Take 10 - 24 March 2023

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

Open justice, anonymity and ZXC

On 17 March, judgment in R (on the application of MNL) v Westminster Magistrates' Court was handed down.  It provides guidance on the conflict between open justice and Article 8, the (non-)relevance of ZXC on that conflict once legal proceedings have begun, and the procedure expected to be followed by the court in relation to RRO applications.  It requires a bit of background so bear with us:

In separate earlier proceedings, the NCA had brought a claim for forfeiture of assets against three respondents.  The Claimant in this case was not a witness or party to those proceedings, but was connected to the respondents.  On learning he would be referred to in an upcoming hearing, the Claimant sought and was granted an anonymity order. A public judgment was subsequently made in favour of the NCA which referred to the Claimant but did not name him. 

On application by the BBC, the judge discharged his prior order.  The Claimant subsequently made the present claim for judicial review of the judge's decision to discharge. The main issue was whether the judge erred in law when resolving the conflict between open justice and the rights of a non-party to respect for his private life. 

Lord Justice Warby found the judge had approached the law correctly.  A useful summary of the legal framework concerning derogations from open justice, with application to this claim, is at [43]. Warby LJ found that the judge had conducted the necessary balancing process and, in light of all the facts and circumstances apparent at the time (including that disclosure of the Claimant's name amounted to a "very serious interference with his Convention rights"), had found that the derogation from open justice was no longer shown to be justified.

Whilst there was therefore no need to re-make the judge's decision, Warby LJ observed that "ZXC is a case about the initial step in the Convention analysis, in cases where no legal proceedings have begun; it has no bearing on the balance to be struck between privacy rights and the public interest in transparency and open justice when a person features in a public trial" [46].

Mr Justice Mostyn also gave a judgment.  He found that the initial anonymity order should never have been granted both for reasons of merit and procedural unfairness [91] (see some of his criticisms of the procedure deployed by the Claimant at [48-56]).  Mostyn J set out a helpful summary of "required" procedure at [85], which will be of benefit to those applying for – and challenging – RROs.

The Claimant is understood to be appealing the judgment.

Naming charged suspects

The College of Policing's current guidance on media relations states that, police "will not" name those arrested or suspected of a crime other than in exceptional circumstances, whilst those charged with an offence "should be named".

Draft updated guidance instead provides that suspects charged with offences "can be named", as reported by the Press Gazette.

The draft says that forces should be more inclined to release charging information where the crime is serious (such as rape or murder), where the incident has already been reported, or for "public reassurance reasons". 

The College of Policing has indicated that the current guidance "requires updating following the introduction of new data protection legislation", and that they are working with the Society of Editors, the Crime Reporters Association and the ICO to develop it.

The draft guidance has raised concerns about its potentially damaging effect on open justice. 

Court considers DPA legal proceedings exemption

Judgment in a Scottish case offers guidance on the operation of the DPA 2018, Schedule 2, paragraph 5(3), which provides that certain listed GDPR provisions do not apply to personal data where the disclosure of the data "is necessary" for the purpose of legal proceedings and related circumstances (the 'legal proceedings exemption').

The Pursuer alleged that the Defender, his former employer, breached Article 5(1)(a) and (b) GDPR whilst defending employment tribunal proceedings brought by his colleague by failing to inform him of the proceedings, provide him with copies of the bundles, ask for comment on the allegations, or invite him to provide a witness statement. The Defender relied on the legal proceedings exemption in their defence. 

The Court, finding in favour of the Defender, recognised that there is a tension between data protection requirements and the demands of litigation, and commented that the exemption exists precisely because a balance must be struck between those competing pressures and that a party's duties as a data controller should not fetter its discretion to conduct litigation [43].  The Court interpreted the wording "is necessary" in the exemption to mean that the legislation contemplated a situation in which personal data has been identified to be disclosed and the disclosure of that specific data is necessary [53].  Therefore, where the application of a listed GDPR provision would result in a change to the content of the specific disclosure which was necessary for legal proceedings etc, it should not be applied as otherwise the disclosure would be prevented from being made in its intended form.

