Take 10 – 28 March 2024

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

Judgment in Bridgen v Hancock [2024] EWHC 623 (KB) 

Mrs Justice Steyn has handed down judgment on a strike out application made by Matt Hancock MP, in respect of the libel claim brought against him by Andrew Bridgen MP. The claim relates to a Tweet posted by Mr Hancock in January 2023 which referred to a "sitting MP" spouting "anti-Semitic, anti-vax, anti-scientific conspiracy theories" about the Covid-19 vaccine. Mr Bridgen, 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". Mr Bridgen’s Tweet prompted widespread condemnation from other parliamentarians, substantial reporting in the media, his suspension of the whip, and criticism during Prime Minister’s Questions, all of which preceded the Tweet complained of.

Mr Hancock sought strike out of the claim on the basis Mr Bridgen’s case on reference can only be one of reference innuendo, and he had failed to plead such a case effectively. Mr Bridgen’s response to the application was that there was no need to plead an innuendo case, as his long-standing criticism of the vaccine and that he had had the whip suspended were characteristics which people acquainted with him would be aware of i.e. without knowledge of any “special facts”. 

Steyn J agreed with Mr Hancock that Mr Bridgen’s reference case can only be an innuendo case, and that his pleaded claim was therefore defective. She struck out the majority of the case on reference and has given Mr Bridgen an opportunity to amend those parts which remain. If Mr Bridgen fails to replead an effective case, it will be struck out.  The Judge also ordered Mr Bridgen to pay 90% of Mr Hancock's costs of the application, in the sum of £44,300.  Should Mr Bridgen's claim proceed, there will be a preliminary issue trial to determine meaning, fact/opinion and related issues before a defence is filed. RPC acts for Matt Hancock MP. 

Summary judgment on defamation and malicious falsehood claims 

On 21 March, Mr Justice Chamberlain summarily dismissed a libel and malicious falsehood claim brought by Frank Sinton, a luxury hotels construction project manager, against Maybourne Hotels and its directors after they suspended Mr Sinton's access to two building sites, following allegations that he had behaved inappropriately towards workers. The publications complained of were letters and notices sent to staff members at Maybourne Hotels informing them that the Claimant's access to the sites was suspended pending investigation. Mr Sinton claimed that the publications were malicious and defamatory. The Defendants applied for, and were granted, summary judgment on the grounds of qualified privilege and lack of evidence of malice. In the alternative, they applied for strike out on grounds of abuse of process as per Jameel v Dow Jones. 

Chamberlain J held that the publications were all made on occasions of qualified privilege. Though he was not required to determine meaning, he adopted the Claimant's meaning for the purposes of his judgment - that "there were strong grounds to suspect the Claimant of such serious misconduct in the performance of his duties that it was urgently necessary to bar his access to multiple MHL sites for the protection of those staff working at those sites". The correspondence complained of was sent on a "confidential basis" to "a small number of individuals with whom the defendants had a pre-existing business relationship" and who needed to be informed of the suspension as they were responsible for managing access to the sites and/or had been regularly working with the Claimant. Such a suspension could not be communicated without raising that there were serious grounds to suspect him of serious misconduct [50-52]. Chamberlain J confirmed that qualified privilege "extends to republication of a privileged communication, even if the republication takes place on an occasion which does not attract privilege, unless the original publisher directs or intends the statement to be republished in a manner which exceeds the protection of the privilege" [53]. Mr Sinton has also brought a data protection claim which is yet to be heard.

Abuse of process by inordinate delay: A reminder of the high bar 

The High Court dismissed a strike out application founded on the basis that the Claimants' delays in issuing and subsequently advancing proceedings were an abuse of process or, alternatively, on the basis of 'Jameel grounds'. The parties were residents of a gated housing estate and the claim arose out of separate emails sent by the Defendants to other residents which the Claimant says alleged that he had conducted a campaign of anti-social behaviour, including assault, stalking and sending hate mails, which he denied. HHJ Lewis acknowledged that there had been an "unacceptable delay" in progressing these cases but recognised that delays were caused by both parties, as well as the Court itself, and, as such, there could be no inference that there had been an abuse of process or that the Claimant did not have a genuine desire to pursue his claims and bring them to a conclusion [64-74]. Despite this finding, HHJ Lewis went on to consider the exercise of the court's discretion at the second stage and held that real prejudice would be suffered by the Claimant if the claims were struck out, in contrast to the Defendants' lack of any meaningful case on prejudice. The Defendants' own responsibility for some of the delay was also a factor. In refusing the Jameel application, the Court relied on the prejudice that the Claimant would suffer where he "has a legitimate and proper purpose in pursuing these claims" against the fact significant costs had already been incurred [76]. This case serves as a reminder of the high bar for striking out on abuse of process and/or Jameel grounds, and the importance of ensuring that as a defendant you are not responsible for delaying proceedings, even where the claimant is not advancing their case expeditiously.

