Take 10 - December 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

CWare v French 

Panorama journalist, John Ware, has been awarded £90,000 in damages in his libel claim against Press Gang editor Paddy French centring around the 2019 Panorama programme 'Is Labour Anti-Semitic?'. The case was brought after French published an article online, describing the programme as "a rogue piece of journalism" that "presented just one side of the argument, ignored basic facts and bent the truth to breaking point." The article was found to be defamatory at common law by Saini J at a preliminary issues trial in February 2021. French had initially intended to use the defences of truth and public interest but discarded these shortly before withdrawing from participating in the case entirely in October 2022. The Court considered whether the statutory serious harm threshold had been met with reference to the approach outlined by the Supreme Court in Lachaux v Independent Print Ltd [2020] AC 612.  It found that the Ware's case on serious harm was overwhelming. The publication was found to have been read by many thousands of people, including those intentionally targeted by French in order to inflict the maximum harm on Ware such as news executives. Throughout the proceedings, French had raised money for his defence through crowdfunding, ultimately raising over £90,000.  Knowles J found that this represented direct and tangible evidence of the effect of the libel on Ware's reputation; donors would not have contributed unless they believed that he was a dishonest and rogue journalist.    Finally, Knowles J found that the accusations levied against Ware were "of the utmost seriousness" and capable of rendering his "journalistic currency…effectively worthless". In a statement published following the judgment, French raised concerns as to whether the action amounted to a SLAPP by proxy "in order to smother debate" around the BBC programme.  Ware has since labelled French's concerns as "nonsense". 

ABC v Tony Palmer - Does an individual with a spent conviction have a right to be forgotten?

Judgment has been handed down in ABC v Tony Palmer [2022] EWHC 3128, a claim brought by an anonymised individual over a blog post written by the Defendant, a freelance journalist. It is the first of two recent judgments which provide a helpful reminder to practitioners on the circumstances where an individual will be able to avail themselves of their Article 17 rights under the UK GDPR in respect of spent convictions.  The blog post in issue reported on a hearing before a Magistrates Court at which the Claimant pleaded guilty to nine counts of fraud. The Claimant brought claims in misuse of private information, harassment and breach of data protection under both the DPA 1998 and the UK GDPR / DPA 2018 on the basis that she alleged that certain information published in the post, such as her having a younger brother, having OCD and having earlier cautions for theft and assault, was not referred to at her trial. She also sought to exercise her right to be forgotten under Article 17 of UK GDPR, arguing she had the right to prevent the Defendant from processing the fact of her convictions from a date in 2017 when her convictions became spent under the Rehabilitation of Offenders Act 1974. Griffiths J was satisfied that the information in the blog was, in fact, stated in open court at the criminal hearing. There had been no misuse of private information, as the information published was not private information nor could the Claimant have any reasonable expectation of privacy in the information. The claim in harassment was also rejected; the blog post was not targeted at the Claimant and it was not calculated to cause her alarm, fear or distress. Further, the Court found that there had been no infringement of the Claimants' rights under the relevant provisions of the Data Protection Acts or the UK GDPR, with the possible exception of the right to be forgotten under Article 17 of the GDPR, which was considered separately.  However after performing the balancing exercise as per Warby J in NT1 & NT2 v Google LLC [2019] QB 344 (at paras [163]-[166]), Griffiths J found that all of the Defendant's records other than the blog post itself were necessary in relation to the purposes for which they were made (in order to defend himself from any legal claims and in order to be able to demonstrate that the blog post was a fair and accurate account of a hearing). Further, the Defendant's Article 10 rights outweighed the Claimant's Article 8 rights because she was actively making false claims about both the Defendant and the events of the Magistrates Court hearing. The Claimant's claim in data protection was therefore dismissed. 

