Take 10 - 8 November 2024

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

Meaning determined as a preliminary issue in a data protection claim

In a first for standalone data protection claims, the High Court has determined the meaning of allegedly inaccurate personal data as a preliminary issue in Pacini & Geyer v Dow Jones Inc.

The claim was brought by two investment bankers in respect of two articles investigating their connections with the investment business XIO Group, which the Claimants allege were inaccurate and misleading, in breach of the UK GDPR and the DPA 2018. Earlier this year, the Defendant failed to have the claim struck out as an abuse of process – see our previous Take 10 edition reporting on this judgment.

In this TPI, two issues were before the court: (1) the meaning of the allegedly incorrect personal data, and (2) whether said data was criminal offence data under Article 10 UK GDPR.  Having considered the guidance of Warby J in Aven v Orbis and NT1 v Google LLC, the Judge determined the single meaning of the data "by considering the Articles as a whole, and interpreting each element of them by reference to the meaning that the hypothetical reasonable reader would take from it, read in its full context". He applied the principles in Koutsogiannis for determining the natural and ordinary meaning of the words. Following NT1, he also applied the 'repetition rule' and did not disapply it to those parts of the articles which purported to report court proceedings [82] (which the Defendant had sought). On the second issue, neither Claimants' personal data was found to be criminal data within the meaning of Article 10.

The Defendant had not filed a defence prior to the hearing. It is therefore too early to say whether this Judgment has moved the dial in favour of data subjects. As well as determining the accuracy or otherwise of the personal data in question, it is likely that the Court will have to assess the journalistic purpose and determine whether the continued publication of the personal data complained of is in the public interest. Given the limited judicial consideration of the journalistic exemption to date, should this case proceed to trial, the outcome will be highly significant to those who process personal data for the purposes of journalism, and who continue to process personal data in online news archives.

Bates v BusinessF1 & Anor - Court finds that serious harm test met

Ken Bates, the former owner of Chelsea FC, has succeeded in his libel claim against BusinessF1 magazine and Tom Rubython. Mrs Justice Steyn was satisfied that the article complained of had caused serious harm to the Claimant's reputation, despite a "lack of any observable consequences for the Claimant" and awarded him £150,000 in damages.

The Defendants (who were self-represented), did not advance any positive defences but challenged the Claimant to prove that the article caused serious harm to his reputation. The Claimant sought to prove serious harm by seeking disclosure of the magazine's UK subscriber list. In seeking to oppose the disclosure, the Defendants argued (wrongly) that disclosing the list violated data protection laws, citing s170(1) DPA 2018 which makes the processing of personal data without the data controller's consent a criminal offence. The disclosure was never provided prompting Steyn J to draw an adverse inference from the Defendants' refusal to provide the information in breach of an order [93].

Other factors the Judge found weighed in favour of the Claimant's case on serious harm were that the allegations published were very serious, the article was likely read by a substantial number of people, and readers would have known the Claimant. The Judge disregarded the "relentless hostility" of the article and the fact that it had "none of the balance that is generally found in modern serious journalism", finding that, despite this, many readers would have taken the allegations seriously. 

Journalist awarded £95,000 damages following libel claim default judgment  

Documentary filmmaker and investigative journalist Charlie Northcott has been awarded £95,000 in damages, including aggravated damages, in the remedies judgment of Mr Justice Julian Knowles.   

In tweets and publications on Substack in 2022, the Defendant accused the Claimant of "very serious and wholly untrue" sexual misconduct in relation to his work on the documentary 'Sex for Grades', which exposed academic staff at three prestigious West African universities [31].  The Defendant failed to file an Acknowledgment of Service or a Defence and default judgment was entered in July 2024, as well as the granting of an injunction preventing the Defendant from repeating the allegations and requiring him to take down the Substack publication.

In assessing damages, Knowles J took into account the £100,000 claimed in the Claim Form and the principles of assessment of damages summarised by Nicklin J in Turley v Unite the Union [62].  He awarded a global sum of £95,000 to reflect compensatory damages and the Defendant's aggravating conduct [67].  He found the libel to be a "very serious" and a "direct attack" on the Claimant's professional integrity, which "falsely accused him of the very thing he was investigating" [68].  Aggravating factors included the Defendant's activity on social media which "directly or indirectly mocked the Claimant" and repeated the allegations, his aggressive emails to the Claimant and his encouragement of a third party to sue the Claimant [88].

Knowles J also granted additional remedies to Mr Northcott under sections 12 and 13 Defamation Act 2013 ordering Mr Hundeyin to make corrective statements on X and Substack to vindicate Mr Northcott's reputation [99] and ordering the website operators of the sites to remove the defamatory parts of the publications considering Mr Hundeyin's lack of engagement with the case [102].