The Court did not accept the Pursuer's position that the 2018 Act differs from the 1998 Act, noting at [47] that the wording in the DPA 1998 for the legal proceedings exemption (framed around "inconsistency") is similar in substance to the current wording used in the 2018 Act.  

This case is significant as it is the first UK court decision on the scope and application of the legal proceedings exemption under the DPA 2018 in conjunction with the general prohibition provisions under the GDPR. While this is a Scottish decision, the exemption applies throughout the UK.  It will no doubt be welcomed by data controllers seeking to rely on the legal proceedings exemption (and perhaps other exemptions under the Act).

Online Safety Bill updates

The Online Safety Bill envisages that in-scope services will conduct risk assessments in order to understand the risk of users encountering illegal content and content harmful to children online. Ofcom has published a guide explaining its proposed approach to risk, and how it intends to support services in carrying out their assessments. The guide sets out four key outcomes they hope to achieve (bottom of page 2), and discusses how risk assessments will work in the diversity of online services, "from microbusinesses to global tech giants".  Interested parties will have an opportunity to provide feedback during the consultations on Ofcom's approach to risk assessments, anticipated to commence shortly after Ofcom's powers commence.

The Bill, which is currently moving through the House of Lords, also saw a number of proposed amendments last week, namely the addition of: a duty for Ofcom to publish and regularly update a report evaluating technologies for age assurance; a clarification that platforms' obligations to protect free speech should be enhanced for users with protected characteristics under the Equality Act 2010; a requirement for service providers to report to Ofcom how they will mitigate the negative impacts on the erosions of freedom of expression; and an amendment to the current cyberflashing offence to put the onus on the sender to obtain consent of the person receiving the image (see further here and here).

Proposed remedial order to enhance journalistic safeguarding

The Home Office has published a proposal for a Remedial Order to amend the Investigatory Powers Act 2016 (IPA), legislation which sets out a regime for bulk interception, by introducing safeguards relating to the retention of confidential journalistic material in order to implement the judgment in Big Brother Watch and Others v UK. In that case, the ECtHR found that the previous bulk interception regime (under RIPA 2000) had breached Articles 8 and 10 ECHR as it did not require prior independent authorisation before confidential journalistic material identified under the regime was sought or retained. 

Section 154 of the IPA similarly does not currently require independent authorisation before such material is retained; it only requires that the person receiving a warrant in relation to the material in question informs the Investigatory Powers Commissioner when it is reasonably practicable. The proposed Remedial Order will make amendments to the IPA to ensure it is compatible with the terms of the judgment in the ECtHR case.

Ofcom: updates for broadcasters

Having previously announced its intention to update their Guidance to Ofcom’s Broadcasting Code, ('the Code') Ofcom is now seeking views from broadcasters as part of its plan for reform. Specifically, Ofcom is seeking broadcasters' input on the format, usability and presentation of the Guidance; how broadcasters currently use the Guidance; feedback on what broadcasters find helpful; and how the supporting materials and information Ofcom provides along with the Guidance could be improved.

Ofcom will email a questionnaire to licensees shortly, and has asked for responses by 1 May 2023.

Separately, Ofcom has today published its plans for a new, "modernised" BBC operating licence, which will come into force on 1 April.  Amongst various changes, the new licence will for the first time put requirements on BBC iPlayer, BBC sounds and the BBC website. 

Craig Wright given permission to appeal nominal damages award

The Court of Appeal has given Craig Wright, the Australian computer scientist who brought proceedings in defamation over allegations that his claim to be the inventor of Bitcoin "Satoshi Nakamoto" was fraudulent, permission to appeal the award of £1 in nominal damages against the cryptocurrency podcaster and journalist, Peter McCormack.  In June last year Mr Justice Chamberlain awarded Craig Wright only £1 in damages after he succeeded in establishing liability in respect of 14 Tweets and a YouTube video making the allegations but was found to have run "a deliberately false case" on part of his case on serious harm until he abandoned it shortly before trial.  Mr Wright has not appealed the findings of dishonesty at first instance but is instead appealing whether damages in defamation can in principle be reduced when misconduct by a claimant has been established.  

