This week the Independent Commission on Freedom of Information has published its report [pdf]. In anticipation of the release the government announced that there will be ‘no legal changes,’ Matthew Hancock, the cabinet office minister who commissioned the report, said “after 10 years we took the decision to review the Freedom of Information Act and we have found it is working well.”
The ‘Hands off FOI’ campaign launched by the Society of Editors with the backing of Press Gazette, celebrated the announcement. Bob Satchwell, executive director of the Society of Editors, said: “We have welcomed what appears to be a partial victory. Ministers have quite rightly backed away from restrictions to the Freedom of Information Act and have pledged to spread transparency throughout public services.” More than 43,000 people signed the campaign’s petition.
As The Justice Gap reported, still of concern to campaigners and journalists is the recommendation that the government’s veto against releasing sensitive information should be strengthened. The veto currently allows ministers to override the Information Commissioner or specialist Tribunal’s decision that there should be disclosure in the public interest.
The Panopticon blog has summarised the key recommendations of the report. Ministers will now need to review the recommendations made by the Commission, and decide whether or not to approve them.
The first issue of the New Day, Trinity Mirror’s magazine-style newspaper, was published this week. Roy Greenslade in the Guardian called it a ‘feel-good, colourful, sub-editorial confection that lives up to its promise to be a novel addition to the newsstand.’
News Corp boss Rupert Murdoch married Jerry Hall on Friday at Spencer House in London. There was extensive media coverage of the service of blessing at St Bride’s Church, off Fleet Street (“spiritual home of the media”). Guest Barry Humphries commented that it would be fourth time lucky for Mr Murdoch.
Data Protection and Data Privacy
This week the European Commission published the legal texts for the new framework for Trans-Atlantic Data Transfers, otherwise known as the ‘Privacy Shield.’ The Field Fisher Privacy and Information law blog said that it was ‘very good’ but also said that ‘whether that means it will succeed as a solution is an entirely different issue.’ Peep Beep said that ‘there are signs that it will live up to its hype, but only time will tell.’
In Germany data protection authorities have already started issuing proceedings against companies that are still transferring personal data to the US under Safe Harbour.
Hawktalk argues that Article 76 and Recital 112 of the GDPR should be implemented to keep Data Controllers ‘honest.’ It says it provides a real safeguard for data subjects and that it’s implementation ‘will be a litmus test as to how seriously all Member States (including the UK for the moment) want to protect the privacy of its citizens.’
The ICO has published an updated guidance on encryption.
Facebook is being investigated by the German federal cartel office, the Bundeskartellamt, for suspected anti-competitive behaviour stemming from breaches of data protection law.
In France, the French data protection authority has publicly issued a formal notice for Facebook to comply with the French Data Protection Act within three months.
Cory Doctorow has argued in the Guardian, that Apple’s fight with the FBI is only the beginning of a wider ‘privacy catastrophe,’ as tech firms who have gathered our data begin to make money out of them.
Surveillance and Information Gathering
The Government has introduced a new version of the Investigatory Powers Bill into Parliament. The Second Reading is expect to be Tuesday 15 March 2016. Full details of the Parliamentary procedure can be found here.
There were a wide range of posts and briefings about the new version of the Bill:
- The Register summed up the views of most commentators: “Son of Snooper’s Charter is just as bad as feared”.
- Liberty said that “this Bill still needs a huge amount of work. In fact it is so fundamentally flawed in its current form that it cannot be allowed to pass into law,” and that they will be “campaigning for mass surveillance provisions to be stripped out, and strong privacy safeguards to be introduced.”
- The Open Rights group said that “on first reading, it appears that the revised Bill has made minor revisions not the full redraft that many…have called for.”
- Nik Williams, a campaigner with Scottish Pen, wrote in the Herald that “the Investigatory Powers Bill has all the makings of bad law being made in haste.”
Paul Bernal has a series of posts about the revised bill:
- An independent review body for the IP Bill?
- The IP Bill: opaqueness on encryption?
- A little more on #IPBill encryption…
Statements in Open Court and Apologies
There have still been no statements in open court this term.
