The biggest media law story of the week was the decision of the Supreme Court to reinstate the injunction in the case of PJS v News Group Newspapers. We had a summary of the decision and posts by Ashley Hurst and Gavin Phillipson. We also had a round up of the media news stories about the decision.
The decision produced a high level of actual and synthetic media outrage that against the assertion of privacy rights by the Courts. The Sun said that the Supreme Court had created a “charter for cheating celebs” – but inexplicably failing to remind its readers that all its “public interest arguments” in favour of publication have been rejected by independent judges.
The Sun referred to “classic Sun stories” (that is “kiss and tells”) which it said “we would not longer be able to publish” under the ruling. As Steve Barnett pointed out in a post last week, the public’s views on privacy are in line with those of the judges rather than those of the Sun.
In the Guardian, Roy Greenslade looked at the newspapers’ reactions to the judgement, and examined the arguments that injunctions are restrictions on press freedom. Zelo Street published a blog post on the subject, which was less sympathetic to the Sun’s privacy invading. The FieldFisher Scandalous blog examined the PJS decision in detail. The UK Human Rights blog and Panopticon, also had posts on the case.
Another privacy injunction was granted against the Sun by the High Court on 14 May 2016 by Warby J in the case of DMK v NGN ( EWHC 1646 (QB)). This prevented the identification of the defendant in proceedings in the Chancery Division and the publication of information relating to those proceedings. There was a news item about the case in the Press Gazette.
According the Press Gazette, The Sun is involved in a third high-profile privacy legal fight – against a celebrity who wants to keep secret details of a legal complaint against him for sexual “misconduct”. The high-profile individual settled an employment tribunal case brought against him by a former hairdresser in February.
There were also a number of reports on Sunday 22 May 2016 about another privacy “injunction”. The Mail had the headline “Family man boxing champion takes out injunction to prevent him being named over hotel sex with prostitute“. The story was to be published by the Daily Star on Sunday but, curiously, that newspaper makes it clear that there was no injunction – only a threat by the former boxing champion’s lawyers. The Daily Star on Sunday appears to have capitulated in the face this complaint that it was planning to run a privacy invading story.
Croydon Advertiser reporter Gareth Davies has won his two-year battle to get a “prevention of harassment” notice against him rescinded. Davies doorstepped convicted fraudster Neelam Desai once and sent her two emails over claims she had conned people out of thousands of pounds. She complained to the police and in March 2014 three officers visited Davies at work and warned him that he could be arrested if he contacted her again.
Trinity Mirror’s decision to hand over details of a journalist’s prison service source to police was at the centre of a bid yesterday to overturn an Operative Elveden conviction. Prison officer Robert Norman, 54, of Swanscombe in Kent is one of 32 public officials who were convicted of misconduct in public office under the Met’s Operation Elveden after receiving payments from news organisations. Barrister Keir Monteith, for Norman, told the three-judge panel, led by Lord Chief Justice Lord Thomas of Cwmgiedd, that the appeal hinged on the decision of Mirror Group Newspapers to “give up” details of the prison officer.
The German Federal Cartel Office (a competition agency) has opened an investigation into whether Facebook abused their alleged dominant position in social networking by violating data protection laws.
Data Protection and Data Privacy
Google has appealed against the CNIL’s (Commission Nationale de l’Informatique et des Libertés) ruling that the so-called ‘right to be forgotten’ has global reach, requiring Google to deindex links not just within Europe but across the world. The CNIL has argued that the global filtering is the only way to fully enforce the right to be forgotten. Google’s general counsel has said
“As a matter of both law and principle, we disagree with this demand. We comply with the laws of the countries in which we operate. But if French law applies globally, how long will it be until other countries – perhaps less open and democratic – start demanding that their laws regulating information likewise have global reach?”
Panopticon reports on the Advocate General‘s view that dynamic IP addresses can constitute personal data.
The FieldFisher Privacy, Security and Information Law blog has published a post dispelling some of the common misconceptions about the GDPR. They have also published a four step guide to becoming GDPR compliant.
An article on Peep Beep looks at geolocation data and the legal relationship between location data and data protection.
The new Passenger Name Record (PNR) Directive is to apply from 2018.
A group of Danish researchers have released a data set on nearly 70,000 users of the popular dating website OK Cupid, arguing that it is “public data.” Woodrow Hartzog has published an article saying why it is not okay for researchers to scrape information from websites in this way, and why there is no such thing as “public data.”