Tommy Robinson jailed for contempt of court after repeatedly breaching injunction

On 28 October, far-right activist Stephen Yaxley-Lennon (known as Tommy Robinson) was sentenced to 18 months in prison for contempt of court after repeatedly breaching a High Court injunction granted in 2021. The injunction prohibited Mr Yaxley-Lennon from making false claims against Syrian refugee, Jamal Hijazi, and was made as a final remedy in libel proceedings issued in respect of Mr Yaxley-Lennon's allegations that Mr Hijazi had participated in the violent assault of a young girl [4].

The Attorney General made a contempt application in June 2023 over four separate instances of breaches of the injunction [10], before adding a further six instances in a second application in August 2024 [16].  The defamatory remarks were made by Mr Yaxley-Lennon in a series of online interviews and in his documentary Silenced.  Mr Yaxley-Lennon admitted to all 10 breaches of injunction [63].

Mr Justice Johnson found that each breach was "considered, planned, deliberate, direct and flagrant" and found "a degree of sophistication" in the release of the defamatory content to maximise its exposure, including screening the film at a rally he organised in Trafalgar Square in July.  Johnson J noted that Mr Yaxley-Lennon had shown no remorse and treated himself as "above the law" [92] showing "no realistic prospect of rehabilitation" especially due to a "lack of inclination" to remedy the breaches and a history of poor compliance with court orders [101].  The court added a 'coercive' element to the sanction by offering Mr Yaxley-Lennon the opportunity to reduce his sentence by four months if he removed the false claims from his social media accounts and demonstrated "a commitment to comply with the injunction" [103].

Mr Yaxley-Lennon was also ordered to pay legal costs of £80,350.82 and was reminded that the injunction would remain in place after his release.

New Data (Access and Use) Bill expands on Online Safety Act 

As already covered in RPC's Data Dispatch, on 23 October 2024, the Government introduced the Data (Use and Access) Bill to Parliament.  From a data protection perspective, the Bill includes many of the provisions from the previous Data Protection and Digital Information (DPDI) Bill (e.g. regarding automated decision-making, legitimate interests and international transfers) but does not include provisions in the DPDI Bill that were intended to reduce the accountability burden on businesses (e.g. regarding the DPO, ROPA, and DPIA mechanisms). The Bill also addresses access to customer and business data, digital verification services, and changes to the ICO structure. The Bill is awaiting its second reading in the House of Lords.

Sections that will be of most interest to those in the media and tech sectors include section 122 of the Bill which amends the Online Safety Act 2023 to create a requirement for Ofcom, when notified of the death of a child by a Coroner, to issue an information notice to a specified online service provider requiring that service provider to retain certain information relating to the child's use of the service for a specified period. The Bill's Explanatory Notes says this data preservation measure is intended to ensure that information about a child's social media and internet use remains available and is not deleted through routine processes while the Coroner's investigation is active.

Section 123 would also introduce a new Section 154A to the Online Safety Act 2023, giving the Secretary of State the power to create a framework to give independent researchers access to information related to online safety held by service providers.  As explained below, Ofcom is currently preparing its report on access to online safety data for research purposes. That report is expected to inform the framework and regulations made under this power.

To subscribe to Data Dispatch, please sign up here. 

Concerns raised over police anonymity proposal and its impact on open justice

In a joint letter to the Home Secretary, the Society of Editors and the Crime Reporters Association have raised concerns about the Government's proposal to introduce a presumption of anonymity for firearms officers in criminal trials until they are convicted, arguing it could undermine the principle of open justice.

While the organisations acknowledged that "criminal prosecutions against police officers for acts in the course of their duties are extremely rare", they felt the proposal could have serious implications for transparency and public confidence in the police as a whole, saying that  the rule of law "must apply equally to police as it does to the general public".  The organisations asked for assurances that measures have been taken to ensure the legislation would not be applied beyond firearms officers. 

The anonymity proposals follow the acquittal of Martyn Blake, the officer who shot Chris Kaba in 2022, who has since lived in hiding after a bounty was placed on his head by gang members. It also follows a proposed law in Northern Ireland which had sought to grant anonymity to those charged with sexual offences until convicted, which was struck out in May 2024 following challenge by the media.  You can read the Society of Editors' press statement here. 

Court strikes out misuse of private information and data protection claims following disciplinary dismissal  

In Duke v Moores & ors, the Defendants successfully struck out a misuse of private information (MPI) and data protection claim. 

The Claimant, Dr Gary Duke, had been suspended from his teaching position at Tameside College (the Fourth Defendant) pending an investigation into whether he'd failed to disclose previous dismissals [7]. The Defendants contacted his previous employers, and it emerged that the Claimant had sent communications to a student and to employees of Tameside College during his suspension, despite his contractual obligations and warnings that he should not [8].  He was ultimately dismissed for gross misconduct from the College [15].

