Take 10 - 12 July 2024

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

Law Commission launches consultation on Contempt of Court 

On 9 July 2024, the Law Commission published a consultation paper setting out its proposals to reform the law on contempt in England & Wales.  The proposals aim to streamline contempt laws by creating three types of contempt of court namely: (1) general contempt (which would include issues taking place within the court room such as disruptions to hearings); (2) contempt by breach of court order or undertaking; and (3) contempt by publication during active proceedings.  

Two changes being considered will be of particular interest to publishers.  First, the Commission's proposal to shift the burden of proof in contempt proceedings so that the applicant (usually the Attorney General) would need to demonstrate recklessness by the publisher as to whether the proceedings were active, rather than requiring the publisher to demonstrate they did not know and had no reason to believe that proceedings were active and took reasonable care.  The Commission proposes "a publisher would be reckless if they knew there was a risk that proceedings were active and went ahead and unreasonably published prejudicial material regardless of that risk". 

Second, the consideration being given by the Commission to change the point from which proceedings become "active" to the point of charge.  The Commission has provisionally proposed keeping arrest as the point proceedings become active, but acknowledged this gives rise to a risk of a chilling effect in circumstances where (following ZXC v Bloomberg) police forces rarely routinely confirm the fact of arrest, which can result in self-censorship by media organisations for fear of inadvertently being in contempt of court when reporting on a case.  The Commission is seeking further views on this question.  

The consultation is open until 8 November 2024.  Responses can be submitted through the Law Commission's website. 

Lucy Letby sought to stay retrial proceedings on prejudice grounds 

Mr Justice Goss refused an application to stay criminal proceedings as an abuse of process prior to Lucy Letby's retrial on one attempted murder charge.  Letby's counsel argued that there had been 'overwhelming and irremediable prejudice' caused to Letby both by media coverage and as a result of public statements made by senior police officers, the CPS and detectives following her first trial, which it would be impossible for jurors to ignore. In refusing the application, Mr Justice Goss recognised that Letby's earlier convictions would be in evidence before the jury; that directions would be given to the jury as to the use to which they put this evidence; and they would also receive a direction as to the importance of reaching their verdict only on the evidence placed before them.  He commented that juries can be relied on faithfully to follow Judge's directions, and in any event the media coverage would be diluted by the jury "fade factor" inherent in the passage of time since the original verdicts were reported.  As a result, any prejudice to Letby from media publicity would not preclude a fair trial.  Letby's retrial resulted in a further conviction for attempted murder in July 2024 for which the former nurse received a further whole life order.

No appeal of judicial review decision in Northern Ireland 

Northern Ireland's Justice Minister, Naomi Long, has confirmed she will not appeal the decision of Mr Justice Humphreys which declared ss. 12 to 16 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the "Act") unlawful.  The Act granted lifelong anonymity to suspects of sexual offences, such provisions ultimately being struck down by the High Court for representing a disproportionate interference with the media's Article 10 rights (see our previous Take 10 for further discussion).

The Justice Minister initially speculated on the prospects of an appeal but ruled this out in a written statement to the Northern Ireland Assembly on 3 July 2024.  The reasons expressed for considering an appeal were the wider implications the judgment would have on Assembly processes and the Minister's concern that the judgment "imposes a high standard of rationality upon the reasoning in Assembly and Committee debates during the passage of legislation…which imposes a standard upon the legislative process which may be difficult to meet in practice".  The appeal was however abandoned after colleagues in the Northern Ireland Executive did not share those concerns. The judgment is a stark reminder of the importance of proper scrutiny of legislation and consultation with interested parties during the process of contemplated legislative change.  

Judgment in Harcombe and Kendrick v Associated Newspapers Ltd and Calman [2024] EWHC 1523 (KB) 

On 25 June 2024, Mr Justice Nicklin handed down judgment on Trial 1 in the split-trial cases of Harcombe and Kendrick v Associated Newspapers and Calman.  The proceedings, described previously by Nicklin J as "the most significant piece of defamation litigation that [he had] seen in a very long time", concern several articles published in the Mail on Sunday and MailOnline about the potential risks to public health caused by "misinformation" and "fake news" put out by so-called "statin-deniers", i.e. people who raise concerns over the efficacy and safety of statins (a very widely-prescribed drug used to lower cholesterol). The judgment found that the Defendants' defences pursuant to s4 DA 2013 (public interest) and s15 DA 1996 (statutory qualified privilege) failed, whilst parts of the articles complained of were found to be protected by s6 DA 2013 (privilege over peer-reviewed scientific journals, etc) – the first time such a defence has received judicial consideration and scrutiny.  The fact that s15 qualified privilege was found not to attach to the reports of statements made by the (at the time) Health Secretary Matt Hancock had a significant impact on the meaning. The articles were found to mean that (1) each Claimant had made various public statements related to cholesterol and statins knowing them to be false, (2) that there were strong grounds to suspect that the Claimants were motivated to make those statements in the hope of benefitting financially or from enhanced status, (3) the Claimants' statements had exposed a large number of people to serious risks including death, and (4) in consequence, the Claimants were rightly to be condemned as pernicious liars.  Issues such as the Defendants' defences pursuant to s2 (truth) and s3 (honest opinion), as well as issues relating to serious harm and damage, had been deferred to a subsequent Trial 2.  To see the reasons for the splitting of the issues, see the Judge's earlier judgment here.  RPC acts for ANL and Mr Calman.

