Take 10 - 15 September 2023

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

Laurence Fox in the Court of Appeal

The Court of Appeal has handed down judgment in the Laurence Fox defamation proceedings. We previously reported the outcome of the meaning determination in this case in our previous edition, which sets out the factual background. 

Lord Justice Warby gave the leading judgment (to which the other Justices agreed) and upheld the majority of Mr Justice Nicklin's first instance decisions on the meaning of the tweets complained of (being that the racism tweets were statements of opinion, and that in respect of two of the respondents, Mr Fox's "paedophile" tweets were statements of fact). However, in a rare intervention by the Court of Appeal on meaning, in respect of one of the respondents, the Court of Appeal found that the ordinary reasonable reader would not have concluded that Mr Fox was using the word "paedophile" literally to accuse Ms Thorp of being a paedophile; instead "he was using that word rhetorically as a way of expressing his strong objection to being called a racist". Used in that way, the Court of Appeal held that it was not defamatory [72] and that Ms Thorp's claim should be dismissed [74]. 

LCG & Ors v OVD & Ors: claim for misuse of private information over Instagram photos succeeds in part

The High Court handed down judgment in a misuse of private information, harassment, and duress/undue influence case, featuring a UK businessman (Mr C2) who was sent his daughter's (Ms C1) private Instagram pictures by members of his extended family. The claimants said these photographs were improperly obtained and then misused by the defendants to pressure Mr C2 in the context of the wider dispute about the family business. Ms C1's Instagram account was publicly accessible.

Ms Collins Rice J held that Ms C1 had a reasonable expectation of privacy in the images, because "the protections afforded by Art.8 ECHR are capable of including material the subject-matter of which relates to the development of personal, relationship and social autonomy in a university environment" [270]. However, Mr C2's expectation of privacy was found to be purely "parasitic on" and "subordinate to" his daughter's [273]. Collins Rice J concluded by saying that while the disclosure of the images within Ms C1's family circle did not extinguish their private quality, because the disclosures were done out of a sense of "family duties of care", they were protected by Article 10 [275]. However, the third-party use of the images in the blackmail attempt (the identity of the person who used them in that case was not established) meant that the claimants succeeded in establishing the liability of the unknown author(s) in misuse of their private information [276]. 

Concessions made over controversial "spy clause" 

Following threats by WhatsApp and Signal to withdraw their services from the UK over a clause in the OSB which would allow encrypted messages to be scanned for child sexual abuse material, the Government has conceded it will not use such powers in the OSB until it is "technically feasible" to do so.  In a statement to the House of Lords on 6 September, Lord Stephen Parkinson confirmed that Ofcom would only require companies to scan their networks when a technology was developed that was capable of doing so.  He said "A notice can only be issued where technically feasible and where technology has been accredited as meeting minimum standards of accuracy in detecting only child sexual abuse and exploitation content".  Officials have acknowledged that there is no current technology able to scan end-to-end encrypted messages that would not also undermine user's privacy.  

However, the wording of the bill has not changed, meaning that once appropriate technology has been developed, Ofcom will have the power to issue an accredited technology notice.  The Government remains confident that such technology can be developed, and has called on tech companies to "use their considerable resources and their expertise to develop the best possible protections for children in encrypted environments".

High Court to Re-Examine Whether 'Snooper's Charter' Appropriately Safeguards Journalistic Material

Following legal action by the human rights group Liberty (the National Council for Civil Liberties), the Court of Appeal has ordered that parts of the Investigatory Powers Act 2016 should be reviewed by the High Court in light of whether it provides sufficient safeguards to protect confidential journalistic sources and information. A part of the Act dubbed the 'Snooper's Charter', provides the state with a wide range of surveillance powers, including the right to access individuals' personal devices regardless of any pre-existing evidence of criminal intent or activity. Whilst the CoA considered most safeguards to be compliant with Articles 8 and 10 (being the basis of Liberty's challenge), it concluded that arrangements regarding bulk transfer of material to other state authorities were not legal, as the safeguards in place "are not contained in any legislation, code or publicly available policy or other document" [231]. The outcome of the High Court review has the potential to affect the circumstances under which journalistic materials can be accessed or requested by state actors.

Google's privacy revolution: search engine simplifies process to request removal of personal data and images 

Over the summer, Google upgraded its tools to allow users to request the removal of personal information and unwanted, or non-consensual, personal images online as it aims to curb the appearance of explicit or graphic images in search results. The new measures allow individuals to even request the removal of images that they created and uploaded to the internet themselves. However, the policy does not apply to images which the user is currently commercialising. 

Some other privacy updates include an upcoming dashboard to be trialled in the US which allows users to find out which search terms will return their contact information. These results can then be promptly deleted from Google through a quick request for removal system. The tool also contains a notification setting which alerts users if new search results appear with their information. Google has also implemented blurring as default under their SafeSearch setting which blurs explicit, adult or graphic content when it appears in search results. It appears that that Google may be proactively taking steps to ensure future compliance with the Online Safety Bill. 

