Take 10 – 26 July 2024

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

Successful strike out of libel claim founded on innuendo meaning in Vince v Associated Newspapers

His Honour Judge Lewis struck out Dale Vince's libel claim following a successful application by ANL. The article - 'Labour repays £100,000 to "sex harassment" donor' - reported the return of a Labour party donation to a third party accused of sexual harassment, and went on to mention Mr Vince's separate Labour party donation, suggesting that he had caused embarrassment to the party by participating in a Just Stop Oil protest.  The article included two photographs of Mr Vince at the protest. 

Mr Vince pleaded an innuendo meaning alleging that a substantial number of readers would know that the "headlines, prominent photographs and captions…in the mainstream UK press" accurately summarise the content of an article. On that basis, he argued those readers would understand the article to mean that he had been accused of sexual harassment without needing to read the rest of the article [12].  

ANL's strike out application relied on the principle in the House of Lords' case of Charleston, that libel claims cannot be 'carved up' into different elements of the article complained of. Mr Vince accepted that if Charleston applied, he had no claim [42] but sought to argue that the principle did not apply to innuendo meanings [23], citing Falter v Altzmon, in which Mr Justice Nicklin held that a claimant could plead an innuendo meaning which relies on hyperlinked material as material that at least a large proportion of readers would have read [38]. 

HHJ Lewis struck out the claim on the basis that Charleston applied, noting there was nothing in Charleston, or Nicklin J's decision in Falter, to suggest the core principle did not apply to an innuendo case [39-40].  HHJ Lewis found Mr Vince's claim contradictory, as he had accepted the headline and photograph did not accurately summarise the article [51].  Mr Vince failed to prove the extrinsic facts relied on were objectively true (finding that the extrinsic "facts" relied on were not actually facts at all [46]) and so they were insufficient to support a viable claim with an innuendo meaning. RPC acts for ANL.

Injunctive relief awarded against Dr Craig Wright in COPA proceedings 

Mr Justice Mellor has handed down judgment following an application for injunctive relief sought by the Cryptocurrency Open Patent Alliance (COPA) after finding that Dr Wright was not the creator of Bitcoin, Satoshi Nakamoto (see our previous Take 10 for this judgment) in a joint trial of five claims in May 2024. 

Mellor J granted two 'necessary' injunctions preventing Dr Wright from bringing or threatening to bring proceedings in any jurisdiction on the basis that he was Satoshi Nakamoto [112].  The Judge also agreed to refer Dr Wright to the CPS to consider a potential prosecution for perjury for 'extensively and repeatedly' lying to the Court through forged evidence [201]. Dr Wright was ordered to personally disseminate the details of Mellor J's finding that he was not Satoshi via his website homepage, Slack channels and a Tweet pinned to his X account for 3 months [182]. 

Mellor J declined to grant further injunctions which would prevent Dr Wright from asserting any right to be Satoshi or making statements to that effect, noting the overlap with the injunctive relief which had been granted and that 'right thinking people are likely to regard those assertions as hot air' [166-169].  Mellor J also did not order Dr Wright to delete all existing statements where he claimed to be Satoshi for proportionality reasons [148].

Mellor J declined to address what should happen in the ongoing Wright v McCormack defamation claim (see our previous Take 10 for the recent worldwide freezing injunction obtained by Mr McCormack).  However, in considering the COPA injunctive relief, Mellor J referred to Dr Wright's conduct in both Wright v McCormack and Wright v Granath. In particular, he referred to the 42 documents declared forgeries across both sets of proceedings (a number considered to be 'the tip of the iceberg' [101]) and Dr Wright's 'vitriolic comments' directed at Mr McCormack and Mr Granath throughout the litigation [102].  Mellor J said that Dr Wright should not be able to bring claims in forums with 'strong laws' of defamation and Mr Wright and Mr Granath 'should not be intimidated any further from stating the truth' [132, 133].  RPC acts for Peter McCormack.

