Take 10 - September 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

Rachel Riley decision upheld

The Court of Appeal upheld Mr Justice Nicklin's decision in favour of the Claimant in the libel case between Rachel Riley v Laura Murray. The claim concerned a Tweet by Ms Murray, labelling Ms Riley as "dangerous as she is stupid". The court upheld the trial judge's decision that the defences of truth, honest opinion and public interest failed. The entire judgment is worth considering, but there is a particularly interesting analysis from Warby LJ on the third condition of the honest opinion defence on s3(4)(a) Defamation Act 2013. The basis of the opinion (that must be indicated in the statement complained of, pursuant to the second condition of the defence) need not be proved as true by a Defendant, but the facts on which an honest person could have held that opinion (required under s3(4)(a) in the third condition), which do have to be proved by a Defendant, must be linked to the basis. The reference to 'any fact' should not be read literally. Ultimately this particular issue did not fall for determination in the appeal because the opinion was expressly and exclusively predicated on proving the truth of the specific factual allegation, which failed, and "no 'other fact' could come to the rescue". Although Ms Murray's Tweet was found to be in the public interest, the section 4 defence failed as her belief that publication of her Tweet was in the public interest was not reasonable because she had misrepresented what Ms Riley had said. The trial judge’s award of £10,000 in damages was also upheld.

Judgment handed down in Wright v McCormack

Chamberlain J has handed down his judgment in the claim brought by Dr Craig Wright against cryptocurrency blogger Peter McCormack whose tweets and YouTube broadcast in 2019 disputed that the Claimant is the true author of Bitcoin: Peer to Peer Electronic Cash System, Satoshi Nakamoto. As a truth defence was abandoned by the Defendant for financial reasons, the main issue to be determined was whether the publications complained of had or were likely to cause serious harm under s1(1) Defamation Act 2013. The judge determined that the threshold had been met, based on replies and retweets to the Defendant's publications and the extent of publication. However, the Claimant was found to have advanced a "deliberately false case" on serious harm and was therefore awarded just £1 in nominal damages, following the ruling in Joseph v Spiller [2012] EWHC 2958 (QB) where, similarly, the Claimant succeeded in the action but was found to have misled the Court and the Court determined that there would be no injustice to the Claimant if he was awarded only nominal damages. A consequential hearing to determine the costs of the action is to be listed. RPC acts for Peter McCormack. 

Rwanda asylum policy passages must be revealed, says the High Court

In Judicial Review proceedings brought against the Government for its controversial policy to send asylum seekers to Rwanda, the Foreign Office has lost its bid for protection of policy documents under public interest immunity, which would have held back 10 passages of two internal documents from disclosure, following submissions made by the Guardian, BBC and the Times. The Foreign Office argued that the documents would "damage international relations" and "breach national security" if uncovered, but media organisations and the Claimants argued that disclosure was in the public interest. Lord Justice Lewis declined to grant immunity to 6 out of the 10 extracts but granted it for the remaining four. He held that some of the material was "already in the public domain" so could cause no further damage, and in relation to the remaining material, he recognised the "strong public interest in not undermining international relations with a friendly state (Rwanda). Nonetheless that consideration is outweighed by the public interest in ensuring access to relevant information in this litigation."

Gary Neville referred to Attorney General over social media post during Ryan Giggs trial

Gary Neville is facing the possibility of contempt proceedings following a tweet published by the former footballer at the start of the trial against Ryan Giggs. The matter was referred to the Attorney General for further consideration by the trial judge, who noted that "given the author is a person with a high public profile and his social media account has 1.5million followers, it could be seen to be an attempt to influence ongoing criminal proceedings and could be Contempt of Court". Mr Neville's agent stated that the comment "was not about the case, but was referring to the Glazers [Manchester United's owners]".  The incident serves as a reminder to avoid publicly commenting on ongoing court proceedings, via social media or otherwise.

