Take 10 - June 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

Cadwalladr takes Arron to the Bank(s)

Mrs Justice Steyn this week dismissed the libel claim brought by Arron Banks against Carole Cadwalladr following a five day trial in January 2022, over a TED Talk and a Tweet in 2019 relating to interference in democratic elections.  Mr Banks, the largest donor and head of the pro-Brexit Leave.EU campaign, sued Ms Cadwalladr over comments relating to his relationship with the Russian government. At a preliminary issue hearing, Mr Justice Saini had found that both the TED talk and the Tweet bore the meaning that Banks had lied in relation to a secret relationship he had with the Russian government in relation to acceptance of foreign funding in breach of the law.  Ms Cadwalladr had previously stated that she did not intend to convey that meaning, and therefore dropped her truth defence and relied solely on a public interest defence at trial.

Mrs Justice Steyn held that Banks had initially met the threshold for serious harm in respect of the TED talk, although not the Tweets.  She accepted that Ms Cadwalladr did not intend to convey the meaning found by Mr Justice Saini, but that she instead intended to convey a different, less serious meaning that he had lied about the extent of his relationship with the Russian Government, and that there were grounds to investigate whether or not the source of Mr Banks' donations was foreign funding in breach of electoral laws.  The judge therefore found that Ms Cadwalladr had a reasonable belief that the TED Talk and the Tweet were in the public interest. However, the judge also found that Ms Cadwalladr did not continue to have a reasonable belief in the public interest after a later determination from the Electoral Commission that there was no evidence that Banks had broken the law, and therefore after that point, the defence fell away.  Ms Cadwalladr was still successful, however, as the judge found that continued publication after this time did not cause Mr Banks serious reputational harm. Interestingly and after repeated suggestions by Cadwalladr under cross-examination that the litigation constituted a SLAPP, Steyn J held that "in circumstances where Ms Cadwalladr has no defence of truth, and her defence of public interest has succeeded only in part, it is neither fair nor apt to describe this as a SLAPP suit." Needless to say, the case is a welcome victory for public interest journalism, free speech and public participation. RPC acts for Carole Cadwalladr.  

Duke of Sussex v Associated Newspapers

Mr Justice Nicklin heard argument at the preliminary issue trial on meaning in Prince Harry's libel case against the publishers of the Mail on Sunday last week. Prince Harry is suing over an article which he says alleged that he had "lied" and "improperly and cynically" tried to manipulate the public's perspective of him in relation to his judicial review of the Home Office's decision about his security arrangements. ANL argued that the article was not defamatory of the Duke and that it contained no hint of impropriety. Judgment was reserved. RPC acts for ANL.

Phone hacking - limitation

Following more than 30 applications for summary judgment and/or strike out on limitation grounds by MGN heard in April in the long-running hacking litigation, MGN succeeded in striking out claims relating to the publication of articles, which were all statute-barred having been published more than six years ago. The application was made partly on the basis that it had been more than six years since MGN's public apologies in 2014, and since the judgment of Mr Justice Mann in Gulati in 2015, in which he made findings against MGN on the same subject. In respect of summary judgment application, Mr Justice Fancourt held that whether the Claimants could with reasonable diligence have discovered a suspicion of their being a victim of unlawful information gathering more than six years before they issued their claim was a matter for trial. A group trial is therefore due to take place in June 2023. RPC acts for MGN.

ICO challenged on Matt Hancock's emails

The government is taking the ICO to court in an attempt to block messages between Matt Hancock and Gina Coladangelo being released, after journalists from The Times made a Freedom of Information request for them following the leak of those infamous pictures in June last year. The ICO ruled in April that the Department of Health and Social Care had been wrong to withhold emails between the two and ordered the release of them. The government has long been criticised for its delays and eventual but often inadequate responses to FoI requests, which are both barriers to open democracy and public debate. 

Sir Cliff Richard urges anonymity for sex offence suspects 

Sir Cliff Richard appeared in the House of Lords this week, urging MPs and peers to provide anonymity to suspects of sexual offences before they are charged. Campaign group FAIR (Falsely Accused Individuals for Reform) has called for pre-naming of sexual offence suspects to be made a criminal offence in England and Wales. Opponents argue it could discourage victims of sexual abuse from coming forward. Media outlets argue that it is a principle of press freedom and public interest to disclose names pre-charge, a position sadly not shared by the Supreme Court earlier this year in ZXC v Bloomberg LP (albeit not in relation to sexual offences).

Chatter

Online Safety Bill

The Online Safety Bill has progressed to the Committee stage in the House of Commons. Amongst other things, clauses 17 and 27 were strengthened. The clauses require service providers to put in place effective and accessible content reporting mechanisms. This will allow those who are affected by the content but are not users of the site, to report illegal or harmful content as quickly as possible. The debate follows the use of the word 'affected' being too narrow, in that someone who is not for example, the subject of racist content, may not be able to report it. Currently, someone who sees abusive content on Reddit, for example, would not be able to report it unless they are signed up to Reddit. The re-wording mean providers will have to allow users, whether subscribed or not, to be able to report content on any site that they are affected by.

Sunday Morning Herald and Rebel Wilson

The Sunday Morning Herald found itself in hot water after being accused of attempting to 'out' Rebel Wilson's sexuality. The Australian tabloid approached Ms Wilson asking her to comment on the news story, apparently prompting her to 'gazump' the Herald by taking to Instagram to announce the news herself. As we know, the position would be very different if a UK newspaper were to approach Ms Wilson in the same way as the Herald, given the protections afforded to individuals by privacy law, Article 8 ECHR and the IPSO Editors' Code.

Reporting restrictions - naming names 

Donal Gallagher, part-owner of the Galldris group, an Irish construction company, lost his fight for a reporting restriction or anonymity order in an attempt to prevent the media from reporting his identity in connection with a multi-million pound dispute with his estranged wife.  Mr Justice Mostyn concluded that Mr and Mrs Gallagher should be named, siding with a PA news agency journalist, who argued that the public had a right to know if wealthy businesspeople were fighting at court hearings heard by publicly funded judges. Mr Justice Mostyn said that anonymising the names would derogate from the right to free speech under Article 10 of the European Convention on Human Rights and from open justice.

RPC @ London Tech Week

This week RPC hosted a series of events for the annual London Tech Week. The three days at RPC consisted of technology in ESG, Digital Retail and Consumer, and Insurance industries. Talks included 'Swimming in the Data Lake: tech-driven uses of customer data' and a panel discussion about the role that digital technology will play in real life shopping experiences. Recorded sessions can be made available to those who were unable to attend. 

Quote of the fortnight:

"As is commonplace, the submissions suffer by tacitly asking the wrong question: "Why is it in the public interest that the parties should be named?" rather than the right one: "Why is it in the public interest that the parties should be anonymous?"" 

Mr Justice Mostyn at [36] of the Gallagher judgment (above), discussing the applicant's submissions for a reporting restriction.