Take 10 – 9 May 2024

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

New Transparency and Open Justice Board 

On 30 April 2024, the Lady Chief Justice announced the creation of a new 'Transparency and Open Justice Board' to be chaired by Mr Justice Nicklin.  In her keynote speech, noting the importance of transparency to the effective administration of justice, Baroness Carr suggested the board would "examine and modernise our approach to open justice" and take stock of ongoing societal change to ensure our justice system responds.  The board's Terms of Reference emphasise the importance of open justice to maintain public confidence in our justice system.

Baroness Carr highlighted timely access to court listings, documents and hearings as key features of open justice and goals of the board.  This included reference to increased, yet necessary, "careful" broadcasting of hearings, and investment in the justice system to facilitate this.  Alongside this, Baroness Carr referred to increased access to written evidence and submissions in light of the proposed amendments to CPR 5.4(c) on the supply of court documents to non-parties, published in February 2024 (see our  previous Take 10 for discussion of these amendments). 

The board's first task will be to identify its key objectives and key sub-committees who can further their delivery.

Amendments to the SLAPPs Bill proposed at Committee Stage  

A number of amendments to the Strategic Litigation Against Public Participation Bill were tabled by Wayne David MP and Sir David Davis MP at the House of Commons Committee Stage on 8 May 2024. The amendments include: focusing the definition of a 'SLAPP claim' on the objective question of whether it is "reasonable to conclude" that the claimant's behaviour has or is intended to have the effect of restraining the defendant's exercise of the right to freedom of speech, and ensuring the approach to the list of matters that are considered to be of "public interest" for the purpose of the Bill is not restrictive. The initial proposal by Sir David Davis MP to replace the Bill's provisions with those of the Anti-SLAPP Coalition's Model Law was withdrawn.

Ofcom opens its second Online Safety Act consultation on protecting children from harms online

On 8 May 2024, Ofcom opened a consultation into how digital platforms should approach their new duties under the OSA relating to content harmful to children. Ofcom's proposals cover how to assess if a user-to-user service or search service is likely to be accessed by children, the causes and impact of harm to children, and how services should assess and mitigate the risks of harm to children. 

Under the OSA, failure to comply with duties carries the possibility of fines of up to £18 million, or 10% of the company's annual global turnover, whichever is greater. Further, the OSA imposes criminal liability for individual officers if a company fails to comply with a confirmation decision by Ofcom requiring it to take steps to ensure it acts in accordance with a child safety duty in the OSA. Individual directors could face up to 2 years' imprisonment for alleged failure to prevent children from encountering harmful content even where they are not directly responsible for moderation decisions or the response to Ofcom's confirmation decision. 

More information from RPC on penalties under the OSA is available here. The consultation is open until 17 July 2024.

Permission to Appeal Refused in Sir James Dyson v MGN Ltd 

Following MGN's success last year in defending at trial the libel claim brought against it by Sir James Dyson, the Court of Appeal has now refused Sir James'  application for permission to appeal the decision of Mr Justice Jay. Jay J held that MGN's defence of honest opinion had been made out and that in any event the Claimant had not satisfied the serious harm threshold in s1 Defamation Act 2013.

Fox Ordered to Pay £180,000 for Twitter Row 

Laurence Fox has been ordered by the High Court to pay £90,000 in damages to each of two individuals he labelled "paedophiles" in a row on Twitter (now "X"). The libel case, in which Fox was unsuccessful, involved former Stonewall trustee Simon Blake and drag artist Crystal. Fox's defamatory remarks were made during a discussion on Twitter about Sainsbury's and Black History Month. In the decision on liability, Mrs Justice Collins Rice deemed Fox's comments "seriously harmful, defamatory and baseless" [166]. Fox intends to appeal the ruling.

