Take 10 - 17 April 2025

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

UKSC decision in Abbasi - doctors in end-of-life cases can be named

The UK Supreme Court handed down judgment yesterday in related appeals brought by two NHS Trusts who sought to continue injunctions against parents of recently deceased children, preventing them from naming individual clinicians involved in the end-of-life care of those children at the respective hospitals. The Court of Appeal decision to discharge the injunctions and permit the naming of clinicians was upheld by the UKSC, albeit for different reasons. Injunctions had originally been granted in each of the sets of family proceedings whilst the children were alive and whilst declarations that each child should have life-sustaining treatment withdrawn were considered. After the children had died, the parents wished to tell their stories about what had happened to them and their children and to name and criticise the clinicians involved in caring for the children. Despite the death of the children and the proceedings effectively coming to an end, the injunctions preventing the parents from identifying the clinicians (who were not themselves parties to the proceedings) remained in force against them.

The judgment is long and detailed and contains interesting examination and analysis of the court's jurisdiction and basis for making injunctions of this nature in these sorts of cases. Of most importance and relevance, however, the court found that whilst the injunctions prohibiting the naming of the clinicians may have been justified on varying bases whilst the children were alive, they could not and should not be continued after the death of the children without the clinicians themselves making applications for their continuation, clearly setting out the cause of action and basis for obtaining such an order. In practical terms the UKSC suggested that, after the death of a child in a relevant case where injunctions are obtained by hospitals that extend to the naming of clinicians, the injunction could remain in force after the death of the child for a 'cooling-off period' to enable the clinicians to apply to extend them if they wished.

In these cases, the court did not have pleaded causes of action or detailed evidence from any of the relevant clinicians before it and firmly came down in favour of the parents' Article 10 rights. It observed, however, that any such application by clinicians in this sort of case must convincingly establish the need to restrict the Article 10 rights and that, whilst weight may be given to the importance of protecting medical and other staff of public hospitals against unfounded accusations and consequent abuse, the treatment of patients in public hospitals is a matter of legitimate public interest and the senior medical and other staff of such hospitals are public figures for the purpose of the Convention and as such are subject to wider limits of acceptable criticism. It also recognised that, after the death of the child, the clinicians' Article 8 rights might gradually diminish whereas the parents' Article 10 rights would remain strong and so any continuing injunction may need to be of limited rather than indefinite duration.

Judgment handed down in Bridgen v Hancock libel claim

Judgment has been handed down by Mrs Justice Collins Rice on an application for summary judgment and/or strikeout made by former Health Secretary Matt Hancock (D) in respect of the libel claim made against him by Andrew Bridgen, a former MP for North West Leicestershire (C). The claim relates to a post on X by D in January 2023 which referred to a "sitting MP" spouting "anti-semitic, anti-vax, anti-scientific conspiracy theories". C, a vocal critic of the Covid-19 vaccine, had earlier that day tweeted to suggest that the vaccination programme was "the biggest crime against humanity since the Holocaust".  Following a TPI earlier in the proceedings, it has been determined that D's Tweet was a statement of opinion that the C (if reference is made out) had said something that morning about vaccinations that was antisemitic in character.

D sought summary judgment on the grounds that C has no realistic prospect of establishing serious harm (on the basis that anyone who understood D's Tweet to refer to C would necessarily have already been aware of C's own Tweet and the resultant controversy and therefore have made their own mind up about it) and that the defence of honest opinion is bound to succeed (and/or that the C's case that the D did not actually hold the opinion, pursuant to s3(5), should be struck out). Collins Rice J declined to make a terminating ruling. She found that both the issues of serious harm and honest opinion engage matters of "fact, evidence and evaluation" which ought to be decided at trial. The Judge considered that the question of whether an honest person could hold the opinion (i.e. the third condition in s3(4)) required, or was capable of being affected by, evidence as to the actual views formed by others on the same or similar matters.  The Judge did however find that C's Reply to D's honest opinion defence was largely defective, and has required it be repleaded both in his response to the third condition under s3(4) and on his case on s3(5).  Both parties have indicated that they are considering seeking permission to appeal.  RPC acts for Mr Hancock.

