Take 10 - 13 October 2023

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

Snap's AI Chatbot under scrutiny 

The owners of Snapchat have received a preliminary enforcement notice from the Information Commissioner's Office (ICO) over an alleged failure to assess privacy risks relating to Snap's AI-generated chatbot, 'My AI'.

The ICO's preliminary investigation asserts that Snap's risk assessment prior to launching 'My AI' earlier this year did not adequately assess the data protection risks involved in the new technology, particularly regarding the processing of personal data of 13- to 17-year-old children. The Commissioner's findings are provisional and Snap will have an opportunity to make representations. The preliminary notice sets out steps the Commissioner may require Snap to take. If a final enforcement notice is issued, the ICO might prohibit Snap from delivering 'My AI' as a function to UK users of Snap's services.

The preliminary notice is a reminder ahead of the Online Safety Bill becoming law of the importance of risk assessments before launching innovative products, particularly involving generative AI and user data. The ICO has published a blog providing guidance on how to assess data protection risks for AI products. For RPC's commentary on the upcoming Online Safety Act, visit our webpage on online safety and regulation, where a series of blogs are being published providing an overview and practical advice on the legislation.

Former Kurdish oil minister linked to Nadhim Zahawi sues journalists over claims of corruption 

Ashti Hawrami, the former Kurdish oil minister, has issued a claim for defamation against two journalists and the Journalism Development Network, which operates the Organised Crime and Corruption Reporting Project (OCCRP). The claim concerns a report in May 2021 that Hawrami committed misconduct by granting oil concessions in Kurdistan whilst in office in the late 2000s. An editor's note was later added to clarify that the Claimant denied the accuracy of the reporting. Index on Censorship has asserted that the proceedings amount to a strategic lawsuit against public participation (SLAPP), which  Mr Hawrami's legal team, Carter Ruck, have denied, stating that "there is no proper basis to assert that this case is a SLAPP" as their client "only very reluctantly" brought legal proceedings a year after publication following "extensive" attempts to resolve his complaint over the "significant errors" in the article. The next hearing in the case is reportedly taking place in December 2023.

Harassment vs. Defamation

In the trial of a dispute between the directors and shareholders of a property management company, HHJ Lewis found that the claim had been properly brought in harassment and that the Defendant had harassed the Claimants. The action followed a period in excess of 18 months where the Defendant was alleged to have sent hundreds of abusive and threatening communications to the Claimants and other third parties. At trial, the Claimants sought a permanent injunction under s.3A of the Protection from Harassment Act 1997 to restrict the Defendant's conduct, but no damages. 

One argument raised by the Defendant was that the Claimants' real complaint should have been in defamation, but he had been sued in harassment to avoid considerations of the merits of the allegations he made. In considering the issue, HHJ Lewis referred to Khan v Khan [2018] EWHC 241 (QB), in which Nicklin J said if the complaint is about what has been said, the law of defamation applies, but "[f]or harassment, the harassing conduct must come more from the manner in which the words are published than their content" [69]. Applying that decision, HHJ Lewis held that, "[t]he main problem with the defendant's conduct was the relentless and escalating campaign that he was waging against [them]" [162]. The fact that some of the acts complained of were not acts of publication (for example, setting up false domain names), and that a number of them were abusive rather than defamatory were also relevant factors. 

Backlash against new Northern Ireland anonymity laws 

The Society of Editors has warned that the new Northern Ireland anonymity laws for sexual offence cases would have prevented the reporting of allegations against the prolific sex offender, Jimmy Savile. We reported on these anonymity laws which came into effect on 28 September in our last edition of Take 10.

The new laws give suspects in sexual offence cases anonymity until they are charged. If not charged, anonymity is granted for their lifetime and for 25 years after their death. The Society of Editors has called the new laws an "affront to open justice" that "will have a devastating effect on the reporting of sexual abuse allegations." The society's executive director, Dawn Alford, has pointed out that, had this been the case during investigations into the sexual abuse carried out by Savile (which happened four years after Savile's death), the media would not have been able to report and investigate the legitimate allegations against him. As a result, this could have indirectly prevented many victims from coming forward.

Lawful interference with ex-SAS soldier's A10 rights 

Steyn J handed down judgment on 3 October 2023 in a judicial review claim brought by a former member of the UK Special Forces, who goes by the pseudonym "Christian Craighead", against the Ministry of Defence (MoD). The claim related to the MoD's refusal to grant Craighead permission to publish a memoir he wrote recounting his experiences in the SAS. Such permission is required by virtue of a confidentiality contract which Craighead had voluntarily entered into prohibiting him from disclosing information about the work of the UK Special Forces without "express prior authority in writing". The MoD relied on this confidentiality contract and argued that publication would cause damage to national security.

Craighead challenged the MoD's refusal on the basis that it was incompatible with his right to freedom of expression under Article 10. Steyn J held that the MoD's refusal to grant the authority required was a lawful interference with Craighead's right to freedom of expression. This was for two reasons: firstly, Craighead had voluntarily entered into the contract and, secondly, disclosure of the information in his memoir was for his own personal interest rather than the public interest [151]. Steyn J also recognised that the prohibition on the disclosure of information about the work of the Special Forces was not absolute, by virtue of the fact the MoD could provide permission for disclosure. As such, Craighead had not waived his Article 10 rights entirely by entering into the contract, but had restricted them such that, in the circumstances, the MoD's interference was lawful.

