Take 10 - 13 April 2023

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

News items

College of Policing U-turn on "new chilling era of police justice"

The College of Policing has reversed its proposals to change the guidance for police forces on naming those charged with offences within the UK.  The guidance was set to change from instructing police forces that those charged with criminal offences "should be named" to noting that suspects "can be named" upon charging.  The proposed change was prompted by data protection concerns but was widely criticised by media organisations, who expressed a collective call of alarm over the potential for abuse that the relaxation ushered in and the detrimental impact on open justice.  Rebecca Camber, chair of the Crime Reporters Association and the Daily Mail's crime and security editor, had raised concerns over the potential for police to be selective over which individuals they choose to name, with the potential to conceal the prosecution of police officers or high-profile individuals.  Following the media's response these plans have been abolished, with the College of Policing confirming that the wording will remain the same and stating that they "do not want to do anything that would undermine open justice". 

Draft Media Bill published 

DCMS has published its Draft Media Bill (Draft Bill) which aims to implement the government's vision to modernise broadcasting legislation, including reforming the regulatory framework for public service broadcasters (PSBs).  The Draft Bill follows a White Paper published in April 2022.  

Notable legislative changes include giving PSBs greater flexibility in how they contribute to their public service remit (including providing that content made available on Video-on-Demand services can contribute towards fulfilment of their remit) and ensuring that public service content is given sufficient prominence across a range of television platforms (such as smart TVs, set-top boxes and streaming sticks).

Of particular significance for streaming services are the powers envisaged for Ofcom to draft and enforce a new Video-on-Demand (VoD) Standards Code, which will apply to non-UK VoD services which engage a UK audience at scale, including e.g., Netflix, in addition to VoD services based in the UK.  The government envisages that the VoD code will require streaming platforms to adhere to similar standards to those already in place under the Ofcom Broadcasting Code for linear programming, including relating to harmful or offensive material, ensuring due accuracy in news, and preventing unfair treatment of individuals in programming and unwarranted infringements of privacy.  Ofcom will be given extensive enforcement and investigatory powers in relation to VoD services falling under its remit, including the power to issue fines of up to £250,000 or 5% of qualifying worldwide revenue (whichever is higher) and, in the most serious cases, to restrict a VoD service’s availability in the UK. 

See RPC's earlier blog on the proposed changes here.

Application for summary dismissal of claims of historic unlawful activity

From 27 March – 30 April 2023, Mr Justice Nicklin presided over a four-day hearing of an application by Associated Newspapers Limited to summarily dismiss seven claims brought against it by individuals including the Duke of Sussex and Elton John.  ANL argued that the claims, which allege historic voicemail interception and other unlawful information gathering apparently relating to matters having taking place as early as 1993, have been brought too late and have no prospect of success.  ANL, who strongly deny all of the allegations made against it, made a further application to strike out of certain aspects of the Claimants' claims which it says were pleaded in breach of restrictions orders imposed at the Leveson Inquiry.  It also succeeded in an application for a reporting restriction to temporarily withhold the names of 73 journalists mentioned by the Claimants in court documents, an order which Mr Justice Nicklin considered to be "in the interest of fairness and the administration of justice".  Judgment was otherwise reserved.

Court of Appeal judgment signals an end to routine RROs for end-of-life proceedings

Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331 (31 March 2023)

This appeal examined the principles to be applied when a court considers an application to vary or discharge a Reporting Restriction Order (RRO) originally granted in end-of-life proceedings.  RROs are often made in end-of-life proceedings to protect the integrity of the proceedings as well as to protect the identity of those with a role in a patient's care and the privacy of the patient when an application to end treatment is made.  Indefinite anonymity orders have been routinely granted to end-of-life carers in cases where the hospital has applied for withdrawal of patient treatment. 

The appeal in question involved four parents who sought to challenge indefinite RROs following the withdrawal of care for their children and the conclusion of end-of-life proceedings.  The parents wished to be able to speak publicly about their experience and the circumstances around their child's death, including by naming the clinicians involved.  The hospitals contested the applications on the basis that to discharge the anonymity orders could expose individual staff to hostility, vilification, and would constitute an invasion of their privacy. Interveners, including the British Medical Association and the Royal College of Paediatrics also argued that there would be broader concerns in discontinuing indefinite RROs including an adverse impact on the operation of the NHS and potential interference with patient care.

The Judges found that granting indefinite anonymity orders in cases of end-of-life care without regard to the specific circumstances in the manner described is not justified, despite "wider systemic concerns which affect the operation of the NHS" [130].  On these facts, the Court found that the "true article 8 rights of the staff now engaged a significant period after the conclusion of proceedings, are of limited weight" whereas the parents' article 10 rights were powerful given the "parents' wish to discuss and publish details of their experiences and concerns in an area of general public controversy" with "significant moral and ethical questions" surrounding the treatment of children in end-of-life cases.  Wider systemic concerns should not fall into the Article 8/Article 10 balancing exercise and could not justify the creation of a practice of granting indefinite anonymity orders.  Such a practice would be "controversial and intensely political and suitable for Parliament rather than the courts"[130]. Here, the appeals were allowed and the RROs discharged.