Surveillance and Information Gathering
An article on the Data Privacy Alert questions whether the fourth amendment applies to emails, and concludes that the American government’s current practice of secretly obtaining private emails by subpoena is at odds with the fundamental principles of the Fourth Amendment.
In San Francisco the Electronic Frontier Foundation (EFF) has urged a federal judge to let the public see records about “Hemisphere,” a massive drug enforcement database containing decades of telephone metadata. The “Hemisphere” programme was uncovered by journalists from the New York Times in 2013.
A new analysis from Stanford computer scientists shows that it is possible to identify a person’s private information – such as health details – from metadata alone.
Statements in Open Court and Apologies
There were no statements in open court this week.
Newspapers Journalism and Regulation
The Daily Star has been censured by IPSO after it published untrue rumours of a romance between Pippa Middleton and Prince Harry. The front page article was found to be inaccurate by the press regulator. In the Guardian, Roy Greenslade questioned why the regulator took so long, five months, to deliver its ruling.
The Sun has also been censured by IPSO for their article “Queen Backs Brexit.” Dominic Ponsford in the Press Gazette praised IPSO for the ruling, but criticises editor Tony Gallagher for defying the ruling saying that his “defiance undermines press self regulation. Gallagher said
“I don’t accept that we made an error at all. We made a judgement that the headline was right and that it was backed up by the story. We knew more than we put in the public domain. The sources were so impeccable that we had no choice to run the story in the way we did.”
However Roy Greenslade in the Guardian said that Gallagher “managed to make clear his rejection of Ipso’s ruling while embracing his paper’s membership of Ipso.” He also argued that the Today Programme’s Mishal Husain did not go far enough in challenging Gallagher in her interview with him on the Radio 4 show.
The Telegraph, Mail and Express face investigation from IPSO over a complaint that they failed to take care when publishing articles about the European Union.
Last week in the Courts
As already mentioned, on 16 May 2016 Warby J handed down judgment in the case of DMK v News Group Newspapers  EWHC 1646 (QB)). A further hearing took place in the case on Friday 20 May 2016. Judgment was reserved.
On 16 May 2016 Sir David Eady heard a PTR in the case of Bloor v Beresford.
The CMC in the Second Wave of the Mirror Phone Hacking litigation before Mann J concluded on 16 May 2016.
On the same day Warby J heard an application for a stay in case of Barron v Collins – the libel claim by three Labour MPs against a UKIP MEP. That day he handed down a judgment refusing the stay application because the Court had not been approach formally by the Parliament ( EWHC 1166 (QB)). However, the following day such a notification was received and the case was stayed. We had a news item about the case.
On 17 and 18 May 2016, Warby J heard an assessment of damages in the case of Barron v Vines. Judgment was reserved.
On 17 May 2016, Sir David Eady heard application in the case of Monks v National Westminster Bank plc.
On 18 May 2016, Nicol J heard an application in the case of Johnson v Ministry of Justice. The Judge reinstated a claim for defamation based on the erroneous inclusion of the claimant on a list of individuals subject to civil restraint orders.
As already mentioned, on 19 May 2016 the Supreme Court gave judgment in the case of PJS v News Group Newspapers Limited, allowing the claimant’s appeal against the order of the Court of Appeal discharging a privacy injunction.
On the same day Sir David Eady heard an application in the case of Ghuman v CE Security.
Please let us know if there are any events you would like to be included on this list by email: firstname.lastname@example.org.
Media Law in Other Jurisdictions
On 13 May 2016 McCallum J handed down judgment in the case of Bolten v Stoltenberg  NSWSC 596 in which she considered, inter ali, the defamatory impact of the terms “captain’s call”. The Judge accepted that following the use of the term by former PM Abbott, it meant a decision made by a political leader without consultation.
Lawyer and businessman Nick Di Girolamo has dropped his defamation lawsuit against Fairfax media and three of its reporters.
A Queensland judicial committee has recommended some filming of proceedings including some sentencing remarks and appeal hearings, as well as the appointment of a court information officer.
Australian actor Rebel Wilson is suing the magazine publisher Bauer Media for defamation after Women’s Day published two articles that claimed the actor had lied about her age, name and background, and had fabricated stories from her childhood.
The former Queensland premier Campbell Newman has cost the taxpayer more than half a million dollars costs to settle a defamation suit over his comments when premier that lawyers for bikies were “part of the criminal gang machine”. He has settled the suit brought by solicitors Chris and Daniel Hannay, after responding in February 2014 to a question about reports the Hannays had advised clients not to appear in court together for fear of being arrested under anti-association laws.
