Take 10 #21

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

News items

Injunction against the BBC

The High Court has granted an injunction on application by the Attorney General (AG) preventing the BBC from disclosing the name and image of a man, "X".  The BBC was intending to broadcast X's identity in a programme alleging that "X is a dangerous extremist and misogynist who physically and psychologically abused two female partners; that X is also [an MI5 agent]; that X told one of these women that he worked for MI5 in order to terrorise and control her; and that MI5 should have known about X's behaviour and realised that it was inappropriate to use him as an agent." The BBC argued that disclosure of X's identity in the programme would protect other women considering entering a relationship with X.  The AG did not (openly) confirm or deny that X is/was an agent but in any case satisfied the judge that there would be a real and immediate risk to X if his identity was revealed and extensive protective measures would have to be taken to protect him.  Chamberlain J found that, as a result of those measures, public disclosure of X's identity would have no significant protective effect on other women, and he therefore granted the injunction.  He acknowledged the relief constituted a significant interference with the BBC/public's rights to impart/receive information but noted the BBC would still be able to make the programme without disclosing X's identity and be able to make allegations against MI5.  See BBC statement in response to the judgment.

Open justice

In Guardian News v Rozanov & anor, the EAT set out guidance on the correct approach to third-party requests for documents which have been before the employment tribunal.  It was hearing the appeal of an employment tribunal's decision to reject a reporter's request for documents. The tribunal had emphasised the overriding importance of open justice but had found the principle was only engaged to a very limited extent, primarily because it focused only on whether the subject matter of the proceedings raised matters of public importance.  In rejecting the request, the tribunal also noted that the journalist could have attended the hearing but had failed to do so.  The EAT found the decision to be "fundamentally flawed" owing to the tribunal's failure to consider any of the broader "journalistic reasons" the reporter had submitted as a basis for the request, such as wanting to better understand the matters referred to in the judgment (see full list at para 9), all of which the EAT endorsed as relevant.  Relying on evidence of the intervening Media Lawyers Association, the EAT also found it is not always practical for the media to attend hearings, even where there is significant public interest in the case being reported.  An order for the provision of the documents was made, although it is understood from the Guardian that one of the respondents has sought to appeal part of the judgment. See a blog on the case by RPC's employment team for further details of the decision.

Court criticism of confidentiality breaches 

The Court of Appeal has censured a QC after he disclosed some confidential appeal papers relating to family court proceedings to a non-party without the permission of the court.  The court found this to be a significant breach of confidentiality and that there may have been a contempt, but held it was not appropriate to take further action as the harm was limited, it was not a deliberate breach, and the barrister had made a prompt apology.  The QC had also earlier discussed the case in "very broad" terms, without revealing any identities, with a third party whilst a judgment in the case was subject to an embargo.  The Court of Appeal did not need to make any findings on this but commented obiter that it was unwise for an individual in that position "to have any discussion about a case with any third party at a time when a judgment is subject to embargo".  Violations of embargoes on judgments have been the subject of judicial censure on various occasions in the past few months, including by the Master of the Rolls who commented that these types of violations appear to be coming more frequent.  Since then both the Court of Appeal (on a separate occasion) and Swift J have found embargoes to have been broken.

Civil Procedure Rules

 Various updates in the CPR came into force last week, including to the rule governing applications to anonymise individuals pursuant to CPR 39.2(4) which has been broadened to allow the anonymisation of "any person" as opposed to the previous limit to "any party or witness".  This change was made following the decision in Brearley & ors v Higgs & Sons last year in which the court granted anonymity in respect of an individual in spite of the fact he was neither a party nor a witness.  See here for all of the CPR updates. 

Meaning

 The QBD has recently handed down two decisions on meaning in libel claims, both of which refer to the extent to which material beyond the words complained of should/can be considered by the court in the context of social media.  In Wilson v Mendelsohn & ors, Richard Spearman QC (sitting as a High Court judge) considered the meaning of a Facebook post and five Tweets, and discussed the extent to which Tweets which are not complained of can form part of the context of the offending Tweet. In Sivananthan v Vasikaran, when determining the meaning of various WhatsApps messages in a group chat, Collins Rice J expressed some surprise that neither party had relied on the surrounding group chat, which limited the textual context for understanding the messages complained of.

Chatter

Channel 4

Nadine Dorries' announcement that the DCMS plans to privatise Channel 4 has provoked passionate responses from across the media and the political spectrum.  Whilst Dorries maintains that privatisation will best-guarantee the broadcaster's long-term future and aid British TV, others allege that a sale will diminish democratic debate and only serve the interests of the government.  Dorries has indicated that she will set out the future plan for the channel in a White Paper in due course.

BBC material to be handed to police 

The BBC has reported that it is to hand over material, including material not broadcast, to the Police Service of Northern Ireland.  The material related to the BBC's documentary 'Spotlight On The Troubles: A Secret History', which first aired in 2019.  The BBC and PSNI had agreed the material to be handed over, subject to the court's decision.  Judge Neil Rafferty found there was reasonable belief that the material would be of substantial value to a terrorist investigation, and that public interest was in favour of granting the order.

Heard it all before?

 Johnny Depp's US defamation claim against his ex-wife Amber Heard commenced on Monday in Virginia, as reported by the Guardian. Similar to the proceedings in London in 2020, the allegations relate to domestic abuse by Depp against Heard, and an array of high-profile celebrities are expected to appear as witnesses.  It seems unlikely the case will be any less impassioned than its London equivalent, with Depp having lost that claim, and Heard now appearing as a defendant rather than a witness.  

Transatlantic data privacy framework

The European Data Protection Board has published a statement welcoming the announcement last month that the European Commission and US have reached an agreement in principle on a new data privacy framework between the EEA and US.  The EDPB had said it looks forward to carefully assessing the reforms and will in particular analyse how they ensure the collection of personal data for national security purposes is limited to what is strictly necessary and proportionate.

AI technology 

 The Justice and Home Affairs Committee has published a report concerning the advent of new technology in the justice system, particularly AI.  Whilst recognising the "many benefits" of algorithms, the report describes the current landscape as a "new Wild West in which new technologies are developing at a pace that public awareness, government and legislation have not kept up with".  Amongst other concerns, the report remarks that the market is "worryingly opaque", that it is virtually impossible to scrutinise and challenge the use of AI in the justice system as there is no central register, and that there are no minimum scientific or ethical standards for AI tools being used in the sphere.  Various reforms are recommended in the report.

Quote of the fortnight:

"I consider that the decision of the employment tribunal to give more weight to the possible minor inconvenience in providing the documents than to the principal of open justice means that the determination reached by the employment tribunal was wrong…the order should be made in favour of GNM for disclosure of the documents sought in the appeal, subject to the payment of any reasonable copying costs; although I hope that the respondent will provide the documents in electronic form at no cost."

- His Honour Judge James Tayler, Guardian News v Rozanov & anor.