Take 10 - 20 December 2024

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

Closed justice: judges' names restricted in Sara Sharif case

Following an application brought by two freelance journalists, Louise Tickle and Hannah Summers, and nine news publishers, Mr Justice Williams permitted the publication and reporting on court documents in Family Court proceedings concerning Sara Sharif and her siblings, subject to reporting restrictions protecting the identities of the surviving children as well as third parties who were involved in the case, such as social workers. Unusually, Williams J also restricted the media from identifying the judges who presided over the case, save for himself. Whilst the Judge is yet to deliver his reserved judgment, it was understood at the hearing that the Judge was concerned about what he described as the inevitable "social media pile-on" which would befall those third parties who have had no notice that their names would be reported on in the context of the legacy proceedings. Submissions were made by the media parties which stated that "the starting point is open justice; that the administration of justice takes place in public, and the public have a right to attend all hearings held in open court" (PMC v A Local Health Board [2024] EWHC 2969 (KB) at [28]), and that the court must proceed on the assumption that reporting of the proceedings will be responsible, fair and accurate (R v Sarker [2018] EWCA Crim 1341 at [32(iii)(b)]). The Court of Appeal has granted permission to appeal on an expedited basis. A hearing is due to take place on 14 and 15 January 2025. RPC is acting for Associated Newspapers, the BBC, Guardian News & Media, ITN, News Group Newspapers, Telegraph Media Group, Times Media and Reach Plc.

Clock starts ticking for illegal harms risk assessments under the Online Safety Act 

Ofcom has published the Illegal Harms Codes of Practice and Online Safety Enforcement Guidance, four months ahead of the statutory deadline.

The Codes are still to be approved by Parliament, but this marks a significant milestone in the development of the OSA, and kick starts the duties imposed on online service providers under the legislation. Providers are now obliged to complete illegal harms risk assessments by 16 March 2025.  From 17 March 2025, providers will then need to start implementing safety measures to mitigate the risks identified or face the risk of regulatory action. The Codes contain suggestions on the measures that can be applied to tackle illegal harms, such as moderation, reporting functions and built in safety tests. Under the Codes and OSA, Ofcom has the power to issue fines of up to £18m or 10% of the providers' qualifying worldwide revenue. In extreme cases, Ofcom can apply for court orders to block websites in the UK. Our blog published at the start of 2024 provides a detailed overview of the duties and rules under the Illegal Harms codes and how best to prepare.

Separately, the draft Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025 have been placed before Parliament for approval. These Regulations will define the thresholds above which user-to-user and search services become "categorised" services for the purposes of the OSA. Category 1 services will be required to comply with additional requirements such as duties to protect journalistic content, news publisher content and content of democratic importance as well as producing transparency reports.

Ofcom has also launched a consultation on the framework supporting its powers to tackle terrorism, and child sexual exploitation and abuse content. Under s.121 of the OSA, Ofcom has the power to issue Technology Notices to force providers to use and/or develop specific technology aimed at removing such content.  The consultation seeks submissions on Ofcom's proposals for what the minimum standards of accuracy of accredited technologies could be, as well as their draft guidance for how they propose to utilise their powers.  The consultation closes at 5pm on 10 March 2025.

Prismall v Google – a further bump in the road for representative actions in misuse of private information?

The Court of Appeal has dismissed Prismall's appeal against a High Court decision in May 2023 to strike out a representative action in misuse of private information. The claim, brought on behalf of 1.6 million patients, was struck out at first instance as it could not be established that each claimant had a viable claim in misuse of private information (read more on this decision here).

The underlying claim related to the transfer of medical records from the Royal Free London NHS Trust to Google and DeepMind for the purposes of patient care and other non-medical, commercial purposes. For the representative action to succeed, the claimants needed to show that even on a "lowest common denominator" basis, each claimant could meet the two-stage test for misuse of private information: (i) that they, objectively, had a reasonable expectation of privacy and, if so, (ii) that their Article 8 rights outweighed the countervailing Article 10 rights of the defendants.

The Court of Appeal held that it is well-established that, as a matter of principle, medical information is inherently private.  However, any such expectation of privacy is not absolute, and can be displaced depending on the relevant circumstances of the case (per Murray v Express Newspapers). At least one of the representative claimants was found by the trial judge to have voluntarily placed their medical information into the public domain, thereby losing any reasonable expectation of privacy.  The Court of Appeal agreed with this analysis, finding that it was the "main reason" why the first instance court had struck out their claim.  This decision appears to be a further bump in the road for representative actions in misuse of private information (though whether the claimants seek permission to appeal to the Supreme Court remains to be seen).

