Take 10 - 25 June 2024

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

UKSC: lower courts wrong to dismiss pursuant to Hunter and Jameel 

On 20 June 2024, the Supreme Court confirmed that the Claimant in Mueen-Uddin v Secretary of State should be permitted to pursue his claim at trial, reversing the decisions of the lower courts to strike out his claim as an abuse of process.   The claim concerns a report published by an independent expert body appointed by the Defendant which was previously held to bear the meaning that the Claimant was a war criminal.  

In allowing the appeal, the Supreme Court held that the High Court and the Court of Appeal erred in finding that the claim amounted to a Hunter abuse  (i.e. a collateral attack on a criminal conviction).  Where foreign convictions are in dispute, it is necessary to consider whether the Claimant had "a full opportunity to contest" the conviction, and on the facts, the Claimant had not been provided with such an opportunity. It followed that the proceedings were not an improper collateral attack on the Claimant's conviction (in absentia) by the Bangladesh International Crimes Tribunal in 2013 for war crimes he allegedly committed in 1971. 

The Supreme Court also held that the lower courts had erred in striking out the proceedings as a Jameel abuse.  The Court of Appeal was wrong to conclude that the claim was of little value because the report could not have damaged his reputation.  Specifically, its finding that Dingle "made it clear that if months [go] by after an uncontradicted report, that might be proved against the Claimant" as evidence of bad reputation was wrong.  The Supreme Court clarified (original emphasis) that "the whole point of the decision in Dingle was that the report could not be proved in mitigation of damage…[the Dingle judgment meant] that such a report, if uncontradicted, would over time affect the plaintiff’s reputation; and his reputation could, of course, be proved…in the conventional way…" Further, the Court found that the Claimant had a legitimate interest in protecting his reputation against the very serious allegations raised in the report, noting that where a claimant has suffered more than minimal damage to his reputation, and so meets the threshold of seriousness to bring a claim, that the value of the claim is less than the cost of the litigation cannot bear on an overall assessment as to whether a claim is an abuse of process in absence of some other relevant fact.   

Although the facts of this case are unusual, the judgment may raise concern for media publishers who routinely report on convictions of individuals overseas, particularly where those convictions have been widely reported elsewhere. Following the judgment, publishers ought to exercise caution around such reporting by fully considering the circumstances around a conviction prior to publication, and perhaps reporting any denial by the claimant as well as any alleged procedural unfairness. Publishers should take particular care where the individual convicted did not participate in the proceedings or where there are reports that the proceedings were unfair or politically motivated.

UKSC: malicious falsehood clarification 

The Supreme Court has also handed down the much-anticipated malicious falsehood judgment George v Cannell.  

The Second Appellant, LCA Jobs, is a recruitment agency owned by the First Appellant, Ms Cannell.  The Respondent, Ms George, was employed by the Second Appellant.  She left to join another agency, where she immediately began targeting the Second Appellant's clients.  In spite of there being no prohibition on solicitation in the Respondent's employment contract with the Second Appellant, the First Appellant made statements to both a client of the Second Appellant and the Respondent's new employer alleging that the Respondent was breaking her contract through her approach to clients. The Respondent subsequently left her new job in a new sector because she believed the First Appellant would contact other clients, which had been threatened.  

At first instance, the Respondent's claim for malicious falsehood was dismissed.  The trial judge found that the First Appellant's two publications were maliciously published falsehoods, but that neither publication had caused the Respondent any financial loss (meaning that the claim for damages under the common law failed), and that s3(1) Defamation Act 1952 did not apply.  The Court of Appeal reversed that decision, finding that the claim did fall within s3(1) and that, although no financial loss was caused, the Respondent was not limited to nominal damages but could recover compensation for injury to feelings.  

The Supreme Court was required to consider two issues: (i) whether a claimant must demonstrate financial loss to establish malicious falsehood pursuant to s3(1); and (ii) whether a claimant who proves malicious falsehood can recover damages for injury to feelings where no financial loss is established. 

By a 3/2 majority, the Supreme Court found on issue (i) that claimants do not have to demonstrate financial loss to fall within scope of s3(1) provided they can show that the defendant's publication was calculated to cause financial loss.  However, on issue (ii) they diverged from the Court of Appeal, finding that claimants who establish liability pursuant to s3(1) but are unable to show any financial loss are limited to nominal and – where applicable – aggravated damages.  It was held that a claimant may only recover damages for injury to feeling when that injury arose from actual financial loss suffered as part of the tort. The Respondent was therefore awarded £5.

