The most striking legal story of the week was the reporting of the Administrative Court’s ruling on Article 50 and the Royal Prerogative ( EWHC 2768 (Admin)). Hysteria broke out across the Europhobic tabloid press with the judges being dubbed “the enemies of the people”.
The Zelo Street blog commented that “the rage of the Europhobic press has spilled over this morning into xenophobia and full-on racist bigotry. Added to this has been the equally miraculous transformation of many papers and their journalists into willing channellers of Vladimir Ilyich Lenin“. We had a post from Gavin Phillipson, “Enemies of the People: MPS and press gang up on the constitution over High Court Brexit ruling”
The InFacts blog pointed out “5 things that the press got wrong on the Article 50 judgement.” Roy Greenslade in the Guardian also points out the contradictory nature of the condemnation of article 50 in the Mail, Telegraph, Express and Sun, which he says are “hailing and decrying parliamentary sovereignty according to their needs”. Left Foot Forward also pointed out that in the original online story in the Daily Mail about the article 50 ruling, they referred to the judge’s sexuality, before removing it.
On social media Gary Lineker has led the charge against the Daily Mail’s reaction, calling its declaration “quite possibly the biggest overreaction in newspaper history”. There was also intense social media abuse of the claimants.
Meanwhile the under pressure Secretary of State for Culture Media and Sport, hard on the heels of her unconvincing performance at the DCMS Committee announced a “consultation” on Leveson Part 2 and the bringing into force of Section 40 of the Crime and Courts Act 2013. The Press Gazette has pointed out that publishers will welcome this consultation, as it opens the way for the press regulation costs penalties law to be thrown out altogether or watered down.
However, the campaign group Hacked Off condemned the consultation, commenting that “This “consultation” is no more than an attempt by the Government to re-run the Leveson Inquiry, but with a conflicted Government Minister replacing an independent Judge. That is the last way decisions over press regulation should be taken.”
Tom Watson said it was “deeply regrettable” that the victims of press intrusion now face a further wait for a decision”.
Legislation providing for partial implemention of section 40 has already won the support of the House of Lords after Baroness Hollins put through an amendment to the investigatory powers bill, which would bring about cost protection for the victims of phone hacking.
On 4 November 2016, Warby J gave a judgment indicating the Court’s approval of the orders made on the settlement of the case of PJS v News Group Newspapers  EWHC 2770 (QB)). The settlement was reported in the Guardian. The Zelo Street blog pointed out that while the Sun on Sunday reported the injunction itself, it has not reported the fact that they failed to overturn it and have had to pay damages and the other sides costs.
The News Media Association has said there are “grounds for judicial review” of the decision to recognise Impress as a state-approved press regulator. It has not, however, yet written the required judicial review pre-action protocol letter.
Blackpool FC’s owners have dropped a defamation case against fan Jeremy Smith, who was being sued for his part in a protest where he held a doctored front page of the Blackpool Gazette with an Owen Oyston (one of the owners) interview stating “We are not thieves”. They also had to pay his costs. Karl Oyston, Owen Oyston’s son and owner of the club has admitted ‘We shouldn’t have sued Jeremy Smith.’
The European Commission has published a draft regulation prohibiting geo-blocking by online traders and content publishers.
A solicitor has been rebuked by the Solicitors Regulation Authority (SRA) for a series of social media posts, one of which boasted of a “great win” over the parents of a vulnerable child.
Data Protection and Data Privacy
UK culture secretary Karen Bradley has indicated, in comments made in parliament, that organisations can expect the GDPR to apply directly in the UK, at least for a time, despite the UK’s move towards Brexit.
However, Hawktalk blog has said that the UK decision to implement the GDPR does not guarantee an adequacy decision, post Brexit.
French privacy advocacy group La Quadrature du Net, non-profit Internet service provider French Data Network and its Federation FDN industry association have now challenged the adoption of the Privacy Shield pact by the European Commission at the Luxembourg-based General Court, following in the steps of Irish group Digital Rights Ireland.
Exchange Wire looks at some of the biggest stories in the European digital advertising space, including the case of EU data protection vs Facebook-WhatsApp.
Information commissioner Elizabeth Denham has welcomed the UK government’s confirmation that it will implement the GDPR despite the outcome of the UK referendum.
ReedSmith has pointed out out that Karen Bradley also observed that there could be opportunities post-Brexit for UK law to develop to help British businesses by finding new approaches to the “burdensome” aspects found in some EU laws, while maintaining adequacy and making sure British businesses can still work with the EU.
The Article 29 Data Protection Working Party has expressed concerns over Yahoo’s alleged systematic email surveillance and the leak of 500 million user credentials.
Newspapers Journalism and Regulation
The former Number Ten head of communications Alastair Campbell, has written a hard hitting article for GQ explaining why the Daily Mail, the country’s most influential (and conflicted) newspaper, continues to have such a damaging effect on British politics and culture.
