Take 10 - 29 September 2023

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

We would like to welcome our newest Associate, Megan Grew, who has recently qualified into the team.

Online Safety Bill

Last week, the Online Safety Bill was approved by the House of Lords, meaning it will become law once it receives Royal Assent. It will be known as The Online Safety Act (OSA).  The aim of the OSA is to make the internet a safer place, particularly for children. Once law, the OSA will require online user-to-user platforms such as social media companies, search engines, dating apps and gaming services, to proactively tackle illegal and harmful content and implement measures aimed at reducing the chance that such content is hosted in the first place. The OSA will also cover matters such as stricter requirements regarding age verification, protections from online fraud and 'high risk' content.  Read our recent blog about the Online Safety Bill for more detailed insight here.

The return of common law contempt?

The Attorney General, Victoria Prentis MP, has issued a contempt of court warning to editors about their reporting of the allegations made against Russell Brand. The statement sought to "amplify the importance of not publishing any material where there is a risk that it could prejudice any potential criminal investigation or prosecutions" and warned editors to ensure that they were "in a position to fully comply with the obligations to which they are subject under the common law and the Contempt of Court Act 1981". 

Under the strict liability rule imposed by the Contempt of Court Act 1981, it is contempt to publish material that could prejudice or impede ongoing legal proceedings. However, there are currently no active proceedings against Brand. The warning has been the subject of extensive criticism with The Times, the paper that broke the story alongside The Sunday Times and Channel 4's Dispatches programme, calling the warning a "shocking overreach" with "no basis in law".  On Tuesday, the AG rowed back from the earlier assertion that the strict liability rule was in play, but maintained that the warning was based on common law contempt, an offence which requires the prosecution to prove that a publisher or editor to had specific intent to prejudice a future trial in pending (but not active) proceedings. 

Separately, the Coroner presiding over the Noah Donohoe inquest in Northern Ireland has issued a timely reminder that the strict liability rule does not just apply to criminal proceedings in the Crown Court, warning against the sharing of any material disclosed as part of the coronial process outside of the inquest proceedings. No date for the inquest, which is to be held with a jury and was originally listed for last year, has been set.

Northern Ireland: Anonymity in sexual offence cases 

The Justice (Sexual Offences and Trafficking Victims) Act (NI) 2022 came into force in Northern Ireland yesterday, introducing anonymity for those suspected of committing sexual offences. It is now a criminal offence to publish material which is likely to identify a suspect once an allegation of a sexual offence in Northern Ireland is reported to the police or where an investigation is taking place in the absence of any allegation being submitted to the police. The legal right of anonymity bestowed on suspected sexual offenders applies to current and past allegations and investigations and, in circumstances where they are not prosecuted, lasts for their lifetime and for 25 years following their death. The Act does provide the Court with the power to disapply the reporting restriction, but such an order will not be made unless the Court is satisfied such an order is in the interests of justice or the public interest.  The media may only challenge the reporting restriction following the death of a suspect.  This represents a significant divergence in reporting restrictions between Northern Ireland and England and Wales and will present a substantial challenge to media organisations involved in investigations into alleged sexual offences in Northern Ireland. For more information on the background and implications of the new law, see this blog. 

Interim Anonymity Order for Police Officer Accused of Murder

Following the CPS' decision to formally charge, but not name, an armed police officer with the murder of Chris Kaba last year, the defendant, currently known only as "NX121", applied for an anonymity order.  The application was adjourned following submissions on behalf of several media organisations and has been listed for a hearing next week on Wednesday 4 October.  An interim anonymity order under section 11 of the Contempt of Court Act 1981 has been granted to protect NX121's name, date of birth and any other information likely to lead to his identification in the meantime.  

On Tuesday, the Recorder of London, Mark Lucraft KC, issued a public warning following concerns raised about the content of pre-trial coverage of the matter, to remind everyone of the obligation to comply with the strict liability rule under Contempt of Court Act 1981 to ensure that no material was published that might prejudice these ongoing criminal proceedings.

JRV and BRG

In an easily digestible and short judgment, the High Court granted a privacy injunction to restrain the Defendant from publicising her affair with the first Claimant [4]. (Claimant 1 (C1) is a married man and Claimant 2 (C2) is his wife [1]). Despite the alleged course of conduct going on for a number of months, the injunction was not sought until a journalist approached the Claimant for comments ahead of an intended story. It will be interesting to see whether any media organisations make efforts to unmask the Claimants in this case. Although the judgment did not throw up any new or novel areas of law in respect of obtaining privacy injunctions, the judgment is a helpful refresher on law applicable to obtaining a privacy injunction.   