News outlets block ChatGPT as AI gets up to speed 

OpenAI's ChatGPT is set to access current news stories, departing from its previous reliance on a database of news content that hasn't been updated in two years. This move raises concerns among publishers who may lose website traffic as users obtain current information directly from AI rather than the original source.  How ChatGPT discerns between different reports of the same news story and who would be responsible for the publication of ChatGPT's account of a news story potentially throw up interesting new legal issues.

However, the Independent Publishers Alliance in the UK is urging its members to block ChatGPT's crawling access, fearing increased hosting costs, potential plagiarism, and decreased negotiation power for content licensing. Publishers are grappling with whether to allow their content to be used by AI models and are concerned about potential long-term repercussions. While some argue that opting out is not a viable option and could create barriers to negotiations with AI platforms, others believe it's a crucial time for publishers to assert their position and negotiate terms with these platforms.

Meanwhile, the UK are considering implementing legislative measures through the Digital Markets, Competition and Consumers Bill that may require platforms, such as ChatGPT, to pay a fee to news publishers upon use of published articles.

Appeal against ICO dismissed by the Court of Appeal 

On 10 October 2023, the Court of Appeal handed down judgment in a claim brought against the Information Commissioner as a result of a complaint relating to a data subject access request made to Wise Payments, a foreign currency exchange company. The decision was made based on the determination of three grounds: (1) a failure "to determine the Claimant's complaint, in breach of the Commissioner's statutory duty to do so"; or (2) a failure "to conduct a lawful investigation" in accordance with the statute; or (3) an error of law in the decision-making process [39].

The Court held that the ICO had complied with its duties when handling Ben Delo's complaint as the Commissioner has the right to decide how to deploy available resources, use its judgement to determine what the likely outcome and merits of the investigation may be, and offer alternative methods of enforcement that may be available [94]. 

NHS Trust named in legal battle over patient's treatment 

A Judge has ruled that the NHS Trust involved in a legal battle over the treatment of 19-year-old, Sudiksha Thirumalesh, can now be named. Thirumalesh had a rare mitochondrial disorder and died on 12 September. The NHS Trust providing her care decided to only provide her with end-of-life treatment. However, Thirumalesh and her family wanted to raise money via crowdfunding so she could receive experimental nucleoside treatment in Canada. During a legal fight between the Trust and her family over what was in her best interests, a Judge imposed reporting restrictions such that media outlets were prohibited from naming Thirumalesh or the Trust involved. This had the knock-on effect of preventing her family from campaigning to raise money for treatment overseas. 

Following Thirumalesh's death, Peel J decided that the competing Article 8 and Article 10 rights came down in favour of identifying the 19-year-old. Since identifying Thirumalesh would lead to "jigsaw identification" of the Trust, the name of the Trust has also been revealed [52-53]. Names of specific hospitals and clinicians will remain anonymous for a further eight weeks. Thirumalesh's family felt that they were "unfairly gagged" by the reporting restrictions that were imposed and claim that "if not for those restrictions, our daughter might well still be alive."

Thirumalesh had the same condition as Charlie Gard, a baby who died in 2017 after UK doctors recommended his life support be withdrawn rather than undergoing nucleoside treatment. As is well known, the dispute between Charlie Gard's parents and Great Ormond Street hospital was aired in open court, leading to enormous public scrutiny of the hospital's position.

High Court ruled in favour of reporting transparency in family courts 

Freelance journalist Louise Tickle has successfully appealed a court decision that prohibited her from reporting on a family court case concerning a child custody matter. Family courts can limit press access to proceedings involving child custody and domestic abuse. Tickle, an experienced family law reporter, has uncovered instances of social worker malpractice and judicial errors through her reporting over the years, and has often advocated for greater transparency within the family court system. Journalists have been allowed to attend family court hearings since 2009, but parties can seek to exclude them. In her judgment, Lieven J emphasised the importance of journalistic scrutiny in the family justice system and ruled in favour of Tickle, recognising the public interest in reporting on the case. 

Trump sues former MI6 Officer 

Donald Trump has brought a data protection claim in the UK against a former MI6 officer, Christopher Steele, and the intelligence consultancy he founded, Orbis Business Intelligence. 

Steele ran the Russia desk at MI6 and was the author of the so-called 'Steele dossier'. The dossier included damning claims against the former president, such as allegations that he had been compromised by the Russian security service, the FSB, and that his presidential candidacy was supported and directed by Putin for over five years. Trump denies the claims and is now suing Steele under English law. A two-day hearing in Trump's legal action is set to start on 16 October 2023.  However, this is not the first time Steele has come under legal fire. In 2020, Steele and Orbis faced consecutive data protection and defamation proceedings in relation to the Steele Dossier (RPC acted for Steele and Orbis in those proceedings). 

Dan Wootton stories pulled from media following threats from his lawyer

Several media outlets have removed stories relating to Dan Wootton, recently dismissed by GB News, after receiving legal warnings from his lawyer. Wootton's lawyer has cautioned publishers about potential legal action, warning that such action could result in aggravated and exemplary damages and orders to pay both sides' legal fees. Wootton has recently been under scrutiny over allegations related to "payments for sexual material" while a showbiz editor at The Sun. Wootton denies the allegations, describing them as untrue and part of a smear campaign.

Quote of the fortnight:

“It remains a fundamental principle of the justice system that justice must be seen to be done and, as well as setting a deeply alarming precedent for those seeking to implement changes elsewhere, today’s new law will not improve confidence in the criminal justice system – it will have the total opposite effect.”  – Dawn Alford, Executive Director of the Society of Editors