Claimant subject to worldwide freezing order following defamation proceedings

A claimant whose defamation claim succeeded on liability has been subjected to a worldwide freezing order and faces legal action by the defendant for costs of the proceedings, after it emerged in separate proceedings that the defamation claim was brought fraudulently.

Dr Wright was awarded £1 nominal damages by Mr Justice Chamberlain in 2022 in a defamation claim brought against podcaster and journalist Peter McCormack over a series of Tweets in which Mr McCormack stated that Wright's claim to be Satoshi Nakamoto was fraudulent.  Nominal damages were awarded after the Judge found the claimant had run a deliberately false case on serious harm to reputation.  In February 2024, before detailed assessment of conflicting cost orders in the libel proceedings, Mr Justice Mellor found in separate proceedings in the Chancery Division that Wright's claim to be Satoshi was indeed fraudulent, and that he had forged multiple documents which he relied on in both sets of proceedings in an attempt to deceive the court.

In making the Worldwide Freezing order last week, Mr Justice Mellor stated: 'with the benefit of hindsight, it can be seen that the Defamation Claim was part of the mendacious overall campaign by Dr Wright and his backers to establish Dr Wright as Satoshi Nakamoto…to obtain access to all or part of the large quantity of Bitcoin attributed to Satoshi, worth many billions.  In this regard, Dr Wright was using the law of defamation…to silence anyone who dared to contend that Dr Wright was not Satoshi or to question his claim.'.  RPC acts for Peter McCormack. 

Application to strike out data protection claim refused in Pacini & Geyer v Dow Jones [2024] EWHC 1709 (KB) 

The High Court has refused an application by Dow Jones to strike out a data protection claim brought by two investment bankers in respect of articles investigating their connections with the investment business XIO Group.  A defamation complaint was intimated at around the time of publication, but no claim was issued.  Proceedings were brought in data protection almost 6 years later, alleging that the articles were inaccurate/misleading and/or out of date.  Dow Jones sought to strike out the claim on the basis that the claim was "purely tactical" and an abuse of process, namely that the Claimants were making use of a technically viable cause of action in data protection where the claim was in reality a statute-barred defamation complaint.  

In refusing the application, HHJ Richard Parkes focused on ascertaining the "nub" of the Claimants' claim and ruled it was impossible to ignore the Claimants' evidence that the purpose of the litigation included an intention to exercise rights of erasure available under Article 17 UK GDPR and s. 167 DPA 2018.  Despite expressing sympathy for the Defendant's position, the Judge considered the Claimants should not be summarily denied access to make their case for erasure purely because they had previously threatened to sue in defamation; because the claim was heavily based on considerations of harm to reputation; or because the defamation claim was statute-barred.  The application was alternatively premised on grounds of Jameel abuse, and similarly refused.  Directions were made for a preliminary issue trial of the meaning of the personal data concerned; whether that meaning was defamatory of the Claimants; and whether it constituted criminal offence data within the meaning of Article 10 UK GDPR.  

The Judgment provides a useful steer on the relevant factors the Court will consider when assessing whether a claim, which appears to be "dressed up" in a different cause of action to evade substantive procedural rules, will in fact be deemed an abuse of process when considered at a preliminary stage.  Interesting judicial commentary on the question of whether damages for harm to reputation can be recovered other than through a claim in defamation was also provided at [93] to [107], with the Judge ultimately suggesting that the question requires proper consideration by an appellate court. 