Iqbal v Geo TV – broadcaster's appeal for summary judgment granted

The Court of Appeal (Warby LJ delivering the Lead Judgment) has overturned a High Court decision and entered summary judgment for Geo TV in a libel claim as the publication complained of took place on an occasion of qualified privilege and the claimant had no viable case of malice.  

The claim arose out of allegations of illegality and corruption concerning the claimant's (a prominent businessman) relationship with a former Pakistani Prime Minster at a political rally in Pakistan that were broadcast by Geo TV in May 2022. Geo TV applied for summary judgment on the basis that it had a complete defence of qualified privilege under s.15(1) and Schedule 1 paragraph 12 of the Defamation Act 1996: the broadcasts complained of were fair and accurate reports of proceedings at a "public meeting" and there was no malice nor other compelling reason for the case to be tried. That application was dismissed at first instance, with the Court finding that the claimant had a realistic prospect of success at trial of (i) challenging the defence under s.15(3) and (ii) proving malice.

On appeal, the Court of Appeal held that the first instance court had erred in its analysis on both counts.  Section 15(3) of the Defamation Act 1996 serves to disapply the privilege conferred by s.15(1) where a matter is "not of public interest" and "its publication is not for the public benefit". The Court of Appeal held that the words complained of, were clearly a matter of public interest and there was no basis for concluding that the broadcasts were "not for the public benefit". On malice, the Court held that, at best, the claimant's case concerned allegations of careless or irresponsible journalism, and he therefore had no real prospect of establishing that Geo TV had reported the allegations in the knowledge that they were false, or with reckless indifference to their truth.

Jockey loses anonymity in tax dispute

The Upper Tribunal (UT) has dismissed an application for anonymity by Frankie Dettori, the former jockey, following the withdrawal of an appeal against an HMRC decision to deny him of certain tax deductions which he had claimed. Mr Dettori had initially secured a private hearing before the First-Tier Tribunal pending a decision on anonymity at the substantive appeal, but this was overturned. He withdrew his tax appeal and applied for permanent anonymity in relation to the proceedings, arguing that (i) the making of an anonymity application should not be what causes anonymity to be lost if the application is unsuccessful and (ii) if the position were otherwise, it would have a deterrent effect on anonymity applications, however meritorious. The UT rejected both arguments. It held that while seeking an anonymity order in litigation may increase the practical risk of publicity, any publicity is the result of a litigant's "informed decision" to bring proceedings "in a system where open justice is the norm".  The only deterrent effect would be in respect of "tactical, unmeritorious or unevidenced applications" for anonymity. His application was opposed by HMRC alongside various third parties, including Times Media, News Group Newspapers, and PA Media. 

H6: When can you report statements protected by parliamentary privilege?  

A suspected Chinese spy with close links to Prince Andrew has named himself after requesting that a High Court anonymity order be lifted. Yang Tengbo, previously only know as 'H6', is banned from entering the UK, and last week he lost his appeal at the Special Immigration Appeals Commission (SIAC) to have the ban lifted. Prior to Mr Tengbo's decision to reveal his own identity, it was widely reported that certain MPs intended to rely on parliamentary privilege to name him in parliament without the risk of contempt or libel proceedings.  However, this privilege is not available to the media which throws up an interesting question as to how, and to what extent, can the media report on any such disclosure without opening themselves up to serious legal risk.

On libel risk, those wanting to report on such a disclosure should be able to rely on a defence of qualified privilege under s.15 of the Defamation Act 1996 (provided they meet the conditions of the defence as detailed above in respect of Iqbal v Geo TV).  The position is less obvious as to contempt. In the SIAC proceedings, an order prohibiting the identification of 'H6' in connection with the case was made under s.11 of the Contempt of Court Act 1981, a breach of which is punishable by up to two years in prison and an unlimited fine.  However, help is at hand from the Parliamentary Papers Act 1840 which stays civil and criminal proceedings arising from the re-publication of a full copy of, or extracts from a 'report, paper, votes or proceedings' published by order of Parliament (see s.1 and 2).  For those reporting or repeating on 'any extract from or abstract of' such publications; provided they are published in good faith and without malice such publications are immune from civil and criminal liability (see s.3).  Therefore to mitigate any contempt risk, best practice is to wait until an anonymised person's name is published on Hansard, a parliamentary paper and therefore within the scope of the Parliamentary Papers Act 1840, before reporting on it. 

