Take 10 - 21 October 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

Preliminary issue trial on meaning and reference in the libel claim between James Dyson and Channel 4 

Mr Justice Nicklin has heard arguments at a preliminary issue trial in the claim brought by Sir James Dyson and two of his UK companies, Dyson Technology Ltd and Dyson Ltd, against Channel 4 and ITN. The libel claim relates to the content of a Channel 4 News report, produced by ITN, which was broadcast in February this year, about alleged labour exploitation in Malaysia. The issues for determination at the preliminary issue trial are (1) the meaning of the broadcast and (2) the question of reference in respect of the corporate claimants. Hugh Tomlinson KC, acting for the claimants, submitted that the allegations made in the programme left viewers "in no doubt that there [had] been very serious wrongs in relation to workers in Malaysia and that Dyson [had] (at the very least) failed to take action to deal with [them].” Adam Wolanski KC, acting for Channel 4 and ITN, argued there had been “no suggestion whatsoever in the broadcast that [Sir James] has any knowledge of or culpability for Dyson [the company’s] relationship with its supplier ATA or for any events at ATA itself” and that there was nothing in the broadcast which identified the corporate claimants. Judgment was reserved.

Loss of control damages under the GDPR considered in new AG Opinion

An Advocate General's Opinion in a recent EU case has supported the Supreme Court's findings in Lloyd v Google that an individual would not be entitled to compensation for a breach of the Data Protection Act 1998 merely for the loss of control over their personal data, unless that individual can prove that the breach has caused material damage. In the EU case of UI v Österreichische Post AG, the AG concluded that Article 82 of the EU GDPR does not require that compensation should be recoverable merely for a contravention of the GDPR, and that there was no presumption of damage for such a breach. Compensation was available to vindicate a data subject's right if they had proof of damage, and such damage could also cover non-material damages, with non-material being more than "mere upset". The application of the principles under the EU GDPR is therefore closely aligned with the conclusions underpinning the decision in Lloyd v Google under the DPA 1998. Whilst untested, it seems reasonable to assume that the position would therefore be the same under the UK GDPR.

Newspaper pays out fraudulent libel against English financier 

The 'Corriere della Sera', Italy's most read newspaper has settled an action brought by Raffaele Mincione, an Italian financier with British Citizenship. The paper has paid 'substantial damages' and removed two articles concerning allegations of fraud and corruption in respect of the sale of properties in London to the Vatican. The newspaper had initially deployed a public interest defence, but its journalists apparently later conceded that they could not recall the sources of some of their information and had failed to authenticate documentary evidence, some of which was destroyed before the litigation commenced. The case provides yet another reminder of the importance of preserving journalistic notes and records both before, and after publication. 

High Court awards damages for data breach "at the lowest end of the spectrum"

In the judgment handed down in Driver v CPS, the High Court awarded the claimant damages of £250 for a breach "at the lowest end of the spectrum" of the DPA 2018. In June 2019, a CPS lawyer sent an email to a member of the public about a criminal investigation in which the claimant, Mr Driver, was a suspect. The email confirmed that a file on "Operation Sheridan" had been passed to the CPS for consideration, but did not name the Claimant directly. Nonetheless, the Court held the email indirectly identified Mr Driver and that the disclosure to the member of the public was not necessary or proportionate so was in beach of both the first and second data protection principles.  The claim succeeded under the DPA 2018 but failed in misuse of private information because the information contained in the email was already in the public domain, and the Claimant could not show that he had a reasonable expectation of privacy in respect of the information. On damages, the Court rejected Mr Driver's evidence that the breach in question could "reasonably or properly have caused him anything like the level of anguish which he claimed" and awarded £250 for the "very modest degree of distress" which resulted. The Claimant did not submit any expert medical evidence but relied on an assertion in his witness evidence that he had visited his GP for depression and anxiety though was unable to show that these illnesses were caused by the data breach, and not the underlying police investigation. The full judgment is available here. 