High Court dismisses 'unreal' libel claim with no evidence of serious harm 

On 13 March, Mrs Justice Collins Rice granted summary judgment in the Defendant's favour in a libel claim citing a lack of evidence to prove serious harm against the Claimant, Keith Courtney, the founder of the Elaine Bain Family Trust. The publication complained of was a letter sent by the Defendant, Richard Ronksley, to the board of trustees of the Trust, which Mr Courtney argued implied, amongst other imputations, that the trustees put children and young people who used the Trust's facilities at risk and could not be trusted with the safety of the children in their care. Mr Courtney pleaded a further 'innuendo meaning' that "the Charity was so badly managed as to warrant the immediate withdrawal of students because it was unsafe for students to be educated and trained there". 

The Judge found that the Claimant did not meet the statutory threshold for serious reputational harm and would therefore have no prospect of succeeding at trial. The relevant factors in support included that this was not a mass-publication case, given the letter was emailed to a limited class of identified publishees, there was no evidence of onward publication, and the Claimant's case on serious harm was in "largely generalised and expressly inferential terms" [36], but the Claimant had not put forward any evidence to support the inference that any of the publishees thought worse of him as a result of the publication. By contrast, the Defendant had produced evidence from a number of publishees confirming that their opinion of the Claimant had not been altered by the letter. Regarding whether there were reasonable grounds to conclude that evidence of serious reputational harm could not reasonably be expected to be available at trial, Collins Rice J remarked that the Claimant "does not sufficiently advance beyond the speculative, or the optimistic hope that, as a result of further research, disclosure and cross-examination, 'something may turn up' to prove what he wants to be able to show" [58]. As such, the Judge held that the claim was "entirely without real substance, or 'unreal'". 

Oral disclosures do constitute data processing according to the ECJ 

The European Court of Justice ("ECJ") recently ruled that oral disclosure of personal data constitutes processing under the General Data Protection Regulation ("GDPR"). The case involved a request from the television production company, Endemol Shine Finland, to obtain information about possible criminal proceedings concerning a person involved in a competition they created. They had intended for any information to be disclosed orally. The District Court of South Savo refused the request, stating that Endemol lacked a legitimate reason to process the data under GDPR Article 10.

Endemol Shine Finland argued on appeal that oral disclosure didn't fall under the GDPR's definition of data processing. However, the ECJ disagreed, emphasising the broad scope of processing under Article 4(2) and the GDPR's objective of protecting individuals' rights. The ECJ concluded that allowing oral disclosure to circumvent the GDPR would be incompatible with this objective. The ECJ also determined that the oral processing fell within the GDPR's material scope, as the data sought was part of a court's register, constituting a filing system under Article 4(6). This ruling is not binding on UK courts but it does suggest that data controllers cannot evade GDPR obligations through oral disclosures, expanding the understanding of data processing beyond the UK's Data Protection Act 1998, which the Court held did not catch oral communications in Scott v LGBT Foundation Ltd.

EU Council formally adopts Directive to prevent SLAPPS 

On 19 March, the Council of the European Union adopted the EU Directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation” or "SLAPPS"). The directive intends to introduce safeguards against SLAPPs across EU Member States, by allowing defendants to apply to the Court for dismissal of a manifestly unfounded claim at the earliest possible stage. There are also a number of costs protections in the Directive, including requiring the claimant to bear the costs of the proceedings and the defendant's legal representation if a case is found to be abusive, as well as providing the court with the ability to order a claimant to provide security for costs and the defendant's damages (if this is allowed by the relevant national law). These cost protections are more extensive than those that appear in both the Anti-SLAPP provisions of the Economic Crime and Corporate Transparency Act and the recently introduced SLAPP Bill. The Directive will hopefully go some way to prevent forum shopping by claimants (a typical marker of a SLAPP), but the drafting of the directive has a relatively high level of flexibility in terms of how Member States should transpose it into their national law (which they will have two years to do, once the Directive enters into force following its publication in the Official Journal of the European Union). 

Ofcom's third phase of online safety regulation under the OSA

Ofcom is seeking evidence to inform its codes of practice and guidance on the additional duties that will apply to 'categorised' services under the Online Safety Act ("OSA"). As well as the duties which apply to all in-scope services under the OSA, Category 1, 2A or 2B services will be required to comply with additional duties (depending on which category they fall into), which are designed to improve user empowerment, ensure protections for news publisher and journalistic content, prevent fraudulent advertising, and increase transparency. The deadline to respond to the call for evidence is 20 May 2024 and Ofcom's consultation on the draft codes and guidance will follow in 2025.

