Take 10 #18

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

News items

Neighbour wins privacy row over smart doorbell and cameras

A County Court judge has ruled that the use of smart doorbell cameras breached a neighbour's data protection rights. The Defendant installed a number of security cameras in and around his home, all of which captured varying degrees of his neighbour's property. The Court held that the processing of the Claimant's personal data in respect of a doorbell camera was incidental, only capturing her as she walked past, and the Defendant's legitimate interest to secure his home was not overridden by the Claimant's Article 8 rights. However, it found that further cameras were not necessary to maintain the security of the Defendant's property and captured a substantial amount of the Claimant's property. The Court also found that the range on which audio was collected on all of the cameras was too wide to satisfy the data minimisation principle that data "shall be adequate, relevant and limited to the purposes for which they are processed" as it captured audio of individuals so far away that they may not have even seen the camera by the time their voice is recorded.  Whilst smart doorbell owners among us may be concerned by this ruling, it is worth noting that the Defendant in this action had a significant number of cameras and was found to have misled the Claimant and the Court as to the scope of the camera footage. The Claimant's harassment claim also succeeded. The ICO's guidance on domestic CCTV systems clarifies that data protection laws do not apply if security cameras cover a user's private property but if such cameras capture images of people outside of the user's boundary, then those individuals have rights under data protection law.

The ICO draft guidance for compliance in the media sector

The ICO is seeking feedback on the recently released draft journalism code of practice about processing personal data for the purposes of journalism (the previous guidance was issued in 2014 and an update is therefore well received). The draft code provides practical guidance to help individuals in media organisations understand data protection law and comply effectively with requirements under the DPA 2018 and the UK GDPR. The ICO says it will develop complementary resources to support day-to-day journalism and smaller organisations. The consultation runs until 10 January 2022 and the ICO will be running workshops for those in the media industry throughout November. RPC will be responding to the consultation and we would very much welcome any feedback from media organisations on the new draft code.

"Important win for journalism" as The Citizens wins right to challenge Government comms

Non-profit group, The Citizens has been granted permission to pursue a judicial review against  the UK Government after they repeatedly refused to answer Freedom of Information requests about whether ministers and special advisors had used messaging apps with automatic deletion settings like WhatsApp and Signal. The Citizens plan to argue that the Government's conduct violated the Public Records Act of 1958, requiring communications to be preserved in case they are needed in future in the public interest.

Summary judgment granted to defendant in data breach case where no harm was crediby shown

In Rolfe & Ors v Veale Wasbrough Vizards LLP, following an email being mistakenly sent to the wrong person, a claim was brought by the intended recipients of the email seeking damages for misuse of private information, breach of confidence, negligence and breach of data protection legislation. The Defendant obtained summary judgment with Master McCloud holding that "there is no credible case that distress or damage over a de minimis threshold will be proved...it is not appropriate for a party to claim for breaches of this sort which are, frankly, trivial". This case demonstrates how the de minimis threshold may be applied in practice with the Court refusing to  provide a remedy where no harm had credibly been shown, this despite the current principle in Lloyd v Google in respect of which a claimant may recover damages for 'loss of control'. The Claimant has until 21 days after the handing down of the Supreme Court's judgment in Lloyd v Google to seek permission to appeal. RPC acts for techUK as an intervening party in Lloyd v Google.

WhatsApp to bring in encryption for backup chats after privacy fears

WhatsApp is allowing users to encrypt their backed-up chats, making them unreadable without a password or 64-digit encryption key. Facebook, the app's owner, said that some users would now be able to fully encrypt messages stored on Google Drive or Apple's iCloud. The feature will be slowly introduced to other users who have the latest version of the app. The development comes following concern about the safety of backed-up messages; in May, WhatsApp sued the Indian government over "mass surveillance" internet laws that "severely undermined" the privacy of their users. 

New rules on trial witness statements tested

For the litigators among us, PD 57AC, which came into force in April this year, now sets out strict rules on what can and can't be included in witness statements for trial. In the recent case of Mansion Place Ltd v Fox Industrial Services Ltd, the Court showed that it would not hesitate to strike out non-compliant parts of witness statements and require redactions to be made to those parts (for both parties in this case). Amongst other things, the PD states that witness statements must now be accompanied by a list of documents that the witness has referred to or been referred to for the purpose of providing the evidence set out in their trial witness statement. In respect of this, the Court held that this list does not have to encompass all documents seen by the individual but only those used to refresh their memory. Whilst this judgment provides welcome clarity, it serves as stark reminder (if anyone was in any doubt) of the need to adhere strictly to PD 57AC when preparing witness evidence.

Chatter

Facebook plans to create 10,000 jobs in EU to build "metaverse"

Facebook Inc plans to create 10,000 jobs in the EU over the next five years, to help build the so-called metaverse – an online world, made lifelike by virtual reality or augmented reality, where people can use different devices to move and communicate. CEO Mark Zuckerberg said in July that the company aims to transition from being a social media company to a metaverse company. 

Singapore cancels political blog's license over funding disclosures

Singapore's media regulator has rescinded the license of a local political blog for failing to declare its funding sources. This is a requirement in the city-state, which has tightened its rules to prevent foreign influence in its political affairs. The Online Citizen, founded 15 years ago, had style itself as an alternative voice to mainstream local media, which many see as pro-government. The site's editors and one of its writers were earlier this year sued by Prime Minister Lee Hsien Loong for defamation.

Tech group launches misinformation adjudication panel in Australia

A tech body backed by the Australian units of Facebook, Google and Twitter said it has set up a committee to adjudicate complaints over misinformation, a day after the government threatened tougher laws over false and defamatory online posts. The proposed range of measures would make social media companies more responsible for defamatory material published on their platforms. Last month Australia's highest court ruled that publishers can be held liable for public comments on online forums.

Truthful Trump

Former US President, Donald Trump has announced the launch of his own social media platform, TRUTH Social, which he claims will "stand up to Big Tech" companies which have barred him. In a statement he says he is "excited to send out [his] first TRUTH on TRUTH Social very soon"

Black History Month

October marks Black History Month in the UK. This year, the UK media has been publishing and broadcasting a raft of relevant and interesting content. See for example, ITV's specially commissioned programming, and Channel 4's 'Black to Front' project to improve representation on and off-screen.

Quote of the fortnight:

"By creating transparency, investigative journalism allows voters to make informed decisions. Protecting and supporting journalists is in the vital interest of democratic societies.”

David Sassoli, President of the European Parliament, awarding the media organisations involved in the Pegasus Project the Daphne Caruana Galizia prize for journalism