Take 10 #20

Welcome to RPC's fortnightly digest for media lawyers. This month's digest reports on key media developments and the latest cases.

News items

Banks v Cadwalladr trial

Journalist Carole Cadwalladr told the High Court that she "did not think [she] was saying anything controversial" about Brexit donor Arron Banks in the 2019 Ted Talk over which he is now suing her for libel. Banks took issue with her statement that she was "not even going to go into the lies that Arron Banks has told about his covert relationship with the Russian Government", as well as a later tweet in which she repeated the allegation and shared a link to the talk. Cadwalladr argues that the same claims had already been made repeatedly in the press, including multiple times in her own reporting in The Observer, which she describes as "rigorous". She says she would not have used the terminology in the Ted Talk if Banks had previously complained about her presentation of the facts in previous articles or interviews, and that numerous publications including The Sunday Times, CNN, The New York Times, The Washington Post and Vanity Fair had all reported Banks' meetings with the Russian Embassy. As well as damages, Banks is seeking an injunction to restrain the continued publication of Cadwalladr's remarks, which are still available to view online. Cadwalladr is using the public interest defence to fight the case, which has been described as a SLAPP in Gavin Millar QC's submissions, as well as by numerous press freedom and freedom of expression groups. Mrs Justice Steyn reserved judgement. RPC acts for Carole Cadwalladr.  

Soriano v Forensic News

The Court of Appeal heard an appeal and a cross-appeal against a decision of Jay J by which he granted the claimant permission to serve five media defendants in their jurisdiction of domicile in the USA with proceedings for libel and limited claims for misuse of private information but refused permission to serve a variety of other claims. Whilst the case considered a number of interesting areas including in relation to the standard of proof to apply in relation to s.9 Defamation Act 2013 and the application of Loutchansky malice in relation to a malicious falsehood claim, of most significance was the Court's decision in relation to the territorial scope of the GDPR and its finding that claims for breach of the GDPR could also be served on the defendants in the USA. The Court held that in relation to Article 3(2)(a) GDPR, there was an arguable case that the defendants' journalistic processing was 'related to' the offering of goods and services in the UK and in relation to Article 3(2)(b), an arguable case that the processing 'related to' the monitoring of the claimant's behaviour in the UK. 

Low value data claim to be allocated to the small claims track

In a claim that surely could not be 'worth the candle', HHJ Judge Lewis (sitting as a Judge of the High Court) ordered that a low value data claim be transferred to the County Court and indicated that it should also be allocated to the small claims track. The claim arose out of the sale of a Smart TV, which was subsequently returned to the retailer for repair, before being written-off and sold by the retailer to a third-party company. Subsequently a movie was purchased for £3.49 by someone using the claimant's Amazon account through the Smart TV. The claimant brough a claim alleging that as a result of the retailer's actions, he had "suffered psychological distress, anxiety, loss and damage".

Wagatha Christie

The two-day pre-trial hearing in the libel claim by Rebekah Vardy against Colleen Rooney was heard before Mrs Justice Steyn last week.  Mrs Vardy is suing Mrs Rooney for libel after Mrs Rooney ran a 'sting' operation in 2019 in an attempt to identify who was leaking her private Instagram stories to the press, ultimately alleging that she had discovered it was Mrs Vardy.  Mrs Rooney was this week refused permission to add an additional claim against Mrs Vardy's PR agent.  David Sherborne, for Mrs Rooney, told the High Court last week that a series of unfortunate events had prevented key documents from being disclosed by Mrs Vardy.  This included Mrs Vardy's PR adviser accidentally dropping her phone into the North Sea after a Court order was made that it was to be reviewed, and Mrs Vardy's WhatsApp and all her backups being erased in the process of exporting the data to her solicitors. The trial is set down for May 2022.

Attorney General v BBC

The Attorney General has issued proceedings seeking to restrain the BBC from publishing a news report which may identify an intelligence operative working overseas.  The BBC has argued that publication of the story is overwhelmingly in the public interest. Mr Justice Chamberlain allowed an application from the Attorney General for the hearing to be held in private, but said that this should only occur for the minimum possible time.   

Rachel Riley wins £10,000 in damages over Nazi tweet

The Countdown presenter sued former Corbyn aide Laura Murray over a tweet posted after Jeremy Corbyn was hit with an egg. Ms Riley had posted a screenshot of a tweet by Owen Jones about a similar egg attack on former BNP leader Nick Griffin, which read "I think sound life advice is, if you don't want eggs thrown at you, don't be a Nazi". Accompanying the screenshot, Ms Riley added the caption "Good advice" alongside emojis of an egg and a red rose in a clear reference to the Labour party. In response, Ms Murray tweeted "Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi. This woman is as dangerous as she is stupid. Nobody should engage with her. Ever". Ms Riley argued that this tweet had caused serious harm to her reputation and added her own tweet was true and reflected her honestly held opinions..  As well as relying on defences of truth and honest opinion, Ms Murray relied on the defence of publication on a matter of public interest under section 4 of the Defamation Act 2013.  Although Mr Justice Nicklin found that Ms Murray's Tweet was in the public interest, and that she believed that it was in the public interest, the section 4 defence failed because she did not demonstrate that her belief was 'reasonable' because she had misrepresented what Ms Riley had said.  