Government urged to take 'muscular' action against SLAPPs

The Government has been urged to take 'muscular' action to tackle strategic litigation against public participation (SLAPPs) used to intimidate and silence journalists, public bodies and other activists.  The reforms introduced by the previous government's Economic Crime and Corporate Transparency Act targeted SLAPPs relating to economic crime, but Anti-SLAPP campaigners have urged that this is the tip of the iceberg.  During a debate in the Lords Chamber yesterday, Labour's Lord Ponsonby of Shulbrede said the Government was 'carefully considering options to tackle SLAPPs comprehensively' and was establishing working parties to address the issue. He added that the Government 'supported the principle' behind the previous Anti-SLAPP Private Member's Bill (which failed to get through Parliament before Dissolution) and that any forthcoming legislation would ensure that judges had 'greater capacity to assess' whether the primary objective of a claim was to harass, intimidate and financially and psychologically exhaust a defendant.  Lord Ponsonby said he could not make a commitment to a stand-alone Bill but that 'there is nevertheless an urgent need for reform' and intended to continue the previous government's discussions with important stakeholders such as the Law Society.  

RBT v YLA – anti-harassment injunction continued 

Aidan Eardley KC (sitting as a Deputy High Court Judge) has continued an anti-harassment interim injunction to prevent the Defendant from approaching, contacting or publishing any information about the Claimant, his family, business or his staff.  The interim injunction had been initially granted without notice to the Claimant, with alternative service of the claim form and particulars of claim (including, unusually, by WhatsApp) permitted. 

In continuing the injunction, the Judge found the Claimant was more likely than not to obtain a final injunction at trial [44]. Relevant factors included: (1) the Defendant's communications being 'of a gravity that would sustain criminal liability', going into detail about how he intended to damage the Claimant's business and personal reputation through a mass email campaign and unlawful covert recordings, (2) the Defendant's persistency, saying he would 'hound' the Claimant 'like a rabid dog' and (3) the likelihood of the Defendant being found to have engaged in blackmail. 

The Judge acknowledged part of the injunction involved restraining the Defendant from publishing material to third parties that damaged the Claimant's reputation [58].  However, the 'nub' of the application was not protection of reputation so the Judge declined to apply the principle in Bonnard v Perryman, in which an injunction to restrain defamation should not be granted unless it is clear the defence would fail [59], though the Judge noted the application would meet that standard [60]. 

The Defendant did not attend the hearing on 'medical grounds', though the Judge found the cited grounds inconsistent.  The Court reaffirmed that the Defendant would need to provide evidence from a medical practitioner explaining the Defendant's condition and 'crucially' how that would prevent him from attending court or participating in the hearing, which the Defendant had failed to do [16]. 

Whilst the judgment does not significantly develop the law in this area, it does cover a range of important areas of the law that are likely to be of interest to practitioners and others who operate in the reputation management space. These are explored in more depth in our blog post. 

Determination of meaning in Hemming v Poulton 

Following a trial of preliminary issues on meaning, judgment has been handed down in a libel claim brought by former MP John Hemming against self-represented freelance journalist Sonia Poulton over a 'true crime' podcast interview posted to YouTube (Publication 1) and statements made on her fundraising page (Publication 2).  

In Publication 1, the Defendant was questioned on the Defendant's documentary 'Paedophiles in Parliament' and a third party's allegations of child abuse by an MP.  The words complained of included the Defendant's statement: 'it was actually John Hemming who outed himself, on his own blog…I'm not making any accusations about John Hemming but it is quite clear that [the third party] feels she has a case that needs to be examined' and discussed legal action the Claimant had threatened against her [3].  The Court found two limbs of meaning: (1) the third party had made allegations of child abuse, and the Claimant revealed those allegations had been about him.  The third party must feel those allegations had not been thoroughly investigated (opinion underlined), and (2) the Claimant is very proactive in protecting his reputation, including through the use of legal threats [30].  The second limb was not found to be defamatory on the basis both parties were regularly involved in legal action to protect their reputations [34].  

Publication 2 described an interview the Defendant had with police about a potential breach of a reporting restriction and her 'putting on record the names of people pushing for me to be charged and to take me away from exposing Establishment abuse' [5].  As part of the meaning, the Judge found an innuendo opinion meaning that the 'motivations for trying to cover up child abuse for members of the Establishment should be questioned. Those motivations could include the desire to cover up their own criminal activities' [39].  Publication 2 did not name the Claimant but the Judge considered the 'broader context' of the Defendant's fundraising page which referred to threats of legal proceedings by the Claimant and others, and found it reasonable to assume the likely audience of the Defendant's fundraising page would be aware of her broader work and the legal proceedings against her [43].  The Claimant had sought to rely on three witness statements in support of his proposed innuendo meaning, but these were found to be "more focused on the wider disputes between the parties and the intention of the Defendant" so were irrelevant [36]. 

