Take 10 - 16 January 2023

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

The Online Safety Bill - looking ahead 

 2022 was a tumultuous year for the Online Safety Bill - not least because the Bill, which was initially due to become law in 2022, was dropped from the legislative agenda amidst governmental chaos in July and subsequently amended by a new government in November. 2023 will see the revised draft Bill enter its final reporting stage on 16 January ('Report stage'), meaning the House of Commons has one last chance to debate its contents, table amendments, and vote on whether to approve it. Rishi Sunak has decided to extend the parliamentary session beyond the spring into the autumn, meaning the House of Lords is unlikely to see the Bill until the start of February. The Bill would have been in serious danger of being scrapped altogether, had the Government stuck to the initial plan to end the parliamentary session in April and hold the King’s Speech in May.

The revised bill which will be debated on 16 January includes a host of new amendments, including the Government's decision to replace "legal but harmful" clauses relating to adults with a "triple shield of protection" and a number of new criminal offences, which include (i) criminalising encouraging or assisting serious self-harm; (ii) criminalising sharing intimate images without the subject's consent; and (iii) criminalising "epilepsy trolling" where someone sends flashing images to people electronically causing them harm. Despite scrapping its 'legal but harmful provision' the Bill has retained its controversial revision of the existing 'liability exemption regime'. Unlike its EU counterpart, the Digital Services Act, the Online Safety Bill as it stands imposes duties on providers to proactively remove illegal material. 

Nakamoto no-no

Following the May 2022 defamation trial of Wright v McCormack [2022] EWHC 2068, Mr Justice Chamberlain has handed down an interesting decision on 21 December 2022 on consequentials arising from the trial. The decision is worth reading given the unusual circumstances. Dr Wright claims to be 'Satoshi Nakamoto', the pseudonym used by the person(s) who invented Bitcoin. He sued Mr McCormack over allegations published in 2019 that his claim to be Satoshi was fraudulent.  At trial in August, Dr Wright succeeded in establishing liability but was awarded only £1 in nominal damages after the judge found that he had deliberately sought to mislead the court by putting forward a false case on serious harm relating to alleged conference disinvitations.  Mr Justice Chamberlain refused the claimant injunctive relief, ordered the claimant to pay the defendant's costs on an indemnity basis, refused the claimant permission to appeal and directed that a summons be issued to commence contempt proceedings against Dr Wright to investigate breaches of an embargo on his trial judgment. The judge also refused the defendant's application to overturn two previous costs orders, on the basis that it was for a costs judge to disallow or reverse any costs arising from Dr Wright's dishonesty under CPR 44.11. 

Of interest to those following the debate on SLAPPs, the judge also found at para 56 that Dr Wright 'seems to have intended to use the costs of this litigation as a means of preventingothers from denying that he is Satoshi', including referring to messages sent by Dr Wright referring to 'crushing' his enemies by bankrupting them with litigation. The decision is one of a number High Court claims Dr Wright is currently involved in centred around his claim to be Satoshi Nakamoto.  RPC act for the defendant Mr McCormack.

Aaronson v Stones hits the High Court

The trial of Jack Aaronson’s libel claim against Marcus Stones began last month before Mr Justice Julian Knowles. Mr Aaronson, also known as "Dominic Ford", is a US based entrepreneur and founder of the adult blogging platform and marketplace "JustForFans". The defendant is a former adult entertainment star. Following a disagreement between the parties in 2020, the defendant posted a series of tweets to his 17,000 Twitter followers which suggested that the claimant had raped pornographic models and made similar claims on his YouTube channel. The claimant denies the allegations and has sued in libel. The defendant relies on the defences of truth and publication on matter of public interest. Mr Justice Julian Knowles has reserved his judgment.

Malicious Falsehood going to the Supreme Court

The Supreme Court has granted the defendant in George v Cannell permission to appeal the Court of Appeal's decision on 27July 2022 which itself overturned the first instance decision of Mr Justice Saini. The claimant sued the defendant, her former employer, for libel, slander and malicious falsehood over four publications in January 2019. Mr Justice Saini dismissed all three heads of claim. Regarding malicious falsehood, the judge found that while the statements complained of were false and had been published maliciously, the claimant had not proved special damage as required by common law nor satisfied s.3(1) of the Defamation Act 1952. He concluded that s.3 was to be interpreted as a backward-looking test where the claimant should, in order to succeed, prove that they had likely been caused some actual pecuniary loss by the publications complained of otherwise they could not recover damages for injury to feelings. 

