Take 10 - 21 March 2025

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

Ofcom drops six investigations for alleged breaches of due impartiality 

Following Mrs Justice Collins Rice's decision last month to quash Ofcom's rulings against GB News on the grounds of impartiality and due accuracy, Ofcom has decided to discontinue the six open investigations involving politicians taking on the role of newsreaders. These investigations involved programmes hosted by Nigel Farage (Reform UK founder) on GB News, Jake Berry (former minister), Alex Phillips (ex-MEP) and David Bull (former deputy Reform UK leader) on Talk TV, David Lammy (Labour MP) on LBC and Mr Berry on Local TV. The decision to drop these investigations follows Ofcom's decision to withdraw three breach decisions against GB News in the immediate wake of last month's judgment, which related to episodes fronted by Ester McVey and Philip Davies when they were both serving Conservative MPs, as well as one not pursued decision from March 2024. All four decisions have been removed from GB News' compliance record. Ofcom has also announced that it will now review Rule 5.3 and consult on proposed changes to restrict politicians from presenting news in any type of programme, with the consultation expected to be published later in the spring. In the meantime, its guidance on Section Five of the Broadcasting Code has been updated with interim guidance on Rules 5.1 and 5.3.

Meaning TPIs: when will the Court move away from the usual order as to costs?

This question has been explored by the High Court in David Paisley v Graham Linehan [2025] EWHC 624 (KB). The underlying claim relates to seven publications on D's Substack account, consisting of articles posted by D, readers' comments or a combination of both. The meaning of the statements complained of were determined across two hearings in July 2024 and January 2025. The second hearing was required as the parties' cases were too unclear to allow the Court to make any determinations about the comments complained of: see our previous report here.

The usual order for costs following a TPI in a libel claim is "costs in the case". But a different approach may be appropriate where a party has adopted an unreasonable stance that has caused unnecessary costs to be expended: see Sharif v Associated Newspapers Ltd[2021] EWHC 343 (QB) at [41]-[47]. In Paisley, the Court ordered C to pay 50% of D's costs. Although there was fault on both sides, it found that C had to bear the bulk of responsibility for the difficulties that arose ahead of the original TPI. The "root cause" of the issue was that C had, in breach of his obligations under CPR PD 53 para 4.2, pleaded the statements complained of in multiple alternative ways. The Court also found that C's original pleaded case lacked clarity as to the contextual material that he intended to rely on - the factual uncertainty as to how Substack comments appeared to readers was not properly addressed until a matter of days before the second hearing. This could, and should, have been remedied had C properly investigated this matter in a timely manner prior to pleading its case. The costs award also took into account the unreasonable conduct of D, with the Court criticising D's "curiously passive" approach. Despite the clear deficiencies in the C's pleaded case, D had not sought clarification under Part 18 or made an application to strike out parts of the C's pleaded case. Further, despite D being able to address the factual uncertainty over the visibility of Substack comments, he made no attempt to address this in his Defence.

ChatGPT: a hallucination too far?

A complaint has been lodged today with the Norwegian Data Protection Authority by a claimant who alleges that he was falsely accused of murdering his children by ChatGPT, the well-known AI model run by OpenAI. The accusation is said to have been produced in response to a question that asked the AI model who the complainant was and contained sufficient personal information to identify the complainant (rather than another individual with the same name).  The complaint, which was submitted by the privacy rights advocacy group Noyb, claims that the production of the false, defamatory, information breached the accuracy principle under Article 5(1)(d) GDPR. The complainant is seeking an order under Article 58(2)(d) of the GDPR for OpenAI to delete the defamatory output and to fine-tune its model to ensure that it only produces accurate results in relation to their personal data in accordance with the GDPR. The complaint also seeks an order to restrict the processing of the data subject's personal data for the duration of the investigation into this issue as well as a monetary fine for the breach. Confirmed breaches of the GDPR can result in a fine of up to 4% of a data controller's global annual turnover. OpenAI are yet to publicly respond to the complaint. 