Police surveillance operation against journalists ruled unlawful

The Investigatory Powers Tribunal (IPT) has ruled that a covert surveillance operation authorised by the former head of the Police Service of Northern Ireland (PSNI) was unlawful.  The order, intended to uncover the journalistic source of a confidential document alleged to have been leaked to the production team behind a documentary on the Troubles, 'No Stone Unturned', was quashed by the IPT. The IPT found that the PSNI unlawfully approved the Directed Surveillance Authorisation (DSA) in 2018 without adequately considering whether the public interest in the matter justified interfering with the Article 10 ECHR rights of the sources. The journalists targeted, Barry McCaffrey and Trevor Birney, were each awarded £4,000 in damages.  The IPT judgment also revealed that both the PSNI and the Metropolitan Police had unlawfully accessed Mr McCaffrey's phone data in unrelated operations in 2012 and 2013.  Whilst the IPT quashed the authorisations for these operations, no damages were awarded to Mr McCaffrey on the basis that both authorisations had been sought and given in good faith and in accordance with the domestic legal regime in force at the time. The PSNI previously agreed to pay the journalists £875,000 in damages alongside their legal costs following judicial review proceedings into inappropriate search warrants being issued against them by the PSNI following their arrest in 2018. 

Doorstep Dispensaree v ICO – appeal against fine dismissed

In 2019, the ICO fined Doorstep Dispensaree Limited (DDL), a pharmaceutical company, £275,000, after it found the company was more likely than not to have mishandled 47 crates worth of customers' pharmaceutical documents, including special category personal data. The fine was reduced to £92,000 by the First-Tier Tribunal (FTT), but the appeal was otherwise dismissed.

DDL took its appeal to the Court of Appeal on two grounds: (a) where the burden of proof lies when appealing a monetary penalty notice (MPN); and (b) whether the FTT could attach weight to views expressed by the ICO in its MPN.  The Court of Appeal dismissed both grounds of appeal.  On the first issue, it found that where a penalty notice is appealed under s.163 Data Protection Act 2018, the burden of proof falls on the appellant to prove that the penalty was erroneously imposed: it is "incumbent on [the appellant] to persuade the FTT that the penalty should not stand". On the second issue, the Court found the FTT is entitled to "make up its own mind on the basis of the evidence before it", including evidence which had been incorporated into the MPN.  It also held that it can sometimes be proper for the FTT to attach weight to something said in an MPN given it has been informed by the knowledge and expertise of the ICO, a government-appointed regulator.  

Transparency and Open Justice Board seeks views on key objectives

The Transparency and Open Justice Board has published a request for views ahead of finalising its key objectives to guide the Board's work in championing principles of open justice. The proposed objectives include: (a) increasing public and media accessibility to public court and tribunal proceedings, decisions, core documents, and pending cases; and (b) ensuring that any departure from the principles of open justice is "necessary, proportionate, and justified".  The objectives also acknowledge that the judiciary's ability to deliver open justice is contingent on the availability of resources and support from the Ministry of Justice and HMCTS. Views on the objectives may be submitted via a short questionnaire which must be submitted by 28 February 2025. 

Ofcom's priorities for 2025

Ofcom has published its proposed Plan of Work for 2025/26, detailing its regulatory priorities for the next financial year. The plan highlights the following focus:

1. Trustworthy and Valuable Media – Supporting media to deliver high-quality content while balancing the need to protect audiences whilst safeguarding the media's freedom of expression.
2. Online Safety – Implementing priorities outlined in the UK government’s new online safety framework (see above).
3. Reliable Internet and Postal Services – Ensuring these essential services meet public and economic needs.
4. Wireless Economy Enablement – Supporting innovation and infrastructure for wireless technologies.

The draft plan is open for consultation until 29 January 2025, with feedback events scheduled in Belfast, London, Cardiff, and Edinburgh. The final version of the plan is expected in March 2025.

Quote of the fortnight

“This landmark ruling underscores the crucial importance of protecting press freedom and confidential journalistic sources. We hope that the judgment today will protect and embolden other journalists pursuing stories that are in the public interest. The judgment serves as a warning that unlawful state surveillance targeting the media cannot and should not be justified by broad and vague police claims. The judgment raises serious concerns about police abuse of power and the law, and our case has exposed a lack of effective legal safeguards governing secret police operations. Only a public inquiry can properly investigate the full extent of unlawful and systematic police spying operations targeting journalists, lawyers and human rights defenders in the north.”

Trevor Birney (journalist) in McCaffrey & Anor v Chief Constable of the Police Service of Northern Ireland & Ors

RPC would like to wish all of our readers a very Merry Christmas and best wishes for the new year!