Fixed Recoverable Costs for Media and Communications Claims

The Fixed Recoverable Costs (FRC) regime will come into force over the weekend, 1 October 2023. The FRC regime, will apply to all claims allocated to the fast track and (the new) intermediate track which are valued between £25,000 and £100,000. The recoverable costs under the regime will be determined by banding based on the complexity of a claim, and they are capped dependant on the stage at which a qualifying claim is resolved or determined.  This appears to include claims which settle prior to allocation provided they would normally fall within the fast or intermediate tracks to which the FRC applies (see the new CPR r.45.50(1)). Claims issued in the Media and Communications List are not exempt from the FRC regime but the Court will retain discretion to allocate more complex cases valued at under £100,000 to the multi-track, to avoid complex cases being inappropriately captured by the extended FRC regime.

The new CPR provisions are available here.

Draft Media Bill 

The House of Commons Committee for the Department for Digital, Culture, Media and Sport has published its final report on the Draft Media Bill. The Bill intends to ensure that on-demand content is held to the same standards as broadcast content. Following consultation, the report balances the needs of audiences, streaming platforms and public service broadcasters. It is not yet known when the Bill will start making its way through Parliament.

Digital Services Act

The European Commission has launched the Digital Services Act (DSA) Transparency Database which will act as a centre of content moderation decisions for 'Only Very Large Online Platforms'. If a hosting service provider removes a user's content from the platform, the service provider must send the affected user a 'statement of reasons' explaining their decision to remove the item, as per Article 17 of the DSA. The Commission is also obliged to create a publicly accessible and searchable database in which such 'statements of reason' will be stored, as per Article 24(5) DSA. If content is removed from a platform, the onus is on the service provider to submit their 'statement of reason' to the Commission's database without undue delay after taking a decision. 

Call For Standalone Anti-SLAPP Bill

While the Economic Crime and Corporate Transparency Bill (ECCTB) (discussed in our previous edition), which includes anti-SLAPP provisions, has entered its final stages, media professionals are now demanding a standalone anti-SLAPP bill.  Over 60 editors, reporters and lawyers have signed a letter calling for the Government to promise a standalone anti-SLAPP bill in November’s King’s Speech. This is because there are concerns that the ECCTB will not provide adequate protection against SLAPPs. The ECCTB will undergo the Consideration of Commons amendments on 18 October. This is the final stage before it receives Royal Assent, however we are not expecting to see any changes to the anti-SLAPP provisions. It remains to be seen whether the letter to the Government will have an impact on future policy decisions.

Proposals to Limit Journalistic Access to Sex Offence Prosecutions

The Law Commission has proposed changes to how evidence is used in sexual offence court cases. Currently, journalists are allowed to be in court while a complainant gives evidence. However, the Law Commission has proposed that press attendance at trial during the giving of evidence be restricted to just one reporter. The proposal raises concerns about the impact it could have on the principle of open justice. If journalists are not allowed to hear evidence, their ability to accurately report on cases that could be in the public interest could be compromised, and could allow sexual offenders to eschew public scrutiny. 

The deadline for submitting responses to the Consultation is today, 29 September 2023.

UK-USA Data Bridge

In recent years, data transfers between the UK and the US have been a bit of a headache for companies. However, on 12 October the Data Protection (Adequacy) (United States of America) Regulations 2023 will take effect, and implement the Data Privacy Framework which will hopefully help alleviate some of that pain. In July 2020, the Schrems II ruling by the CJEU held that the US did not provide sufficient levels of data protection to comply with the GDPR. As a result, any companies transferring data to the US have, until now, had to jump through extra hoops and implement additional safeguards to achieve a level of protection equivalent to that of GDPR. Companies will no doubt be happy to hear that the UK-US (and EU-US) data bridge created by the Data Privacy Framework will reduce the number of additional safeguards a company must implement when transferring data to the US. For example, journalists or employees who regularly travel abroad and transfer personal data across continents will find it easier to comply with data protection regulations. The data bridge is also likely to mitigate the risk of data breaches.

Quote of the fortnight:

"Is the government telling reporters to stop interviewing women who have courageously come forward, stop pursuing legitimate and important public interest journalism?.. It is not [the AG's] job to tell reporters to stop reporting on issues where there is merely the ‘potential’ for criminal proceedings. It is the job of reporters to uncover misconduct and wrongdoing, to gather evidence that could lead to criminal trials." – Sean O'Neill of The Times