Duke of Sussex v Associated Newspapers Limited 

Last week, the High Court granted Associated Newspapers' application that the Duke of Sussex should provide further information regarding the precise terms of an offer, which he claims he made at a meeting at Sandringham in January 2020, to pay personally for UK police protection (the "Offer").  The claim concerns an article published by The Mail on Sunday reporting on the Claimant's ongoing judicial review proceedings against the Home Office, over the degree of personal protective security he is to be provided with when visiting the UK. At a case and costs management hearing before Senior Master Fontaine last Tuesday, the Master found that the precise terms of the Offer were relevant to an issue in dispute in the proceedings and that it was proportionate to order that clarification around the precise terms of the Offer be given.  At the same hearing, the parties agreed to a stay of proceedings until 20 January 2023 to allow time for further settlement negotiations.  The parties' proposed budgets were also before the Court.  The budget proposed by the Claimant exceeded £1.1m, with around £630,000 of this constituting estimated future costs.  The Court found this to be "extremely high", reducing the level of recoverable estimated future costs to just over £340,000. This hearing follows a preliminary issue trial on meaning in July, our summary of which can be found here. RPC acts for ANL.

TU and RE v Google - the right to be forgotten

In the second of two recent judgments on data protection law covered in Take 10 this week, the CJEU last week handed down judgment in TU and RE v Google LLC (Case C-460/20) which provided some further clarification on the right to be forgotten under Article 17, (UK) GDPR. The Claimants sought for 'inaccurate' articles along with accompanying 'thumbnail' images to be delisted from search results on Google associated with the Claimants' names and their respective companies. When search engines receive a request under Article 17, their first port of call is usually to rely on the exemption under Article 17(3)(a) which provides that the right shall not apply to the extent that it causes a breach of the 'necessary' right to exercise freedom of expression and information. However, the 'necessary' aspect of the test depends on a number of factors including the 'veracity' of the result amongst others. Therefore, the CJEU was faced with the delicate task of untangling the extent to which a data subject must prove the inaccuracy and whether the subject is entitled to shift the burden of proof onto the search operator. Ultimately, the CJEU held that where the data subject 'submits relevant and sufficient evidence capable of substantiating' their request and is able to 'establish the manifest inaccuracy' of the information, the operator will be required to 'accede to such a request'. Nevertheless, if inaccuracy cannot be proven as 'obvious' through evidence provided by the data subject, the operator will not be required to accede. Furthermore, in such a case, it would be even more important to keep the information available where the information 'is likely to contribute to a debate of public interest' and promote 'freedom of expression and of information'. If an inaccuracy makes up only a small part of the published information, then it will not be necessary to de-reference. However, search engines have a duty to place alerts on search results where the data subject is in the process of taking action against the publisher regarding the inaccuracy of the published information. On the subject of thumbnails linked to an underlying article, if an article is de-listed, then the accompanying images must be de-listed too. However, if an article is not de-listed, and the data subject wishes for an image to be de-listed then the operator must take certain factors associated with the image into consideration, including the connection between the image and the subject's personality and privacy rights as per the Von Hannover principle. Furthermore, the message conveyed by the image alone as well as any accompanying text in the image search result must be considered by the recipient of an Article 17 request. 

Model Anti-SLAPP law and SRA warning notice issued

Following the Government's response to the anti-SLAPP consultation over the summer, the UK Anti-SLAPP coalition published their proposed model law on 29 November 2022. The coalition, which consists of representatives from human rights organisations, media lawyers and academics, aims for the model law to guide the progress of the Anti-SLAPP legislation currently in development at the Ministry of Justice. The model law aims to provide the statutory mechanism the Government has indicated it intends to implement, providing the court with a means to dispose of vexatious or abusive litigation against acts of public participation at an early stage, with cost protection for the Defendant, and potential cost and damage penalties for the Claimant. The proposed law would require a claimant to meet a high merits threshold if a claim identified as a SLAPP is to be permitted to proceed, The Court would identify a SLAPP with an objective test, permitting the court to refer to a non-exclusive list of features indicating a SLAPP. Defendants would only face adverse costs for bringing an anti-SLAPP application in bad faith. The publication of the model law arrives amidst continued political wrangling over the issue; last week Tom Tugendhat (Minister of State for Security) refused to accept an amendment to the Economic Crime Bill saying instead that the MoJ's anti-SLAPPs legislation would sufficiently address the problem. In response to the Model Law, Justice Minister Dominic Raab has re-committed to introducing legislation.