Newspapers Journalism and Regulation
Andy Burnham’s complaint against the Sun over undercover cash-for-access stories has been rejected by the IPSO. The offending articles were based on a sting by The Sun relating to the chairman of Muslims Friends of Labour Faiz UL Rasool. They said that Rasool told the undercover reporter, who was posing as a wealthy donor, that Burnham needed money to help his Labour leadership bid. The Sun reported that the fake donor met Burnham at his campaign headquarters when the Labour MP chatted and posed for photographers.
Burnham complained to IPSO that The Sun breached the Editors’ Code on ‘accuracy’, ‘opportunity to reply’, ‘privacy’ and use of ‘clandestine devices and subterfuge’ after . However IPSO said that the articles did not allege impropriety by Burnham, and that he was only ‘caught up in the row.’
Culture Secretary John Whittingdale is to meet with campaign group Hacked Off, after he said that a decision on Leveson part two will be made once all criminal proceedings have ended.
Last week in the Courts
The trial in Stocker v Stocker was heard by Mitting J on 29 February, 1 and 2 March 2016 with judgment being given on 3 March 2016). The Judge found in favour of the claimant and awarded him damages of £5,000. We had a post about the decision. There were reports on each day’s hearing in the Daily Mail
- Millionaire property developer is suing his ex-wife in a £700,000 libel case after she claimed on Facebook he had tried to strangle her NINE years earlier
- Woman being sued for libel by her millionaire property developer ex-husband over Facebook post accusing him of domestic abuse says he ‘pinned her down and throttled her’
- Man wins libel case over ex-wife’s Facebook claims but declines damages
The trial in the “Operation Elveden” case of Axon v Ministry of Defence was heard by Nicol J on 1, 2 and 4 March 2016. Judgment was reserved.
On 1 March 2016, Sharp and Hamblen LJJ heard a renewed application for permission to appeal in the case of Sloutsker v Romanova.
8 March 2016 Seminar on Surveillance and Human Rights, Senate House, Information Law & Policy Centre.
16 March 2016 Seminar: Openness in Britain 2016 – Where are we now?, Institute of Advanced Legal Studies, Information Law & Policy Centre.
Please let us know if there are any events you would like to be included on this list by email: email@example.com.
Media Law in Other Jurisdictions
In the case of Fleming v Advertiser-News (No.2)  SASC 26 the Court found that an allegation in the publications complained of that the plaintiff had engaged in criminal sexual behaviour was substantially true. Father John Fleming was subsequently suspended from the ministry as the Catholic Church launched its own investigation.
In other news New South Wales may become the first state to institute laws for invasions of privacy, after the State Parliament’s law and justice committee recommended that NSW should “lead the way” in Australia with laws of this type. Under the plan, a person could sue for damages if their privacy had been invaded intentionally or recklessly.
The Turnbull government has approved a media law shake up, scrapping two keys laws in a move which could unleash a wave of mergers. The changes will abolish the reach rule, which prevents mergers between regional television networks and their metropolitan affiliates, and the two-out-of-three rule, which stops any proprietor from owning a newspaper, radio station and television network in the same major market.
Denis Rancourt has written an article, originally for the Ontario Civil Liberties Association (OCLA), which states that Canadian Defamation Law is not compliant with International Law.
The Dominican Republic’s constitutional court has overturned the part of their defamation law that criminalised defamation of the government, but upheld the criminal prosecution for defamation of private individuals. Press freedom groups have offered praise for the ruling.
The huge damages being awarded in defamation cases by Irish courts could soon lead to the closure of a newspaper, warns a lawyer quoted in the Press Gazette. Awards of the size given to Monica Leech, a PR woman who sued the Evening Herald and received 1.25 million euros, coupled with the high costs of litigation and other pressures facing print media, could mean that one of these cases could soon lead to the closure of a newspaper.
A comment on a recent High Court judgement shows that the Courts will be reluctant to grant an injunction to prevent media from publishing defamatory material. The case of Philpott v Irish Examiner Limited ( IEHC 62), the judgment to consider the test to be applied where a plaintiff seeks an injunction under the Defamation Act 2009, shows that an injunction will only be granted in clear cases where the defendant has a weak defence (or none at all).
A court has dismissed a libel suit filed by Prime Minister Joseph Muscat against the Nationalist Party, over an electoral billboard saying that Muscat would freeze the minimum wage. They said this assertion was based on facts which were substantially true.