Alongside this call for evidence, Ofcom have published their advice to Government on the thresholds for the categorised services. They have recommended that the thresholds for all three categories be set by reference to user numbers, but that Categories 1 and 2B should also consider the service's functionalities, including, in the case of Category 1 services, if it uses content recommender systems and/or allows users to forward or reshare user-generated content, or, in the case of Category 2B services, allows users to send direct messages. These functionalities mirror those Ofcom identified as being particularly high-risk in their own illegal content risk assessment.

Extended Civil Restraint Order made following strike out application  

Following a strike out application, the Court has taken action to restrain a "persistent" Claimant in defamation and malicious falsehood proceedings. The claim also concerned a range of additional allegations in the context of an employment dispute. Action was brought against 52 defendants, one of which was the Claimant's previous employer ("LSE"), and the remaining were barristers who, at one time, had worked in the chambers the Claimant had previously been represented by.

Mrs Justice Tipples struck out the proceedings declaring the claim as 'totally without merit' but went further by making a three-year Extended Civil Restraint Order ("ECRO") [7, 117]. The strike-out was ordered for a range of reasons including limitation and the fact the pleadings failed to disclose an arguable case for any of the actions brought or the defendants they were brought against. The Judge justified the use of the ECRO on the basis that this set of proceedings was the fifth claim brought by the claimant against LSE in eight years on similar facts, where three of those claims were subject to 'totally without merit' orders [108]. The Judge considered this met the requirements for an ECRO under PD3C as the Claimant's conduct had the "hallmarks" of persistence, having already indicated his plans for future litigation [112-113].

GB News in breach of due impartiality rules 

Ofcom have found GB News to be in breach of the Broadcasting Code's due impartiality rules in respect of five programmes which contained a mix of news and current affairs content but where politicians were deemed to be acting as newsreaders, news interviewers or news reporters in respect of the news sequences. Ofcom's Broadcasting Code prohibits politicians taking on the role of newsreader, interviewer or reporter in news broadcasting unless there is "exceptional editorial justification", in order to uphold the integrity and credibility of regulated broadcast news. Programmes classified as current affairs do not have the same requirements, but where there is a mix of the two genres, steps must be taken to ensure politicians do not act as a newsreader, interviewer, or reporter in that programme. Ofcom's announcement noted that a further episode did not warrant an impartiality investigation where Jacob Rees-Mogg was merely acting as an "eyewitness". 

During the investigation, GB News set out its concerns over the uncertainties created by the Broadcasting Code's requirements and the distinction between news and current affairs. Following the decision, a spokesperson from GB News said that they were "deeply concerned" by the decision, describing it as a "chilling development for…freedom of speech". Ofcom have issued a warning that future breaches may result in a statutory sanction.

ICO issues new data protection compliance fining guidance 

The Information Commissioner’s Office ("ICO") has released new guidance on data protection fining, offering clarity on how it determines penalties and computes fines.  The publication aims to enhance understanding and compliance with data protection laws among organisations by explaining the legal framework empowering the ICO to issue penalty notices and the factors the ICO will consider when deciding to issue a penalty notice, which include the seriousness of the infringement, whether there are aggravating or mitigating factors, and whether issuing such a notice would be effective, proportionate, and dissuasive. It also sets out the ICO's five-step methodology for calculating the level of the fine, which for breach of UK data protection law could be up to the higher of £17.5 million or 4% of total worldwide turnover. Developed after a consultation last year, the guidance also clarifies the ICO's position on specific aspects of its enforcement powers, such as how the ICO will approach crucial issues like identifying the broader 'undertaking' or economic entity involved for the purposes of imposing fines, the correct course of action where there is more than one infringement, and the restrictions on issuing penalty notices.

Quote of the fortnight:

"Defamation is an abridgment of free speech. When it introduced the serious harm test, Parliament's intention was to allow a greater margin to free speech, and to prevent the scarce and precious public resources of the senior courts from being occupied with defamation challenges to others' freedom of expression, unless objectively demonstrable real-life reputational impact can be established, on ordinary causational grounds, and to a proper threshold of gravity. It is not in anyone's interests, including a claimant's, for all the stress and expense of a defamation trial to be incurred unless there is a realistic prospect of success in the end." 

Mrs Justice Collins Rice, Courtney v Ronksley [2024] EWHC 572 (KB), [64]