Take 10 - 15 February 2024

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

Harassment by publication claim "totally without merit"

The Stoke-on-Trent County Court dismissed an application for an injunction under the Protection from Harassment Act 1997 brought by the director of Signature Clinic, which operates cosmetic surgery clinics nationwide.  The director alleged that negative posts made by the Defendant in an online support group about her poor treatment and aftercare experience amounted to harassment of Signature's staff. 

The Court dismissed the application on the basis that the posts complained of were nowhere near the standard required for harassment, struck out the underlying claim (insofar as it had even been issued) and went on to certify that both the application and claim were totally without merit. The Court also found the claim to be an abuse of process, referring to emails from Signature Clinic's solicitor threatening to bankrupt the Defendant and suggesting the fear of imprisonment would "stop those itchy fingers". The judge described this as "unprofessional language, dismissive and insulting".  The Court found communications by Signature Clinic's Chief Medical Officer alleging the Defendant's behaviour demonstrated psychological issues to be an aggravating factor.  A further hearing on costs is to follow. 

Associate Megan Grew spoke to BBC Radio 4's Woman's Hour about the outcome and Senior Associate Samantha Thompson is quoted in The Times. RPC acted for the Defendant and is instructed on five other similar claims brought in defamation and harassment over negative reviews about Signature. 

Harassment by publication order granted

Mrs Justice Steyn granted an interim injunction application by Timothy Pattinson at an urgent without notice hearing pursuant to s.3 Protection from Harassment Act 1997.  The claim was brought against the Claimant's brother-in-law, Robert Winsor, after he made a series of allegations of fraud against the Claimant to a large number of judges, MPs, Court officials, and the Attorney General's office following a dispute about a will.  In granting the injunction, Mrs Justice Steyn held the Defendant's right to freedom of expression under article 10 ECHR was not breached as pursuant to s.12(2) HRA 1998, the Court was satisfied that there were "compelling reasons" for notice to have not been provided to Mr Winsor based on his "campaign of harassment" and "baseless allegations" against the Claimant [6]. She emphasised that had proper notice been given, it is likely that Mr Winsor would have repeated the allegations "to an even wider audience" thus defeating the purpose of the order.  It was further held the "true nub of the claim" was harassment and that the Claimant, despite having concerns for his reputation as a result of the publications, did not seek to "circumvent the stricter rules applicable to defamation" by bringing a claim under harassment.

Claim form catastrophe as Donald Trump's data protection suit struck out

Donald Trump's claim against Orbis Business Intelligence for damages over allegations in the "dirty dossier" prepared by ex-MI6 agent Christopher Steele has been rejected by the High Court. Trump's application to amend his claim form to bring the claim under Data Protection Act (DPA) 1998 was dismissed, and Orbis' application for strike out and summary judgment in relation to the rest of the claim was successful. 

The original claim had been brought under the DPA 2018 and UK GDPR, although the Defendant highlighted that the Dossier was produced in 2016, before the enactment of the 2018 Act.  Trump therefore applied to amend the Claim Form to add a cause of action under DPA 1998, and to introduce an entirely new claim that the processing of personal data was unfair.   However, the application was refused by Mrs Justice Steyn as the limitation period of six years for data protection claims had expired.  After rejecting Trump's application, Mrs Justice Steyn considered that the only remaining issues were the retention and storage of memos by Orbis in 2018.  She held that these remaining parts of the claim were "bound to fail", because merely retaining documents cannot be said to cause Trump distress, and following Lloyd v Google "the right to compensation only arises if the claimant can establish that he has suffered damage as a result of a contravention".  Orbis' application for summary judgment and strike out was therefore allowed. 

Brianna Ghey's murderers named in a victory for open justice  

The teenagers who murdered 16-year-old Brianna Ghey have been named after journalists successfully asked the judge to lift the anonymity order, in a win for open justice. The identities of Scarlett Jenkinson and Eddie Ratcliffe had been kept anonymous pursuant to an order imposed by a judge under section 45 of the Youth Justice and Criminal Evidence Act 1999 which allows a judge to grant anonymity to under 18s involved in criminal cases until they reach adulthood. The media challenged the order by requesting an "excepting direction" under section 45(5) of the Act. Mrs Justice Yip agreed with journalists and lifted the order on grounds of open justice. A key factor in her decision was the fact that Brianna was a transgender social media influencer with a large following whose murder occurred in broad daylight in a village park. Her death gave rise to global news coverage and the judge considered publication of the circumstances of her death, including the identities of Brianna's killers, to be in the public interest.

Fearing misuse of personal data no longer constitutes "non-material damage"

The European Court of Justice (ECJ) has issued a preliminary ruling in BL v MediaMarkSaturn Hagen-Iserlohn Gmbh (Case C-687/21) stating that fear of misuse of personal data by third parties following a GDPR infringement does not amount to "non-material damage". This narrows the ruling of VB v Natsionalna agentsia za prihodite (Case C-340/21) in which such a fear was held to be capable of constituting "non-material damage".

