Take 10 - 12 January 2024

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

The Media Team would like to wish all of our readers a Happy New Year and best wishes for 2024!

Duke of Sussex loses strike out bid in defamation claim against ANL 

ANL has successfully defended an application to strike out or obtain summary judgment on its honest opinion defence, brought by the Duke of Sussex in his claim over an article published by the Mail on Sunday in February 2022, which reported on the Duke's Judicial Review proceedings against the Home Office concerning his security arrangements when visiting the UK.  An earlier ruling in July 2022 determined the meaning of the article and found the overall defamatory allegation to be an expression of opinion – namely that the Duke was responsible for making misleading and confusing public statements about the true nature of his Judicial Review proceedings.

The judgment provides helpful guidance on important elements of the honest opinion defence pursuant to s.3 Defamation Act 2013.  Citing the recent Court of Appeal decision in Riley v Murray, Mr Justice Nicklin confirmed that (a) whilst the facts relied on by the defendant in support of an honest opinion defence must be proved true [40(1)], the defendant is not required to prove the truth of every fact provided that the facts that are proven are logically and sufficiently supportive of the defamatory opinion [40(2)]; and (b) whilst the defendant is not required to prove as true the facts indicated in the statement complained of as the basis of the opinion, and whilst the language of the statute in s3(4)(a) suggests that proof of "any fact" will do, there must be a sufficient nexus between the facts relied on and the subject matter of the statement complained of [40(3)] – extraneous facts are irrelevant to the question of whether an honest person could hold the opinion based on those facts unless they are "truly exculpatory" [40(4)]. 

Overall, Nicklin J held that "it is not fanciful that the Defendant will be successful, at trial, in demonstrating that the public statements issued on the Claimant's behalf sought to promote the JR claim as his battle against the Government's (perverse) decision to refuse to allow him to pay for his own security", and that ANL has a real prospect of demonstrating that this was misleading, suggesting it "may well submit that this was a masterclass in the art of 'spinning'" [62].  The claim will proceed to a 3-4 day trial starting on 23 July 2024. RPC acts for ANL.

Judgment in Duke of Sussex & Ors v MGN Limited

Following the six-week phone hacking trial in May and June last year, Mr Justice Fancourt handed down judgment on 15 December 2023, making various findings in both the generic aspects of the litigation and in the four individual claims of the Duke of Sussex, Michael Turner, Nikki Sanderson, and Fiona Wightman.  The Court held that all four Claimants were subject to unlawful information gathering by MGN.  But it dismissed the claims of Ms Sanderson and Ms Wightman on grounds of limitation, finding that a reasonable person could have discovered MGN's concealment of UIG more than six years before their proceedings were issued.  This finding will have implications for many existing and future claims against MGN.

The Duke of Sussex was awarded £140,600 in damages (having asked for £443,025) and Michael Turner was awarded £31,650 (having asked for £136,250).  The Duke of Sussex's claim continues as the court only had time to consider part of his claim.   

Two former directors of MGN's parent company, then known as Trinity Mirror, were found to have known about hacking and UIG prior to the Leveson Inquiry (contrary to their evidence) and this entitled the Duke of Sussex and Michael Turner to awards of aggravated damages (included in the figures given above).  The Court found that Trinity Mirror's board of directors as a whole was not aware of UIG. 

A consequential hearing to determine issues of costs and other matters arising out of the judgment will be held at the end of this month.  RPC acts for MGN. 

Disclosure applications refused on the basis of s.10 Contempt of Court Act 1981

The High Court has refused two applications for non-party disclosure orders against the Sunday Times, the Bureau of Investigative Journalism, and its editor, Franz Wild.  The applicants, Stokoe Partnership Solicitors and Karam al Sadeq, sought information they said was held by the Respondents which had led to the publication of articles concerning a global "hack-for-hire" industry and which was relevant to ongoing legal proceedings.  Whilst Murray J accepted that the information sought would meet the tests for necessity and relevance set out in CPR 31.17(3), he also accepted the Respondents' evidence that there was a serious risk of disclosure of a confidential source or sources if the information were to be provided (including in redacted form) and ultimately refused the application on the basis of s.10 Contempt of Court Act 1981.  The judgment is a useful reminder of the test for third-party disclosure under CPR 31.17 and the law protecting journalists' sources.  RPC acted for the Respondents.