Ofcom fines religious channel £150,000 for claiming water product cures cancer

Word Network, a religious broadcasting channel, has been fined £150,000 for broadcasting frequent oral and visual invitations for viewers to purchase 'Miracle Spring Water' during two episodes of Peter Popoff Ministries. The invitations were simultaneously broadcast alongside claims about the efficacy of the water and testimonials which claimed that the water had cured serious illnesses including lung cancer, improved their financial situation or aided their recovery from drug addiction.  In December 2023, Ofcom found that the material breached Rules 2.1, 4.6 and 9.4 of the Broadcasting Code. It held that the content presented a high risk of harm, with vulnerable viewers likely to be led to believe that the water could displace conventional medical treatment, and that adequate protection had not been put in place by the broadcaster to protect viewers from this potentially harmful content. It further concluded that the programme specifically targeted susceptible viewers and there was a material risk that they would be improperly exploited and that the programmes unlawfully promoted a commercial product.

Following a breach, Ofcom is entitled to impose a sanction if it considers that a broadcaster has seriously, deliberately, repeatedly or recklessly breached the Code. In calculating the level of the fine, while Ofcom did not find the breaches to be deliberate or reckless, it found them to be particularly serious. The religious context of the programming, and the frequent promotion of unambiguous claims as to the efficacy of the water during each broadcast by a figure of authority, meant that there was a high risk of harm to vulnerable viewers seeking advice and solutions to financial and health difficulties. It also held that the broadcaster had not taken appropriate steps to ensure compliance with the Code. Having regard to all the circumstances, Ofcom determined the financial penalty imposed to be an appropriate and proportionate sanction. The broadcaster was also directed to not repeat the programmes, and to broadcast a statement of Ofcom's findings in this case.

Prospect v Evans: Trade union members can defame the union

On 10 March 2025, Mrs Justice Eady delivered judgment on a preliminary issue trial in libel and malicious falsehood proceedings between a trade union and one of its members over a publication on a fundraising page seeking money for a "fighting fund" in respect of alleged criminal offences by those responsible for filling in the union's annual returns (Prospect v Evans [2025] EWHC 499 (KB)). In addition to the usual issues on meaning and reference to be determined as preliminary issues, D sought to challenge an earlier finding by Mrs Justice Steyn that trade unions had a separate reputation distinct from its members and as a quasi-corporate had standing to bring an action in libel. D argued that the Steyn judgment did not determine the separate question of whether a union member could defame their union. Eady J held that the Steyn judgment provided a "complete answer" to the issue. It was not open to D to now try to go behind the Steyn judgment having not sought to challenge that decision on appeal by reformulating the question she had already answered. 

In respect of the statement complained of, the Court held that it referred to C and was defamatory at common law. While the statement referred to "those responsible for filling in" the returns, they, unlike C, were not identified by name (or by role) and there was nothing to suggests that they, rather than the union, would be subject to the proposed criminal prosecution. The statement was found to be an expression of opinion as, adopting the approach enshrined in Koutsogiannis, the allegation of criminal wrongdoing could "reasonably be inferred to be a deduction, inference, conclusion or judgment" based on the annual returns and legal advice D had previously received.

Election programming

In the lead up to the local and mayoral elections taking place on 1 May, Ofcom has announced that, for the purposes of the Broadcasting Code, the election period will commence next Tuesday, 25 March 2025. During the election period, broadcasters must take care to comply with the heightened due impartiality rules under Section Five and Six of the Code. This includes giving due weight to the coverage of parties and independent candidates, taking into account past electoral support as well as current opinion polling, and refraining from expressing support for a particular candidate or encouraging voters to vote in a specific manner. Election candidates cannot act as news presenters, interviewers or presenters of any type of programme for the duration of the election period, and on polling day, no further discussion or analysis of the election issues is permitted to avoid influencing voters. Ofcom has also reminded broadcasters of the prohibition on political advertising at s.321 of the Communications Act 2003. Ofcom are due to publish a digest of past electoral and current support shortly.