President of the PN Council Dr Ann Fenech filed a libel suit against the Labour Party over a press release which claimed that she had opened companies in Panama for her clients.
In the case of John Stringer, former Conservative Party board member, against the party’s former leader Colin Craig, Stringer’s counter claim has been struck out. Craig is suing Stringer over allegedly defamatory comments made by Stringer on television and in his blog last year. In turn, Stringer and lobbyist Jordan Williams are suing Craig in an Auckland court action over a pamphlet Craig distributed last July.
The South Korean government is being accused of using defamation laws to silence critics. Even though the constitution guarantees freedom of expression, defamation laws carry penalties that include prison if they are deemed not in the public interest. The number of criminal defamation cases filed has increased considerably under the current president Park Geun-hye, and last year the United Nations Human Rights Committee warned against South Korea’s “increasing use of criminal defamation laws to prosecute persons who criticize government action.”
In one of these criminal defamation cases, police have concluded that Kakao CEO Rim Ji-hoon is innocent of aiding and abetting incidents of online defamation, an allegation raised by Kang Yong-seok, a lawyer and a TV celebrity, the target of the postings.
The founder of defunct fitness chain California Wow Xperience has fired a defamation lawsuit against the Anti-Money Laundering Office (Amlo) and its chief over allegations he had defrauded customers and absconded with their cash.
Research and Resources
- European Data Protection Regulation – Information Sheet, Johanna Laas LL. M available at Privacy Europe
- Information Libertarianism, California Law Review, Volume 105, Derek and Jane Bambauer
- Death of defamation in England and Wales?, Tim Sales
- How First Amendment Procedures Protect First Amendment Substance 65 Catholic University Law Review, Vol. 185 (2015), Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-08, Erik Jaffe , Aaron H. Caplan , Robert A. Destro , Todd Graves , Alan B. Morrison , Eugene Volokh and David R. Stras, Erik S. Jaffe, PC; Free Speech and Election Law Practice Group , Loyola Law School Los Angeles , Catholic University of America (CUA) – Columbus School of Law , Graves Garrett LLC , George Washington University – Law School , University of California, Los Angeles (UCLA) – School of Law and Minnesota Supreme Court.
- Reputations at Stake – the German Federal Court’s Decision Concerning Google’s Liability for Autocomplete Suggestions in the International Context, Journal of Media Law, Volume 5, Issue 2, 2013, pp. 322-331, Corinna Coors, University of West London – Ealing Law School.
- Valuing Personal Data to Foster Privacy: A Thought Experiment and Opportunities for Research, Journal of Information Systems, Forthcoming, Juergen Sidgman and Malcolm Crompton, University of Wisconsin Oshkosh and Independent,
- Privacy, Autonomy, and Internet Platforms, Privacy in the Modern Age: The Search for Solutions 165-174 (Marc Rotenberg, Julia Horwitz, and Jeramie Scott eds., New Press 2015)., U of Maryland Legal Studies Research Paper No. 2016-10, Frank A. Pasquale III, University of Maryland Francis King Carey School of Law.
- Truth and Lies in the Workplace: Employer Speech and the First Amendment
Minnesota Law Review, Forthcoming, Helen L. Norton, University of Colorado School of Law.
- Governing Internet Expression: How Public and Private Regulation Shape Expression Governance, Ben Wagner (2013) Governing Internet Expression: How Public and Private Regulation Shape Expression Governance, Journal of Information Technology & Politics, 10:4, 389-403 Ben Wagner, European University Viadrina Frankfurt (Oder).
- The Right to Freedom of Expression: The Mother of Our Democracy Potchefstroom Electronic Law Journal, Vol. 18, No. 6, 2015, Willie J. van Vollenhoven
Next Week in the Courts
On Monday 7 March and Tuesday 8 March 2016 Mitting J will hear an assessment of damages in the case of White v Express Newspapers. The meaning of the words complained of was determined by Tugendhat J as long ago as March 2014 ( EWHC 657 (QB))
The following reserved judgments in media law cases are outstanding:
Monks v National Westminster Bank plc heard 28 and 29 January 2016 (Sir David Eady).
Axon v Ministry of Defence, heard 1, 2 and 4 March 2016 (Nicol J)