Single-publication rule argument fails due to differing readerships in Scalora v Clarion Housing Association

On Thursday 10 April 2025, the judgment of Deputy High Court Judge Aidan Eardley KC allowed a libel claim to continue for two of three publications following the Defendant's strike-out application on limitation grounds.   

The Defendant is a social housing provider. The Claimant sought to publicise his grievance against the Defendant, who he said unlawfully evicted him in March 2020.  A Sun Online journalist contacted the Defendant, which responded with a statement for publication mentioning that a person illegally residing in the home and two others were suspected of colluding to commit tenancy fraud.  The statement (which did not name the Claimant) featured in a Sun Online article published on 11 June 2022. The Defendant was later contacted by a MyLondon journalist and gave the same quote but this time named the Claimant. The MyLondon article was published on 19 October 2022 including the Defendant's quote and another article appeared on the Mirror Online on the same date which also included the quote. The Claimant claimed the Defendant caused the defamatory statements to be published in the three articles [17].

The Defendant's application was made solely on limitation grounds. The Claimant issued his claim on 16 October 2023, just short of 1 year from publication of the MyLondon and Mirror Online articles but some 16 months after the Sun Online article [16]. The Claimant said he was advised to wait to bring libel proceedings until after the Defendant's disclosure in parallel proceedings challenging the eviction. The Judge found this to be an "inadequate justification" [41]. 

The Judge agreed that the claim in respect of the Sun Online article was plainly time-barred and the Claimant could not rely on s.32A of the Limitation Act 1980 (which gives the court discretion to extend the limitation period) given the length of delay and inadequate explanation [45].  The Judge said such discretion should only be "exercised exceptionally and there is a heavy burden on the claimant to explain their delay" [28]. 

The Defendant relied on the 'single-publication rule' under s.8 Defamation Act 2013 to argue that the MyLondon and Mirror Online articles were also time-barred, contending the statements complained of in these articles were substantially the same as in the Sun Online article [50].  The Judge gave guidance on his process for analysing the articles: it was not a line-by-line assessment but rather the question was "whether any differences in the content of the newly-published statement make a difference from the claimant's perspective that is sufficient to excuse them for not having sued earlier" [55].  In the circumstances, the Judge did not think that the lack of the Claimant's name in the Sun Online article made a material difference as the quotation otherwise "plainly refers to the Claimant" when the article was read as a whole [58].  However, the Judge ultimately allowed the claim to continue in respect of the two articles on the basis that the statements were "likely" to have reached a group of publishees that was "quantitatively greater than, and qualitatively different from" the readers of the Sun Online article given that newspapers (both print and online) are directed at particular demographic groups [60].

Sir Philip Green's complaint to ECtHR over lack of controls on parliamentary privilege fails

The European Court of Human Rights (EtcHR) has ruled that Sir Philip Green's (the former chairman of Arcadia Group) Article 8 EHCR privacy rights were not breached when a member of the House of Lords named him during a parliamentary session as the high-profile British businessman who had obtained an injunction against the Telegraph to prevent the publication of allegations of misconduct made by former employees. 

Mr Green had settled employment proceedings with the former employees which included non-disclosure agreements to keep information related to the complaints and settlement confidential [8]. Mr Green obtained an interim injunction and anonymity orders pending an expedited trial [11] (see the Court of Appeal judgment here).  Two days after the CoA decision, after the conclusion of an unrelated debate in the House of Lords, the life peer Lord Hain made a statement in which he named Mr Green as the businessman who had obtained the injunction though he did not include details of the underlying confidential information [14 - 16].  The claim against the Telegraph was ultimately discontinued on the basis that there was "insufficient confidentiality left in the information" following Lord Hain's actions [22].    

