Take 10 #15

Welcome to RPC's media and communications law update. This issue reports on key media developments and the latest cases.

News items

Big Brother Watch and others v The United Kingdom

The European Court of Human Rights has ruled that GCHQ's methods for bulk interception of online communications violated the right to privacy and that the regime for collection of data was unlawful. The Court also found that the bulk interception regime breached the right to freedom of expression and contained insufficient protections for confidential journalistic material, though they held that GCHQ's regime for sharing sensitive digital intelligence with foreign governments was not illegal. The judges set out three main fundamental 'deficiencies' in the regime. Firstly, the bulk interception was authorised by the Secretary of State, and not by a body independent of the executive. Secondly, categories of search terms defining the kinds of communications that would become liable for examination had not been included in the application for a warrant. Finally, the search terms linked to an individual had not been subject to prior internal authorisation. The Media Lawyers' Association had intervened in this case.  

Arlene Foster v Christian Jessen

TV doctor Christian Jessen has been ordered to pay damages of £125,000 to Arlene Foster for posting a defamatory Tweet which made unfounded claims that the First Minister of Northern Ireland was having an extramarital affair. Delivering judgment in Belfast, Mr Justice McAlinden described the allegations about Ms Foster as being a 'most serious libel' and 'grossly defamatory', placing emphasis on her long marriage, her Christian beliefs, and Dr Jenssen's failure to respond to demands from her lawyers. Mrs Foster's lawyer Paul Tweed welcomed the judgment, saying it was a "watershed" moment for women in public life who have been attacked on social media.

Court held Defendants' addresses can be reported

A recent Court of Appeal judgment has been published in the case of Babita Rai v The Crown Court Sitting at Winchester, which upheld the High Court's ruling in February that affirmed the public interest in being able to report matters disclosed in open court proceedings, including the name and address of defendants. At a preliminary hearing in the underlying criminal case in 2020, Ms Rai – facing charges of infanticide - applied for reporting restrictions preventing the media from publishing her address. The PA news agency successfully intervened to ensure her address could be reported, which Ms Rai challenged in both the High Court and Court of Appeal. Lord Justice Warby, giving the judgment of the Court of Appeal, explained that the reporting of private information deployed in open court 'does not require item-by-item justification' and that 'the starting point is that everything may be reported'.

American Express fined £90,000 

The ICO has fined American Express £90,000 for sending over 4 million spam emails to its UK customers in one year.  Customers had complained to the ICO after 'opting out' of receiving direct marketing emails. AMEX argued the emails were only 'service emails' to inform customers of ongoing campaigns and fell within the law. However, the ICO says that there is a clear distinction between 'service messages', containing routine information such as changes to terms and conditions, and 'direct marketing' containing communication of advertising or marketing material. 

The Open Rights Group v The Secretary of State for the Home Department

The Open Rights Group and the3million (a grassroots organisation of EU citizens resident in the UK) have won a Court of Appeal challenge over an 'unlawful' exemption to data protection rules in immigration cases, arguing that the 'Immigration Exemption' denies people access to their personal records which means that people are prevented from challenging errors made by the Home Office. Lord Justice Warby said that the exemption was an 'unauthorised derogation from the fundamental rights conferred' under data protection rules and ruled it was unlawful.

Chatter

Max Mosley

Max Mosley died on 23 May 2021. Mr Mosley attained a degree of publicity he may not have entirely welcomed following his privacy claim against News Group Newspapers in 2008 over its "F1 boss has sick Nazi orgy with 5 hookers" report, for which he received a then record sum of privacy damages.  He devoted much of the remainder of his life to campaigning for media reform, supporting campaign group Hacked Off, and was behind the establishment and funding of the press regulator Impress.  He had previously indicated that his family could continue to support the regulator until "at least 2022". The Press Gazette published an obituary, which details his 'crusade against the press', here.  

Ofcom chair selection process to be rerun 

The ongoing process to recruit a new chair of Ofcom has been restarted by the Culture Secretary amidst reports that the former editor of the Daily Mail, Paul Dacre, who had previously been considered a favoured candidate for the role, had been rejected by an interview board. The decision was taken to reject all of the final candidates and instead restart the recruitment process. There were suggestions that tech firms including Google and Facebook had lobbied to stop Mr Dacre from getting the job, however Facebook denied these claims. As the Government now prepares to legislate against online harms, this is an inconvenient time for Ofcom to find itself without a chair.  The BBC has a report here and, if any Take 10 readers are interested in the role, the job advert remains online here…

The BBC to review its editorial policies 

The BBC has announced a review of its editorial policies and the rehiring of Martin Bashir following the Lord Dyson inquiry into the 1995 Panorama interview of Diana, Princess of Wales, which concluded that Bashir had used "deceitful behaviour" to secure the interview and, once the BBC were aware of Martin Bashir's behaviour, they then covered it up. Bashir had faked bank statements to convince Earl Spencer that his sister was under surveillance in order to gain access to her for the interview. The BBC accepted the report in its entirety, reiterated an apology to those affected by the failings identified and said they would review the effectiveness of their editorial policies and governance in detail. 

Associated Press is reviewing social media policies

The Associated Press (AP) have announced that they are reviewing their social media policies,  following the dismissal of a journalist for violating AP's social media rules by expressing pro-Palestinian views. Over 100 AP journalists signed a letter expressing concerns about how the former employee, Emily Wilder, was treated. AP's news leaders have asked their employees for volunteers to suggest changes to their social media guidelines in the hope of creating a committee to bring forth recommendations by September 2021. 

Sex Pistols in High Court battle

Steve Jones and Paul Cook, former members of the Sex Pistols, are suing former lead singer John Lydon over the use of the band's songs after Lydon objected to Sex Pistols' recordings being used in a television series called Pistol directed by Danny Boyle. Jones and Cook are hoping a judge will rule that Lydon must consent to licences being granted despite an agreement formed in 1998 providing for 'majority rule' in relation to decisions about the grant of licenses. The Metro has a report here.

Facebook to target individual accounts to reduce distribution of repeat misinformation sharers 

Facebook has announced plans to minimise the spread of false or misleading content across the platform by burying a user's posts further down the News Feed if they have repeatedly shared content that has been investigated by one of Facebook's 'fact checkers'. Facebook said the plans were to assist users in making an "informed decision about whether they want to follow the page." The Evening Standard has a report here. 

Quote of the fortnight:

“On Christmas Day 2019, in the response to the warning I had given to Dr Jessen, he tweeted 'Laugh Out Loud'.  I don't think he will be laughing too much today", Paul Tweed, solicitor for Arlene Foster, revelling in his client's successful defamation claim against Dr Christian Jessen