief Constable of Avon and Somerset Constabulary [2023] EWCA Civ 209

Mr Warburton brought a claim against the Avon & Somerset police force ("A&S") in defamation for providing false and defamatory information regarding Mr Warburton's conduct to the Hertfordshire Constabulary, which ultimately led to the withdrawal of a future job offer. Mr Warburton subsequently applied to amend his particulars to include a data protection claim, and he served revised draft particulars to include this cause of action. 

A&S refuted the defamation claim but conceded some data protection breaches, and made a Part 36 settlement offer "to settle the whole claim", which was accepted by Mr Warburton. Mr Warburton then issued new proceedings on the same data protection grounds. The vast majority of the claim was subsequently struck out as an abuse of process under Henderson principles. The Court of Appeal dismissed Mr Warburton's appeal against this decision. The court held that parties were not permitted to open the same subject of litigation in respect of matters which could and should have been brought as part of the previous proceedings. Allowing the new claim would create an unprincipled exception which would enable parties to bring second claims with impunity. When assessing the scope of the Part 36 offer, the Judge was entitled to consider the negotiations leading to settlement in order to determine if the second claim was an abuse. In this case, it was clear that negotiations were on the basis of settling all claims, including the data protection claim Mr Warburton had included in his draft particulars. The Appellant had also failed to notify A&S of the possibility of a second claim, which further justified the Court's finding.

Chatter

National Security Bill: Home Office fights to protect investigative journalism

The National Security Bill has been criticised over apprehensions that the current draft could criminalise journalists and whistle-blowers due to the wide scope of its wording. As a result, the Home Office have amended the Bill such that it would only be a criminal offence to disclose information or publish a news story that would "be likely to" materially assist a foreign spy agency as opposed to if it "may materially" assist such an agency. Many in the media industry are still not convinced that the amendments are sufficient to preserve public interest journalism. This is particularly the case as the proposed new test threads precariously on the line of subjectivity and objectivity when considering what activities the individual "ought to have known" would be prejudicial to the UK's safety and what they actually "knew" to be prejudicial – the latter being difficult to prove. The Bill arises out of a need for a public interest defence to protect journalists, public servants, and intelligence officers. However, many ministers have maintained a sceptical stance over fears that the defence could act as a loophole which could facilitate espionage. The Bill is currently in the final parliamentary stages and will be replacing the Official Secrets Act 1911, 1920, and 1939 once ratified. 

New Data Protection and Digital Information Bill (No.2)

An amended Data Protection and Digital Information Bill (No.2) was brought before Parliament on 8 March 2023. According to the Department for Science, Innovation & Technology (DSIT) this new Bill seeks to uphold the GDPR whilst making it easier for businesses to understand and comply with data protection legislation. There are, however, some concerns from various rights organisations, such as the Open Rights Group, that in making it easier to comply with data protection rules, individual rights could be limited.

Public Order Offences under the Public Safety Bill 

Following debate in the House of Lords, calls have been made for a tighter definition of public order offences under the Public Order Act 1986, such as causing alarm or distress, before determining them as priority illegal content for proactive removal from social media platforms under the Online Safety Bill. The Open Rights Group have publicised the debate in a Tweet.

Oakeshott reveals all

Isabel Oakeshott has leaked Matt Hancock's Whatsapp messages regarding the Covid-19 pandemic, which she received whilst working with Hancock to ghost-write his book - Pandemic Diaries: The Inside Story of Britain’s Battle Against Covid. Oakeshott justifies the leak on the grounds of public interest. Whilst the breach of an existing non-disclosure agreement (NDA) governing Oakeshott's relationship with Hancock gives rise to potential contractual liability, there are also potential issues arising in breach of confidence and misuse of private information given both the confidential and private nature of the messages divulged.

Surgeon granted anonymity during inquests into herpes deaths

A Coroner has granted anonymity to a surgeon suspected of having caused the death of two new mothers by infecting them with the herpes virus. After weighing the surgeon's Article 8 rights against the media's Article 10 rights, the Coroner considered it necessary to grant the surgeon anonymity to avoid hampering his ability to give evidence at the inquests and harming his reputation when currently there was no evidence to suggest any wrongdoing by him. The Coroner confirmed that the position would be revisited in light of the inquests' findings. 

Quote of the fortnight:

"[57] We live in a modern, diverse society which recognises the importance of freedom of thought, and of expression.  Whilst there is a broad consensus within society on matters such as the rule of law, on many issues of public policy there is not.  Our democratic process relies on robust debate and discussion and allowing the free expression of views.  Not all views will be mainstream, and at every election there are candidates who stand on platforms that reflect the range of views in society, including from both ends of the political spectrum.  Ordinarily, right-thinking members of society generally would not think less of someone for simply expressing their views on a matter, or disagreeing with another".