UK government set to announce legislation that could require tech companies to pay for news

Legislation requiring Google and Facebook to pay to carry news content in the UK could be imminent.  The proposals envisaged within the Digital Markets, Competition and Consumer Bill are likely to be brought before parliament this month. 

The legislation would allow the Digital Market Unit (DMU) of the Competition and Markets Authority to designate particular platforms as having "strategic market status".  A designation of this type would empower the DMU to tailor specific conduct requirements of the firm and publish codes of conduct for how those companies should interact with users and content providers. DCMS has indicated that such conduct requirements could be used to require firms to change how they interact with news publishers to ensure that publishers are "paid fairly for their online content".

The proposals echo similar legislation already introduced in other jurisdictions.  Australia's version of the legislation faced fierce opposition from tech companies who considered that the proposals could distort competition in digital markets and create uncertainty for publishers around which companies would financially contribute to the news publishing ecosystem – the opposition ultimately resulting in commercial deals being struck between publishers and online platforms prior to the Australian legislation being enacted.

Chatter

"Publication" considered in Frati v Bowen-Carter 

Judgment has been handed down in the case of Frati v Bowen-Carter [2023] EWHC 627 (KB) addressing interim applications made by the Claimant, a well-known plastic surgeon, and the Defendant, a patient of the Claimant.  The underlying proceedings include a claim for libel and harassment over a Google business review posted by the Defendant about the Claimant's Harley Street surgery, which alleged that the Claimant's "whole 5-star rating is clearly fake" and "most are celebrities that have had a half price nose job or breast implants to post out and promote him."

The Defendant applied for summary dismissal of the claim on the ground that the Claimant's inferential case on publication did not allow for a finding of substantial publication, or any publication whatsoever. The application was ultimately confined to issues of fact, including whether the facts put forward by the Claimant provided a platform for there to be an inference of publication. Although Lewis LJ accepted that a defendant could seek summary judgment on the basis there has been no publication, the Court took issue with the way in which the Defendant sought to rely on there being no "substantial publication", a concept arising from Jameel.  The Defendant had confirmed that she was not pursuing a Jameel application, which made it difficult for her to rely on cases in which the Jameel principles were applied.  The court held that there was a realistic prospect of the Claimant establishing a platform of facts on which to infer publication and the Defendant's application was dismissed. 

The Claimant applied to amend his Particulars of Claim including to rely on the "grapevine effect" ("the inherent and accepted probability of defamatory allegations to circulate far more widely that the original publishees, as a result of which the sting of the words complained of would have been and was repeated or republished"). Lewis LJ granted the application as the amendments were potentially relevant to the Claimant's claim on publication in establishing serious harm and no prejudice would be caused to the Defendant by the amendment.

For a helpful summary of the legal principles which the court will apply when addressing the issue of ‘publication’, see paragraph 17.

Court considers challenge to jurisdiction under s.10 Defamation Act 2013 

On 31 March 2023, Master Cook handed down judgment in Muhammad v Daily The News International on an interim application by the Defendants under CPR r 11 to contest the jurisdiction of the Court and a cross application by the Claimant under section 32A of the Limitation Act to extend the one-year limitation period applicable to libel claims.  The Claimant, described as a human rights activist, sued over articles published in late May 2022 which he claimed accused him of organising protests in London which had become violent.  The claim was brought against four Defendants: (i) a newspaper published in Pakistan (Daily The News International); (ii) a separate newspaper publisher of the Daily Jang London (Daily Jang); (iii) a broadcaster which licences material from Pakistan and advertises the content available on its website (Geo TV) and (iv) the author of the articles complained of, Murtaza Ali Shah.  The Claimant had attempted to bring his claim at the end of May 2022, shortly before the limitation period had expired. However, the Claim Form was not issued until 27 July 2023, and not served until October 2023.

The Defendants' application under CPR r 11 to challenge the jurisdiction of court was made under three separate limbs:

• The Second and Third Defendants challenged jurisdiction on the basis of s.10 Defamation Act 2013 – " A court does not have jurisdiction to hear and determine an action for defamation brought against a person who was not the author, editor or publisher of the statement complained of…".
• The Fourth Defendant challenged jurisdiction on the basis that he hadn't been validly served at all pursuant to CPR Part 6.
• All Defendants (bar the First) challenged jurisdiction for lack of timeous service of the claim form.

Master Cook held that the Claimant had failed to establish jurisdiction as he failed to establish a plausible basis for asserting the Second and Third Defendants were the author, editor or publisher of the relevant articles.  Master Cook also found that the Claimant had not taken reasonable steps to ascertain the address of the Fourth Defendant's current residence and his lack of knowledge of the rules relating to service could not provide him with any assistance, see Barton v Wright Hassell LLP [2018] UKSC 12.  The Fourth Defendant was thus entitled to a declaration of non-jurisdiction due to the absence of effective service on him.  Finally, the court found that the claim had been commenced outside the one-year limitation period and dismissed the Claimant's application to extend limitation.  Despite being a litigant in person, the rules relating to service and the law relating to limitation were not particularly obscure and could, with reasonable diligence on his part, have been discovered by him.  