Employees of MediaMarktSaturn Hagen-Iserlohn GmbH (Saturn) accidentally gave one customer's (BL) electrical device, sales contract and credit agreement to another customer. Although BL quickly recovered his appliance and documents, the company's error caused BL to suffer loss of control of his personal data. The Local Court, Hagen in Germany, heard the case and referred questions to the ECJ about the interpretation of articles 5(1)(f) (data security principle), 24 (controller's responsibilities), 32 (data security measures) and 82 (compensation) of the GDPR. The ECJ held that reading these articles in conjunction meant that erroneously giving a customer a document containing another customer's personal data is not sufficient to consider the company's technical and organisational measures to have not been "appropriate". It was also held that the severity of the controller's (Saturn) infringement does not need to be taken into account for the purposes of compensation. The interpretation of article 82(1) was held as being that the right to compensation is a compensatory rather than punitive function.

Slander claim dismissed in one-day trial

The slander claim in Griffin v North Cumbria Integrated Care NHS Foundation Trust was dismissed on 8 February after a one-day trial in the Royal Courts of Justice. The claim involved a telephone call to follow up an employment reference about the Claimant which was provided by the Defendant. The Claimant's arguments for malice and deliberate concealment were unsuccessful. Richard Spearman KC, sitting as a High Court Judge, dismissed the claim on grounds of inter alia limitation and qualified privilege.

Fast approaching deadline for Ofcom's consultation on illegal harms duties

Ofcom, as new online safety regulator, has issued a reminder that its consultation on illegal harms duties under the OSA is set to close at 5pm on 23 February 2024.  This is the first of four major consultations which sets out Ofcom's proposals and recommendations for compliance by 'user-to-user' services and search services with their new illegal content duties. Ofcom has published draft guidance recommending measures that could be implemented relating to platforms' governance, content moderation mechanisms, reporting and complaints procedures, terms of service, and user empowerment. The suggested measures include more protective default settings for child users, the use of 'hash matching' technology to detect and remove child sexual abuse and exploitation material, and targeted steps to tackle fraud and terrorism. For more information on the consultation, see our blog and Ofcom's proposal overview.  RPC will also be hosting a panel discussion on the Online Safety Act to discuss the new legislation, the illegal content codes, and the implications for the tech industry on 27 March 2024.  If you'd like to attend the event, please contact Rupert Cowper-Coles or Nadia Tymkiw.

COPA v Craig Wright – High Court to decide whether Australian computer scientist is inventor of Bitcoin

In a highly anticipated trial, the High Court will rule on whether Craig Wright is 'Satoshi Nakamoto', the pseudonymous creator of Bitcoin.  The decision will have wide-ranging ramifications on several ongoing claims brought by Wright against various entities in England and Wales in his attempt to exercise control over the use of Bitcoin.  Wright has faced six days of cross examination in which he has been forced to deny forging documents in support of his claim, and attacked the qualifications of his own expert witness who found the documents to be fraudulent.  He later admitted that documents he relied on were forged, but instead blamed errors by his former solicitors, disgruntled employees, and hacking, saying "the irony is that if I were to manipulate or fabricate documents, they would be perfect."

Wright has previously brought several libel claims against those who deny he is Satoshi Nakamoto, where he has relied on the presumption of falsity to attempt to have a Court determine that he is Satoshi.  This includes his claim against Peter McCormack, in which the Court made no findings as to Satoshi's identity and awarded Wright £1 damages on the basis he maintained a "deliberately false" case and gave dishonest evidence.

ICO issues reminder to fertility apps following review of data protection obligations

Following concerns for users' privacy and the processing of their data, the Information Commissioner's Office has issued a reminder to fertility app developers to tighten measures relating to compliance with their data protection obligations. Following a poll in September 2023, the ICO found that over half of fertility apps subscribers of services such as menstruation tracking had noticed an increase in baby or fertility-related adverts following registration with 17% of these users describing the adverts as "distressing".

Despite the watchdog identifying room for improvement in transparency relating to data handling and users' ease of navigating privacy policies, it emphasised that it had not found evidence of any misuse of personal data amongst the 25 fertility apps surveyed in its probe.

The ICO has recommended practical tips for app developers to encourage compliance especially when sensitive data such as health is concerned: be transparent, obtain valid consent, establish correct lawful basis, and be accountable.

Quote of the fortnight:

“It’s very difficult to persuade a court to silence someone on the basis of harassment law. The conduct in question must be so serious that it would likely sustain criminal liability. We are really pleased for Tracy that the court found her posts seeking support and making fair criticism came nowhere near that threshold, and that the claim against her was an abuse of process and totally without merit. It’s a huge win for free speech.” Samantha Thompson (Senior Associate at RPC) speaking to The Times following the dismissal of a harassment by publication claim