SLAPP claim struck out

On 8 January 2024, the High Court of Northern Ireland handed down judgment in favour of the Defendant, Belfast Telegraph journalist Malachi O'Doherty, in a four-year libel battle brought by Gerard Kelly, a member of Irish political party Sinn Féin.  The politician alleged that his reputation was "gravely damaged" following two radio interviews where the journalist claimed Mr Kelly had shot a prison officer.  Master Bell dismissed the claim, describing it as "scandalous, frivolous and vexatious", given the Claimant's own books appeared to make him at least civilly liable for the shooting [57].  The Judge held that the proceedings "bear the hallmarks of a SLAPP", not least given the claim was targeted at a freelance journalist, rather than any corporate defendant, and that the abuse of process was "so blatant it would be utterly unjust to allow the proceedings to continue" [73].  Mr O'Doherty was accordingly awarded both his costs of the application and his costs of the action on an indemnity basis.

Further judgment on meaning awaited in Dyson libel claim

On 15 December 2023, the High Court heard arguments in a preliminary issue trial in the libel claim brought by two Dyson companies against Channel 4 over a news broadcast in February 2022.  The programme alleged that ATA Industrial, a company in Malaysia manufacturing Dyson products, had abused and exploited its workers and Dyson was criticised for its handling of the situation.  Dyson Technology Limited and Dyson Limited are seeking damages, an injunction, and orders pursuant to ss.12 and 13 Defamation Act 2013.

The December hearing was unusual in that it was required by virtue of the Court of Appeal allowing an appeal against the judgment following the first preliminary issue trial in which meaning was determined.  The Court will therefore be required to rule once more on the natural and ordinary meaning of the broadcast, assess whether its meaning was defamatory at common law, and examine whether the programme contained statements of fact or opinion.  In particular, the issues of identification and reference will need to be revisited following the Court of Appeal's finding that the ordinary reasonable reader would identify the corporate claimants as being referred to in the broadcast.  Judgment is awaited.

Improvements for open justice in the family courts 

Last year, a pilot scheme which aims to increase transparency in the family court system was introduced in a handful of courts.  Under current law, and in courts where the pilot is not applicable, journalists and legally-qualified bloggers can attend family court hearings but reporting is prohibited unless the judge hearing the case allows it.  In Leeds, Cardiff and Carlisle, under the new pilot, accredited journalists and legal bloggers are allowed to report on hearings, subject to protecting the identities of the families and certain professionals involved.  From 29 January, the pilot will be extended to 16 further courts across the country.  In the pilot courts, Transparency Orders set out what can and cannot be reported, reporters are provided access to some basic court documents, and families can speak to a journalist about their case without risking punishment for contempt of court.  In certain circumstances, however, judges can still restrict or postpone reporting.

Non-material damage under the GDPR

On 14 December 2023, the Court of Justice of the European Union ("CJEU") handed down judgment in VB v Natsionalna agentsia za prihodite, which considered the ability to claim compensation for non-material (i.e. non-financial) damage under the General Data Protection Regulation ("GDPR").  An individual had brought proceedings against the Bulgarian National Revenue Agency arguing that they had suffered non-material damage following a 2019 data breach caused by the Agency's failure to fulfil certain obligations under the GDPR.  The non-material damage asserted concerned the fear of their personal data being misused in the future, or of blackmail, assault or kidnapping.

Following its ruling in the Österreichische Post case, the CJEU clarified that an individual's fear of the possible misuse of their personal data arising from infringement of the GDPR may, in itself, amount to non-material damage.  The Court must be satisfied that the fear is well-founded for the individual concerned in all the circumstances.  The CJEU also held that a controller might be required to compensate individuals for damage unless it can prove that it is "in no way responsible for that damage".  It accepted that the mere occurrence of a data breach does not give rise to the conclusion that a controller did not implement appropriate measures, and that the national courts should assess the measures implemented in a concrete manner by examining both their nature and content, but that the burden is on the controller to prove that the measures implemented were appropriate. 