Mr Green's complaint to the ECtHR did not seek to challenge the principle of parliamentary privilege itself but rather what he considered to be an absence of effective procedural controls or avenues for redress on the power. Mr Green submitted that the current framework allowed parliamentarians to undermine judicial decisions and that it had been used to reveal confidential information subject to an injunction in breach of his Article 6, 8 and 13 rights [61].  The Government argued that the controls Mr Green sought would render freedom of speech in Parliament subject to the controls of the Court, which would be a "fundamental alteration of the constitutional structure" [65].  The Government contended that speech and debate in Parliament was either privileged or it was not, and the exception sought would undermine the fundamental point of the principle.

The ECtHR ultimately concluded that pursuant to the "well-established constitutional privilege of autonomy of Parliament", it was entitled to regulate its own internal affairs [78] and had a wide margin of appreciation in doing so [83]. It was not for the ECtHR to assess the value of parliamentary speech or its contribution to "meaningful debate".  As to controls, the ECtHR considered the sub judice rule (requiring members of the House of Lords to give 24 hours' notice of any proposal) to provide a degree of control on the power to use parliamentary privilege for active proceedings [84] and in less clear cut cases of parliamentary privilege, it would also be open for a complainant to argue the parliamentarian be held in contempt of court and obtain damages [85]. The ECtHR also ruled that Mr Green's complaints under Article 6 (right to a fair hearing) and Article 13 (right to an effective remedy) were "inadmissible" [110].

Ofcom's first investigation into a service provider under Online Safety Act powers

Ofcom has launched its first investigation into an individual online service provider under new powers granted by the Online Safety Act 2023.  The unnamed "online suicide forum" reportedly has thousands of members (both adults and children) and a BBC investigation has linked it to at least 50 deaths in the UK.

In a statement on 9 April, Ofcom said it was investigating whether the service provider had failed to comply with its duties under the Act to (i) put appropriate safety measures in place to protect its UK users from illegal content and activity, (ii) complete and keep a record of a suitable and sufficient illegal harms risk assessment and (iii) adequately respond to a statutory information request.  Ofcom said it had made several attempts to engage with the service provider and issued a legally binding request to submit the record of its illegal harms risk assessment. 

Ofcom said it launched its investigation after receiving a limited response to its request and "unsatisfactory information" about the steps taken to protect UK users form illegal content.  Ofcom will now gather evidence and if the assessment indicates a compliance failure, it will issue a provisional notice of contravention to the provider, who can make representations on the findings, before Ofcom's final decision is made.

Appeal court reinstates struck out MPI claim on appeal, finding truth can be relevant - Mullen v Lyles

On 7 April 2025, Mr Justice Fordham reversed the strike out of a misuse of private information (MPI) claim on appeal.  The Claimant claimed that in three messages sent to his business associates after a working relationship broke down, the Defendant had falsely accused him of sexually assaulting two individuals. The Claimant issued a libel and MPI claim.

The Judge at first instance struck out the MPI claim. The Judge relied on a since-superseded textbook example that "involvement in current criminal activity" did not normally give rise to a reasonable expectation of privacy, and based on a passage in McKennit v Ash, held that the truth or falsity of the information being communicated was irrelevant to the court's two-stage exercise [20]. The Judge reasoned that if the sexual assault allegations were true, it was difficult to see how the Claimant had a reasonable expectation of privacy in that information. If the allegations were false, the Judge considered that "while the Claimant may well have a claim in defamation, he should not be permitted to use the legal process to prohibit people, on pain of sanction, from disclosing accurate information as to criminal misconduct" [23]. 

On appeal, Fordham J considered whether it was wrong for the Judge to conclude that the Claimant's MPI case, taking his factual case at its highest, was bound to fail [26]. Fordham J noted that where the nub of a claim was about the falsity of allegations and an MPI claim had been issued to avoid the rules of defamation, then abuse of process objections could be raised [33]. Fordham J also acknowledged that the Judge had not been made aware of authorities and examples which may have led her to reach another conclusion [40]. Ultimately, Fordham J found that the Judge had erred in assuming that there was a "rigid exclusion" of any inquiry into the truth or falsity of the information and the general conclusion made about reporting crimes was not appropriate in the circumstances of the case [32]. While the focus of the first stage of the test in MPI claims is a claimant's reasonable expectation of privacy in the information, the truth of that information could not be entirely excluded as a hard and fast rule, and may have to be established at stage two when considering whether a defendant's countervailing Article 10 rights outweighed that expectation of privacy [29-32].  The libel and MPI claims continue.

