Take 10 - November 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

Countdown star awarded £50,000 in damages following win against political blogger

Rachel Riley has been awarded £50,000 in damages after her successful libel claim against political blogger Mike Sivier.  The article, published in January 2019 on the defendant's website Vox Political, alleged that Ms Riley had bullied a 16-year-old teenager during an anti-Semitism debate and further accused the presenter of being a 'serial abuser'. Mrs Justice Steyn did not accept that Mr Sivier had a reasonable belief in the public interest of the article, describing it as 'manifestly unreasonable'. The judge further held that the blogger had 'misrepresented the evidential picture' making the article 'wholly unbalanced'. Steyn J held that Ms Riley had 'expressed herself in a polite and cordial way' in regard to her conduct with the teenager and found that the disputed statement was 'not only untrue, it was not even arguably true'. The judge was also critical of the defendant's lack of attempt to 'mitigate the damage to the claimant's reputation' and rebuked his lack of effort at providing an apology or at least a retraction or amendment of the statement. Read the full judgment here.

Laurence Fox loses latest round of High Court litigation

The 44-year-old actor is being sued by ex-Stonewall trustee Simon Blake, drag artist Crystal – also known as Colin Seymour – and Coronation Street's Nicola Thorp over an online row in which he labelled them as "paedophiles". Mr Fox - founder of the Reclaim Party and unsuccessful London mayoral election candidate - is counter-suing all three claimants over Tweets accusing him of racism following Fox's calls to "#BoycottSainsburys" over the supermarket's support of Black History Month.  Having previously denied him a trial by jury in a decision earlier this year at a preliminary issue trial, Mr Justice Nicklin found that Mr Fox's tweets would have been taken as statements of fact. Heather Rogers KC for the trio described the word "paedophile" as one that has "a meaning and an impact, and a damaging impact" as opposed to "a common term of insult". The judge agreed with Rogers, adding that the tweets would have been understood to mean each of the trio “was a paedophile and who had or was likely to engage in sexual acts involving children, such acts amounting to serious criminal offences”. On the other hand, Nicklin J found that the tweets sent to Mr Fox were statements of opinion, concluding that they were “very different from the allegation of calling someone a paedophile”. 

Dyson's claim against Channel 4 dismissed 

In a preliminary issue judgment on a number of issues, Mr Justice Nicklin found that Sir James Dyson was not defamed, and dismissed his personal claim against Channel 4 and Independent Television News over a broadcast in February 2022 that alleged mistreatment towards workers at a South East Asia company that manufactured Dyson products. Nicklin J held that it is essential for the words complained to "be published of and concerning the Claimant".  Although the broadcast referred to Sir James, it did not attribute any responsibility or misconduct to him personally. Just because Sir James was the "founder and public face" for Dyson, the corporate entity, this did not mean the allegations were made against him personally. Nicklin J found that only a "hopelessly naïve" reader would consider that the founder of Dyson would have day-to-day management responsibility for what happened in the manufacturing plant. In respect of Sir James' co-claimants, two UK-based Dyson companies, Nicklin J found that, without the consideration of extrinsic evidence, the broadcast did not refer to them either.  The allegations could not be reasonably understood to refer to the entire Dyson group, rather the subject of the broadcast was the corporate entity trading with the overseas manufacturer and the company responsible for the PR operation concerning the allegations. However, Nicklin J left it open for Dyson to put forward a revised claim on behalf of these two corporate claimants, or other companies within the Dyson group.  A spokesperson for Dyson said that the company could continue to pursue the case with the Dyson companies as corporate claimants.

Records of the court - an inferred definition in Hayden v Associated Newspapers Ltd

In Hayden v Associated Newspapers Ltd the Claimant sought an order for the Court to provide information that would identify a person, X, who had obtained a copy of a Court order made in the proceedings. The Claimant sought that the registration form of X be found to be 'records of the court' and therefore allow them access. 'Records of the court' is yet to be defined, despite the Supreme Courts' desire for a definition in Dring v Cape Intermediate Holdings Limited . To identify a record of the court, Baroness Hale in Dring identified two objectives as to why the records are kept: (a) to enable the Court to carry out its work effectively; and (b) open justice (open justice, in this context, refers to the ability of the public to scrutinise the court and to understand how the justice system works).  Mr Justice Nicklin determined that the registration form filed by "X" was not a record of the court. He held that requests for documents under CPR 5.4C(1) had no bearing on the litigation and is ultimately unconnected to it. Further, the judge supported this conclusion on the basis of open justice, affirming that records specified in CPR 5.4C(1) are necessarily publicly accessible for public scrutiny. It is, therefore, unusual that someone would have the details of their inquiry and ultimately their identity revealed to the parties by exercising this right.