Reporting restriction lifted on 11-year old murder victim

An 11-year-old alleged murder victim can now be named as Mikey Harrison, after reporting restrictions were lifted by HHJ Nirmal Shant QC under Section 45 Youth Justice and Criminal Evidence Act 1999. The victim was found seriously injured in Shipley Country Park in Heanor, Derbyshire, on June 18. Mikey's stepfather, Michael Harrison, appeared in court on the 2 August charged with his murder. The 41-year-old was not required to enter any plea during a short hearing conducted over video link to HMP Nottingham. PA Media applied for the victim's identity to be revealed, which was granted by HHJ Nirmal Shant "in the interests of public justice". This follows a trend of media publications successfully challenging reporting restrictions (see the cases of Craig Mulligan and George and Archie Tilley).

Chatter

Cabinet reshuffle 

The new Prime Minister, Liz Truss, has appointed Michelle Donelan as Culture Secretary following Nadine Dorries' resignation. One of Ms Donelan's first tasks will be to tackle the Online Safety Bill which was well underway through the legislative process until it was paused following the resignation of Boris Johnson. Given Ms Truss' early comments in support of the privatisation of Channel 4, it is an issue that is unlikely to go away for the time being, although it may be seen as less of a priority with other ongoing issues facing the new Prime Minister. Ms Truss has also appointed Brandon Lewis to the post of Justice Secretary, with Dominic Raab – who was a key figure in the potential SLAPP and Human Rights Act reform (see below) – moving on.  Michael Ellis QC, the former Solicitor General, is the new Attorney General.

Wimbledon spectator to take tennis star to court 

Disgruntled spectator, Anna Palus, who was temporarily removed from her seat at the men's final of Wimbledon in July, is set to take legal action against Australian tennis player, Nick Kyrgios.  Mr Kyrgios accused Ms Palus of being "drunk out of her mind", with Kyrgios telling the umpire that she, "looks like she's had 700 drinks, bro". He also accused Ms Palus of distracting him during the match to which the Polish lawyer rebutted that she only had two drinks and was simply trying to "encourage him". In a press statement on 23 August 2022, Ms Palus, who has instructed Brett Wilson, claimed that she and her family suffered "very substantial damage and distress" as the allegations were broadcasted and published to "millions around the world". 

Bill of Rights to be shelved 

The Bill of Rights Bill, which was due before the House of Commons for a second reading on 12 September and aimed to reassert the primacy of UK courts in human rights has been shelved by the new Government. The Bill would have strengthened the right to freedom of expression through clause 4 in particular, which required a court to "give great weight" to protecting freedom of speech. The provision may have marked a departure from the traditional balancing exercise between the Convention rights enshrined in Articles 8 and 10, giving a publisher defendant a potential head start over a privacy claimant. It is presently unclear whether Liz Truss will introduce a revised Bill of Rights.

Ex PM's complaint against the Spectator dismissed by IPSO

Gordon Brown's complaint against the Spectator regarding the allegation that he was paid more than £100,000 by red-listed Russian bank, Sberbank, has been dismissed by IPSO as it was not in breach of Clause 1 (Accuracy) of the Editors' Code. In addition to alleged inaccuracies, Mr Brown also complained that he was given just one hour to comment on the content of the article and was not informed of the purpose for which comment was being sought, nor that the proposed article was going to be published by The Spectator. IPSO noted that whilst there is no formal obligation to seek comment under the Code, publishers should consider whether their approach for comment is compliant with the requirement to "take care" under Clause 1(i).

FOI Delays - Watchdog takes action against Government departments 

The Information Commissioner's Office (ICO) has issued an enforcement notice against the Department for International Trade (DIT) for persistent failures to respond to FOI requests within the statutory time limit. An investigation found that in Q1 of 2022, the DIT issued late responses in more than half of the requests it received. Under the terms of the enforcement notice, it must now respond to any outstanding requests older than the 20 working-day time limit, within 35 days of the enforcement notice, and to devise an action plan to mitigate future delays. The Department for Business, Energy, and Industrial Strategy (BEIS) has also been given a practice recommendation to improve its performance after investigations found that the BEIS' internal procedures were the cause of delayed responses. 

Quote of the fortnight:

"A conclusion that a witness has given deliberately false evidence should not be drawn lightly. There are times, however, when the application of Occam’s razor impels such a conclusion. In this case, there is no other plausible explanation."

Mr Justice Chamberlain at [110] of Wright v McCormack