Open justice principle permits "bare details" of case to be revealed in Apple v Secretary of State for the Home Department

On 7 April 2025, Lord Justice Singh and Mr Justice Johnson of the Investigatory Powers Tribunal (IPT) dismissed an application made by the Secretary of State for the Home Department to prevent publication of details (including the fact of the claim and identify of the parties) of a claim issued against it by Apple Inc. A public summary of the private judgment is available here.

The underlying claim concerns the Secretary of State's powers to make Technical Capability Notices under the Investigatory Powers Act 2016. The government argued that it would be damaging to national security if there was public disclosure of the "bare details" of Apple's claim [1]. Apple opposed the application, relying on the principles of open justice and fairness, and submissions on the open justice principles were also advanced by 10 non-party media organisations [41]. 

The government had previously sought to prevent even the fact of the hearing (without publishing the parties' names or nature of the case) from being listed so that the hearing would take place entirely in secret in order to "prevent damage to national security". The IPT described this as an "extraordinary step" and the "most fundamental interference with the principle of open justice". It denied this request and agreed with Apple Inc that the principle of open justice favoured information about judicial proceedings being published absent compelling reasons to the contrary [10]. 

Following a private hearing, the IPT noted that the principle of open justice is a fundamental common law principle which applies to all courts and tribunals exercising the state's judicial power and derogation will only be exercised when it is "established on clear and cogent evidence that it is strictly necessary" [24]. The IPT acknowledged its duties under Rule 7.1 of the Tribunal Rules to ensure it carries out its functions in a way which is not contrary to the public interest or prejudicial to national security and that the executive's assessments as to national security risks should usually be accepted unless they are shown to be irrational or otherwise vitiated by a public law error [28-29]. Nevertheless, the IPT did not consider this a case in which revelation of the bare details of the case would be damaging to the public interest or prejudicial to national security [32].

Judge continues harassment and MPI injunction -  HXZ v NMX

Further to our previous reporting that on 13 March 2025 an injunction was granted to an anonymised businessman against his alleged revenge porn blackmailing ex-partner, a return hearing took place on 3 April 2025. After the injunction was granted, the Defendant removed two compromising posts featuring the Claimant but later reinstated the posts despite objections from the Claimant's solicitors and published three further posts which the Claimant claims amount to misuse of his private information (MPI) and harassment.

Whilst the earlier hearing took place in public (with anonymity and reporting restrictions in place), the Claimant's counsel argued that a private return hearing was "strictly necessary" for the administration of justice to ensure that the parties could present their cases fully without fear of jigsaw identification and to avoid defeating the purpose of the existing anonymity order [30]. They argued the open justice principle would still be upheld through the earlier detailed public judgment which had considerable detail about the case.  The Defendant challenged this and also asked for anonymity to be waived, arguing the claim was not about "inherently private information" but rather about the claimant's conduct and the test of strict necessity for derogations from open justice principles was not met [31]. Ultimately, Deputy High Court Judge Eardley KC decided to maintain anonymity and granted a private hearing as the detailed public judgment combined with the fact that certain information had already been made publicly available by the Defendant on social media meant there was a risk of jigsaw identification of the individuals involved if the hearing was made public [35].

The Defendant's application to discharge the injunction was dismissed. The Judge had no doubt that the Claimant would establish at trial that he had a reasonable expectation of privacy in the information protected by the injunction (health information, naked images and information about his sexual relationships) [51] and it was likely the Claimant's Article 8 ECHR privacy rights would outweigh the Defendant's Articles 8 and/or 10 rights at trial [52].  The Judge similarly considered it likely the trial judge would find that the Defendant had engaged in a course of conduct amounting to harassment or would do so if not prevented by an injunction. The interim injunction was continued and the Defendant was ordered to deliver up the naked images of the Claimant in her possession [68-72] and delete four out of five of her social media posts alleged to contain private information about the Claimant [73-79].