In granting permission to appeal the damages award, Lord Justice Warby held that there appears to be conflicting authority on the ability of the court to take account of misconduct by a claimant in awarding damages in defamation and an appeal may provide an opportunity to reconcile these decisions.  Warby LJ also indicated that it is possible the Court of Appeal may find itself bound by previous authority it disagrees with, in which case the Supreme Court would need to consider the nature of damages in defamation.  Watch this space.

RPC acts for Peter McCormack. 

Press excluded from Home Secretary's trip 

The Guardian's editor-in-chief, Katharine Viner, has denounced a "chilling" pattern of behaviour by the UK government after the Guardian, the Mirror and the Independent were allegedly excluded from Suella Braverman KC's visit to Rwanda. According to the Press Gazette, journalists from the Sun, The Times, The Telegraph, the Daily Mail, GB news and PA were present.  It follows reports last year that journalists from The Guardian, Financial Times and the Mirror were allegedly barred from joining then-Home Secretary Priti Patel on a trip to Rwanda. 

Ms Viner wrote to the Home Office last Friday expressing "deep concern” about the exclusion of her journalists, describing it as a "pattern of behaviour whereby this government excludes journalists and selectively chooses reporters from sympathetic papers to cover ministerial trips and visits.” Viner quoted the guidelines for the Government Communications Service, which say that to “work effectively, media officers must establish their impartiality and neutrality with the news media and ensure that they deal with all news media even-handedly” and that dealings with journalists should “be objective and explanatory, not biased or polemical." She also highlighted that the UK is already “slipping down” the World Press Freedom Index, having dropped from 35th place in 2020 to 24th in 2022. A Home Office spokesperson commented that: “A range of outlets are covering the trip, including a news wire and different broadcasters. It is not always possible to invite all outlets to all media opportunities.”

IPSO's five-year plan

IPSO has published its new corporate strategy that covers the years 2023 to 2028. The aim behind the plan is to strengthen its value to the public and its impact on editorial standards, and to continue to work on improving the quality of journalism in the UK.

The plan is divided into five principles that IPSO hopes will protect the public and freedom of expression by ensuring that the press will uphold high standards of professionalism and quality without the need for intervention. One of the key aims of the new plan is to demonstrate IPSO's independence from government and regulated publications. Other aims include increasing the transparency of IPSO's decision-making processes, responding to the changing media landscape and ensuring the organisation is inclusive, accessible and accountable to the public. 

Due impartiality

Following the recent headline-grabbing fallout over Gary Lineker's Tweet concerning the British government's asylum policy and his subsequent suspension, the BBC will launch an independent review of its social media guidelines. Tim Davie, director-general for the BBC, has acknowledged that the current social media guidelines "contain grey areas" that need to be looked at.  Meanwhile, Dame Melanie Dawes, Ofcom's chief executive, has told MPs that the BBC needs to update its social media guidelines "for the modern world".  The Press Gazette has published an analysis on how other publishers control social media use.

Separately, following criticism of Conservative MPs interviewing other Tory MPs on GB News, Dame Dawes has clarified that – subject to limited exceptions (in particular news programming) – politicians can present "shows and invite whoever they like", although due impartiality will be needed. Kevin Bakhurst, Ofcom's group director for broadcasting and online content, has published guidance indicating that programmes will typically be classified as "news" if they include: a newsreader presenting directly to the audience; a running order or list of stories; the use of reports or correspondents to deliver live reports; and/or a mix of video and report items.

Quote of the fortnight:

"There are too many people who don’t understand what [the press's] role is. It is about trying to fully inform the public. A plurality of opinion is not what [those people] want. They seek propaganda and bolstering of their own narrow point of view…They are the true enemies of democracy.”

Clive Myrie (BBC) speaking to the Society of Editors Media Freedom Conference, 15 March 2023