Take 10 - 14 October 2024

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

'Wagatha' returns to court over Rooney's £1.8million legal bill

The 'Wagatha Christie' saga resumed this week. As reported in The Law Society Gazette, Coleen Rooney's £1.8m bill, which is more than three times the agreed budget, is under scrutiny, with Rebekah Vardy's lawyers arguing that Ms Rooney's solicitors misled the court by deliberately understating the costs incurred at the time of filing the costs budget, whilst simultaneously criticising Ms Vardy for the costs she had incurred.

Master Gordon-Saker determined that such actions "only just" did not amount to misconduct, as the costs included within Precedent H were those that the conducting solicitor viewed at the time to be proportionate in the litigation and so aligned with the statement of truth included on the Precedent H (which requires the party's solicitor to state what the proportionate incurred and estimated costs are/will be). The judge noted that the Rule Committee may wish to look at the statement of truth in future to ensure that it is sufficiently clear.

Other notable points which made headlines were Ms Vardy's counsel's submissions on Ms Rooney's solicitor's decision to seek to recover the costs of a stay at a luxury hotel (at a reduced rate) and substantial food and drink charges during the course of the trial, which were later described as "defamatory" by counsel for Ms Rooney.

Even though Ms Rooney was awarded her costs on the indemnity basis (which can make life easier with a presumption of proportionality), there remains much scope for scrutiny on the grounds of whether the costs were reasonably incurred. 'Wagatha' will return to court for a line-by-line assessment next year.

Duke of Sussex v NGN – another skirmish over pleadings

Last week, Mr Justice Fancourt determined the Duke of Sussex's application to amend his Particulars of Claim in his phone hacking claim against News Group Newspapers. The judgment follows a judgment earlier this year which held that the Duke had failed to draft amended Particulars of Claim that complied with an earlier ruling in the case.

Given this second bite at the cherry, the judge noted that this individual claim is "is starting to absorb more than an appropriate share of the court’s resources, contrary to the requirement in the overriding objective to deal with cases justly and at proportionate cost" and that the claim "at times resembles more an entrenched front in a campaign between two obdurate but well-resourced armies than a claim for misuse of private information".

Whilst a number of the Duke's amendments were accepted, the Court refused to allow permission to amend to include allegations of planting bugs in rooms and tracking devices on cars for which there were "no particulars whatsoever". The case, along with others, is due to go to trial in January 2025.

Ahmed & Ors v Akbar - material change in facts causes judgment U-turn

A draft judgment which was due to discharge an injunction in a breach of confidence and privacy claim was rewritten at the last minute, when shortly before the judgment was due to be formally handed down, further information and evidence came to light which cast doubt on the facts that were before the Court at the hearing in which the injunction was considered, including an admission by the Defendant that he had lied in his previous two witness statements.

The Supreme Court decision in AIC Ltd v Federal Airports Authority of Nigeria is the authority for the proposition that the Court has a wide discretion as to whether to alter its judgment before its Order has been perfected. Jay J therefore proceeded to consider the matter afresh in light of what subsequently became known, and continued the injunction.

GB News' challenge against Ofcom: mixed results

As reported in Press Gazette, GB News has been granted permission to challenge Ofcom's finding that the channel breached its impartiality rules in the broadcast of The People's Forum, in which then-Prime Minister Rishi Sunak answered audience questions but was said by Ofcom not to have been sufficiently challenged. However, Mr Justice Chamberlain dismissed GB News' application for an injunction to temporarily stop Ofcom from issuing a sanction for the breach until the outcome of the judicial review.

GB News had argued that the publication of the sanction (which could be a financial penalty, restrictions on repeating certain content, a requirement to publish a correction, or suspension of GB News' broadcasting licence) would cause irreparable reputational damage. Even though Ofcom has agreed not to publish the statement until the conclusion of the JR, the Court ruled that there was significant public interest in allowing Ofcom to complete its process and publish its decision.

Anonymity orders lifted in Glencore case

Bloomberg and other media organisations have successfully challenged reporting restriction orders originally made in October 2022 to protect the identities of individuals involved in bribery proceedings in the Crown Court. 

Whilst the anonymity order covered 17 individuals, only 6 of them had been charged, whilst the others were no longer under investigation. In respect of the 6 charged individuals, the Court determined that orders pursuant to s4(2) Contempt of Court Act 1981 were necessary, as although a trial is unlikely to take place until 2026, reporting in the interim would likely give rise to a substantial risk of prejudice to the administration of justice, irrespective of firm jury directions to dismiss any prior reporting of the case. Whilst "fade factor" was discussed, the Court held that given the high-profile nature of this case and the prevalence of online news, matters are much less likely to 'fade' in circumstances where online searches could result in hits for a number of articles published several years before. However, those factors were not of great significance for the remaining 11 individuals who were not charged, and those reporting restrictions could be lifted. RPC acted for Bloomberg in this matter.  

