Take 10 #16

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

News items

Cyber attack: privacy and confidence claims struck out

In what is likely to become a well-cited and important judgment for data controllers defending claims arising from data breaches, Saini J struck out a data subject's claims in misuse of private information (MPI), breach of confidence and negligence against the owners of Curry PC World, which arose following a data breach, leaving only the claim for breach of the Data Protection Act 1998. The Judge described the Claimant's attempts to shoehorn the facts of the data breach into the tort of MPI as "unconvincing". It is a common tactic of claimants asserting a claim against a data controller following a data breach to include a claim for misuse of private information, thus potentially allowing the claimants to avail themselves of the exemptions available for "publication and privacy proceedings" in LASPO 2012. Hopefully, the Judgment will empower data controllers to be more robust in defending claims asserted following data breaches, which are often brought by claimants who have entered into CFA with their solicitors and have obtained ATE insurance (Darren Lee Warren v DSG Retail Limited (judgment handed down today and not yet available online.)

Open justice – Various Claimants v Independent Parliamentary Standards Authority 

In an important decision for open justice, Nicklin J refused an application by the claimants for permission to bring their claim anonymously, emphasising that disclosure of the claimants' identity would not have defeated the very purpose of the claim, with the confidential information in the proceedings being capable of management through other means. While Nicklin J acknowledged that the claimants' argument was a 'novel one', he held that it would have the effect of granting anonymity to 'most if not all' data breach claims and that he was not satisfied that derogation from open justice was strictly necessary.

Tommy Robinson loses libel case 

Nicklin J has handed down judgment in Hijazi v Yaxley-Lennon.  The facts stemmed from a video of C, a Syrian schoolboy, being attacked by another pupil at school which went viral.   D (Tommy Robinson) subsequently posted two Facebook videos in response to the viral clip, in which he claimed that C was "not innocent and he violently attacks young English girls in his school."  C subsequently became a target of abuse which ultimately led to him abandoning his education and receiving death threats.  Nicklin J previously found the meanings of the videos to be that C had, as part of a gang, participated in a violent assault on a young girl which have caused her serious injuries and, in respect of the first video only, had threatened to stab another child.  D sought to defend the claim on the basis the imputations were substantially true, with reference to various pleaded incidents.  D did not testify himself, but relied on the testimony of 5 witnesses who had been pupils at the school at the relevant time, contemporaneous school records and hearsay evidence, specifically videos of individuals who the judge found were all unaware they were being recorded.

In his very detailed judgment (a lesson on how not to prove truth), Nicklin J variously found the witness testimony relied on by D to be unreliable, manufactured, and/or incapable of proving the incidents pleaded.  The judge had serious doubts about the admissibility of the hearsay evidence, which in any case was not reliable given D's use of leading questions, a third party's prompts, and as some of the account provided in the videos had been omitted by D. Nicklin J was instead persuaded by C, a "credible and truthful witness throughout his evidence" and the contemporaneous school records which generally supported C's account. Judgment was entered in C's favour, with £100,000 in damages being awarded.  Further submissions about whether an injunction should be awarded will be heard.  Publication of a summary of the judgment under s12 Defamation Act was not awarded on the basis that the availability of the judgment on search engines as well as reporting on the same would be a more effective means of communicating the judgment than ordering D to publish a summary.

Harassment by publication case fails

In McNally v Saunders [2020] EWHC 2012 (QB) a local authority's Director of Public Health brought a claim in harassment against a semi-retired former solicitor who publishes a blog "directed at exposing corruption, cronyism and incompetence" at the local authority.  C was subject to five blog posts criticising her decision to post a video about her own struggle with mental health and questioning her qualifications. D applied to strike out the claim and/or for summary judgment.  Given that the claim related primarily to posts on public forums, both C's standing as a citizen journalist and the case law on harassment by publication (which directs the court to s12 HRA) were relevant.  This meant that, in considering whether there had in fact been a course of conduct amounting to harassment, Chamberlain J was required to balance D's freedom of expression against the interests of C, in order to assess whether it was reasonable for D to pursue the course of conduct in question (see s1(3)(c) PHA 1997).  In undertaking the balancing exercise, Chamberlain J considered the public interest in C being able to fulfil her role without being subject to criticism. However he found in favour D on the basis his blog (although "puerile and abrasive" in tone and style) attracted the enhanced protection afforded by Article 10 ECHR, the content of the material was not on its own oppressive or unreasonable for D to have published, and C's Article 8 interests were either not engaged or significantly diminished by her choice to put her mental health history into the public domain.  