Newspaper to sue Michelle Mone

The New European newspaper is planning to take legal action against Lady Michelle Mone, the wife of PPE provider Doug Barrowman, over the money it spent in legal fees defending her threats to file defamation claims over the paper's reporting of her involvement with the PPE procurement scandal.  Mr Barrowman's company, PPE Medpro, was awarded contracts worth more than £200 million to supply gowns and face masks, from which Baroness Mone stands to benefit from £60 million in profits placed into a trust for her by her husband.  The newspaper reported on allegations that the company supplied defective PPE equipment to the NHS after Lady Mone had recommended it to ministers.  The Baroness initially claimed to the press that she had no connection to PPE Medpro and threatened to bring legal proceedings against The New European, but she has since admitted that this was dishonest.  The newspaper hopes to "establish a future deterrent against wealthy individuals willing to lie to stymie honest reporting".  Lady Mone's private office maintains that the newspaper published inaccurate reports and that ministers were always aware of the Baroness' involvement with PPE Medpro.

ICO's response to the Data Protection and Digital Information (No.2) Bill 

In December 2023, Information Commissioner John Edwards released an updated response to the Data Protection and Digital Information (No. 2) Bill, which he had previously scrutinised in March 2023.  The Bill intends to maintain the high data protection standards imposed by the EU General Data Protection Regulation ("GDPR") and the UK's Data Protection Act 2018, whilst making them less burdensome and more practicable in lower-risk situations.  The Commissioner expressed satisfaction with a number of the government's new proposals in response to his earlier comments, in particular the amendment to clarify that, when responding to subject access requests, organisations need only conduct reasonable and proportionate searches, reflecting the ICO's current position and guidance.  He also noted that the insertion of a new clause replicating s.15(2) Data Protection Act 1998 which makes clear that the court will be able to review a data subject's entitlement to their personal data, i.e. by reviewing material asserted to be exempt or redacted, will help to provide assurance that the information requested should not be disclosed until the court has made a determination on it.  The Bill is currently in the Committee Stage in the House of Lords. 

The New York Times sues OpenAI and Microsoft 

The New York Times has sued OpenAI and Microsoft for copyright infringement, alleging that millions of its articles were used without authorisation to train AI-driven technologies, such as ChatGPT.  Although the claim does not involve a specified amount in pecuniary damages, it says that the Defendants should be held accountable for "billions of dollars in statutory and actual damages".  The lawsuit also demands that any AI-technology models and language-learning data that used copyrighted material from The New York Times be destroyed.  The newspaper is the first major American media organisation to sue OpenAI and Microsoft on the basis of copyright issues, in the wake of growing concerns that journalistic content is being unfairly, or even illegally, used to train large language models.  OpenAI considers the claim to be without merit, asserting that it collaborates and partners with multiple news outlets and that using copyrighted work to train technology is fair use under the law.

New Judicial appointments 

Mrs Justice Steyn DBE and Mrs Justice Collins Rice DBE have been appointed as Judges Jointly in Charge of the Media and Communications List.  Their three-year tenure will run from 22 December 2023 to 21 December 2026.  They replace Mr Justice Nicklin after his appointment as the new Presiding Judge for Wales in September 2023.  Mr Justice Nicklin was appointed Judge in Charge of the Media and Communications List on 3 February 2021, succeeding Mr Justice Warby (as he then was), who was the first judge to hold the role following the List's establishment on 1 March 2017.

Quote of the fortnight:

"I note that the Solicitors Regulation Authority in England and Wales in its guidance to the profession observes that one of the “red flags” that helps identify a SLAPP is that the client asks that the claim is targeted only against individuals where other corporate defendants are more appropriate. Freelance journalists are particularly vulnerable without the support of a media outlet behind them. This is clearly the position in these proceedings. The abuse of process in this case is so blatant that it would be utterly unjust if the court were to allow the proceedings to continue." [73] Master Bell in Gerard Kelly v Malachi O'Doherty [2024] NIMaster 1.