Take 10 - 31 October 2023

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

First anti-SLAPP law receives Royal Assent

The Economic Crime and Corporate Transparency Act, a new piece of legislation designed to combat economic crime was enacted last Thursday including a late amendment that introduces the UK's first statutory anti-SLAPP law. As discussed in our previous edition here, the ECCTA aims to gives procedural powers to judges in England and Wales to dismiss abusive lawsuits related to economic crime. Section 194 of the ECCTA will require the Civil Procedure Rules to be amended to create an early dismissal mechanism to allow the courts to dismiss any claim that meets the Bill's definition of a SLAPP (set out at section 195) where the claimant has also failed to show that it is more likely than not that the claim would succeed at trial. Where a SLAPP is identified but the case is allowed to proceed on its merits, the court cannot order a defendant to pay the claimant's costs except where misconduct by the defendant justifies such an order. Broadly speaking a claim may be found to be a SLAPP where the claimant's behaviour has or is intended to have the effect of restraining speech aimed at combatting economic crime in circumstances where the claimant's behaviour is also intended to cause distress, expense, or other harm or inconvenience to the defendant "beyond that ordinarily encountered in the course of properly conducted litigation".

Whilst the ECCTA is an encouraging development in the fight against SLAPPs, a letter signed over 70 editors, reporters and lawyers has called for the Government to introduce a broader anti-SLAPP protections, extending beyond cases relating to economic crime.

…and so does the Online Safety Act

After six-years, the Online Safety Act received Royal Assent last Thursday. The wide-ranging and ambitious legislation aims to tackle both illegal content online and protect children from harm online by (broadly speaking) requiring platforms and search engines to develop or improve internal systems.  Ofcom has been appointed the regulator and will shortly be consulting on codes of practice to indicate what steps platforms will need to take to comply with the legislation.  Ofcom's chief executive told a parliamentary committee this week that the first set of proposals for tackling illegal harms could be released as soon as early November.  

RPC are publishing a series of blogs on the Online Safety Act, which can be found here.

George v Cannell

On 17 and 18 October 2023, the UK Supreme Court heard the appeal in the case of George v Cannell. The key issue was what a claimant must demonstrate to rely on section 3(1) of the Defamation Act 1952 in a claim for malicious falsehood and therefore avoid the need to prove special damage. 

The claim was brought by a recruitment consultant, Ms Fiona George (the Respondent), against her former employer, Ms Linda Cannell (the Appellant). When the Respondent changed jobs, the Appellant sent an email to the Respondent's new employer alleging that the Respondent was breaching her contract by contacting old clients from the Appellant's agency, LCA Jobs Ltd (the second Appellant).

The claim for malicious falsehood was dismissed by the trial judge as the Respondent had not proved special damage, nor had she satisfied an exception to that requirement in section 3(1). The Court of Appeal, however, found in favour of the Respondent and held that in order to rely on section 3(1), it was sufficient to show that the statements were such that it was inherently probable in the normal course of events they would cause the claimant some financial loss. Ms Cannell and LCA Jobs Ltd appealed that decision to the Supreme Court. Judgment has been reserved. 

Tribunal overturns ICO's decision to fine American AI tech company Clearview AI 

On 17 October 2023, the First-tier Tribunal overturned an enforcement notice and a £7.5 million Penalty Notice issued by the ICO to Clearview AI, an American facial recognition company. Clearview was initially fined in 2022 after it was found to have used over 20 billion online images of individuals in the UK to bolster its facial recognition database, with many of these images being extracted from social media accounts. The FtT decided that the UK GDPR did not apply to the data processing as although the processing was related to the monitoring of UK data subjects, it was beyond the material scope of the regulation meaning that the ICO did not have jurisdiction to issue the notices. Even though the processing was within the 'territorial' scope of the GDPR according to Article 3(2)(b), as per Article 2(2)a, the processing was still removed from the material scope of the GDPR as it took place before the UK's exit from the EU and therefore was deemed to be processing that occurred prior to IP completion day.

Porn platform boss accused of being a serial rapist wins damages in libel claim 

Jack Aaronson, founder of "Just For Fans", an adult content sharing platform, has been awarded £110,000 in damages (including aggravated damages) after succeeding in a libel claim against adult performer, Marcus Stones. The latter had accused the Claimant of rape, bribery, and extortion through a number of tweets and YouTube videos between 14 June 2020 and 28 June 2020. The judgment (including an advisory notice for explicit content) was handed down on 13 October 2023. 

The Defendant argued that the publications should be protected by a public interest defence as they intended to expose "rape, sexual assault, exploitation, and abuse in the adult entertainment industry". It was also held that the Defendant could not establish that the Claimant was a public figure and could not prove a substantial "industry connection".  In rejecting the Defendant's section 4 defence, the judge said that "there was a degree of cynicism about the Defendant's defence that his publications were in the public interest" given that "he wrongly labelled the Claimant a rapist; he refused to consider any possibility that what he was being told was untrue, he did not give the Claimant a fair opportunity to defend himself; and some of the publications contained vitriolic personal abuse".

Ijaz v Manan – defamation claim dismissed as serious reputational harm not proved

A defamation claim between former friends and colleagues has been dismissed on the basis that emails containing allegations of fraud did not meet the threshold for causing serious reputational harm. The defamation claim related to three emails sent from the Defendant to multiple recipients in which the Defendant suggested that the Claimant had committed fraud. The three emails were sent to the General Dental Council ("GDC"), HMRC and to the Claimant's then employer, Envisage Dental. 