Online abuse victim awarded substantial damages

On 15 July 2021, Saini J handed down judgment in respect of remedies in Blackledge v Person(s) Unknown [2021] EWHC 1994 (QB). A university lecturer, who was falsely named as a rapist and bully on a Google blog set up following the #MeToo movement, brought a claim in libel, harassment and breach of the GDPR against the unknown publishers of blog, and subsequently obtained default judgment in February 2021. In the absence of any pleadings or evidence from D in respect of publication, Saini J accepted C's "extremely grave" meaning, inferred publication be in the high hundreds to low thousands, and found there was likely to have been a further "grapevine effect" in the circumstances of the case.  On this basis he awarded £70,000 in damages. Saini J also awarded an injunction against D and an order against Google LLC, as the host of the blog, to remove it under s13 Defamation Act 2013 finding that such an order would likely be the only remedy capable of providing effective and meaningful protection to C.

Record award of libel damages breaches Article 10

In Sociedade Independente de Comunicação v Portugal, the ECtHR held that an award of damages totalling €146,000 (~£124,200), which was a record in Portugal, to a politician wrongly linked to an investigation into a paedophile scandal in the Azores disproportionately interfered with the applicant company's right to freedom of expression and was not necessary in a democratic society.  Relevant factors included that the impugned statements undoubtedly conveyed matters of public interest, the status of the politician at the time of publication, that he had resumed his role in politics shortly after the statements were published (calling into question whether the damages were proportionate to the damage caused to him), and that the amount of compensation was capable of discouraging the participation of the press in debates over matters of legitimate public concern and has a chilling effect on the freedom of expression and of the press. 

Chatter

Online Safety Bill: call for views on freedom of expression

Parliament has announced that a 'Super Committee', chaired by Damian Collins MP (whose inquiry  Disinformation and ‘fake news’ recommended tougher action on online hate speech and greater regulation of social media companies) has been set up to scrutinise the draft Online Safety Bill.  The Committee is asking the public whether the draft legislation will meet its objective of making the UK "the safest place to be online", in particular how it compares to legislation in other jurisdictions and whether it represents a threat to freedom of expression.  Those with views are invited to submit them via the Committee's website (though at the time of publishing the website indicates that the call for written responses is to be published in due course – watch this space).  

Group claim launched against Google

An opt-out group legal action seeking damages of up to £920m from Google on behalf of 19.5 million UK Android phone users has been launched in the Competition Appeal Tribunal. The legal action alleges that Google customers are restricted from accessing apps distributed by potential competitors, and instead steered to Google's Play Store, where they are charged a commission on digital purchases using its own payments system.  A Google spokesperson has said: “Android gives people more choice than any other mobile platform in deciding which apps and app stores they use – in fact most Android phones come preloaded with more than one app store. We compete vigorously and fairly for developers and consumers – 97% of developers on Google Play don’t pay any service fee at all, which means their apps are free to consumers. Less than 0.1% of developers are subject to a 30% service fee and only when they’re earning over $1m – that fee is comparable with our competitors and allows us to constantly reinvest in building a secure, thriving platform that benefits everyone who uses it. This lawsuit ignores the benefits and choice Android and Google Play provide as well as the competitive market in which we operate.” RPC is acting for Google.

Calls for anti-SLAPP legislation in the UK

A policy paper has been published by the Foreign Policy Centre on behalf of 21 organisations recommending legislative and regulatory changes in the UK to counter SLAPPs.  The paper calls for a formal Parliamentary inquiry into legal intimidation and SLAPPs in order to examine the issue and explore legislative and regulatory proposals to counter it, including potential UK Anti-SLAPP legislation.

Responses to proposed Official Secrets Act reforms 

In response to Priti Patel's call for views on the Government's proposed reforms to the Official Secrets Act, Press Gazette has published the responses of a number of representatives of the news media industry, as well as its own full submission in which it emphasised the lengths that the UK has gone to publicly support the idea that press freedom is fundamental to any democratic society an argued "[i]t would be embarrassing and worrying if, as we are encouraging other countries against suppressing journalism and publicly signalling our concern about “restrictive laws” against journalists, we were to bring in a legislative crackdown on journalism at home".

Ofcom's new safety principal 

Ofcom has announced Anna-Sophie Harling will be its online safety principal, in charge of implementing the Online Safety Bill.  Harling has said the Bill will "enable us to introduce meaningful transparency where it has been lacking and empower Ofcom to hold platforms to account". 

Google app charges targeted by mass legal claim

A legal action seeking damages of up to £920m from Google on behalf of 19.5 million UK Android phone users has been launched. The legal action alleges that (i) Google broke European and UK competition laws with the 30% surcharge and as a result is overcharging millions of app users who make purchases via the Play Store and (ii) because Google bundles the Play Store with other products and requires pre-installation of it, consumers have little alternative but to pay the charges set out by Google. The claim has been filed with the Competition Appeal Tribunal. 

Quote of the fortnight:

"[W]here judicial cases or criminal investigations are concerned, it is inconceivable that there should be no prior or contemporaneous discussion of the subject matter of trials, be it in specialised journals, in the general press or among the public at large. Not only do the media have the task of imparting such information and ideas; the public also has a right to receive them."