Take 10 - May 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.

We are delighted to announce that our very own Alex Vakil and Alex Wilson have been promoted to Partner!

The Media team has also welcomed new Associate Flora Bezzenberger.

News items

The government has promised a 'golden age' for programming following the publication of a white paper setting out its vision for the broadcasting sector.  Plans include the introduction of a new regulatory code to apply to UK video-on-demand streaming services and also bringing non-UK streaming services under Ofcom's remit.  DCMS is also looking to grant public service broadcasters exclusive broadcasting rights to certain 'crown jewel' sporting events and to legally require online television platforms to carry designated public service broadcaster content.  See our blog identifying the key proposals.

IPSO Publishes Update Social Media Guidance

IPSO has warned journalists to be cautious when using material obtained from social media in their reporting. The new non-binding guidance was developed using specific clauses from the Editors’ Code of Practice relating to accuracy, privacy, intrusion into grief or shock, and children. There is now a requirement to correct significant inaccuracies and misleading statements on the same online platform that the statement was originally published. Furthermore, the framework encourages sensitivity and caution when using information from social media to illustrate a subject's grief or shock. The guidance can be accessed here.

Online Safety Bill Amendments 

The government has confirmed that the Online Safety Bill will be amended to prevent the removal of journalistic content from tech platforms until a 'proper right of appeal' has occurred, which may go some way to alleviating concerns about the bill impacting freedom of speech and curtailing public interest journalism. Read more here.

Wagatha update 

In the latest twist of the intriguing Wagatha saga, Coleen Rooney sought non-party disclosure orders against News Group Newspapers (the publisher of The Sun) in respect of communications between Rebekah Vardy and nine named journalists and between her agent, Caroline Watt, and those same nine journalists. Mrs Justice Steyn granted the order in respect of one journalist, but refused the application in relation to the other eight. The Judge also acceded to part of Ms Vardy's application to strike out paragraphs of Ms Rooney's witness statement in a timely reminder that trial witness statements should not include commentary and should be as concise as the circumstances allow. A further hearing was held on 29 April with judgment reserved.

Court Makes Rare Section 13 Order Against a US-based Platform

In Dudley v Phillips, Mr Justice Saini granted an order pursuant to S.13 Defamation Act against the operator of a website based in Las Vegas to remove the defamatory statements complained of. The Judge also affirmed the position that compensation for reputational harm is recoverable under Article 82 of the GDPR. 

A Claim in Misuse of Private Information Requires...Misuse of That Information

In Underwood v Bounty, the claimants (a mother and child) had brought claims against the defendants for alleged misuse of their private information and breaches of the DPA 1998. The claim was primarily targeted at the first defendant (Bounty), but by the time of the trial Bounty had gone into administration and had default judgment entered against it, so did not participate in the proceedings. The claim in respect of the second defendant (an NHS Trust) was based on the allegation that the Trust had " allowed Bounty to access the ward and the medical records, thus enabling the First Defendant to collect and ultimately distribute the [Claimants'] Private Information ".  Affirming the decisions of Various Claimants v Morrisons and Warren v DSG , Mr Justice Nicklin held that there was no "misuse" of the claimants' private information by the Trust, and therefore the claim against it in MPI was unsustainable. The claim against the Trust under the DPA 1998 was also dismissed.

Chatter

Thinking Outside the Fox?

In a rare and unusual application, the actor Laurence Fox has applied for a jury trial in his libel claim: readers will be aware that S.11 of the Defamation Act 2013 removed the presumption of a trial by jury for libel claims. If this application succeeds, it will be the first time a libel claim has been tried before a jury since the Defamation Act came into force. Mr Justice Nicklin reserved his judgment.

Musk, Twitter and the Future of Freedom of Speech

The news that Elon Musk is buying Twitter for $44 billion has divided opinion. Musk plans to reduce current levels of "censorship" and promote greater freedom of expression. The British government has warned Musk that his version of Twitter will still need to comply with the new Online Safety Bill. 

Jimmy Saville - The Libel Law Dilemma 

The Editor of the Bureau of Investigative Journalism, Meirion Jones, has claimed that The Sun attempted to expose Jimmy Saville as a paedophile whilst he was still alive in 2008. However, according to him, the Sun's legal team discouraged the publication due to the costs risks of a libel action. Read Jones's full article here.

Google's New Privacy Feature

Google users can now request for an increased range of personal contact information to be removed from search results. This includes phone numbers, email addresses, and physical addresses. This is an update from the previous policy where users could only request the removal of information that would facilitate money and identity theft such as banking details. 

Read more from Michelle Chang, Google's global policy lead for search here.

The Attorney General v BBC

As reported in our previous edition, the High Court granted an interim injunction against the BBC preventing it from disclosing the name and image of an alleged MI5 agent. See our summary of the recent decision in The Attorney General v BBC here.

The IPSO rejects complaints that The Mail on Sunday's coverage of MP was 'Misogynistric'

IPSO has dismissed over 6,000 third party complaints about the Mail on Sunday's story reporting allegations by unnamed Tory MPs that Labour's deputy leader Angela Rayner sought to distract Boris Johnson by crossing and uncrossing her legs during PMQs.  The key reasons are set out in IPSO's statement of 4 May. See also Quote of the Fortnight below. Ms Rayner did not herself file a complaint with IPSO.

Quote of the fortnight:

"Many complainants were concerned that the article was offensive. The Editor’s Code does not address issues of taste or offence. It is designed to deal with any possible conflicts between the right to freedom of expression and the rights of individuals, such as their right to privacy. Newspapers and magazines are free to publish what they think is appropriate so long as the rights of individuals – which are protected under the Code – are not infringed. We recognised that many complainants found the content of the article to be offensive or tasteless. However, this did not in itself mean that the article was in breach of the Code by reporting them."

- IPSO's statement about complaints regarding the Mail on Sunday's coverage relating to Angela Rayner.