Take 10 - 4 December 2023

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

MGN successfully defends libel claim

MGN has successfully defended the libel claim brought by Sir James Dyson over an article published by the Daily Mirror in January 2022, which criticised Mr Dyson for supporting Vote Leave during the Brexit referendum before relocating the Dyson global head office to Singapore.  Mr Justice Jay, in his ruling, dismissed Mr Dyson's claim.  He held that MGN's defence of honest opinion, as per s3 Defamation Act 2013, had been made out and that in any event the Claimant had not satisfied the serious harm threshold in s1 Defamation Act 2013.  The meaning, whether the statement was fact or opinion, and whether the basis of the opinion had been set out had already been determined at a preliminary issue trial before Mr Justice Nicklin in July 2022.  Section 3(5) was not in issue, and accordingly the only substantive issues for determination under the defence related to whether the facts relied on by the Defendant were true and whether an honest person could have held the opinion expressed based on such facts.  The judgment addressed questions of whether the Defendant was entitled to rely on facts that were not indicated in the article (it could, in the circumstances of this case) and whether it was required, as alleged by the Claimant, to place facts in their '"full and proper context" in the article (it was not).  In light of the successful defence (and failure to satisfy s1) the Defendant's further defence that the proceedings were a Jameel abuse of process did not require determination, although Jay J said that he "very much doubt[ed] whether Jameel abuse is available in circumstances such as these". 

Summary judgment on basis of statutory qualified privilege dismissed

An application for summary judgment has been dismissed by HHJ Lewis on the basis that some of the requirements for the defence of statutory qualified privilege under s15 of the Defamation Act 1996 were too complex to be decided summarily, specifically whether the publication was of public interest and for public benefit, and whether publication was malicious.  The case involves two leading news broadcasters in Pakistan.  Salman Iqbal, the founder and president of ARY Digital Network brought libel proceedings against GEO TV Limited in September 2022 in respect of a series of broadcasts by the Defendant on GEO News on 19 and 20 May 2022 which contained allegedly defamatory statements. 

The Defendant had applied for summary judgment on the grounds that it had reported a public meeting (a political rally) of public interest and for the public benefit without malice.  The Judge accepted that the rally was a public meeting, that the live broadcast could be a "report" and that it was an accurate summary of what was said and fair as regards the Claimant.  However, the Judge held that the issue of whether the publication of the words complained of in the broadcast were in the public interest and for public benefit, as required under s15(3) of the Defamation Act 1996, could not be assessed summarily [84].  Another issue which required further examination was whether the broadcasts were published maliciously.  The Judge held that the Court will "need to consider what the Defendant knew, or should have known" in respect of the allegations made about the Claimant, and that there is a "degree of overlap between matters relevant to s15(3) and any case on malice, and so they should be considered at the same time" [93]. 

ICO seeks permission to appeal Clearview AI Inc decision 

The Information Commissioner is seeking permission to appeal a First-tier Tribunal ("FTT") decision that overturned the fine and enforcement notice issued to facial recognition company Clearview AI Inc ("Clearview") in May 2022 for breaching UK data protection legislation. 

The FTT based its decision to allow Clearview's appeal against the ICO's enforcement notice and monetary penalty notice on the finding thar Clearview's processing fell outside the territorial scope of UK data protection law, since it provided its services to law enforcement agencies in other jurisdictions.  The Commissioner, however, contends that this was an incorrect interpretation of the law as Clearview was not processing for foreign law enforcement purposes and, as such, should be subject to UK data protection law.  The Commissioner did agree with the FTT's assertion that monitoring involving personal data is subject to UK data protection law, even if the company is not established in the UK, as long as the processing is related to monitoring individuals in the UK.

Amersi v Leslie

In a recent Court of Appeal hearing, Lord Justice Underhill and Lord Justice Warby have denied permission to appeal in a high-profile defamation case involving businessman and Conservative Party donor Mohamed Amersi and former Tory MP Charlotte Leslie.  Amersi brought a defamation claim against Leslie, alleging she had shared documents containing defamatory allegations against him with influential individuals.  This followed a claim for breach of data protection law brought by Amersi against Leslie on the same facts, which he has since dropped. 

In a judgment in June, Nicklin J dismissed the claim, partly owing to the way the Claimant had conducted proceedings.  Amersi had sought to amend his Particulars of Claim, which led to the recent appeal application which has been refused.  During the one hour hearing of the permission to appeal application, Amersi's legal representative Hugh Tomlinson KC argued that the Judge had conducted a "serious harm trial without oral evidence," suggesting that the Judge's management of the case had unfairly limited Amersi's pursuit of vindication.  David Price KC, for the Defendant, argued that we need "robust case management" in defamation claims.  The Court of Appeal agreed, and their reasons for the refusal of the application are awaited.

