Take 10 - 7 March 2025

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

Law Commission launches supplementary consultation on contempt of court reforms

On 3 March 2025, the Law Commission launched a supplementary consultation on its proposed contempt of court reforms. This follows its consultation in 2024 as previously reported in Take 10.

The supplementary consultation seeks further views on two questions posed in the earlier consultation, namely: (1) should the test for contempt by publication remain the same i.e. it must be proven that the publication creates a substantial risk that the course of justice will be seriously impeded or prejudiced; and (2) should there be a defence that ensures public discussion of matters of public interest is not unnecessarily or disproportionately restricted where proceedings are active? The Law Commission seeks to understand whether views on these issues have changed since July 2024, particularly since the high-profile Southport murders and some suggestions that restrictions on the information public authorities could disclose in relation to the defendant because of contempt law "helped to create an information vacuum into which misinformation, disinformation and counter-narratives could spread unchecked".

It is recommended to read the Supplementary Consultation Paper prior to responding which provides further guidance. Responses are due by 31 March 2025.

High Court quashes Ofcom rulings against GB News

Mrs Justice Collins Rice found Ofcom erred in its interpretation of Rule 5.1 (due impartiality in news) and Rule 5.3 (politicians presenting news) of the Broadcasting Code (the 'Code') in relation to two editions of Jacob Rees-Mogg's State of the Nation on 9 May and 13 June 2023. This is the first successful judicial review of Ofcom's application of the Code.

Mr Rees-Mogg was a member of parliament at the time. In the first programme, he read a 53-second long autocue summary of breaking news relating to the decision in the civil proceedings in which Jean Carroll was suing Donald Trump over allegations of sexual abuse and rape. The second programme featured a brief discussion between Mr Rees-Mogg and a correspondent who had just reported (in a separate news bulletin) on fatal stabbings in Nottingham. Ofcom held that these two short interactions breached the Code. 

Collins Rice J held that Ofcom's analysis did "violence to the wording of the Code" given that Rule 5.3 expressly states it only applies to "news programmes" rather than news-related activities of politicians in current affairs programmes. In addition, it is not the case that Rule 5.1 (due impartiality in news) can be breached purely because content is presented by a politician. The assessment of due impartiality requires a fully contextual approach: the fact Jacob Rees-Mogg was a politician was only one of various relevant factors to consider. Other relevant factors included the nature and content of the material and the programme. Ofcom has been ordered to pay GB News' costs and has said it will now consult on proposed changes to Rule 5.3 to seek to restrict politicians from presenting news in any type of programme.

Clarke v Guardian trial goes ahead after Mr Clarke's appeal attempt fails

The trial in Noel Clarke's libel action against the Guardian newspaper commenced this week, after two recent appeals by Mr Clarke over decisions by Mrs Justice Steyn (the trial judge) were dismissed by the Court of Appeal. 

On 21 February, Lord Justice Warby dismissed Mr Clarke's appeal of Steyn J's case management decision to defer the determination of his application to amend his claim until after the trial of liability in his existing libel action. Mr Clarke sought permission to join a further six defendants and re-amend the claim to add a new cause of action for conspiracy to injure by unlawful means. It was common ground at the pre-trial review that allowing the amendment application to be heard would make it impossible for a trial of the whole action to go ahead, as listed, on 3 March.  Mr Clarke argued, however, that deferring his amendment application until after a trial of liability in the libel claim stifled his "legitimate claim in unlawful means conspiracy".  In dismissing the appeal, Warby LJ found that Steyn J had made a legitimate case management decision in deferring the amendment application, which would have taken 5-6 weeks to prepare and for which the proposed additional defendants should have notice of, and he considered Steyn J right to say the process would have been hugely disruptive.

Days later on 27 February, LJ Warby refused to grant Mr Clarke permission to appeal the dismissal of his application to strike-out the Guardian's defence and to adduce fresh evidence on appeal. Warby LJ considered the appeal would have no realistic prospect of success. The strike-out application was based on allegations of an attempt to pervert the course of justice by deleting evidence relevant to the proceedings and fabricating documents, which Steyn J dismissed at first instance.  Warby LJ found there to be no realistic prospect of Mr Clarke establishing either a material error of principle or a material factual finding that was not reasonably open to the judge.