'Cowboy credit-hire sharks' v Insurance Times

In a hearing in a libel action brought by Direct Accident Management Limited ('DAM', a credit hire organisation) and Bond Turner Limited (a Personal Injury firm), Mrs Justice Tipples held that the ordinary meaning of the words in two articles written in Insurance Times were defamatory of the Claimants. The first article accused DAM of fraudulent activity, charging "exaggerated and grossly excessive" credit hire charges, implied that the company was acting as predatory "credit hire sharks", and singled-out DAM as a particularly bad example of a credit hire organisation. The second article labelled DAM as a "rogue operator" and a "real bunch of cowboys" and accused DAM's referrals to Bond Turner as possible conflicts of interest which could be a breach of SRA rules. Tipples J held that an ordinary reasonable reader of the article would have reasonable grounds to suspect that the Claimants were not acting honestly and transparently towards their customers. Because the article did not either explain the circumstances surrounding the article (i.e. why a credit-hire vehicle was provided for a lengthy period of time), or provide reference to how charges were incurred in relation to other customers, the accusations in the article where held to be written as matters of fact, not opinion, and were defamatory of the Claimants at common law.

Chatter

Wagatha Christie continues...

In the last edition we mentioned the Channel 4 adaptation of the Wagatha Christie trial which will feature Michael Sheen as Coleen Rooney's counsel David Sherborne and Chanel Cresswell as Coleen Rooney, as well as a West End play - but the drama doesn't stop there. Coleen's solicitors, Brabners LLP, are launching a podcast which "aims to give a view 'behind the curtain', discussing the legal hurdles faced during the case and, crucially, answering from a legal perspective any burning questions from [their] audience…". The firm’s head of litigation Paul Lunt and senior associate Jamie Hurworth are joined by guests including Guardian columnist Hadley Freeman. The first four episodes are available on all streaming services and a new episode is expected every week for the following six weeks. 

The Online Safety Bill has been withdrawn from the House of Commons schedule

Progress on the Online Safety Bill has been delayed further, likely due to Liz Truss' resignation. The report stage and third reading of the Bill were originally meant to take place in July, but the process was delayed following the resignation of Boris Johnson as Prime Minister. The date got pushed back to the 1 November, but it has since been withdrawn from the parliamentary schedule. The Bill will impose duties on the largest tech platforms to protect users from both illegal and 'legal but harmful' content online. The Bill's delay has been criticised by organisations such as the Internet Watch Foundation, who argue that the delay will accelerate the spread of child pornography. However, the executive director of the organisation the 'Open Rights Group' has labelled the delay as an opportunity for a "complete rethink", fearing the Bill's impact on online censorship and increased surveillance.  It remains to be seen whether Rishi Sunak decides to continue with the legislation in its current form, although there have been suggestions that the 'legal but harmful' content rules may be dropped in relation to adults. 

Gove defends media freedom amidst legal shake-up

Michael Gove, Levelling Up Secretary and former journalist at The Daily Telegraph, The Times and The Spectator, used a speech at the London Press Club Awards to hail media freedom as "the best ideal of democracy". Gove, a self-professed "staunch and strong defender of our media",  suggested that the Government should ensure  that the UK has  "a healthy media landscape". Any attempt by the Government to "undermine" free enquiry "goes against the foundations of our democracy".  Gove has been a previous advocate for the principle of free speech, stating in the Leveson inquiry in 2012 that free speech "means some people are going to get offended". The Cabinet Minister's comments come amidst major reforms to the media law landscape: the introduction of the Digital Privacy Bill; the potential introduction of anti-SLAPP legislation; and the introduction of an online safety bill.

Channel 4 privatisation likely to be scrapped 

The contentious proposal to privatise Channel 4 has faced fierce opposition and it now could be dropped by Rishi Sunak's government.  The plans for privatisation had formed part of the upcoming Media Bill, which is also likely to include provisions making larger non-UK video-on-demand services subject to Ofcom regulation in order to protect UK audiences from harmful material. Culture secretary Michelle Donelan has said that she is nonetheless keen to press ahead with the Bill and hopes to publish a draft "as soon as possible". Watch this space for updates on the Bill.  See our earlier blog on the proposals here. 

Nadine Dorries rebuked for failing to clarify incorrect evidence 

The Digital, Culture, Media and Sport Committee has published a Report which found that Nadine Dorries MP failed to reconsider incorrect evidence she had provided to the Committee in relation to her participation in a Channel 4 documentary.  Ms Dorries appeared in a four-part documentary series Tower Block of Commons in 2010 in which MPs spent time living in housing estates.  In May 2022 Ms Dorries gave evidence to the DCMS that some of the residents in the programme were actors.  Despite a subsequent investigation by Channel 4 which found that those in the programme were 'ordinary members of the public', Ms Dorries refused to clarify or substantiate her claims.  The Report found that Ms Dorries claims were not credible, and stated concern that 'Ms Dorries appears to have taken an opportunity, under the protection of privilege, to traduce the reputation of Channel 4.'

Quote of the fortnight:

"What keeps democracy alive, what ensures that this country works and is a country of which we can be proud, is the tradition of free speech and a free press and free enquiry"

- Michael Grove