The claimant appealed the decision dismissing her s.3 malicious falsehood claim. Lord Justice Warby gave the lead judgment finding in favour of the claimant, holding that the purpose of s.3(1) was to relieve a claimant of the need to prove any actual loss on the balance of probabilities as a matter of historical fact. The words “calculated to cause pecuniary damage to the plaintiff” constituted a forward-looking test. It was enough for a claimant to prove that through the publication by the defendant of a false and malicious statement, financial loss is an inherently probable consequence or, financial loss is something that would probably follow naturally in the ordinary course of events. Ms Cannell challenges the Court of Appeal’s interpretation of s.3(1) on appeal to the Supreme Court, seeking to restore the first instance decision. The appeal is likely to be heard later this year.

Chatter

Channel 4 to remain publicly owned

Secretary of State for Digital, Culture, Media and Sport Michelle Donelan has decided not to privatise Channel 4 after reviewing the business case for its sale. Instead, the government has decided on certain reforms to help Channel 4 grow, including flexibility for the Channel to make its own content and a new legal duty to promote long-term sustainability. Under current legislation, Channel 4 is fairly limited in its ability to make and own its own content. Operating as a publisher-broadcaster, all its shows are commissioned or acquired from third parties. These third parties, often independent producers or other broadcasters, typically retain the rights to those programmes. As part of the Channel's reform strategy, the government will legislate through the Media Bill to relax the publisher-broadcaster restriction so that Channel 4 has a 'greater ability to produce and monetise its own contents'. Further details on the Media Bill will be announced in due course. 

The Prince versus the Press

 Headlines worldwide have been dominated by news relating to The Duke of Sussex's memoir "Spare", which has been reported to be the fastest selling non-fiction book in UK history. The autobiography contains numerous accounts of private conversations with members of his family and a full account of the Prince's reservations with the British press. He blames the press for the death of his mother Diana, Princess of Wales, in 1997, and for the current frictions with the rest of his family. The autobiography also provides detail of the relationship between the Royal family, the institution behind the Palace and the media, as well as the relationships that ended because previous girlfriends could not cope with the press intrusion. Prince Harry told ITV's Tom Brady in a televised interview to publicise the book's release that the media “is at the epicentre of so many problems across the UK where people are suffering” and that the British press is “incredibly damaging to the UK”. It's for these reasons, he says that changing the UK media landscape is now his 'life's work'.

Protection for journalistic sources is upheld by Investigatory Powers Tribunal

 Police Scotland has been found by the Investigatory Powers Tribunal to have breached a journalist's Article 10 rights in attempting to identify the Sunday Mail's journalistic sources in reporting on a failed murder investigation conducted by the force in 2015. The ruling reinforces that it is unlawful for law enforcement bodies to attempt to uncover journalistic sources without judicial oversight. Lady Carmichael gave the lead judgment (sitting with Lord Justice Singh, President of the Investigatory Powers Tribunal and Desmond Browne KC, formerly of 5RB), ruling that even though the police had not actioned their plans to obtain the journalist's call data, simply investigating a journalistic sources was enough to infringe his Article 10 rights. This decision seeks to preserve a journalist's access to sources by ensuring that potential sources are not 'deterred from cooperation' with the media by the risk they may be identified by others.  

Transparency Pilot - Children cases

A new reporting pilot is due to launch in three courts in the UK – Leeds, Cardiff, and Carlisle. The report aims to override the current principle that cases involving children cannot be reported. The new pilot allows not only journalists but also legal bloggers to attend hearings pertaining to such cases and publish accounts of what they have seen, read, or heard in the hearing. The definition of a 'legal blogger' extends to qualified lawyers who attend a hearing for journalistic, research, or public legal educational purposes. Previously, journalists and legal bloggers needed to make an application to court for permission to report on children cases but the new pilot aims to remove this barrier and allow more transparency in family court matters.  The pilot is set to launch at the end of January 2023.

Quote of the fortnight:

Tom Bradby: "What do you think William will be thinking if he watches this, or if he reads your book?"

Duke of Sussex: "I don't think my father or brother will read the book.  I really hope they do.  But I don't think they will.  And with regard to this interview I don't know whether they'll be watching this or not but what they have to say to me and what I have to say to them will be in private and I hope it can stay that way."

"Harry – the Interview" aired from 9pm on 8 January 2023 on ITV