With this ruling, Mr Clarke's attempts to delay the trial (which has now commenced) have been exhausted and the Guardian's truth and public interest defences over allegations of sexual harassment, bullying, unwanted touching and related conduct by Mr Clarke will now be determined.

Ofcom launches enforcement programme and issues further OSA guidance

Reminder: Ofcom's deadline for online service providers to complete their illegal harms risk assessment pursuant to the Online Safety Act 2023 (OSA) is 16 March 2025.  See our December issue for more details. 

Ahead of this deadline, on 3 March 2025 Ofcom issued formal information requests to a number of service providers "including a large number of social media platforms, as well as smaller but risky sites". The request asks for responses by 31 March 2025 to submit records of the service providers' illegal harms risk assessments.  Responses will be used to drive improvements in the risk assessment process and inform Ofcom's future policy work. On the same day, Ofcom launched its enforcement programme to monitor compliance with the illegal content risk assessment and record keeping duties in anticipation of these deadlines. 

In other news, Ofcom has published guidance on its information gathering powers under the OSA following a consultation on the draft in July 2024. The guidance explains how and when the regulator may exercise its powers and includes more detail than in previous drafts on the protections provided by the OSA concerning disclosures Ofcom may be required to make to overseas regulators, as well as elaborating on Ofcom's approach to user privacy; stakeholders' systems' security; remote viewing of information in real time, and the use of datasets following tests and demonstrations.

Finally, Ofcom has opened a consultation on draft guidance for tech companies regarding the safeguarding of women and girls under s.54 of the OSA. The draft guidance focuses on four harms: online misogyny, pile-ons and online harassment; online domestic abuse; and image-based sexual abuse. Ofcom has suggested service providers take action in three key areas: taking responsibility; preventing harm; and supporting women and girls. Responses should be submitted by 23 May 2025. The final guidance is expected in late 2025. 

Meaning determined in Vince v Staines and Vince v Tice

Mr Justice Pepperall has handed down judgment following a joint preliminary issue trial on meaning in Dale Vince's libel claims against Paul Staines and Richard Tice MP. 

The claim against Mr Staines, founder and then-editor of the political blog Guido Fawkes, concerns two articles published in March 2024 discussing Mr Vince's interview on Times Radio on 9 October 2023 during which Mr Vince said, when asked a question concerning Hamas, that "one man's freedom fighter is another man's terrorist". The first article included a 16-second extract of the Times Radio interview.  The articles questioned whether Labour ought to return donations made by Mr Vince in light of the "one man's" comment.

On 13 March 2024, Mr Tice "quote tweeted" a Guido Fawkes tweet containing a link to the first article and added: "So major Labour donor is pro the murderous antisemitic Hamas….Mmmm" [63].

In the case against Mr Staines, while Pepperall J found nothing in the first article to support Mr Vince's case that it expressly imputed Mr Vince's support for the terrorist acts of Hamas on 7 October 2023 [45.1], he nevertheless found that (among other meanings) the articles conveyed as a statement of fact that Dale Vince said of Hamas that "one man's terrorist is another's freedom fighter" and that he described the Hamas terrorists that carried out the October 2023 attacks as, and believes they are, "freedom fighters" [48, 51, 58 and 60]. Conversely in the case against Mr Tice, Pepperall J found the tweet meant that Mr Vince supports the murderous and antisemitic terrorist organisation Hamas [92], but that this was a statement of opinion [100]. In reaching this conclusion, Pepperall J noted that the "more clearly a publication indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion" [98] and relied on the opening remark "so" in the tweet implying a conclusion from the retweeted material as well as the robust and opinionated nature of the tweet as reactive political commentary [100].  

The judgment follows an earlier decision by Pepperall J in a similar case brought by Dale Vince against Shaun Bailey (again stemming from the same "freedom fighter" comment by Mr Vince). The cases continue to highlight the various nuances in determining meaning and whether allegations are of fact or opinion, which will be highly context-specific exercises. RPC acts for Paul Staines.

