Take 10 - 20 July 2023

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

Huw Edwards’ identification 

The furore around Huw Edwards' identification as the BBC presenter accused of paying a young adult for sexually explicit photographs raises complex issues of defamation and privacy law. He was named by the national media after his wife in a statement, written on his behalf, confirmed he was the presenter in question. Godwin Busuttil, the barrister who represented Sir Cliff Richard in his privacy claim against the BBC, has written a piece in The Guardian expressing the view that Edwards faces a "big obstacle" in bringing a legal complaint. In his view, this is primarily because The Sun did not name Edwards in its reporting and the ordinary reasonable reader would not have known who the presenter was until Edwards' wife identified him purportedly on his behalf. Even if Edwards were identifiable for legal purposes, The Sun may be able to rely on a public interest defence in response to either a defamation or privacy claim. And as there appears to have been no substantive police investigation into Edwards’ case, it is doubtful that a claim could be brought on grounds similar to Richard v BBC and ZXC v Bloomberg. 

Harcombe and Kendrick v Associated Newspapers Limited and Calman

Trial 1 in the split-trial libel cases of Harcombe and Kendrick v Associated Newspapers and Calman concluded on 11 July 2023 after seven days in court, with judgment reserved by Mr Justice Nicklin. The case, described last year by the Judge as "the most significant piece of defamation litigation that [he has] seen in a very long time", concerns several articles published in the Mail on Sunday and MailOnline about the potential risks to public health caused by "misinformation" and "fake news" put out by so-called "statin-deniers", i.e. people who raise concerns over the efficacy and safety of statins (a very widely-prescribed drug used to lower cholesterol). Issues for Trial 1 included a public interest defence under s.4 Defamation Act 2013, a statutory qualified privilege defence under s15 Defamation Act 1996, a s6 Defamation Act 2013 defence, issues of malice and meaning (the latter had not yet been determined because of the "complicating factor" of the principle in Curistan).  If the defence under s4 is not successful the case will proceed to Trial 2 in which the remaining issues, including potential truth and honest opinion defences, will be determined. RPC acts for ANL and the Mail on Sunday's Health Editor, Barney Calman.

Right to be forgotten upheld against media publisher's news archive

The Grand Chamber of the European Court of Human Rights (ECtHR) has upheld a decision of the Lower Chamber that an order requiring an online publisher to anonymise the subject of an article on its website archive was lawful and did not violate the publisher’s freedom of expression. The article was first published in print in 1994 and reported the full name of a doctor (‘G’) who was responsible for a fatal road accident. In 2008 the publisher digitised its archives, making the article available online. Subsequently 'G' brought a right to be forgotten request seeking to have the article removed or anonymised. The newspaper was ordered by the Belgian courts to anonymise G's full name from its electronic archives, an order which was upheld on appeal by the ECtHR's Lower Chamber and now the Grand Chamber. In its decision, the Grand Chamber identified criteria to be considered when balancing privacy rights with freedom of expression in relation to online archives. The criteria are: the nature of the information, the time that has elapsed, the contemporary interest of the information, how well-known the individual is and their conduct since the events, the negative repercussions of the continued availability of the information, and the impact on freedom of expression. 

Online Safety Bill: Ofcom’s call for evidence

Ofcom is seeking evidence on the research it will need to carry out to prepare advice to the government on categorising regulated services under the Online Safety Bill (OSB), which will impose different levels of obligations on in-scope services depending on the service’s size and risk. Services will be categorised as either Category 1, 2A or 2B if they meet certain thresholds set out in secondary legislation, with higher risk categories having additional obligations (e.g. producing transparency reports). This particular call for evidence seeks views on how Ofcom should measure user numbers on the relevant user-to-user parts of in-scope services and indeed what counts as a "user" (which may vary depending on the service). The deadline to respond to this consultation is 12 September 2023. Later this year, Ofcom will open another call for evidence on the duties that will apply to categorised services.

Noel Clarke seeks new legal team in pursuit of £10m special damages award

A preliminary trial on meaning due to be heard this week has had to be relisted after actor Noel Clarke disinstructed his legal advisors shortly before the hearing.  Clarke has filed a defamation claim against The Guardian over eight articles published in 2021 that reported sexual misconduct allegations made by several women. Alongside a claim for general damages, the well-known actor and producer is seeking special damages of over £10 million as well as aggravated damages. The actor vehemently denies the allegations and asserts that the articles have had a "catastrophic" impact on his career. The Guardian's defence will be filed once meaning is determined later this year, as is now the general practice in defamation.

Agreed undertakings scrutinised by the Court of Appeal

On 11 July, the Court of Appeal considered whether it should accept all the undertakings agreed between the parties in the harassment case of Smith v Backhouse. In settlement of the dispute, the Defendant agreed to make a number of undertakings to the Court. At first instance, Mr Justice Nicklin rejected certain undertakings that purported to restrict the Defendant from publishing references or images of the Claimant, impersonating the Claimant, or monitoring the Claimant’s activities on the basis that these terms were too wide and vague.  The Claimant applied for permission to appeal. A recording of the Court of Appeal hearing is available on YouTube. This decision, if upheld, is a reminder that, while parties have the freedom to reach a settlement based on mutually agreed terms, the Court is not obliged to accept all of the proposed terms and commitments. Careful thought should therefore be given to the wording of settlement terms, to avoid potential satellite litigation.

Meaning determined on the papers

On 17 July 2023, Mrs Justice Collins Rice handed down judgment on a preliminary trial of meaning based solely on written submissions of the parties. Zia Chishti, founder of US tech company Afiniti, issued libel proceedings in the UK against The Telegraph Media Group following the publication of two articles online and in print in November 2021 which alleged that he was a sexual predator, which is strongly denied by Chishti. Collins Rice J considered issues relating to context, imputation, and the Chase level of the imputations, ultimately assigning the articles a Chase level 1 factual imputation and deeming the articles to be defamatory at common law. The decision is a rare occasion in which meaning has been determined without a hearing following agreement between the parties.

Judge rules Wolverhampton teen killers can be named

On 13 July 2023, Mr Justice Choudhury ruled that two 17-year-old teenage boys who stabbed a 16-year-old boy to death with a ninja sword and a machete may be identified by the media, thus revoking reporting restrictions under section 45 of the Youth Justice and Criminal Evidence Act 1999. The killers were both given life sentences at Wolverhampton Crown Court after they stabbed the victim in a case of mistaken identity. In addition to the fact that both killers were close to turning 18, Choudhury J held that it was in the interest of open justice to reveal their names as it may deter other such killings. The Defendants' argument that de-anonymising the killers' names could negatively impact their families was rejected by the Judge.  

AI generating competition and EU data concerns

On 13 July 2023, Google launched its generative artificial intelligence platform, Bard, in Europe. The launch had been delayed for one month after intervention by the Irish Data Protection Commission who stated that Google failed to provide sufficient information to demonstrate compliance with the EU General Data Protection Regulation. After making prompt changes to increase transparency and user controls the tool was able to launch. Whilst Bard is available in most of the world, and in over 40 languages, it will be competing with a number of other artificial intelligence models entering the market, such as OpenAI's ChatGPT. As reported by the Financial Times, Meta is also making public a commercial, open-source AI model, LLaMA, while Elon Musk has announced his new artificial intelligence company, xAI.

Quote of the fortnight:

'"One argument that’s going to be run by the Sun if any complaint … is made is going to be that insofar as damage has been done to you, it’s been done by you.” 

Godwin Busuttil, as reported by The Guardian on 13 July 2023.