Family court rules that TBIJ can publish name of serial rapist 

Last week, the Bureau of Investigative Journalism (TBIJ) succeeded in an application to the Reading Family Court to lift a reporting restriction to name ex-soldier Kristoffer White as a convicted serial rapist.  Mr White had applied to the Family Court for more defined child visitation arrangements when it emerged that he had been jailed in 2011 for raping a teenager whilst serving in the army.  The Family Court previously found Mr White had raped the mother of his child on three occasions, with a further attempt.  TBIJ journalist Hannah Summers and freelance journalist Suzanne Martin argued there was a strong public interest in identifying Mr White to mitigate risks of further abuse since his previous conviction demonstrated that his behaviour had not been limited to a domestic setting, for which there had already been publicly available reporting, and there were suggestions that he had been using different names.  The child's mother was supportive of the application [9-10] but Mr White 'vehemently opposed' the application, raising concern of the possible jigsaw identification of the child, stress caused to those close to him and of the potential for inaccurate media reporting [13-14].   

His Honour Judge Moradifar found a 'compelling public interest argument that prevents the abuse shielding behind his/her rights or those of a child' which gained 'greater importance where there is an established course of conduct' which might expose others to a risk of harm [20]. The TBIJ's article is available here. 

In related news, the Transparency Implementation Group Reporting Pilot has this month been extended to 16 Family Courts after an initial trial in Leeds, Cardiff and Carlisle.  The Reporting Pilot introduced a presumption that accredited media and legal bloggers could report on family court cases, subject to rules of anonymity through 'Transparency Orders'.  The Reporting Pilot, which now covers almost half of all family courts, aims to ensure reporting can be done 'safely and with minimum disruption to the court'.  The President of the Family Division has produced further guidance.

National Union of Journalists given permission to intervene in investigation into unlawful surveillance of NI journalists 

The National Union of Journalists has been given permission to make written submissions to assist the Investigatory Powers Tribunal (IPT) to determine whether the Police Service of Northern Ireland (PSNI) has engaged in unlawful covert surveillance of journalists. The NUJ will act as an 'independent organisation' to provide insight into protecting journalistic sources and the 'wider implications of the case'.  The IPT, a judicial body considering complaints of unlawful interference through covert surveillance against public authorities and intelligence services under the Regulation of Investigatory Powers Act 2000, is set to hear the complaints at a full 4-day hearing from 1 October 2024.  

The IPT had initially been considering whether journalists Barry McCaffery and Trevor Birney had been the subjects of unlawful covert surveillance by the PSNI, the Metropolitan Police and Durham Police since 2013 in an attempt to uncover their journalistic sources after a confidential document was given to them by an anonymous source during the production of a documentary reporting on the murder of six people in Loughinsland in 1994. In June 2024, the PSNI published a report following its own investigations of the complaints.  

A similar complaint of unlawful covert police surveillance has been made on behalf of a former investigative journalist for the BBC, which will be heard at a separate hearing in October. 

Tribunal allows British Museum to rely on 'commercial interests' to redact data in freedom of information request

On 10 July, the First-tier Tribunal of the General Regulatory Chamber handed down judgment in an appeal following a Freedom of Information request. The Appellant, Dr Christopher Garrard made a request to the British Museum for information relating to sponsorship negotiations it had with BP. The British Museum relied on the exemption in s.43(2) Freedom of Information Act 2000 to redact certain information on the basis that its commercial interests would be prejudiced by disclosure.

The Tribunal accepted that a sponsorship relationship is partly philanthropic so is not purely commercial, but this did not prevent the Museum's interest in maximising sponsorship income from being a commercial interest under the Act for certain pieces of information [103-104].  The Tribunal accepted there was a 'strong public interest' in transparency of information that 'sheds light' on matters of public debate such as the ethics of sponsorship by fossil fuel companies and which demonstrates whether the Museum adopted an 'ethical approach' on possibly renewing its sponsorship relationship with BP [146-147].  However, the overall public interest balance was against disclosing information to which s.43(2) of the Act applied.  There was a real and significant risk of reducing the Museum's ability to get the best deal with BP, particularly since negotiations were ongoing and at a very early stage.  This carried considerable weight given the Museum's role as an 'institution of substantial national importance and public funding is subject to significant constraints'. 

