Take 10 - 24 January 2025

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

Sara Sharif: appeal to overturn judges' anonymity

On 14 and 15 January, the Court of Appeal heard an appeal to overturn a decision made by His Honour Judge Williams in historic Family Court proceedings concerning Sara Sharif, a 10-year-old girl murdered by her father and stepmother in August 2023. Williams J granted anonymity to the three judges involved in the proceedings which included the return of Sara to her father before she was killed, citing a "real risk" of harm from online threats as justification for the order, whilst acknowledging that it was an exceptional measure to take.

In written submissions before the Court of Appeal, the three judges expressed concerns over the personal wellbeing of themselves and their family members if their identities were publicly revealed. The media parties challenging the order (alongside freelance journalists Louise Tickle and Hannah Summers) submitted that judges are the face of justice itself and the ability of the media to identify participants in court proceedings are an essential part of the open justice principle. Interesting questions also arose as to the judge's jurisdiction to make such an order, and whether the Court of Appeal could theoretically set a threshold for the engagement of a judge's Article 8 ECHR rights if similar issues arose in future. Surrey County Council, the local authority responsible for Sara's care also supported the appeal, and her siblings by the Children's Guardian adopted a neutral position. Urfan Sharif opposed the appeal. Judgment was reserved. RPC acts for the eight national media organisations seeking to overturn the reporting restriction.  

Qualified Privilege: Smith & Anor v Surridge & Ors

On 20 January, Mr Justice Saini dismissed a claim brought in libel, negligent misstatement and misuse of private information (MPI). The Claimants were both secondary school teachers who were subject to negative references from their previous employer which referred to safeguarding issues concerning them, leading to the rescission of new employment offers. The Court ruled that whilst the statements had caused serious harm to the Claimants' reputation, the reference was protected by common law qualified privilege as there was a reciprocal relationship of duty and interest between the publisher and the publishee, and there was no finding of malice as the publisher honestly believed the statement to be true. A truth defence also succeeded, and as the reference was accurate and true, the claims in negligent misstatement and MPI also failed. The Court ruled that even if the truth defence had failed, the MPI claim was bound to fail given the privileged circumstances of the publication of the reference, as the Court held that there "cannot be a reasonable expectation of privacy or alternatively it cannot be a "misuse" of private information to make a lawful publication of information in a classic duty/interest privileged situation."

Jurisdiction judgment: Marinakis v Karipidis and ors

On 10 January, Richard Spearman KC, sitting as a Deputy High Court Judge refused an application to set aside an order for service out of the jurisdiction.   The Claimant, Nottingham Forest and Olympiacos owner Evangelos Marinakis, is suing Greek Super League footballing rival Irini Karipidis (owner of Aris FC) and other connected individuals on the grounds of defamation and unlawful means conspiracy over an alleged smear campaign against the Claimant accusing the Claimant of organised crime and match-fixing. An Order was previously made by Master Cook giving permission to the Claimant to serve the claim out of the jurisdiction, which was the subject of challenge. The Court held that save for the claim against the Second Defendant (which was dismissed), the Claimant had met the jurisdictional gateways set out in Practice Direction 6B that (i) he had a good arguable case, (ii) with a real as opposed to a fanciful prospect of success, and (iii) that England and Wales was the most appropriate forum to bring the dispute, on the basis that the statements complained of were published in English, within the jurisdiction and the harm has occurred within the jurisdiction. The case will therefore continue in this jurisdiction.  

It's a knock-out: summary judgment granted in Adams v Amazon

On 20 December 2024, Deputy High Court Judge Susie Alegre granted summary judgment in a libel and misuse of private information (MPI) claim arising from the 2021 Amazon Prime documentary Lioness: The Nicola Adams Story chronicling the life of Olympic gold medal winning female boxer, Nicola Adams. The claimant, Nicola's mother, alleged that the documentary contained defamatory statements about her and further claimed that her personal information, including recent communications between her and her daughter, were misused when depicting the boxer's childhood and allegations of domestic violence. Amazon applied for summary judgment in the libel claim on the grounds that it was true that the Claimant had sent Nicola abusive messages (which was not in dispute), and that the statements in the documentary represented Nicola's honest opinions. The Court determined that there was no realistic prospect of success for the Claimant to defeat either the truth or the honest opinion defence. Summary judgment was also granted in the MPI claim on the basis that there was no reasonable expectation of privacy in respect of the information complained of as the information was widely available in the public domain. Even if the Claimant did have a reasonable expectation of privacy in respect of this information, Nicola's Article 10 ECHR rights to tell her story of "achievement over adversity" outweighed the Claimant's Article 8 rights.   

