Take 10 - 7 October 2022

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

News items

Madeleine McCann's parents lose 14-year libel battle against Portuguese detective 

The European Court of Human Rights (ECHR) has handed down a judgment relating to a libel claim brought by Kate and Gerry McCann against Portuguese detective, Goncalo Amaral, his publisher, and a broadcaster. Mr Amaral initially led investigation into the 2007 disappearance of the McCann's 3-year-old daughter, Madeleine. In 2008 Mr Amaral published a book alleging that the McCann's were involved in their daughter's disappearance, later repeating the allegations in a TV documentary and newspaper interview. After the McCann's sued in libel, the Portuguese Supreme Court found in favour of the defendants, relying on the fact that the media was already rife with allegations of a similar nature prior to the relevant publications (a consideration of limited relevance in England and Wales thanks to 'the rule in Dingle'). The McCanns appealed the decision to the ECHR, arguing that the Portuguese authorities had breached their rights under Article 8 ECHR resulting from the courts' mishandling of the case. They also contended that Mr Amaral's 'unfounded claims were having a detrimental impact' on the ongoing search for their daughter resulting in damage to 'their reputation, their good name, and their right to be presumed innocent'. Despite acknowledging that there had been some damage to the applicants' reputation, the ECHR ruled that the McCanns' rights under Article 8 must be balanced against Mr Amaral's right to freedom of expression under Article 10. The applicants' argument that there was a breach of their 'right to be presumed innocent' was rejected as the book was published 3 days after the prosecution's decision to take no further action against the couple. The McCanns have 3 months to appeal the decision. Read the ECHR's press release here. 

Richard Millett drops libel action against Jeremy Corbyn 

According to a joint statement published on Jeremy Corbyn's Twitter account, political blogger Richard Millett dropped his libel case against former labour leader Jeremy Corbyn. According to the statement, "Mr Corbyn has paid no damages, has made no apology and has given no undertakings concerning repetition of the words complained of." The claim revolved around Mr Corbyn's remarks during an interview he gave on BBC's Andrew Marr show in 2018, where he was asked if he was an anti-Semite when he was shown a recording of a speech from 2013, in which he referred to “Zionists” who “don’t understand English irony.” In response, Mr Corbyn referred to two people having been “incredibly disruptive” and “very abusive” at a meeting in the House of Commons the same year, at which Manuel Hassassian – then Palestinian ambassador to the UK – was speaking. Mr Millett argued that, although he was not named by Mr Corbyn, he was defamed because national media coverage before the broadcast made him identifiable to viewers as one of those referred to. Mr Corbyn said he was defending himself against allegations of antisemitism when he made the comments and court documents indicated he intended to mount a truth defence.

Wagatha Christie: Rebekah Vardy to pay Coleen Rooney and journalists an estimated £1.5m in legal costs

Although Rebekah Vardy did not appeal the High Court ruling which saw her lose the Wagatha Christie libel battle against Coleen Rooney, the two WAGs appeared in court again - this time to argue over legal costs. Mrs Vardy has been ordered to pay 90% of Mrs Rooney's legal costs, which will total £1.5m if the figure presented by Mrs Rooney's legal team remains unchanged, as well as the legal costs of a number of third party journalists who we forced to engage with the proceedings, but ultimately not called as witnesses. Mrs Rooney had initially asked for 100% of her costs, whereas Mrs Vardy had argued that she should pay 80%. Mrs Justice Steyn announced that Vardy’s decision to deliberately destroy evidence had justified Ms Rooney being awarded her costs on the “indemnity” basis. There are reports that Mrs Vardy has signed a deal for a "tell all" documentary with Discovery + to help fund her hefty legal bills, a programme which will no doubt require a careful pre-publication legal review.

New guide published on Reporting Restrictions in Criminal Courts 

The Judicial College published the new edition of Reporting Restrictions in the Criminal Courts last week. The guidance contains new sections on obtaining access to court documents, broadcast of criminal proceedings and appeals against reporting restrictions as well as general updates on changes in the law from the last 6 years. The guide distils the relevant open justice legal principles in a concise manner. Read the report here.

ICO seeks more feedback on draft 'Data protection and Journalism' code of practice

The ICO has opened a second consultation on a revised draft of its 'Data Protection and Journalism' statutory code of practice, which it is required to prepare by s.124 of the Data Protection Act 2018. Once it has come into force the code will provide practical guidance for the media and journalists in complying with data protection requirements under the UK GDPR when processing personal data for journalism.  The code is also likely to have persuasive effect in judicial decision-making.  According to the ICO, the latest draft seeks to simplify the complexities of the code by using plainer language, distinguishing between legal requirements and good practice, and clarifying the code's practical applications. Currently, the ICO is inviting feedback on the revised draft code which can be submitted via the ICO website by 16 November 2022.  Earlier this year a number of media organisations called for data protection laws to be changed to exclude journalism entirely, pointing to concerns that data laws designed to protect customer data were being used to stifle journalistic endeavour.

Chatter

Microsoft wants users to "make up their own minds"

Microsoft's President Brad Smith has said that the group will not label social media posts that appear to be inaccurate, to avoid giving the impression that the company is trying to censor free speech online. This differs from the policies of other social media platforms, which often label or remove false and misleading content. Microsoft, owner of the Bing search engine and the social network LinkedIn, wants to provide the public with more information about who is speaking and what they are saying, allowing them to come to their own judgment about whether content is true. Smith said: “Our whole approach needs to be to provide people with more information, not less and we cannot trip over and use what others might consider censorship as a tactic.”  

ITN chief executive Rachel Corp urges for media legislation to address shifts in the industry between platform and publishers 

In the first speech in her new role as ITN chief executive, Rachel Corp has spoken of the need for the relationship between platforms and publishers to be "levelled up", describing the Australian News Media Bargaining Code as a “proven model” for funding news. The Code is designed to ensure that large technology platforms pay local news publishers for the news content made available or linked on their platforms. She expressed that while many news platforms were initially encouraged by proposals for a Digital Markets Unit outlined in the Furman report in 2019, the slow progress of UK regulation has caused news brands, broadcasters, publishers and consumer bodies to join forces to lobby for its immediate introduction. Despite the ITV News YouTube livestream of the royal funeral attracting nine million views, she suggested that the engagement, similar to the initial buzz around the Ukraine war, will eventually tail off. Answering a question after her speech, Ms Corp declared she had not received indications from the new Government as to when  or whether the industry could expect a bill obliging big tech companies to pay news publishers for linked news content.  

New report sheds light on public attitudes to the publication of justice data 

The Legal Education Foundation has published a report called Justice Data Matters: building a public mandate for court data use which addresses the collection, use and commercial exploitation of data from the justice system. The study focuses on the new judgments database set up by the National Archives earlier this year, Find Case Law. Although the report identifies “strong public support for robust governance and oversight of commercial use of court record data” and that “respondents felt that the government did not keep the public informed about these matters”, over 70% of participants said that they knew nothing or not very much about the information contained in court records, or about who has access to court records. Only 56% of participants said that they understood how citing precedents and using other court data might be beneficial to the administration of justice, although participants generally did acknowledge and appreciate the importance of open justice. The report raises concerns about the lack of public awareness of the justice system and serves as a reminder of the importance of transparency and scrutiny in judicial proceedings.

Quote of the fortnight:

"I don’t think that people want governments to tell them what’s true or false, and I don’t think they’re really interested in having tech companies tell them either."

Microsoft President Brad Smith