The judgment is a useful reminder of the court's expectations for litigants-in-person including compliance with procedural deadlines.  This is also the first published judgment where s. 10 Defamation Act 2013 (relating to the Court's jurisdiction to hear an action brought against a party who is not "author, editor, or publisher") has been the operative basis for a finding of non-jurisdiction as a result of an application under CPR Part 11 – demonstrating that a party who is not "author, editor, or publisher" can challenge jurisdiction under CPR Part 11 prior to pleading this objection as a substantive defence. 

Ex-parte injunction granted in Armstrong Watson LLP v Persons Unknown

On 30 March, judgment was handed down in Armstrong Watson LLP v Persons Unknown [2023] EWHC 762 (KB). The Claimant, an accountancy firm, sought an urgent ex-parte injunction because persons unknown ("PUs") had hacked its IT system and stolen commercially sensitive information relating to their staff, customers and business.  PUs threatened to release the information to buyers on the dark web or the world at large unless a payment was made in Bitcoin.  An injunction was sought to prohibit PUs from publishing or communicating the stolen information. 

Among the issues determined was whether the hearing should be held in private. The Claimant sought a private hearing pursuant to CPR r. 39.2(3)(a), (c), (e) and (g) and S.11 of the Contempt of Court Act 1981. Witness evidence on the Claimant's part clarified that the incident was ongoing, and the Claimant's submissions and evidence encompassed more than the contents of the information stolen (including the steps taken to deal with the incident).  Ritchie LJ concluded that a public hearing could "hamper efforts to deal with and trace the PUs or to encourage others to search for or store the information" and that "what can legitimately come out now can be controlled better through a private hearing".  Ritchie LJ determined that the principle of open justice was satisfied whilst having proper regard to the rights of the Claimant and its clients.

In considering the application for an injunction, Ritchie LJ also reviewed Section 12(3) of the HRA 1998 which, if engaged, provides that interim relief which might affect the exercise of the right to freedom of expression "will only be granted before a full trial if the Court is satisfied that the Applicant is likely to establish at trial that publication of the information in question should not be allowed." Ritchie LJ found that Article 10 was not engaged, observing that "blackmail represents a non-use or misuse of free speech rights. Such conduct will considerably reduce or abolish the weight attached to the right to free speech." In the unlikely event that Article 10 had been engaged, Ritchie LJ was still satisfied that the Claimant had comfortably met the higher s12(3) test on the facts. The injunction was granted. 

Tiktok fined 12.7m for non-compliance with UK data protection law 

The ICO has issued a £12.7 million fine to TikTok Information Technologies UK Limited and TikTok Inc for apparent breaches of data protection law, including the failure to process children’s personal data lawfully.  The ICO estimated that TikTok allowed up to 1.4 million UK children under 13 to use its platform between 2018 and 2020, in contravention of its terms of service, and without parental consent. 

TikTok has said it disagrees with the ICO's decision and is considering next steps.  It has 28 days to appeal against the penalty notice, which has already been reduced from £27 million at notice of intent stage.  

Ofcom considers children's media use and age verification measures

Ofcom's report on media use, attitudes and understanding among children aged 3-17 has shed light on the availability and significance of parental controls for young people's online activity.  More than seven in ten parents of children aged 3-17 were concerned about their child seeing age-inappropriate content (75%) and/or their child seeing ‘adult’ or sexual content online (73%).  Seven in ten parents also acknowledged they used some form of parental control to manage their child’s access to online content. 

The report follows a joint statement published by Ofcom and four other regulators on the establishment of the International Working Group on Age Verification for video-sharing platforms. The group, which comprises five regulators operating under the Audiovisual Media Services Directive, was established to ensure a cohesive and cross-jurisdictional approach to regulation and enforcement across video-sharing platforms (VSPs).   The statement focusses on the implementation of effective age verification methods to prevent under-18s accessing videos that may impair children's development – focussing in particular on tackling access to pornographic content.  

The regulators' efforts are ongoing in conjunction with the introduction of domestic legislation addressing age verification.  In the UK, the Online Safety Bill will require providers to put in place age assurance processes which ensure that children do not normally have access to the part of the service intended for adult users.  Lord Bethell has also proposed an amendment to the Bill requiring pornography websites to start verifying the age of users within six months of the legislation coming into force. 

See RPC's recent blog on the Online Safety Bill here. 

Quote of the fortnight:

"Conferring lifelong anonymity though indefinite orders irrespective of the individual circumstances of those protected and thereby creating a broad-ranging new class of restriction on free expression is something which the courts should do only in "the most compelling circumstances". The reason is that such generic restrictions on free speech are highly controversial and should be considered in the political context by Parliament." 

Lord Burnett of Maldon CJ in Abbasi & Anor v Newcastle Upon Tyne Hospitals NHS Foundation Trust [2023] EWCA Civ 331.