Specific disclosure order made against Duke of Sussex

On 27 June 2024, the High Court granted the Defendant's application for specific disclosure in the litigation brought by the Duke of Sussex against News Group Newspapers in relation to alleged unlawful information gathering.  NGN obtained summary judgment on the Claimant's claim for misuse of private information by voicemail interception in July 2023 on limitation grounds.  The remainder of his claim (relating to other kinds of alleged unlawful information gathering) was allowed to continue, on the basis that the limitation defence required an examination of what the Claimant did or did not know (or could with reasonable diligence have found out) at the relevant time about the allegations of other unlawful information gathering, and such an examination could only take place at trial following exchange of disclosure and evidence.  In the recent Judgment, Fancourt J expressed concerns that the Claimant's disclosure on issues of knowledge was inadequate and that he had also seen "troubling evidence to the effect that a large number of potentially relevant documents – confidential messages between the claimant and his ghostwriter of Spare, as well as all the drafts of Spare – were destroyed at some time between 2021 and 2023, well after the claim had been issued".   Fancourt J took the view that these exchanges may have related to the parts of Spare in which unlawful information gathering was discussed.  The Duke of Sussex was ordered to undertake searches of his laptop, WhatsApp, and Signal messages from 2005 to January 2023 and to provide a witness statement to explain the circumstances surrounding the deletion of messages. 

Application for TPI on serious harm unsuccessful 

On 28 June, Deputy High Court Judge Susie Alegrie refused an application by the Defendant for a trial of preliminary issues (TPI) on serious harm in the case of Versi v Husain. The case relates to a tweet which was published for less than an hour during a heated exchange on X/Twitter between the two parties in 2020, and the Claimant's case on serious harm is inferential. Permission for a TPI was sought on the grounds that documentary and witness evidence would be limited on the matter and that recent case law has shown a paradigm shift in the approach to the issue of serious harm post-Lachaux; recent claims in Blake v Fox, Miller v Turner, and Dyson v MGN, amongst others, were all dismissed on the grounds of a failure to meet the serious harm threshold following a full trial. D argued that a costs/benefit analysis therefore fell in favour of an early determination of the issue. The Claimant submitted that the established route for early dismissal of a case on the grounds of serious harm is by summary judgment/strike out, and that the evidence before the court at a TPI on serious harm would overlap significantly with the evidence required at trial, meaning that a TPI would add unnecessary costs and delay the conclusion of the proceedings. For his part, D argued a TPI would be dispositive of the issue of serious harm, whether or not D succeeded but summary judgment would only be dispositive if D succeeded on the application. 

The judge did not consider that recent case law merited a shift in the procedural approach to serious harm and considered that TPI would only be appropriate in exceptional circumstances; notably the KB Guide 2024 states that the court should be "slow" to order a TPI on serious harm. Additionally, the court determined that there is a significant overlap in the evidence required to demonstrate serious harm and the evidence required at trial in relation to damages, which tipped the costs/benefit analysis "very heavily against a TPI on serious harm in this case". Despite rumblings that poorly merited cases on serious harm are proceeding to trial at significant cost to Defendants, this judgment appears to firmly shut the door on any attempts to obtain an early determination of the issue and Defendants will need to continue to make applications for summary judgment and/or defend the case to trial.  RPC acts for Ed Husain.

European Commission requests information from Amazon, Temu and Shein

The European Commission ("EC") has requested information from Amazon, Temu and Shein to assess their compliance with obligations introduced by the Digital Services Act ("DSA").   Further information has been requested from Amazon concerning the transparency of its recommender systems (pursuant to its obligations under Article 27) and the factors, features, signals, and information applied to such systems.  As a very large online platform ("VLOP") Amazon is required to provide one modification option in its recommender systems that is not user profiling. Similar requests were sent to online marketplaces Temu and Shein on 28 June 2024, with the Commission also seeking information on the measures they have taken to ensure robust "notice and action" mechanisms (Article 16); to avoid deceptive techniques in the design of their user interfaces (Article 25); to protect minors (Article 28); and to ensure compliance by design (Article 31). The companies have deadlines of 26 July (Amazon) and 12 July (Temu and Shein) to reply. 

Labour's new cabinet: implications for the media sector 

Labour's overwhelming majority was announced following the general election on 4 July 2024: Sir Keir Starmer appointed his new cabinet the following day.  Notable appointments for the legal and media sectors include Richard Hermer KC as the new Attorney General, Shabana Mahmood as Justice Secretary and Lisa Nandy as Culture Secretary overseeing the Department for Culture, Media and Sport.  Labour's manifesto promised to build on existing online safety regulation, particularly for children, and previously the party has committed to introducing anti-SLAPP legislation.  Watch this space for developments. 

Quote of the fortnight

"This case shows the absurdity of the libel laws, and after this case some things are going to have to change...one of the problems with the law as it is now… is that there is a tendency of the part of those that have a lot of money to suppress criticism from those that don't… in my experience, many people who can back up what they are saying nevertheless don't defend themselves in libel proceedings because they fear the costs so much." -

Keir Starmer, August 1996, interviewed for the 1997 documentary "McLibel" following the cases of McDonald's Corporation v Steel & Morris [1997] EWHC 366 (QB) and Steel & Morris v United Kingdom [2005].