Ex tempore judgment in Blake, Seymour & Thorp v Fox

The case concerns tweets published by the Defendant Laurence Fox wherein he referred to the three Claimants as paedophiles in response to their description of D being racist. The Cs sued D, who then served a Defence disputing defamatory meaning and serious harm and relying on the defences of qualified privilege. He also served a Counterclaim against all Cs over their use of the word "racist". The Cs did not serve a Reply & Defence to the Counterclaim, instead applying for a trial of preliminary issues in respect of the issues of meaning, whether the words were defamatory, and whether they were fact or opinion. D did not consent to the TPI and applied for Default Judgment. All three Claimants were granted relief from sanctions for failure to serve a Reply and Defence to the counterclaim, and no order was made on D's application for Default Judgment. The case is now set for trial unless the parties can resolve the dispute out of court, something which Senior Master Barbara Fontaine urged the parties to do. Depending on the Cs' defence to the Counterclaim, D is said to be "minded to" ask for the case to be decided by a jury rather than a judge, which is highly unusual in defamation cases. 5RB has a summary here.

Deborah Turness announced as new boss of BBC News

ITN chief executive Deborah Turness has been announced as the BBC's new chief executive of news and current affairs, replacing Fran Unsworth who is retiring after four years in the role. She has four decades of previous experience at the BBC, starting her career in 1980 with BBC Radio 1's Newsbeat and going on to be BBC home news editor, head of political programmes and head of newsgathering. Between 2004 and 2013 Turness was editor of ITV news, the first woman in the role, before joining NBC news in 2013, becoming the first female president of an American network news division. She later served as president of the network's global arm. BBC director-general Tim Davie said he was "delighted" at the appointment, and highlighted that Deborah is a passionate advocate for the power of impartial journalism.

Peter Soulsby and IPSO

IPSO ruled that the MailOnline had not breached the Editors' Code of Conduct when it reported that the Mayor of Leicester, Peter Soulsby had breached lockdown restrictions by visiting and staying overnight with his girlfriend, Lesley Summerland in May 2020. The committee rejected complaints that the article was inaccurate, breached the complainants' privacy, that subterfuge had been used in breach of Clause 10 and was discriminatory when referring to Ms Summerland as the Mayor's "girlfriend".  

The Times and Sunday Times

Culture Secretary, Nadine Dorries has released News UK, parent company of The Times and Sunday Times from its undertakings to keep the two publications as separate entities. The requirements were designed to protect media plurality when the papers were acquired by Rupert Murdoch in 1981 as he already owned The Sun and the News of the World. The release from the measures will allow more sharing of resources between the two titles leading to cost efficiencies. Whilst there are now no restrictions on the titles merging, an email to staff this week suggested there are currently no plans to do so.

Chatter

European Parliament votes in favour of passing the Digital Services Act

The draft proposes strict new requirements for online intermediaries, utilising a tiered system. All platforms will be under obligation to remove illegal of harmful content or the sale of illegal products and services. Further obligations are envisaged for "very large online platforms. who will be subject to a specific duty to "effectively and diligently identify, analyse and assess … the probability and severity of any significant system risks stemming from the design, algorithmic systems, intrinsic characteristics, function and use made of their services in the EU. Examples provided in the draft include any "actual and foreseeable negative effects on the protection of public health". This seems particularly apt given current debate concerning the extent to which large social media platforms should manage content that is detrimental to public interests, for example concerning Covid misinformation and the January 6th Capitol riots. In addition to managing harmful content, there are provisions for "more transparent and informed choice" around targeted advertising, including clear opt-outs and tracker-free versions of online platforms. Online platforms will be required to provide "meaningful information, including how their data will be monetised" to used of their service in order to facilitate informed choice. The draft was approved by MEPs on Thursday 20th January and contains significant amendments to the initial version proposed in December 2020 by the European Commission.

Spotify removes Neil Young music after Joe Rogan/Covid row 

Spotify has begun to remove music by Neil Young after the musician called for the streaming platform to choose between him and podcaster Joe Rogan. Young has accused Rogan of spreading Covid misinformation on his podcast and told Spotify they can "have Rogan or Young. Not both". In an open letter to his manager and record label that was posted to is website but later taken down, Young said "Spotify has a responsibility to mitigate the spread of misinformation on its platform…. Spotify is spreading fake information about vaccines – potentially causing death to those who believe the disinformation.". Rogan's podcast has an estimated 11m listeners per episode and Rogan himself has been described by the NY Times as "one of the most consumed media products on the planet". In 2020 he signed a $100m deal that gave Spotify exclusive rights to his show, which is Spotify's most popular. Since the pandemic Rogan has repeatedly spread misleading and false claims and in December recorded a particularly controversial episode about vaccines, which has been criticised for promoting baseless conspiracy theories. Last month 270 doctors, scientist and healthcare professionals signed an open letter requesting that Spotify implement a policy for dealing with misinformation. On Wednesday a spokesperson for Spotify confirmed it was taking down Young's music.