Inaccurate, but no breach – IPSO ruling on Vardy article

An IPSO complaint by the Rebekah and Jamie Vardyover an article published last October in the Daily Mail has been dismissed. The couple complained that the article was inaccurate in breach of Clause 1 of the Editors' Code. They disputed an allegation that Mr Vardy had made a “significant investment” in Rochester Rhinos, a US football team which the article reported had "gone bust". They said that while Mr Vardy had been given minority stakeholder status to attract new players, that stake had been provided free-of-charge: he had not made any financial investment in the club. They also disputed the allegation that the club had gone bust. The Daily Mail maintained the accuracy of the article but offered to publish corrections to clarify that Mr Vardy's stake in the US club was granted for free. There was a substantial volume of public domain material which implied that he had made a significant investment to become a co-owner of the club. This included a press release from the club which said that Mr Vardy had "bought a minority stake in the club" as well as comments from Mr Vardy himself that his stake was a “meaningful enough share to have a seat at the table”. In respect of the allegation about Mr Vardy, IPSO found that there had been no breach of the Code.  Although the Committee found the claim about his alleged investment to be inaccurate, the claim had been widely reported without correction for three years prior to publication and the publisher had offered to make a correctly promptly within nine days of the complaint being made. There was therefore no breach of Clause 1. Separately, in respect of the statement about the club's financial situation, although IPSO may consider third-party complaints, on this occasion it declined to do so without the direct involvement of the club itself.

Copyright and AI clauses removed from draft Data (Use and Access) Bill 

On 11 March 2025, the Public Bill Committee of the House of Commons voted to remove clauses of the Data (Use and Access) Bill, which had been added by the House of Lords. If they had been implemented, the clauses would have required the development of regulations requiring the operators of web crawlers and general-purpose AI models to provide greater transparency as to the identity of the crawlers used, the purposes of use and the legal entities who receive the data they scrape as well as to comply with UK-copyright law. They would also have required the Secretary of State to provide the Information Commissioner with powers to monitor and enforce operators' compliance with the obligations. The reasoning, as expressed by Chris Bryant at the third sitting of the Bill, was that while the House agreed with the intention behind the amendments, it did not agree that the Bill, as a data measure, was the right vehicle for action. However, Mr Bryant said that this was not the end of the conversation around the use of web crawlers and AI models. The Bill is now due to have its report stage and third reading.

Bridgen v Hancock 

Last week, Mrs Justice Collins Rice heard an application for summary judgment in the ongoing libel claim between Andrew Bridgen, the former North West Leicestershire MP, and the former Health Secretary, Matt Hancock. 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" about the Covid-19 vaccine. C, a vocal critic of the Covid-19 vaccine, had earlier that day tweeted to suggest that the vaccine was "the biggest crime against humanity since the holocaust". D is seeking summary judgment on the grounds that has no realistic prospect of establishing serious harm and that the defence of honest opinion is bound to succeed. Judgment was reserved. This was the latest hearing in the claim following Mr Hancock's strike out application which succeeded in striking out the majority of Mr Bridgen's case on reference and a trial of preliminary issue on meaning last year which found the allegations to be statements of opinion. Our previous reports on those hearings can be found here and here. RPC acts for Mr Hancock.

The trial of Clarke v Guardian progresses

The 6-week trial in Noel Clarke's libel claim against The Guardian commenced on 5 March 2025. The claim relates to a series of articles published in 2021 and 2022 which contained allegations of sexual misconduct against Mr Clarke. Mr Clarke denies the allegations. Mr Clarke was expected to rely on oral evidence from 15 witnesses in support of his case but the Court was told that five witnesses, including Nabil Elouahabi, known for his role as Tariq Larousi on EastEnders, would no longer be giving evidence. On Monday, it was also reported that the Court has issued a summons following an application by the Guardian for one of the witnesses, Arnold Oceng, who had worked alongside Mr Clarke in "Brotherhood" and "Adulthood".  However, Counsel for The Guardian told the Court that Mr Oceng was not living at the given address on his witness statement nor had he responded to a Whatsapp message. The reasons for the absence of the witnesses who are no longer giving evidence have not been disclosed. Cross-examination of The Guardian's 32 witnesses began on Tuesday. On Monday, the Court refused to grant The Guardian permission to rely on evidence provided by another witness, known under the pseudonym "Anita". The Court heard that "Anita" had come forward in response to media coverage of the trial but dismissed the application on the grounds that the proposed evidence was not critical given the other evidence available and could delay the trial. The trial continues.

Quote of the fortnight

"I know there are places in the world where one can buy an AI-generated book, and it might be perfectly readable. We might all have authors who we think have worked in that way in the past. But when I read a book, watch a film, or listen to a piece of music, I want to know that it has a human involved in it. Human creativity is a vital part of what renders that process of creativity so important." 

– Chris Bryant, Data (Use and Access) Bill [ Lords ] (Third sitting) (Hansard, 11 March 2025).