Former local Council clerk succeeds in defamation claim against Council member  

On 28 February 2025, His Honour Judge Richard Parkes handed down judgment and awarded Dr Miller £20,000 in damages for his successful claim in defamation against Andrew Peake.

Mr Peake (a member of Fleggburgh Parish Council until April 2021, which included the time during which Dr Miller was a clerk for the same council) created a Facebook page initially named "Andrew Peake of Fleggburgh" and later "Fleggburgh Eye" in which he made a large number of publications about Dr Miller. The 12 publications ultimately complained of were reviewed by the Judge, who found that they accused Dr Miller of being sexist, threatening Council members and third parties, being dishonest and incompetent, and fraudulently using substantial sums of public money for parish council work which was allegedly never completed [25-66].

The Court determined that all 12 publications were defamatory and inferred that, taken individually or as a whole, they caused serious harm to Dr Miller's reputation [77]. The Judge also rejected Mr Peake's defences of truth, honest opinion (finding many of the allegations to be bare comments or were based on allegations that the Judge found to be untrue) and publication on a matter of public interest.

The Court awarded Dr Miller £20,000 in damages, which the Judge described as "fairly modest overall", notwithstanding the gravity of the allegations and the serious harm caused, in order to reflect the fact that due to the repetition of Mr Peake's allegations in his posts, "more perceptive readers may well have thought…that Mr Peake was an obsessive who was fixated on abusing Dr Miller" and thus would have taken the posts less seriously [242].

ECtHR rejects Article 8 breach over failed defamation claim in Toth and Crișan v Romania

The European Court of Human Rights (ECtHR) has dismissed a claim by two police officers for alleged infringement of their Article 8 ECHR rights. The claim arose from the officers' unsuccessful defamation claim against an individual (C.T.) who had published a Facebook post allegedly falsely accusing the officers of physically and verbally assaulting C.T. and her mother. The post included a photograph of the officers in their uniforms on a public street. The publication received 160 likes and ninety-two comments by third parties which referred to the applicants as "scumbags", "imposters" and "idiots".  C.T. had been fined by the officers for an offence related to household waste disposal, which was later reduced after a court found that the applicants had behaved inappropriately towards her. The Romanian court dismissed the defamation claim because the court's conclusion relating to the fine had a res judicata effect and because even though the post resulted in "some trivial third party comments", it had not harmed their reputations [16].

After exhausting their domestic appeals, the officers complained to the ECtHR and argued that by dismissing the defamation claim, the domestic court had failed to strike a fair balance between the competing interests and had not adequately protected their right to a private life and reputation [27]. The Romanian Government argued that the applicants could not complain of a violation of Article 8 because they had been acting in their professional capacity as police officers when C.T. had taken their photograph [28].

The ECtHR did not doubt that C.T.'s post was capable of contributing to a debate of general interest, namely the alleged abusive conduct of the police [63]. The court acknowledged some of the third party comments left on the post were defamatory but found nothing to suggest C.T. had invited or endorsed the comments, or that she had any power to control the content of the Facebook page [90]. The ECtHR concluded that while police officers did not knowingly lay themselves open to close scrutiny to the extent politicians do, they nevertheless had a lower expectation of privacy for conduct in the course of their employment [70-71]. Therefore, no violation of Article 8 was found.

Meaning determined in Ware v Waters & Al Jazeera

On 25 February 2025, Mrs Justice Eady delivered judgment on meaning in the libel proceedings issued by documentary maker John Ware over two versions of an interview given by Roger Waters (founding member of the band Pink Floyd) and broadcast by Al Jazeera Media Network called "Roger Waters on Gaza, Resistance and Doing the Right Thing" in February 2024. The interview referred to a documentary made in 2023 called "The Dark Side of Roger Waters" in which Mr Ware alleged that Mr Waters was an antisemite. Mr Ware alleged that statements in the interview would be understood to mean that Mr Ware had deliberately lied about Mr Waters being antisemitic, and that Mr Ware supported the genocide of Palestinian people [19].