NGN hacking litigation trial vacated on day 2

An eight-week trial of generic issues and individual claims brought by the Duke of Sussex and ex-Labour Party deputy leader, Lord Tom Watson was due to start in the NGN hacking litigation on Tuesday, but after a number of short adjournments as settlement talks were ongoing, the cases finally settled on Wednesday morning. An apology was read out on behalf of NGN, which apologised to Prince Harry for unlawful activities carried out by private investigators working for The Sun between 1996 and 2011, and for voicemail interception by journalists and private investigators instructed by the News of the World. The trial would not have determined whether Prince Harry's voicemails were intercepted as that part of his claim was already deemed to be time-barred. An apology was also given to Lord Watson for unlawful information gathering (but not voicemail interception) by the News of World between 2009 and 2011. Despite David Sherborne's (counsel for Prince Harry and Lord Watson) comments on the steps of the court suggesting that the wrongdoing was known by executives "going to the very top of the company", this allegation remains denied by NGN and did not form part of the settlement.  At the end of the hearing, the judge indicated that these two cases are likely to be the last liable to go to trial, and so the end of the hacking litigation draws nearer.

European Commission to pay damages after data breach

The General Court has ordered the European Commission to pay damages in the sum of €400 to a German citizen, Thomas Bindl, who complained that his personal data was transferred without consent to the United States, which at the time, was not subject to an adequacy decision. Bindl had used the "sign in with Facebook" option to register for a conference which was being managed by the Commission. In doing so, Bindl's IP address and browser/device information was shared with Amazon Web Services (AWS) and Meta Platforms Inc in the US. Mr Bindl argued that this potentially put his data at risk of being accessed by US security and intelligence services due to the perceived inadequate data protection policies in the US. The Court found that the Commission had not demonstrated that Bindl's data was appropriately safeguarded pursuant to Article 46 GDPR, and therefore did not comply with the GDPR in respect of transfer of personal data to a third country.

SLAPPs update

Following the uncertainty in the SLAPPs legislative position prior to the 2024 general election, the Civil Procedure Rules Committee is set to resume its consideration of necessary CPR amendments in order to ensure compliance with s.194 Economic Crime and Corporate Transparency Act 2023, which requires the Court to establish rules for claims to be struck out where they are deemed a SLAPP within the meaning set out at s195 (which deals only with disclosures relating to economic crime and for a purpose related to the public interest in combating economic crime). The Committee noted that whilst it seeks to introduce the minimum amendments necessary for compliance, more clarification and signposting would be required to identify how a 'SLAPP claim' is defined. A sub-committee is due to be established to take this matter forward. 

Online safety updates – age assurance and risk assessments

Last week, Ofcom published guidance on how it expects platforms to carry out effective age checks to prevent children from encountering online pornography and to protect them from other harmful content. The guidance provides a non-exhaustive list of methods which Ofcom think are capable of being highly effective, including facial age estimation, credit card checks and photo ID matching. These measures must be in place by July 2025 at the latest. Similarly, in-scope services are required to carry out a risk assessment to consider whether children are likely to access their service or part of their service. The risk assessment must be completed by 16 April 2025 and if the assessment shows that children can access the relevant service, the service provider must comply with the children's risk assessment and safety duties under the relevant Code of Practice.   

Trump v2 – changes for digital platforms

With Donald Trump inaugurated and beginning his second term as President of the United States, there is much focus on how his return might impact various digital platforms. President Trump has granted TikTok a 75-day reprieve to the ban which was said to be ordered to address national security concerns around the platform's so-called Chinese ownership. In his first interview with Fox News since become President again, Trump suggested that TikTok was "going to stay around", noting that Americans used a number of Chinese-made devices, so the threat of so-called spying by China on TikTok was relatively low in those circumstances. Separately, Meta has shaken up its advisory Board, appointing Dana White, John Elkann and Charlie Songhurst  to "add a depth expertise and perspective that will help [Meta] tackle the massive opportunities ahead with AI, wearables and the future of human connection." President of Global Affairs and former Deputy Prime Minister, Nick Clegg has also stepped down from his role, making room for his deputy, Joel Kaplan to take his place.

Liz Truss sends PM a 'cease and desist' letter over claim she 'crashed the economy'

Lawyers for former Prime Minister Liz Truss have sent a cease and desist letter to current Labour Prime Minister Sir Keir Starmer demanding he stop making “false and defamatory” statements about her, including repeated claims to the effect that Ms Truss crashed the economy with her government's 2022 mini-budget. The letter claims that Sir Keir's actions harmed Ms Truss politically in the run-up to losing her South-West Norfolk seat in the general election, that unemployment did not rise and, as a result, economic output did not fall. The Prime Minister's spokesperson conveyed to reporters that Sir Keir "absolutely stands by" his language about the previous government's record. Should this 'cease and desist' escalate into a Letter of Claim, RPC would be very happy to represent the Prime Minister in this matter.

Quote of the fortnight

"The right to freedom of expression is not dependent on public interest in a specific expression, rather the protection of the right is itself in the public interest. How that right is balanced against other rights may take account of the public interest, among other things."

- Deputy High Court Judge Susie Alegre, Adams v Amazon Digital UK Limited [2024] EWHC 3338 (KB) at [45]