My Pillow CEO faces defamation lawsuit from second voting machine maker

American businessman, conservative political activist and conspiracy theorist Mark Lindell faces a second defamation lawsuit, this time from UK-based voting machine maker Smartmatic, for promoting his conspiracy theory that the 2020 election was rigged against Donald Trump. Smartmatic claim in their lawsuit filed last week in a Minnesota federal court that Lindell espoused lies about the company switching votes from Tump to Biden in order to better sell his products. Lindell is the CEO of MyPillow, and Smartmatic note that the MyPillow brand was "a ubiquitous feature" and was "strategically placed" during Lindell's media appearances. "Lindell intentionally stoked the fires of xenophobia and party-divide for the noble purpose of selling his pillows". Smartmatic is seeking unspecified monetary damages.

GB News narrowly avoids referral to AG for contempt of court 

GB News narrowly avoided a referral to the Attorney General for publishing an opinion piece on the four people accused of tearing down the Edward Colston statue mid-way through their trial. The column, published on December 15th, commented directly on evidence and criticised the defendants, calling them "white hippies crippled by white guilt [throwing] a largely irrelevant statue in a river to prove they're not racist". When the article and accompanying video were brought to the attention of the court on December 23rd a whole day of court time was devoted to dealing with potential contempt concerns. Lawyers for the four defendants argued the content created a substantial risk of serious prejudice. GB News said the broadcaster had been working to remove the video and article across its platforms and associated websites and was in the process of deleting all tweets and other social media references.

Europol ordered to delete a vast store of personal data

The EU's police body, Europol, has been accused of unlawfully amassing and holding a vast store of personal data by the bloc's data protection watchdog, the European Data Protection Supervisor (EDPS). The data, consisting of billions of points of information, has been accumulated over the last six years and has been drawn from crime reports, hacked from encrypted phone services and sampled from asylum seekers who have never been involved in any crime. Data protection advocates say the volume of information amounts to mass surveillance and is a step on the road to becoming a European counterpart to the US National Security Agency. The EDPS ordered Europol to erase data held for more than six months and gave it a year to sort out what could be lawfully kept. 

Social Media influencers to be names and shamed for not declaring paid-for posts

122 social media stars including Jodie Marsh and five ex-Love Island contestants are to be subjected to a name-and-shame Instagram campaign by the UK's advertising watchdog for continuing to flout social media marketing rules. The ASA monitored more than 24,000 posts over a three-week period to determine whether they were following rules that require a declaration when a post is an advert. It found that while nearly a quarter of the posts were ads, only 35% of them were clearly labelled as such. After the ASA's final warnings went unheeded, it has now created personal ads that name the influencers, stating that they have been sanctioned for not declaring paid posts to followers.

Proposed Human Rights Act reform seeks to strengthen freedom of expression

The proposal includes plans to create new protections for freedom of expression and a re-balancing of misuse of private information claims. The Government emphasises the importance of a free and vibrant media in facilitating freedom of expression and hence protecting fundamental democratic principles (para 204), states its belief that the public interest is overwhelmingly assisted by protection for freedom of expression (para 205), and criticises the willingness of the ECtHR to give priority to personal privacy (para 206). The proposal suggests strengthening section 12 of the HRA, making it clear that the right to freedom of expression is of the utmost importance and that courts should only grant relief impinging on it where there are exceptional reasons (paras 212-213). The government would also like the Bill of Rights to provide more general guidance on how to balance the right to freedom of expression with competing rights, such as the right to privacy, or wider public interest considerations (para 215). Finally, the government seeks specific provision for journalists' sources in the Bill of Rights, to ensure they are properly protected (para 217). Richard Clayton QC provides a three-part analysis of the proposals which can be read here, here and here. 

Freedom of Press under assault in Kashmir and in Hong Kong

The future of press freedom in Indian-administered Kashmir has been thrown into question after pro-government journalists and authorities forcibly took over and subsequently shut down its independent Press Club. This follows months of harassment and the detention of dozens of journalists in Kashmir, disputed between India and Pakistan, and is the latest attack on independent journalism in the region. The Club had irked the government by defending media freedoms.

Similar concerns have been raised with regard to journalistic freedom in Hong Kong following the closure of Citizen News due to a deteriorating media environment and concern for the safety of its staff. There has been an exodus of journalists and editors from much-acclaimed news outlets in the last couple of years, and Stand News was recently forced to close after 200 police officers raided its office and detained seven current and former employees.

Quote of the fortnight:

"[I]t would be disproportionate to allow such a low value claim to be litigated in the way that it is, with all the costs that arise out of High Court litigation. If this was a type of claim that would not be transferred to the County Court and the small claims track, for example for defamation, then it seems there would be good reasons for striking it out on Jameel grounds – the claim would simply not be worth the candle".

- His Honour Judge Lewis, in his judgment transferring a low value data claim to the County Court.