Meaning of X publications determined using innuendo in Aluko v Barton

On Wednesday 9 April, Mr Justice Lavender handed down judgment following a preliminary issue trial on meaning and related issues in the defamation claim brought by football broadcaster, Eni Aluko, against fellow former professional footballer and manager, Joey Barton.

The first post on X complained of read: "Surprise, surprise…" followed by three clown emojis and a crown emoji, appearing above a screenshot of an article with the headline: "FA faces calls for fresh investigation after Eni Aluko's claims of racism and bullying" (the First Post) [3-4]. The second X post complained of stated: "More has come to light about poor, little Eni Aluko. Dad was a Nigerian Senator. Dodgy money. Ran to England. Massive house in Wentworth. 3 Rolls Royce’s [sic]. St Mary’s in Ascot private education. Lawyer. Race card player" (the Second Post) [9]. As context for the First Post, the Claimant relied on (but did not claim in libel over) a third X post in which the Defendant said (among other statements): "I was waiting for the victim card to be played" above a headline referring to the Claimant speaking about online abuse towards woman in football broadcasting (the Victim Card Post). 

Among the submissions made, the Claimant advanced an innuendo meaning of the First Post that would be understood by readers who also read the Victim Card Post. She argued that taken together, the First Post would be understood to mean that the Claimant was someone whose complaints about online abuse towards women in football broadcasting and hate speech were a case of her playing the victim card i.e. making unjustified complaints [22]. The Defendant noted that the Claimant had not sued on the Victim Card Post in libel and submitted that it said nothing about any claims about racism made by the Claimant [23].

The Court agreed that the Victim Card Post (published just under 5 hours earlier) would give context to the First Post [34]. In the circumstances, the Court found that the sarcastic use of the words "Surprise, surprise" in the First Post would be understood to refer back to the words “I was waiting for the victim card to be played” in the Victim Card Post, so the ordinary reasonable reader would understand the First Post to mean it was both "predictable and laughable" that the Claimant had "cynically sought to exploit her status as an alleged victim of racism and bullying" [38]. Both publications complained of were found to be defamatory at common law, with the First Post being a statement of opinion and the Second Post one of opinion insofar as it meant the Claimant had cynically sought to exploit her race [63].

Journalists report increasing difficulties and delays accessing government information  

After interviewing 31 journalists with an average of 17.7 years' experience across the UK, Jingrong Tong (senior lecturer in Media and Information Studies at the University of Sheffield) found journalists in the UK are experiencing increasing restrictions to freedom of information (FOI) requests and daily journalistic access to government information. The full paper is available here.

A common theme among interviewees were increasing obstacles as a result of press offices being the sole point of contact for all media enquiries to public bodies, with some journalists reporting that they were expressly banned from speaking directly to government staff or press officers appearing to discourage journalists from publishing stories.

All participants who used FOI requests in their practices voiced concerns around delays to receiving responses, or that responses lacked useful and/or accessible information.  They also reported that rejections to FOI requests were more common, with commercial confidentiality and data protection used "more broadly than they should have been and not consistently across government bodies".  FOI requests to police forces and local councils were considered particularly difficult, and environmental topics were thought to be more accessible because of the effectiveness of the Environmental Information Regulations.

Ultimately, participants called for reforms to FOI legislation and increased resources to deal with FOI requests, as well as enhanced training for government departments (particularly the police) to better engage with journalists. 

Reminder that the Hilary term ended yesterday (16 April) and the Court's Easter term will resume from 29 April. We wish our readers a happy Easter break in the meantime. 

Quote of the fortnight

x"Section 6(1) [of the Human Rights Act 1998] does not require the court to protect the Convention rights of individuals who are not parties to the proceedings before the court but could be parties if they chose." -  The UK Supreme Court in Abbasi and another v Newcastle upon Tyne Hospitals NHS Foundation Trust and King's College Hospital NHS Foundation Trust [2025] UKSC 15, at paragraph [105]