The meanings of the email communications, determined by Mr Justice Saini on 7 December 2021, were that the Defendant was suggesting that there were grounds to suspect and investigate the Claimant for committing fraudulent acts within the Defendant's company and that the Claimant was likely to have forged references to obtain employment. 

At trial, the Defendant denied that any of the communications met the serious harm threshold.  Mr Justice Linden found that each of the three emails was sent to a single recipient, they were short and "had a somewhat random flavour, such that it could not be assumed that they would be taken seriously and they might well simply have been ignored". Bearing in mind the nature of the emails, Linden J said the Claimant should have provided evidence of some sort of reaction or consequences to these email communications. No evidence as to investigations or responses arising from the emails sent to the GDC or HMRC was provided. A response was provided by the Claimant's then employer, but the Claimant remained employed. Linden J therefore dismissed the Claimant's defamation claim. 

Conservative MP's injunction application refused by High Court

The High Court refused an injunction application brought by a Conservative MP in a libel action on 12 October 2023. A group of Labour party supporters published an advert on Facebook alleging that the Claimant, Andrew Cooper, a by-election Conservative candidate for Tamworth, colluded with Conservative MP, Eddie Hughes, in a "dodgy deal" to allow the latter to collect the £29,000 paid out to retiring MPs. Mr Cooper sought an injunction under the rarely used s.106(3) Representation of the People Act to prevent the Defendants from publishing a false statement of fact about his personal character until the end of the by-election. 

Following the listing of the hearing, the Labour Party, despite not being party to the proceedings, offered a contractual undertaking not to republish the advert or publish anything which referred to "dodgy deals". However, the party refused to give an assurance that it would not publish 'similar statements'. The key question was whether or not the allegations related to the personal character or conduct of the claimant.  Mr Justice Jay held that the statement instead related to the Claimant's political position, rather than his conduct, section 106 therefore did not apply. The judge also found that the assurance provided to the court by the Labour Party and the Defendants to not re-publish the advert would have been deemed sufficient in this case even if the Defendants were unsuccessful on the merits.

Former MI6 Officer applies to strike out claim brought against him by Trump

On 16 October 2023, Mrs Justice Steyn heard applications in the case of Trump v Orbis Business Intelligence. Orbis had applied to strike out Trump's claim on the basis that it is an abuse of process. 

Trump is claiming that although Orbis was not responsible for the publication of the dossier, as it was published by Buzzfeed, the intelligence consultancy unlawfully processed his data, thereby causing him "serious distress and reputational damage." Orbis contends that the case should be struck out as it was not responsible for the publication of the dossier and because the claim has been brought too late. Given that similar litigation against Orbis and Mr Steele in the US was "dismissed and found to be a meritless, vexatious and politically motivated abuse of the court process," the Defendant is arguing that the claim is being brought for an improper and illegitimate purpose. Judgment has been reserved. 

Lords pen dissatisfaction to PM with 'disproportionate' government aims for DMCC Bill  

The House of Lords Communications and Digital Select Committee has expressed concerns about potential changes to the judicial review process outlined in the Digital Markets, Competition, and Consumers (DMCC) Bill. The DMCC Bill, introduced in April 2023, aims to establish a proportionate pro-competition regime for digital markets and reform competition and consumer laws. The Committee opposes the idea of introducing a broader appeals system, stating that the current judicial review process is vital for digital regulation to maintain fairness, speed, non-adversarial proceedings, and regulatory certainty. It argues that expanding the review process or broadening the grounds for review would slow down regulatory intervention and incentivise adversarial tactics. The Committee also opposes stricter measures on big tech firms and emphasises the importance of ensuring that the DMCC Bill remains fair to all parties and doesn't become overly punitive towards big tech companies. 

Ofcom consultation called to help shape the future of television media governance 

Ofcom has issued a call for evidence regarding the future of TV distribution, seeking input on anticipated market development and relevant questions for regulators and the government. Key aspects under consideration include the evolution of audience demands and expectations, financial sustainability of TV distribution platforms, the role of broadband networks and infrastructure, hybrid terrestrial and internet services, implications for other sectors in the event of changes to digital terrestrial television (DTT), and long-term coordination and planning for positive outcomes. This call for evidence aligns with the recently brought forward Draft Media Bill, which has been drafted and consulted on. The Bill aims to reform broadcasting law to provide UK television with greater competitivity in an increasingly saturated global market. Depending on the results of the Ofcom review, the findings could be utilised in considering direct regulatory changes and policy decisions at further readings of the Bill, which enhances the importance of contributions made by consumers and stakeholders alike.

TikTok granted leave to appeal €345million fine for breaching children's privacy rights 

In a hearing on 23 October, TikTok Technology Ltd (TikTok) was granted leave by Ireland's High Court to appeal a €345million fine imposed by the Irish Data Protection Commission for breaching children's privacy rights. The fine stems from a finding that between July and December 2020 TikTok infringed the GDPR's principle of fairness and fell short of meeting the data protection requirements for processing data relating to users under the age of 17. 

Quote of the fortnight:

"It is correct that the Labour Party’s solicitors gave no assurance in relation to any future statement of a similar character but that in my opinion is both implied and unnecessary. In the context of an assurance as opposed to injunctive relief, the question is whether there is a real risk of republication of the same material or anything similar." - Mr Justice Jay in Cooper v Evans [2023] EWHC 2555 (KB)