A defamation lawsuit brought by barrister Lloyd Rayney against the state of Western Australia remains unresolved despite two hours of mediation between lawyers. The Perth barrister is suing the state after a senior police officer named him as the prime suspect in the death of his wife Corryn in August 2007.
Justin Bieber is being sued for defamation by an event promoter in Montreal after they allege that their reputation was “destroyed by one single tweet” from the musician. There is a claim for damages of Can$650,000.
There continues to be much debate in Canadian courts about the battle between protecting copyright online whilst still protecting the privacy of online users.
Hong Kong’s privacy regulator has said that it will begin a review of its data privacy rules over the next 18 months. They may update them in line with technological developments and changes in European regulation, as Hong Kong’s data privacy legislation was drawn up nearly twenty years ago.
A marketing company is fined for using personal data in marketing without the customers consent, and failing to comply with an opt-out request.
It has been noted that businessman Denis O’Brien has initiated 21 sets of proceedings in the High Court since 2010. In an article in the Guardian, Roy Greenslade has compared O’Brien’s legal activity to that of Robert Maxwell’s in Britain. He says that ‘Media owners have a right to protect their reputations but, in so doing, they must also take account of their unique position in society…Their major responsibility is to uphold press freedom, not to hobble it.’
Avigdor Liberman, the founder and leader of the secular-nationalist Yisrael Beiteinu party and the current Defence Minister of Israel, has sued Channel 10 military reporter Or Heller for running a story claiming that he had leaked the secret draft of the state comptroller’s report on the 2014 Gaza War. He is seeking NIS 140,000 in damages for defamation.
Debate has erupted in South Korea on the ‘right to be forgotten’ after a popular rapper MC Mong has been embroiled in a military dodging scandal. A question he wrote on a website in 2005 asking if he lost a certain number of teeth would he be exempt from military service is still online. After years of consultations about the right to be forgotten, guidelines were announced last month which will go into force next month.
The government has said that it will be suing the Nationalist Party following “Dirty Allegations” made at a press conference this morning. The government said the Opposition is trying to deprive Malta of the biggest investment that has ever been made in the energy sector via “untrue and dirty allegations”.
Former MP Jeffrey Pullicino Orlando has been ordered to pay €1,000 in libel damages to lawyers Andrew Borg Cardona and Peter Caruana Galizia after finding that a Facebook post he uploaded a few days before the last general election was libelous.
A 17 year old in Shawnee, Kansas has been charged with 11 counts of breach of privacy for breaching the privacy of their fellow high school students. According to the complaint the teen used a camera ‘for the purpose of viewing the body of, or the undergarments worn by that other person, without the consent or knowledge of that other person, with intent to invade the privacy of the other person…”
Research and Resources
- Law+tech news round up, MsLods, 16 May 2016
- Privacy and Data Protection: The Rights of Economic Actors , The EU Charter of Fundamental Rights as a Binding Instrument (eds. Bernitz, de Vries and Weatherill, Hart Publishing, 2015) 287, Peter Oliver
- Human Rights of Ex-Offenders in American and International Law, Ken Stalkfleet, Chicago Legal Clinic, Inc.
- The Internet, User Autonomy and EU Law Angela Daly , Queensland University of Technology – Faculty of Law
Next Week in the Courts
The trial in the case of Theedom v Nourish Training will begin before Warby J on 23 May 2016 with a time estimate of 3-4 days. The case follows a decision in December 2015 on a preliminary issue that the claimant had established “serious harm” (see our post here).
On 24 or 25 May 2016 the Court of Appeal (Laws, King and Lindblom LJJ) will hear the appeal in the case of Simpson v Mirror Group Newspapers. This an appeal against a decision of Warby J handed down on 27 January 2016 ( EWHC 126 (QB)).
On 25 May 2016 there will be an application in the case of Callaghan v Express Newspapers.
The following reserved judgments in media law cases are outstanding:
CG v Facebook Ireland Limited, heard 4 and 5 April 2016 (Morgan LCJ, Gillen and Weatherup LJJ)(Northern Ireland Court of Appeal)
Economou v De Freitas, heard 12 May 2016 (Warby J)
Barron v Vines, heard 17 and 18 May 2016 (Warby J)
DMK v News Group Newspapers, heard 20 May 2016 (Warby J)
This week’s round up was compiled by Georgia Tomlinson who is a researcher.