Eady J found that the statements in both edits of the interview bore the same natural and ordinary meaning (the underlined words being statements of fact whilst the rest were deemed expressions of opinion): 1. The claimant had made a documentary that contained lies about the first defendant, and he had done that as a response to the first defendant’s public support for the Palestinian cause because he (the claimant) was acting as a Zionist mouthpiece and wanted to undermine what the first defendant was saying; and 2. The claimant positively supported the genocide of the Palestinian people by Israeli forces (whereby “genocide” means the wholescale destruction of the Palestinian people)[49].  The Judge found that the basis for the opinion in the first statement was Mr Ware's documentary and the basis for the opinion in the second statement was indicated to be the Israeli forces' conduct in Gaza.  

The Judge explained the statements complained of were considered in the context of the relevant edit of the interview as a whole, finding that a reasonably short programme of 25 minutes long would be watched in one go [39].  The claimant argued that captions used in both edits of the interview (some of which referred to the existence of allegations of antisemitism against Mr Waters as part of a "smear campaign to denounce him") reinforced the defamatory meaning of the interviews [19]. The Judge noted that she only considered the captions to have impacted her impression of the interview upon consideration in "hindsight" and that she did "not pay attention to them" upon initial viewing save for the first caption noting Mr Water's past career, which the Judge assumed would already be known by most viewers [39].

Judgment entered for Claimant in conspiracy theorist claim – Rzucek v Vinnicombe 

The High Court has struck out the Defence and entered judgment for the Claimant in a claim for defamation and harassment over an alleged campaign of "unfounded conspiracy theories".

Mr Rzucek, based in the US, issued the claim against Mr Vinnicombe for publications made on various platforms including his YouTube channel "Armchair Detective BLUE" which had over 79,000 subscribers. Mr Rzucek complained that Mr Vinnicombe had "promoted unfounded conspiracy theories" concerning the tragic murder of the Claimant's sister, Shannon Watts, and Shannon's daughter and unborn child. He also alleged that Mr Vinnicombe had published defamatory statements indicating that Mr Rzucek's crowdfunding campaign was fraudulent and/or dishonest.

After two years and four attempts to file a Defence, the Judge struck out Mr Vinnicombe's non-compliant Defence and counter-claim, which she considered was "essentially a mishmash of legal wording and vague assertions of unspecified 'evidence'", and entered judgment for Mr Rzucek.  A final hearing will now be listed to determine the legal remedies and address any outstanding issues and costs. The case is an important reminder of the importance of statements of case complying with the Civil Procedure Rules, with the Judge regarding it "vital to the fairness of proceedings allowing both sides to understand the case they need to answer. Without a compliant defence, it is impossible for the Claimant to reply or, ultimately, for a court to come to a considered conclusion on proceedings" [21].

Anti-corruption guidelines equating journalists with criminals updated

National guidance produced by the College of Policing for England and Wales which had controversially equated media professionals with convicted criminals has been changed.

The guidance, aimed at tackling corruption, required police officers to inform their employer about connections they had to members of the media, criminals and people in extremist groups.  This emerged following a 2022 HM Inspectorate of Constabulary report on corruption in the Met Police which held that the force was not complying with national anti-corruption guidance. HMIC apologised and agreed to change its report and now three years later, the College of Policing has changed the underlying guidance. 

The new guidance adds a list of other professions aside from members of the media that officers should disclose associations with, including lawyers, private investigators or staff of a firm with a commercial link to a police force. It also adds greater clarity on the reasoning behind the need for disclosures, explaining that there are "some professions and occupations which, due to their nature, could give rise to conflict of interest, or a perception of such a conflict."

Quote of the fortnight

"The internet has become one of the principal means by which individuals exercise their right to freedom of expression. It provides essential tools for participation in activities and discussions concerning political issues and issues of general interest…the internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. User-generated expressive activity on the internet provides an unprecedented platform for the exercise of freedom of expression"

Judgment of the European Court of Human Rights in Toth and Crișan v Romania (Application no. 45430/19) at [53] (25 February 2025).