Read more about the model SLAPPs bill on RPC's blog.

 

Chatter

The Online Safety Bill is back 

The Online Safety Bill returned to parliament last week with new amendments receiving scrutiny following the government's decision to replace the contentious provisions relating to "legal but harmful" content. "Legal but harmful" provisions for adults were abolished by UK Culture Secretary, Michelle Donelan after concerns were raised over the potential threat posed to freedom of speech and the risk of "unintended consequences" arising from creating a "quasi-legal" category of content. The provisions will be replaced with what the government deems a "triple shield" of protection, focussed on enhanced user controls and further obligations around transparency and enforcement of online platforms' terms and conditions. ("Legal but harmful" requirements remain in place for content viewed by minors.) The Bill is intended to become law in the UK by next summer; however, if not passed by April 2023, it would need to be started from scratch in a new parliament.

Ofcom sanction upheld 

Last week, the Administrative Court dismissed Star China Media Limited's ("Star China") judicial review application to challenge a financial penalty imposed by Ofcom in May 2020.  Star China had been fined £125,000 for breaching due impartiality provisions in the Ofcom Broadcasting Code in relation to their coverage of the Hong Kong protests, broadcast in the UK on CGTN, a state-run English language news channel based in Beijing.  Star China argued that the penalty imposed was a disproportionate interference with their Article 10 right of freedom of expression. Ofcom had not appropriately considered the nature and seriousness of the breaches, their previous record of compliance, or the nature and expectations of Star China's audience. Further, Ofcom had revoked Star China's licence to broadcast before the penalty was imposed.  The Court, in dismissing the application, found that the £125,000 penalty was not a disproportionate response to Star China's conduct.  There had been persistent breaches of the obligation to report news with due impartiality, and Ofcom's decision to provide an appropriate general deterrent disclosed no error in principle. 

Loss of safe harbour in the UK?

Meta's policy team has written to the government threatening to pull their services in the UK if existing safe harbour protections are lost due to enactment of the Retained EU Law (Revocation and Reform) Bill, which is currently in its committee stage. In a letter to a parliamentary committee, Meta asked that laws concerning social media firms are either “explicitly maintained elsewhere” or “removed from the scope” of the Bill. If the Bill becomes law, the defences provided by the Electronic Commerce (EC Directive) Regulations 2002, would be revoked automatically by the end of 2023 if not specifically retained by the UK Government. This includes the Article 19 hosting exemption which protects social media companies from liability for user conduct and content prior to notice.

SIOCs permitted in data protection cases 

In a first for data protection claims, the High Court has granted permission for a claimant to make a statement in open court ("SIOC").  The ability for a party to apply for a SIOC is expressly provided for under the CPR in relation to claims for defamation, malicious falsehood and misuse of private information but not data protection breaches (Practice Direction 53, paragraph 3.1).   However, in Sooka v Palihawadana, a data protection claim which settled out of court recently, the Claimant was successful in their application for permission to make a joint SIOC, arguing that the Court has a general power to grant a SIOC in an appropriate case and is not limited to the causes of action in Practice Direction 53. More information can be found on Matrix Chambers' blog here.

Quote of the fortnight:

"To accuse a lifelong professional journalist of being a ‘rogue’ journalist, who had acted dishonestly in order to further a political agenda, was an accusation of the utmost seriousness. As I remarked during the hearing, if a journalist loses his or her reputation for truthfulness, honesty and integrity, then their journalistic currency is effectively worthless"

Mr Justice Knowles, Ware v French [2022] EWHC 3030 (KB), [110]