Two judges dissented on issue (ii), finding that mental distress damages can be awarded for the tort of malicious falsehood under section 3(1) even though the claimant has suffered no pecuniary loss [237].  Their reasoning [at 234] turned on the fact that there was no need for injury to feelings to arise from financial loss to be recoverable – it was enough that the injury was suffered in connection with the tort.

DSARs

The case Harrison v Cameron provides helpful clarification on the circumstances in which a data controller may be compelled to identity third party recipients of personal data pursuant to UK GDPR Art 15(1)(c) when responding to a subject access request. 

Mrs Justice Steyn agreed with the CJEU's interpretation of Article 15(1)(c) GDPR in RW v Österreichische Post AG (C-154/21) at [51] that a "data subject's right of access to personal data … entails… an obligation on the part of the controller to provide the data subject with the actual identity of those recipients [of the data subject's personal data] unless it is impossible to identify those recipients or the controller demonstrates that the data subject's requests for access are manifestly unfounded or excessive..."

In respect of the 'rights of others' exemption at para 16 of Schedule 2 of the DPA 2018 (which can exempt controllers from having to disclose the actual identities of recipients of personal data), Steyn J found that the controller is the primary decision-maker and has a wide margin of discretion in assessing whether it is reasonable in all the circumstances to refuse the request.  On the facts, the Judge found that it was reasonable for the defendants to give weight to their desire to protect the recipients from potential ancillary litigation that may be brought if they were identified, meaning that when considering whether the para 16 exemption applies, the 'rights of others' are not limited to their data rights.  

Read our blog on the case for more details.

Trade Unions entitled to claim in libel

On 20 June 2024, Steyn J handed down judgment in Prospect v Andrew Evans [2024] EWHC 1533 (KB) on an application disputing the Court's jurisdiction. The Defendant had argued that – being a trade union – the Claimant had no standing to pursue a libel claim.  He relied on EETPU v Times Newspapers [1980] 1 QB 585, in which the Court held that a claimant trade union was not entitled to pursue a libel claim in its own name as the "necessary personality" on which such an action depends had been removed by Parliament by virtue of s.2(1) of the Trade Union and Labour Relations Act 1974 which deprived trade unions of corporate status. The EETPU case has recently been the subject of academic scrutiny, with the authors of both Gatley and Duncan and Neill expressing their doubts as to whether it remained good law.  Steyn J held that, by virtue of the Trade Union and Labour Relations Act (Consolidation) Act 1992, Parliament had impliedly authorised the treatment of a trade union as a quasi-corporation.  While the Act expressly provides that a trade union was not a body corporate, it conferred the right on trade unions to sue or be sued in any cause of action in their own name, thereby granting it a separate reputation from its members and providing it with sufficient personality to be entitled to bring an action in libel to protect that reputation. Steyn J also found it was not necessary for a body to have a corporate personality to be capable of bringing a libel claim, drawing a parallel with partnerships, which are not in law a person separate from its members, but are still entitled to bring a defamation claim.

Latest summary judgment on serious harm 

On 12 June 2024, the High Court handed down summary judgment in BW Legal Services Limited v Trustpilot, a defamation claim relating to 20 reviews about the Claimant posted on the online consumer review platform Trustpilot. The Claimant had pleaded that the reviews had caused and/or were likely to cause serious financial loss putting its case on both an inferential basis and pleading actual financial loss in respect of a lost opportunity to tender for a contract with the telecoms company Three. 

The Defendant applied for summary judgment on the basis that the Claimant had no real prospect of establishing that the reviews caused or were likely to cause serious harm. His Honour Judge Lewis granted the application, emphasising that claimants must not only prove serious harm, but prove that that harm relied on was, on the balance of probabilities, caused by the publication complained of.  Referring to Sivananthan, the Judge commented:  "Given the volume of negative reviews published on the defendant’s website at the relevant time, it seems improbable that the claimant will be able to show that any loss (or likely loss) it has suffered was caused by a specific publication. It seems to me that this is a good example of the “daunting problem of causation” referred to by Collins Rice J in Sivananthan". 

Meaning of dramatisation 

On 14 June 2024, the High Court handed down judgment in Taylor v Pathé Productions on the meaning of the film 'The Lost King', a dramatisation of the search and discovery of the remains of Richard III in a Leicester car park by a Ms Langley.  

The Claimant pleaded a three-limbed meaning related to: dishonesty in respect of the search; misogyny towards Ms Langley; and that the Claimant had wrongly sought to frustrate the King's reburial of the remains (and in the process had been disablist).  The Defendant contended that the film meant that the Claimant had exaggerated the University’s role in the search, and was at times unduly dismissive and patronising towards Ms Langley. The Court broadly preferred the Defendant's case, ultimately determining the meaning to be that the Claimant: (a) "knowingly misrepresented facts to the media and the public…by presenting a false account of the University’s role in the project, and marginalising Ms Langley’s role" and (b) was "smug, unduly dismissive and patronising" towards Ms Langley [60].  Limb (a) was found to be a statement of fact, and (b) a statement of opinion, and both limbs were found to be defamatory at common law.

