Take 10 - 6 June 2024

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

Controversial legislation granting anonymity to suspected sex offenders held to be unlawful 

On 31 May 2024, the High Court of Justice in Northern Ireland handed down judgment in conjoined judicial review applications brought by a series of media organisations, including Times Media Limited, the BBC, the Guardian, News Group Newspapers and Associated Newspapers Limited. The applications challenged the compatibility of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 (the Act).  The Court held the Act was "not law" due to its incompatibility with Article 10 of the ECHR.  The Act, which came into effect last year, granted lifelong anonymity – and for 25 years after death - to those suspected of committing sexual offences prior to charge.  The Court found that the Act had failed to strike a fair balance between the rights of suspects and those of the press media.  Recognising the "vital role" served by public interest journalism in any democratic society, the Court held that the Act represented a "disproportionate interference" with the Article 10 rights of the media by criminalising the publication of any information likely to lead to the identification of suspected sex offenders without recognising any public interest defence and failing to provide for a process for which the press media could apply to challenge such prohibition on public interest grounds. Notably, the Court found that prior to its implementation there had been no debate around the issue of public interest journalism nor any consideration of the need for a fair balance of rights under the ECHR. In a statement to the Northern Ireland Assembly on 3 June 2024, the Justice Minister confirmed that she was "not ruling out" an appeal.  The Department of Justice has until 12 July to serve a Notice of Appeal.

The Media Act 2024 – a major development in media regulation 

On 24 May 2024, the Media Act 2024 (the Act) became law following the parliamentary "wash up" prior to next month's General Election.  The Act represents a legislative shake-up for news publishers, broadcasters and video-on-demand (VOD) services alike. Many news publishers will be heartened by the provision repealing s.40 Crime and Courts Act 2013 thereby removing a mechanism – which had yet to be enacted – that would have required them to foot the bill for both parties' costs in any defamation and privacy claims unless they were a member of an 'approved' regulator at the time the claim was commenced (the majority of major UK news publishers are self-regulated by IPSO, which has not been 'approved' by Royal Charter). This repeal is the culmination of a manifesto pledge first tabled by the Conservative Party in 2017. The Act also repeals the statutory prohibition under s.295 Communications Act 2003 on Channel 4 creating its own content  and implements changes for VOD platforms such as Netflix and Disney+, bringing them and their content under the regulatory purview of Ofcom.  Ofcom has been granted the power to develop and enforce a new regulatory code which will impose "audience protection measures" to protect viewers from harm amongst other measures. Under their "roadmap to regulation" published in February, consultations on a draft code are not due to begin until the end of 2025.

DMCCA 2024 given Royal Assent 

On the same day, the Digital Markets, Competition and Consumers Act 2024 (the DMCCA) was also enacted.  The DMCCA implements a new digital markets regime, which provides the Competition and Markets Authority (CMA) with a range of new investigatory and enforcement powers to address perceived challenges to competition in digital markets.  In particular it aims to prevent technology companies with "strategic market status" (i.e. those assessed by the CMA to have substantial and entrenched market power and to occupy a position of strategic significance) from misusing their position to disadvantage competitors and consumers.  Failure to comply with the new regime may result in the imposition of significant financial penalties of up to 10% of a company's global turnover as well as criminal convictions and/or disqualifications for their directors or senior managers. The DMCCA also permits the Secretary of State to step in to prevent foreign political or sovereign powers from gaining control or influence over newspaper enterprises through M&A transactions.   

Vine v Barton – calling BBC presenter a "bike nonce" held to be defamatory 

On 24 May 2024, Mrs Justice Steyn handed down judgment in a preliminary issue trial on meaning in relation to 14 posts on X (formerly Twitter) by former football manager Joey Barton which were alleged to falsely accuse Jeremy Vine, a well-known journalist, of having a sexual interest in children.  The posts all referred to Mr Vine as either a "bike nonce" (with "nonce" being a slang term synonymous with "paedophile") or "pedo defender" with varying levels of additional contextual information.  Mr Barton denied he had made any allegation of paedophilia or that this was the meaning of any of his 14 posts.  He submitted that his comments were "mere vulgar abuse", "obviously humorous" and would not be taken seriously be any reasonable reader (see e.g. [124]).  Steyn J accepted Mr Barton's submissions in respect of two posts, finding that he had used the term "bike nonce" as vulgar abuse to convey Mr Vine's supposed idiocy, rather than to allege a sexual interest in children.  Unlike the other posts, Mr Barton used the term to ridicule Mr Vine for encouraging people to get vaccinated against Covid. It was not a bare assertion of paedophilia and there was no additional material that would suggest a sexual interest in children. However, 11 posts were found to be defamatory at common law, with the Court finding that the hypothetical reader would not have gained the impression that this was meaningless abuse due to the specific content and context of each post.  These included, for example, one post which contained a digitally edited photograph of Mr Vine and Jimmy Savile – a notorious sex offender - riding bicycles together(see [109]-[115]). The final post was held to merely report the issuing of proceedings by Mr Vine over the prior tweets, and was therefore not defamatory at common law. 

Unity Plus Healthcare v Clay & Ors – reasonable reader would not read 27 email attachments 

In a preliminary issue trial in a libel claim relating to an email sent by the first defendant to HMRC, the defendants sought to argue that the Court, in determining meaning, should take account of 27 attachments to the email complained of [20] as having been read by the ordinary reasonable reader. In determining the issue, the Court referred to the principles summarised by Nicklin J in Riley v Murray - in determining the natural and ordinary meaning of a publication, matters that are not set out in the publication itself can be treated as part of the publication if it amounts to material that  the ordinary reasonable reader would have read [23].  The Judge held that whilst any reader would have been aware of the existence of numerous attachments, he did not consider the attachments to form part of the email for the purposes of determining meaning, finding that only the most "tenacious or diligent reader could be expected to open and read all 27 attachments, and such person would not be a reasonable reader"[29].