The Claimant's claim concerned four categories of information used during the disciplinary proceedings: (1) Facebook messages between him and a student while he was suspended; (2) WhatsApp messages between him and colleagues; (3) references requested from the Claimant's former employers, and (4) alleged unlawful monitoring and surveillance of the Claimant during the College's investigation [17]. The Claimant claimed that this information had been unlawfully accessed or processed without his consent.

The Defendants applied to strike out the claim arguing, among other grounds, that the information was obtained and processed in order to conduct the investigation it was obliged to undertake into the Claimant's professional conduct [30]. The Court held that whilst the Claimant did have a reasonable expectation of privacy that the Facebook and WhatsApp messages would stay between him and the recipients, this was "greatly outweighed" by the Defendants' legal obligation to investigate the messages for the disciplinary process, for which the timing, content and recipients were all relevant considerations [40-41].  

"Journalism is the lifeblood of democracy" says the Prime Minister

Sir Kier Starmer has published a statement supporting the News Media Association's 'Journalism Matters' campaign, in which he described journalists as "the lifeblood of democracy" and "guardians of democratic values".  

The Prime Minister said the Government stands with "journalists who endure threats for doing their job" and committed to tackling the use of SLAPPs by "powerful people" in order to "protect investigative journalism, along with access to justice".  He mentioned the Online Safety Act 2023 and its "new protections from abuse" as well as provisions to respect recognised news publisher content.

He also referred to the central role that both artificial intelligence and creative industries played in the Government's "driving mission on economic growth", and his intention to work closely with both sections to "strike balance in our industrial policy". He referred to the ongoing process of rolling out the Digital Markets and Consumers Act to "rebalance the relationship" between platforms and those who rely on them, including publishers.  

Ofcom launches fees and penalties consultation under the Online Safety Act and call for evidence on researchers' access to information

Ofcom has launched its first consultation on the new fees and penalties framework under the Online Safety Act 2023 to inform its implementation of the new regime for online safety. Responses must be submitted by 5pm on 9 January 2025 and the full consultation document is available here.  

The OSA enables Ofcom to fund its operations by collecting fees from certain qualifying providers of regulated services.  The consultation will consider (1) how to assess "qualifying worldwide revenue" (QWR); (2) the QWR threshold to be in scope, currently proposed at £250 million, with a range of £200m to £500m being considered; (3) an exemption for qualifying service providers whose UK revenue is less than £10m and (4) regulations around providers notifying Ofcom that they fall within the regime. The same QWR definition is used to calculate the maximum penalty that Ofcom can impose if it finds a service provider is in breach of the Act, calculated at 10% of QWR or £18m (whichever is higher).

Alongside the launching of the consultation, Ofcom has also put out a call for evidence on researchers' access to information from regulated online services. Ofcom has a duty under the OSA to produce a report: (1) assessing how and to what extent independent researchers can currently access information from regulated service providers for online safety research; (2) exploring legal and other barriers to sharing that information; and (3) evaluating how greater access might be achieved. Ofcom is interested in understanding how researchers have addressed information sharing challenges beyond online safety especially where effective data governance and data sharing mechanisms are demonstrated. The call for evidence is open until 17 January 2025 before Ofcom submits their report to the government. 

Ofcom suspends ongoing investigations into politicians reporting news

Ofcom has announced that it will pause its ongoing investigations into breaches of Rules 5.1 and 5.3 of the Broadcasting Code, which provide that news must be reported impartially and "no politician may be used as a newsreader, interviewer or reporter in any news programme unless, exceptionally, it is editorially justified".

Ofcom's Note to Broadcasters follows GB News seeking judicial review of two recent Ofcom decisions relating to programmes presented by Jacob Rees-Mogg, which will consider the correct scope and application of the Rules. The Administrative Court has ordered an expedited hearing to take place in January 2025. Ofcom has said it will "not reach a final decision" in any new investigations until the Court has determined this claim. It will still continue to open investigations and will expect licensees to provide comments on open investigations in the meantime.

Quote of the fortnight:

"We also stand with journalists who endure threats just for doing their job. Just because journalists are brave, does not mean they should ever suffer intimidation. This goes for social media….But it also goes for powerful people using SLAPPs to intimidate journalists away from their pursuit of the public interest. Such behaviour is intolerable and we will tackle the use of SLAPPs to protect investigative journalism, alongside access to justice."

–  Prime Minister Keir Starmer, 'Journalism Matters: Starmer Says Journalism Is ‘Lifeblood Of Democracy' 28 October 2024