Legal Professional Privilege prioritised in FOI request on appeal

The First Tier Tribunal (General Regulatory Chamber) has handed down its decision in an appeal by an editor of a local news website against a Freedom of Information decision by the Information Commissioner. The first instance proceedings in the ICO arose from a Freedom of Information request submitted by the appellant to the London Borough of Croydon, to obtain all correspondence between the Borough and a firm of instructed solicitors. The Borough refused the FOI request as it considered the correspondence to have been made in anticipation of legal proceedings. The appellant argued that the legal advice was obtained in the context of a proposed libel action by individual councillors against the appellant and/or the local news website, and that the Borough accordingly used public funds to obtain legal advice for what could reasonably be considered a private matter. The Borough relied on the section 42 exemption to withhold legally privileged correspondence from public view. At first instance, the ICO agreed that such legal professional privilege (LPP) took precedence over the appellant's right to publicly funded information. 

On appeal, although the Tribunal acknowledged the "validity of some of the concerns raised by the Appellant and the importance of transparency and accountability on the Council as a public authority responsible for expenditure of public funds" [39], it concluded that the timing of the FOI request was during the period that the anticipated legal action was being considered and that the matter at hand was clearly live at the time of the request. In the Tribunal's view this added significant weight to the public interest in maintaining the LPP exemption. Ultimately the Tribunal found that in all the circumstances the public interest in disclosure of the withheld information was outweighed by the significance and importance of maintaining the protection afforded by LLP – the appeal was dismissed. 

Developments in the fight against SLAPPs

The Economic Crime and Corporate Transparency Bill (discussed in our previous edition) which includes measures that will allow judges to dismiss SLAPPs, is now in its final stages and should soon receive Royal Assent. No further changes to the anti-SLAPP provisions in the Bill appear to have been raised by the House of Commons, which means the provisions we discussed on 6 July 2023 may pass in their current form. 

Further, on 11 September 2023 the government announced that it has assembled a taskforce to continue working on eradicating SLAPPs from British courts. The taskforce, which is made up of media and legal experts, will commission research, explore further regulatory measures to prevent or mitigate SLAPPs, develop training for legal professionals and judges, and produce guidance for other stakeholders such as journalists and publications.

'X' to Collect User Biometric Data in Bid to Become "Global Address Book" 

Elon Musk's Twitter takeover appears to have reached new heights, as X unveiled dramatic designs to turn it into an "everything app", moving above and beyond the platform's traditional short message posting format.

X has also announced a new updated privacy policy which provides for the collection and utilisation of biometric data (such as faceprints and voiceprints), as well as users' employment and educational history. Whilst this data will reportedly be utilised to bolster user security on the platform, the data collection will require users' consent. The new privacy policy will come into force on 29 September 2023.

A Minor Legislative Change to DSARs – But at What Cost? 

Over the summer, the Open Rights Group, a digital campaigning organisation, raised concerns that the proposed Data Protection and Digital Information Bill, which is making its way through Parliament now, "greatly weakens your control over and access to your own data".

While the UK GDPR provides that companies may only reject a subject access request where the request is "manifestly unfounded or excessive", the proposed bill has seemingly lowered this threshold by changing this condition to "vexatious or excessive".  Open Rights Group states that this change favours big businesses rather than fulfilling GDPR's raison d'etre of enhancing the rights of individuals. It remains to be seen whether the changes will survive further Parliamentary reading in light of the publicity garnered to date. The Bill is currently at the report stage. 

MP complains about breach of privacy in University of Cambridge Ted Talk 

Former MP Antoinette Sandbach has complained to the University of Cambridge about a Ted Talk by one of its PhD students in which she was identified as a descendent of the 18th and 19th century slave merchant Samuel Sandbach. Malik Al Nasir, who is a third-year PhD history student at St Catharine’s College, delivered a Ted Talk that appeared on the university's website. According to the Guardian, Ms Sandbach complained to Mr Al Nasir and the university on the grounds that the reference to her breached her right to privacy and that she had a right to be forgotten as she was no longer a public figure. An investigation by the university's information compliance office found the reference to Ms Sandbach in the Talk could be maintained on the basis of academic freedom. Whether Ms Sandbach has a cause of action in data protection, misuse of private information, or defamation remains to be seen.  

Quote of the fortnight:

"Working together with industry leaders, we will develop strong measures which enhance the freedom of the press to expose wrongdoing without fear of our justice system being abused to silence journalists."  - Culture Secretary Lucy Frazer KC, regarding the inaugural meeting of the government taskforce dedicated to tackling SLAPPs, 11 September 2023