DSIT's consultation on super-complaints 

A consultation on the procedure under the Online Safety Act ("OSA") for handling super-complaints has been opened by the Department for Science, Innovation and Technology.  The new legislation contains provisions allowing eligible entities to inform Ofcom directly of systemic online safety concerns across multiple services, or one service in exceptional cases.  As per the OSA's provisions, the Secretary of State is required to set out regulations as to the eligibility to make a super-complaint and the procedure for doing so.  The consultation suggests that eligible entities may include charities, consumers, and campaign groups although the super-complaint must relate to a recurring widespread systemic issue which ought to be brought under Ofcom's radar.  An example might be a notification to Ofcom that a new feature across multiple social media platforms is subjecting children to harmful content, such as pornography.  Responses to the consultation will shape the final regulation and will allow both the public and services that fall in-scope of the OSA to provide their views on the procedure suggested.  The consultation will close at 11:45pm on 11 January 2024.  

Blake v Fox - Tweets go to trial

The High Court trial of Blake & Ors v Fox commenced last week on 22 November and will last eight days.  Simon Blake, Colin Seymour, and Nicola Thorp are suing Laurence Fox for defamation over three Tweets posted in October 2020, with Fox counter-claiming over Tweets published by the Claimants on the same day.  The Twitter exchange related to Sainsburys' decision to provide a safe space for black employees during Black History Month.  Fox called for a boycott of the supermarket and was subsequently labelled a racist, prompting him to counter-sue for defamation.  In that exchange, Fox called the Claimants "paedophiles". Fox asserts that the accusations harmed his reputation, making it difficult for him to secure a mortgage and affecting his professional life.  In addition to determining whether the various Tweets caused serious harm, Mrs Justice Collins Rice will examine the defences of qualified privilege and equitable set off for Fox, honest opinion for Blake and Seymour, and truth for Thorp.

Department for Business and Trade v Information Commissioner – does an exemption mean an exemption? 

The Court of Appeal has ruled against the Information Commissioner's Office in the case of Department for Business and Trade v IC and Montague, confirming that the aggregation of public interest factors for exemptions under the Freedom of Information Act 2000 ("FOIA") is permissible.  In this case, the Department for Business and Trade resisted disclosing Brexit-related information, relying on two qualified exemptions: s27 (prejudice to international relations) and s35 (formulation of government policy).  In the case of qualified exemptions, public authorities are only entitled to withhold requested information where the public interest in doing so outweighs the public interest in disclosure.  In this case, the Court decided that the public interest test should involve the aggregation of public interests under both exemptions. 

It would appear that this might make FOIA requests easier for public authorities to refuse, as the public interest in disclosing would have to outweigh any and all available qualified exemptions.  However, the practical impact of this ruling is expected to be limited, since arguably even if taken sequentially, the public interest in disclosing the information would still need to outweigh the public interest in each exemption.

DMCC Bill amendments

 The Digital Markets, Competition and Consumers Bill passed its third reading and completed the Report stage in the House of Commons on 20 November 2023.  Under the updated Bill, the Competition and Markets Authority ("CMA") may only intervene to promote competition where it would be appropriate to do so.  The CMA cannot impose conduct requirements on entities unless there are designated undertakings in place and only if such an imposition would benefit consumers.  In imposing such requirements, the CMA must consider the benefits for consumers and provide reasons for any requirements that are imposed.  In a divergence from the judicial review standard for appeals, penalties imposed following a regulatory decision can only be appealed on a "merits basis".  Other additions to the Bill include provisions regarding subscription renewal reminders to consumers on "concessionary contracts'" and a change to the definition of "damages-based agreements" in competition claims.

Hemming v Poulton – judgment on various interlocutory applications 

Mrs Justice Hill handed down judgment on 24 November 2023 in relation to various interlocutory applications in Hemming v Poulton.  The Claimant's application to add new data protection and harassment claims to his Particulars of Claim was granted, but the addition of new defamation claims was rejected on limitation grounds.  The Claimant's application to disapply limitation relating to three separate publications was also dismissed as greater prejudice would be caused to the Defendant in doing so, especially as his existing defamation claims in relation to two other publications were deemed sufficient to "vindicate his rights" [149].  The Defendant's application to amend her Defence and Counterclaim was allowed although she was not permitted to withdraw a previous admission as the parties had already proceeded on the basis of the partial admission for some time.  The application to strike out the additional data protection claim as an abuse of process was declined by Hill J who noted that striking out a claim would be "a draconian move" and should only be used under "exceptional circumstances" [234], although she did emphasise that the claim may not be "worth the candle" [235].  This additional claim remains stayed.

Quote of the fortnight:

"Given that Mr Reade fell short of accusing the Claimant of dishonesty, the scope for honest comment, however wounding and unbalanced, was very considerable indeed. In my judgment, the Defendant has proved that Mr Reade did not travel beyond the wide margin available to him but kept within it; and the defence of honest comment has been made out." - [144] Mr Justice Jay on the s3 honest opinion defence, in Sir James Dyson v MGN Limited [2023] EWHC 3092 (KB)