CJEU holds that data processing for purely commercial interest may be legitimate interest

The CJEU has issued a judgment on whether the disclosure of personal data (without data subject consent) for the purposes of direct marketing in exchange for financial remuneration can be a legitimate interest pursuant to Article 6(1)(f) GDPR.

The Court considered each condition of the legitimate interest test, namely that i) the interests pursued are “legitimate”; ii) the processing of personal data concerned is necessary for the legitimate interests pursued; and iii) fundamental rights and freedoms of the data subject do not take precedence.

The Court also referred to Recital 47, which confirms that legitimate interests need not be enshrined in statute. Taking these factors into account, the Court held that commercial interests in direct marketing could satisfy the first two conditions, and could therefore be a legitimate interest pursuant to Article 6(1)(f), provided that the data subject's fundamental rights do not override those interests as in the third condition. This ruling will hopefully provide greater certainty for organisations who are supervised by EU supervisory authorities, and is likely to be helpful for organisations who fall under the remit of the ICO.

Meanwhile, the European Data Protection Board has adopted new guidance on the legitimate interests test for public consultation, which closes on 20 November.

Schrems – subsequent use of data manifestly made public

The CJEU has held that data controllers cannot use all of their users' personal data for targeted advertisement purposes without restriction to time and type of data. The claim was brought in the Austrian courts by privacy campaigner, Max Schrems, against Meta, and relates to the alleged targeting of ads at him on Facebook based on data regarding his sexual orientation, despite him not sharing this information on the platform. The Austrian Supreme Court referred the case to the CJEU to determine whether Mr Schrems' previous statement about his sexual orientation at a public panel provided Meta with the authority to process the data on the basis that it was manifestly made public by the data subject, pursuant to Article 9(2)(e) GDPR.

The CJEU held that the data minimisation and storage limitation principles made it disproportionate for data controllers to store data for an unlimited period for the purposes of targeted advertising. It also noted that with the data minimisation principle in mind, the controller may not engage in the collection of personal data in a generalised and indiscriminate manner, irrespective of the level of sensitivity, and must refrain from collecting data which are not strictly necessary having regard to the purpose of the processing.

In respect of the derogation provided by Article 9(2)(e) GDPR, the CJEU held that the fact that a person has made a statement about his or her sexual orientation does not authorise the data controller to process other data relating to that person’s sexual orientation with a view to aggregating and analysing those data, in order to offer that person personalised advertising.  A Meta spokesperson confirmed that it does not use special category data to personalise adverts and that it has invested more than €5 billion to embed privacy in its products. Read the CJEU's full press statement here.

ICO fine the Police Service of Northern Ireland

The ICO has fined the Police Service of Northern Ireland (PSNI) £750,000 for "exposing the personal information of its entire workforce", which has left many of them scared for their safety, after the PSNI inadvertently provided full details of each of their employees' names, ranks and locations in response to two FOI requests.

The details were later published on the website WhatDoTheyKnow for around 3 hours before being deleted. Whilst this is the largest fine ever imposed on a public body, it pales in comparison to the £5.6 million fine which would have been imposed had the PSNI been a private company. The ICO's justification for reducing the fine was its wish not to divert public money from where it is needed. Nevertheless, this two-tier approach to regulation no doubt raises eyebrows.  

Telegram cracks down on dangerous content

Following its founder's arrest in France for failing to remove illegal content earlier this year, Telegram has announced a crackdown on problematic content found on its app through its AI-driven search tool. The company has also updated its terms to make clear that they may disclose details of users who engage in illegal conduct on the app to law enforcement authorities on receipt of a valid legal request. Meanwhile, the European Commission continues its own investigations and has submitted a Request for Information to a number of platforms in respect of their recommender systems and the protection of minors.

Hearings in private and open justice: Pump Court v Brown

Pump Court's application to continue hearing an application for a freezing injunction in private was refused last month. The case relates to a claim for the recovery of sums wrongfully taken by the Claimant's then-credit control manager, the Defendant. In seeking to have the case heard in private, Pump Court argued that to hold a hearing in public would "put at risk the integrity of the Chambers as a going concern" and that debtors might "delay making payment upon sums properly due and owing". However, the court held that a hearing may only be heard in private pursuant to CPR 39.2(3), for example, where it is necessary to secure the proper administration of justice or where publicity would defeat the object of the hearing. The court held that none of these factors were in issue for this present case, and open justice therefore prevailed.

Legal 500 UK rankings

We are very pleased to say that we have maintained our top-ranking across the media categories in this year's Legal 500. We're grateful to our clients and contacts who took the time to speak to Legal 500 for the rankings and who provided generous feedback for a number of individuals in the team

Quote of the fortnight:

‘What's special about RPC's media law team is its specialisation in media defence and the number of specialist partners they have dealing with this work. In my view they are unrivalled in these respects in England and Wales. Their lawyers are involved in many of the leading media law litigation cases in this jurisdiction and so have unrivalled cutting-edge practical experience.’