Lecture from Mr Justice Nicklin on the new Transparency and Open Justice Board 

Mr Justice Nicklin recently spoke about the Transparency & Open Justice Board (the Board) at this year's Law Society Annual Lecture.  His speech - building on the Lady Chief Justice's keynote speech on 30 April (see our previous Take 10 here) - reiterated the importance of the four fundamental components of open justice (open courts, reporting, judgments and documents [28]), noting that they should only be derogated from when a "sufficiently weighty countervailing factor is convincingly established" [29].  The Judge also explored what further measures could be taken to further achieve open justice including improving access to hearings, particularly through court technology, and ensuring accurate reporting [38 – 41].  However, perhaps of most interest to media organisations and journalists were the Judge's comments on the makeup of the Board.  Following earlier concerns raised that the Board would only be comprised of the judiciary, he sought to assuage these fears, confirming that a stakeholder group, consisting of non-judicial members, would soon be established to assist the Board and that he was confident that the Board's membership would also include members of the non-judiciary going forwards [52].  Watch this space.

Ofcom's reminder to broadcasters ahead of the General Election 

On 29 May, Ofcom issued a reminder to broadcasters on the rules surrounding political programming in light of the forthcoming General Election on 4 July. This follows its announcement earlier this year which put broadcasters on notice to maintain due impartiality.  Ofcom's guidance stressed the key principles required of broadcasters, particularly during election periods.  These include the requirement for all parties and independent candidates to be given 'due weight' across a channel's coverage, ensuring that a significant range of views can be heard, particularly if a broadcaster is known for its affiliations to one party, and a reminder of the Broadcasting Code's prohibition on standing politicians acting as a presenter or interviewer during the election period. In addition to these reminders, Ofcom confirmed that it will host a 'fast-track' complaints process to ensure complaints are expedited, requiring broadcasters to engage with Ofcom quickly during election periods.  Ofcom has also released guidance to help broadcasters to take editorial decisions and allocate party election broadcasts during the election campaign.  The guidance documents contains a digest of evidence of past electoral support (i.e. results) and evidence of current support, from opinion polls.

Labour pledges to combat SLAPPs 

As the election campaign heats up, the Shadow Foreign Secretary, David Lammy, has confirmed Labour's election promise to tackling SLAPPs in an interview with the 'i' newspaper. Labour's commitment forms part of its 'six-point plan' to deal with the prevalence of 'dirty money' connected with Russia in the UK, with Lammy claiming that SLAPPs have been utilised by Russian-sanctioned individuals to silence those trying to reveal corruption.  While this commitment is focused on tackling the wider issues associated with Russia's invasion of Ukraine, the Shadow Foreign Secretary indicated an intention to work with the Law Society to remedy the issues identified in the SLAPPs Private Members Bill which had reached the Committee stage in the House of Commons before Parliament was prorogued on 24 May.  These include concerns over the objective test used to identify a SLAPP and the refinement of the list of indicators which determine when something is in the public interest.  See our previous Take 10 here for a discussion of the issues identified with the SLAPPs Private Members Bill.

Political campaigning and personal data – What should the public expect? 

Personal data is a valuable resource for political parties in the midst of a political campaign - providing them with detailed electoral insights as well as a vehicle for proselytising voters. In a somewhat unsurprising move, the ICO has published a note to inform the public on how they can expect their personal data to be processed in the lead up to the General Election. Some of the expectations the public should have from political parties and campaigners include: clear privacy information in relation to how personal data may be used; whether profiling techniques were used to send targeted marketing including through social media; whether the correct rules were following prior to undertaking direct marketing; being informed on how their personal data provided in a petition or survey may be used; and, following the General Election, where an incumbent MP is replaced, being asked for consent to share their data with the new MP for ongoing casework. 

Global regulators join forces to launch joined-up international approach to online safety regulations

The Global Online Safety Regulators Network (the "Network") has announced its plan for a coordinated international approach to regulation.  Currently, the Network's key workstreams include its observer programme allowing stakeholder engagement to aid regulatory responses, working groups to discuss specific issues, of which age assurance technology and generative AI are given as examples, and hosting 'regulator-to-regulator meetings' to share learnings from each country's process of getting to grips with online safety regulation. In the future, the Network's short-term plan for international coherence includes four key focuses, including regulatory tools, user complaints, industry information requests and recommended safety measures.  In the longer term, the Network plans to encourage information sharing between countries to aid better regulatory responses, particularly where harm is cross-jurisdictional.  The Network is made up of regulators and stakeholders across five continents. Ofcom has commented on the importance of the Network to respond to the lack of defined jurisdictional borders online.  

Quote of the fortnight:

"In very many cases, the publication of the name of an individual suspected of involvement in a sexual offence will not be a matter of public interest. However, in cases where it is, editors and broadcasters ought not to be exposed to the threat of prosecution and conviction without an opportunity to make this case. Interference with the article 10 rights of journalists in this fashion can only serve to restrict the carrying out of important public interest investigations of the nature outlined by the applicants in their evidence." Mr Justice Humphreys, In re Mediahuis and others (Justice (Sexual Offences and Tafficking Victims Act (NI) 2022), [103].