In the decision on damages, Collins Rice J held that the claimants were entitled to "complete vindication" [30] and noted that they had been resilient and resourceful in carrying on with their lives - had Fox directed his comments at individuals who were "less self-sufficient and well supported" [55], the damages award would have been considerably higher. Collins Rice J clarified the damages were compensatory, not punitive, and warned Fox of contempt of court if he repeated the allegations. 

FT paves the way in AI news revolution 

In a first for the British news industry, the Financial Times has entered into a licensing agreement with ChatGPT owner, OpenAI, which will allow the latter to use the publisher's archived content to train its AI models. The agreement aims to improve the accuracy of ChatGPT answers, allowing users to obtain up-to-date information about the economy and world affairs backed by reliable journalistic sources. In the last year, OpenAI has entered into similar deals with multiple publishers across the world including US-based Associated Press and France's Le Monde. This follows the New York Times' lawsuit against the platform in December 2023, in which it claimed OpenAI enjoyed a "free ride" on millions of articles available on the internet to build ChatGPT's model. FT's chief executive, John Riding commented that "it's right, of course, that AI platforms pay publishers for the use of their material". Read more from the FT.

Police detective receives pay out from convicted ex-BBC stalker in libel claim 

Following his conviction and sentencing to 5 ½ years in 2022 for stalking and harassing his former colleagues, ex-BBC DJ Alex Belfield has now settled a libel claim with a Statement in Open Court and the payment of damages to Nottinghamshire Police detective, Janet Percival. Throughout the harassment investigation in 2021/2022, Mr Belfield made a number of defamatory statements against Ms Percival; calling her corrupt; accusing her of conducting unlawful raids at his property; harassing him; lying to a magistrate; and colluding with the BBC in a witch hunt against him. Ms Percival's legal representative has confirmed that Mr Belfield has accepted liability, will publicly retract the allegations, and pay Ms Percival "a substantial sum" towards compensation and her legal costs. Read more from the BBC.   

Challenge to accuracy of police witness statement under DPA 2018 

The High Court has handed down judgment in McLoughlin v Chief Constable of Kent Police in favour of Kent Police's appeal against the County Court's refusal of its application to strike out a data protection claim.  McLoughlin's data protection claim concerned the alleged inaccuracy of a discrete point in a witness statement used in criminal proceedings against him – regarding whether his download of indecent images occurred specifically whilst logged into his Facebook account.

The Judge noted that McLoughlin's case should fail on the appellant's first ground: abuse.  It represented "an attempt to relitigate" an issue from earlier criminal and judicial review proceedings which the respondent had the opportunity to challenge [43].  The Judge granted the appeal on the ground that the proceedings were an attempt to "re-litigate", rather than Jameel abuse, noting that whilst the Jameel abuse principles do apply to data protection claims, strike out on these grounds is "an exceptional course" judges "should be slow to exercise" [50].  The appeal in McLoughlin echoes the reluctance in Mueen-Uddin v SSHD to characterise data protection proceedings which are 'collateral attacks' on decisions of other courts as Jameel abuse. We await the Supreme Court's appellate decision in Mueen-Uddin v SSHD.

Final injunction granted against ex-employee's use of unlawfully obtained documents

In Payone v Logo, Mr Justice Saini granted a final injunction to restrain a former employee of the Claimant from using documents unlawfully obtained during the course of his employment. A key issue for the Court to determine was whether some of the documents in question had lost the necessary quality of confidence by virtue of being deployed by the Defendant in related employment tribunal proceedings against the Claimant. Following the decision of Leggatt J in Mohammed v Ministry of Defence, that information does not necessarily enter the public domain just because a document containing it is mentioned in open court, or even because the information itself is disclosed in open court, the Judge concluded that the confidential information had not lost the quality of confidence, as neither the information nor the documents had entered the public domain.

In addition, the Judge awarded the Claimant its costs of the claim on the indemnity basis finding that the Defendant (a litigant in person) had an "attitude characterised by steps to maximise costs and complication at all stages and to make repeat applications with little or no merit" and that his conduct was "out of the norm", justifying an indemnity order.