Call for interest to be on Stakeholder Committee of Transparency and Open Justice Board

The recently established Transparency and Open Justice Board, which is to be chaired by Mr Justice Nicklin, has asked for expressions of interest to be on its Stakeholder Committee from the media and all those with an interest in open justice.  The Stakeholder Committee will assist the Board in its objective to 'lead and coordinate the promotion of transparency and open justice across the courts and tribunals of England and Wales'.  The Board intends to hold an initial Stakeholder Committee meeting at the end of July.  To express an interest, email a short paragraph to press.enquiries@judiciary.uk.  To find out more about the Board, see its Terms of Reference here.

Ofcom's consultation on the Media Act 2024's listed events regime  

Ofcom has launched a call for evidence to inform its Code of Practice on the listed events regime as amended by the Media Act 2024. The listed events regime applies to named events of 'national interest', including the Olympic Games, the World Cup and the European Championship football tournaments, to ensure these key events are widely available to the public. The Act extends the regime under s. 101 of the Broadcasting Act 1996 to include any service capable of broadcasting live coverage of listed events to UK audiences, expanding the scope from only 'traditional broadcast channels' to include on-demand and other internet streaming services.

Ofcom is producing its Code of Practice for broadcasters and will define terms such as 'live coverage', 'adequate live coverage' and 'alternative live coverage'. Ofcom says it is particularly interested in evidence of changes to audiences' viewing preferences, changes in technology and the sale of rights for listed events.  Evidence can be submitted by the response form on Ofcom's website before 5pm on 26 September 2024.

New measures in the Digital Information and Smart Data Bill announced

The King's Speech announced the Government's intention to revamp data regulation to 'support a modern digital government' with the introduction of the Digital Information and Smart Data Bill.  The package of measures includes: (1) creating digital verification services to support the creation of innovative digital identity products and services; (2) setting up 'Smart Data' schemes to securely share customer data with trusted third parties on request; (3) establish better 'digital public services' including introducing electronic systems for birth and death registrations and (4) implementing broad consent of data processing for the purpose of scientific research.   In terms of regulation, the Bill plans to 'strengthen' the ICO by modernising its structure to include a CEO, board and chair, and a commitment to providing the regulator with 'stronger powers'. The Bill also introduces a Data Preservation Process that coroners can initiate if deemed 'necessary and appropriate' to support an investigation into a child's death. The draft Bill has not yet been published so it remains to be seen the extent to which it resembles the previous government's Data Protection and Digital Information Bill.

ECJ judgment clarifying when an entity can bring representative actions

The European Court of Justice gave its preliminary ruling interpreting the requirements to bring representative actions on behalf of data subjects under Article 80(2) of the GDPR. The ruling concerned information provided to users of free games on Meta's App Centre. The Federal Union, a German consumer association, attempted to bring proceedings in Germany's Federal Court for alleged infringement of the transparency obligations under the GDPR.  In particular, the consumer association argued that Meta breached Articles 5, 12 and 13 by failing to obtain valid consent to process the user's personal data or provide sufficient information to allow users to understand how their data would be processed.

The ECJ considered whether the consumer association had met the requirement under Article 80(2) requiring bodies to show that it considered the rights of data subjects had been infringed 'as a result of the processing' in order to have standing to bring a representative action.  The preliminary ruling builds on the ECJ's 2022 judgment permitting consumer protection associations to bring legal proceedings on the basis of consumer protection laws [64, 65].

The ECJ held there was no requirement for a 'specific infringement' of the GDPR for a consumer association to have sufficient standing to bring a claim.  Relying on the wide-reaching requirements and 'whole range of rights' [53] under the GDPR, including the 'high level of protection of the fundamental rights and freedoms' [48], the ECJ determined that it is sufficient to rely on the general rights under the GDPR which users are entitled to throughout the processing of their personal data to have standing under Article 80(2). 

Quote of the fortnight

"SLAPPs represent an abuse of the legal system, where the primary objective is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means. Judges are able to assess that. One objective of any forthcoming legislation will be to give them greater capacity to assess improper use of these objectives within the court’s process."

Lord Ponsonby of Shulbrede, The Parliamentary Under-Secretary of State, Ministry of Justice explaining the Government's plans to tackle SLAPPs during a House of Lords Chamber Debate on 24 July 2024.

RPC's Take 10 will take a break over the summer vacation and will return with the next edition in September or October. We wish all of our devoted readers an enjoyable summer!