Whilst meaning judgments are highly context-specific and are rarely to be treated as precedent, the judgment is perhaps notable in its finding that the dramatisation has an opinion meaning.  It was relevant to the Judge's reasoning in that respect that the film is portrayed as being from the perspective of Ms Langley, including through its opening which tells viewers that it is telling “her story”. 

Bridgen v Hancock

On 24 June, Mrs Justice Collins Rice also handed down a meaning judgment in Andrew Bridgen v Matt Hancock.  The claim relates to a Tweet posted by the Defendant in January 2023 which referred to a "sitting MP" spouting "anti-Semitic, anti-vax, anti-scientific conspiracy theories" about the Covid-19 vaccine. The Claimant, 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".  This is the second judgment on an interlocutory application in the proceedings, Steyn J having found the Claimant's original reference plea to be defective earlier this year and subsequently directing him to amend his case.  The Claimant's amended reference case is a reference innuendo. 

Collins Rice J rejected the Claimant's contended meaning that the Defendant's Tweet meant he was an anti-Semite, instead determining (on the basis that the reference innuendo case would succeed) that it meant "An unnamed MP had said something that morning related to vaccination which was baseless, unscientific, dangerous and offensive, including because its character was antisemitic", the underlined words being an assertion of fact and the remainder an expression of opinion.  There was no dispute between the parties that, in that meaning, the basis of the opinion was indicated or that publication is defamatory at common law.

In making her finding of opinion, the Judge noted that "Comment, and rapid reactive comment, are the everyday currency of political speech, especially on social media", and in rejecting the Claimant's position that the Tweet was passing judgement on his morality wholesale – as opposed to a particular comment he made – the Judge said a "reader of tweets like this knows and expects they are tuning in to robust and opinionated reactive political comment. They would readily understand that Mr Hancock was calling out the promulgation of material in another’s comment…as objectionable…rather than definitively condemning the MP as an individual".

RPC act for Matt Hancock.

Election manifestos 

The Conservatives, Liberal Democrats and Labour have each released manifestos with commitments relevant to both the media and online speech.
On press regulation, the Liberal Democrats manifesto expressly backs holding 'Leveson 2', a view on which Labour is silent and which Tories oppose.  
The Liberal Democrats have also expressly promised a new anti-SLAPP law, echoing Shadow Foreign Secretary David Lammy's commitment to introduce such a law (albeit this commitment is not in Labour's manifesto).

Each party has also promised to build on existing online safety regulations through the Online Safety Act 2023, with both the Conservatives and Labour promising to prioritise online safety for children.  The Liberal Democrats have committed to increase the digital service tax on social media platforms and 'big tech' from 2% to 6%.

IPSO criticised for imposing its own 'taste test' in open court report

An IPSO ruling that found the news site Aberdeen Live to be in breach of Clause 4 of the Editors' Code of Practice (Intrusion into Grief and Shock) has been upheld following a review of the decision by IPSO's Independent Complaints Reviewer. 

The article in question commented on a rape conviction in which the complainant was the victim.  The complaint was over reporting of comments made by the prosecutor in describing 'the complainant's reactions during the attack' which were considered 'deeply personal' and with 'clear potential to be extremely intrusive to the complainant' without justification.  

Various publishers have criticised the decision on the basis that the alleged intrusion related to reporting comments made by a prosecutor in open court, which should be a matter of editorial discretion and not IPSO's own 'taste test'.  

The IPSO decision noted the tension between open court reporting but held that the specific details included in this case which 'did not form part of' the crime were intrusive without justification. 

Canada: Anti-SLAPP legislation 

A new Report analysing Canada's anti-SLAPP legislation in British Columbia and Ontario has found that overall, 56% of anti-SLAPP motions brought in those jurisdictions were successful in striking out actions.  The Report highlighted the varying degrees of success of different types of publisher, with traditional news publishers holding a 100% success rate in relying on the legislation and 'other publishers' including Facebook pages running news stories, being successful 50% of the time.  The Report, and the Canadian legislation itself, could prove a useful yardstick to policymakers considering anti-SLAPP legislation in future.

Quote of the fortnight:

IPSO has 'in effect, imposed reporting restrictions on a case where a senior judge did not consider them necessary'

'It is a judgment for editors, not watchdogs, what to publish from court — or our press is not free'

Comments from The Times and The Sun in response to IPSO's ruling in A woman v Aberdeenlive.news.