Rachel Meade v Social Work England - Social worker awarded damages

On 1 May 2024, the Employment Tribunal handed down its remedy judgment regarding Rachel Meade's case against her employer, Westminster City Council, and Social Work England.  Meade succeeded in her harassment case in January 2024 which concerned a drawn-out disciplinary process and fitness-to-practise investigation following concern over Meade's gender-critical social media posts.  

Both respondents were ordered to pay damages to compensate for injury to feelings and aggravated damages to reflect the oppressive restrictions imposed on Meade's return to work [78], Social Work England's "insulting and oppressive" amendments to its statement of case [79], demonstrations of "animosity" [80] and failures to offer apologies following the liability judgment [82].  In addition, Judge Nicolle accepted Meade's submissions that exemplary damages were warranted from Social Work England on the basis it utilised its regulatory processes to "supress the Claimant's lawful political speech" [86].  Exemplary and aggravated damages of £5,000 each were awarded, meaning total damages exceeded £50,000 inclusive of interest.  

In light of "deficiencies" [93] in the processes followed, both respondents were also ordered to make training available to all managers and HR staff on freedom of expression and protected belief, with Westminster City Council also directed to focus its training on the Forstater decision [91-93] which determined gender-critical beliefs to be protected under the Equality Act.

EU to Investigate Meta's Advertising and Political Content 

The European Commission is to investigate whether Meta has violated the Digital Services Act (DSA). Suspected breaches include Meta's handling of advertising, political content visibility, and the effectiveness of tools for real-time civic discourse and election monitoring. The Commission will consider Meta's notice-and-action mechanism for flagging illegal content and its internal complaint-handling system. The Commission has announced an in-depth investigation, gathering evidence and potentially taking enforcement measures should it see fit. Meta will be provided with the opportunity to remedy any issues raised to avoid further consequences of any breaches. “We have a well-established process for identifying and mitigating risks on our platforms," Meta said in a statement.

"We have a well-established process for identifying and mitigating risks on our platforms," Meta said in a statement. "We look forward to continuing our cooperation with the European Commission and providing them with further details of this work.”

OnlyFans investigated by Ofcom over alleged age verification software error 

Ofcom has opened an investigation into OnlyFan's implementation of age verification measures. Following submissions from the platform, Ofcom has announced that it has grounds to suspect that OnlyFans did not implement its age verification measures in a way that would sufficiently protect under-18s from pornographic material. In statements to the BBC and the Guardian, the platform said the implementation issue is suspected to stem from a coding error in the platform's age estimation software which estimates a would-be subscriber's age by scanning their face, failing which the individual must provide formal ID. The error is said to have lowered the automatic age approval threshold from 23 to 20 years of age which may have increased the risk of users under the age of 18 being approved as subscribers. Ofcom is conducting the investigation based on its video-sharing platforms (VSP) framework as opposed to the newly implemental Online Safety Act, the latter which would allow the regulator to impose fines on pornographic sites amounting to £18 million or 10% of their global turnover if proper age-verification measures are found to not be in place. 

On a similar note, in a bid to further curb concerns over online safety and data protection, Ofcom and the ICO have published a joint statement regarding their upcoming collaboration to share information with each other in order to tackle their common targets. This follows their previous joint-statement in 2022 by providing additional detail regarding their proposed methods of collaboration. 

Quote of the fortnight:

"The judiciary and media share a common duty: we are and must continue to be the guardians of open justice. The greatest threat comes not from direct attack on the principle, but rather from careless – sometimes inadvertent – failures to protect its ideals. I intend the judiciary to step up, continuing to play our important constitutional role of protecting and promoting open justice as an essential element of the rule of law."  Lady Chief Justice Baroness Carr of Walton-On-The-Hill, keynote speech at the Society of Editors 25th anniversary conference, 30 April 2024