Fixed Costs coming in April 2023

The Government is due to implement Sir Rupert Jackson's proposals for an extension of the Fixed Costs Regime as set out in his 2019 consultation.  The proposals include an expansion of the fast track to include "intermediate" cases, allocated to one of four bands according to complexity, and valued between £25,000 and £100,000, and where the trial is listed for 3 days or less (amongst other things). The fixed costs regime will likely not apply where there are wider factors such as reputation in play, so it is unlikely that complex defamation claims will be subject to the new regime. However, simpler data breach and privacy claims are likely to fall within the remit of the new regime.  It is hoped that the new fixed costs regime will help to control often exorbitant costs of litigation, but it appears likely that there is sufficient scope within the new rules for parties to justifiably extricate themselves from the fixed costs regime.

Chatter

Wagatha Christie: Channel 4 drama cast announced

Have you ever asked yourself "who would play me in a movie?" Well, for the lawyers in the Wagatha Christie saga, their dreams have become a reality.  Channel 4 has announced the cast for its upcoming two-part drama depicting the Wagatha Christie trial, Vardy v Rooney: A Courtroom Drama. Michael Sheen is set to play Coleen Rooney's counsel David Sherborne, while Rooney herself will be played by This Is England actress Chanel Cresswell and Rebekah Vardy by Harry Potter star Natalia Tena. The drama will be scripted from the trial transcripts and will air later this year. Several documentaries about the case are also in the pipeline. Rebekah Vardy has filmed a tell-all interview with Discovery, due later this autumn, and Disney+ has a three-part series in the works, featuring "exclusive access" to Coleen Rooney. Given the latter isn't scheduled to air until autumn 2023, more than a year after judgment was handed down in the case, the Wagatha Christie saga looks set to continue to feature in the headlines for some time to come. A play is also set to be staged in the West End for 'one-night only', and is being brought to us by the producers of Agatha Christie's Witness for the Prosecution. 

Murdoch reportedly "re-uniting" media empire 

Reuters and other news outlets are reporting that Rupert Murdoch is looking to re-unite his News Corp and Fox companies, nearly a decade after the publishing and TV news arms of his media empire were separated. Both News Corp and Fox have confirmed that a special committee has been convened to explore the possibility of a merger. The reason a merger is under consideration has yet to be explained but there is speculation that the move would reduce costs and provide economies of scale across the two businesses, enabling them to better compete in the market. 

Tiktok introduces live broadcast adult-only option

Creators of live broadcasts on TikTok will be able to restrict viewers of their content to over 18s only, following the roll out of an update by the platform in the coming weeks. In addition, the creators themselves will now need to be aged 18 years or over, an increase from the current lower limit of 16 years. TikTok hopes the additional safety measure will "further protect the younger members of our community as they start and build their online presence."

CMA rules Meta must sell Giphy

The RPC media team are very disappointed to hear that they will no longer have a catalogue of GIFs at their fingertips to communicate their feelings on WhatsApp and other Meta products. The CMA has issued a final ruling, ordering Meta to sell off Giphy, the social media GIF library. This second ruling confirms the original CMA finding from November 2021, which concluded the takeover could harm social media users and advertising. Stuart McIntosh, chair of the independent inquiry group carrying out the remittal investigation, concluded in this latest ruling that the deal "would significantly reduce competition in two markets" and that it would "give Meta the ability to further increase its substantial market power in social media”. Meta said the ruling was "disappointing" but that it would not issue any further challenge to the decision. A copy of the final ruling and additional background on the investigation can be found here.

BBC celebrates 100 years

The BBC celebrated its 100th anniversary on Tuesday (18 October) and is marking the occasion with various specials of BBC favourites, including Strictly Come Dancing and Doctor Who, as well as a two-part documentary series How the BBC began. The centenary has also sparked a range of articles and commentary in the media on the BBC's past as well as its future. The Mirror, for example, charted the history of the BBC in 100 facts across two articles (here and here) and the BBC News Media editor's highlighted five future challenges the BBC faces at it turns 100 (here).

Quote of the fortnight:

The lettuce won"

The Daily Star, 20 October 2022