The Brett Wilson media law blog has examined Leveson 2 and Section 40 libel costs in wake of the announcement of the consultation on Leveson.
An undercover investigation by The Sun into a man selling health care diplomas to students, which could be used to apply for degree courses, did not breach the Editor’s Code, IPSO has ruled.
Last week in the Courts
On 31 October 2016, Warby J handed down judgment in the case of Suresh v Samad  EWHC 2704 (QB)).
The trial in the case of Shakil-Ur-Rahman v Ary Network Ltd & Anor began on 1 November 2016 and continued all week. It is part heard and is expected to end today. There was a 5RB news item about the trial.
On Friday 4 November 2016 Nicol J handed down judgment in the case of ERY v Associated Newspapers Ltd ( EWHC 2760 (QB)), continuing an interim injunction restraining publication of information that the police are investigating the claimant’s suspected involvement in financial crime. There was a news report on the 5RB website. The Mail on Sunday – which had told the judge it had no intention of publishing the story – nevertheless ran a piece under the headline “The gagging of justice: A millionaire was interviewed under caution by police over possible financial crimes… but we can’t tell you his name because a judge slapped a gagging order on us“. It also ran a piece by media lawyer Susan Aslan “How chilling when the Press can’t report the truth”.
On the same day there was an application in the case of Holyoake & Anor v Candy & Ors before Warby J. Judgment was reserved.
We have already mentioned the judgment in PJS v News Group Newspapers ( EWHC 2770 (QB)) also handed down on Friday 4 November 2016.
9 November 2016, Information Law and Policy Centre’s annual workshop and lecture. To register for the afternoon workshop this Eventbrite page. To register for the evening lecture this Eventbrite Page.
1 December 2016, Event: Internet & Social Media Law 2016, Grange Tower Bridge Hotel, London. This conference brings you the latest updates and developments in light of such things as the Digital Single Market, the Investigatory Powers Bill, and the legal implications of Brexit.
8 December 2016, Article 19 event: 250 years of freedom of information, Free Word Centre.
Media Law in Other Jurisdictions
In his blog Dr. Michael Geist, Law Professor at the University of Ottowa, has written that trust in Canadian surveillance agencies has been ‘irreparably harmed’ after recent revelations in Canada about the surveillance of journalists.
The Quebec government has moved quickly with a series of measures to try to restore confidence in the judicial system and protect press freedom amid a widening controversy over the surveillance of journalists by police.
An Alberta judge has reserved her decision over who should pay legal costs in a successful defamation lawsuit by former journalist Arthur Kent against Canada’s largest newspaper chain, Postmedia.
The French Court of Appeal has ordered Laure Pora, formerly president of the Paris branch of the AIDS Coalition to Unleash Power (ACT UP), to pay €800 to anti-LGBTI group La Manif pour tous for describing the organisation as homophobic.
Irish Minister for Justice Frances Fitzgerald has announced a long-awaited review into defamation law in the country. Currently, unlike in the UK, there is no limit on financial damages that can be awarded in Irish High Court rulings. Vincent Crowley, chairman of NewsBrands Ireland said that Ireland’s current libel laws are a “sword hanging over the head of every national newspaper in this country”.
A solicitor and Revenue Sheriff is suing RTÉ and a plumber who allegedly referred to him on the late broadcaster Gerry Ryan’s Show as having seized €3,000 worth of goods from a wrong house.
Rape Crisis Network Ireland (RCNI) has notified Tusla, the Child and Family Agency, that they are putting the privacy and data protection rights of survivors of sexual violence at risk.
Cricketer Yuvraj Singh’s mother is to file a defamation case against Akanksha Sharma, a singer and performer, and her former daughter-in-law.
Inspector Warren Williams, head of the Jamaica Constabulary Force’s Communication Forensic and Cybercrime Unit, has said that cyber-defamation should be a criminal offence.
The Kenyan Government has launched a complaint against the Nation Media Group (NMG) for alleged skewed reporting and defamation.
A court has ordered the former editor of the Nationalist party newspaper In-Nazzjon to pay €4,000 in damages to Silvio Scerri, once chief of staff to minister Manuel Mallia, for falsely alleging that Scerri’s political interference had led to the resignations of the Head of the Security Services and his deputy.
News Group, now News UK, has been denied leave to ask the Supreme Court to overturn the defamation verdict which saw Tommy Sheridan awarded £200,000 in damages.
A journalist for Switzerland’s most-read daily newspaper, 20 Minutes, has been found guilty after he incorrectly described a rock band as “extreme right-wing” – a term considered defamatory under Swiss law.
One of Tanzania’s leading musicians, known as Lady Jaydee, has been ordered to apologise to directors of Clouds Media Group Joseph Kusaga and Ruge Mutahaba after three years of legal battle.
A federal court jury decided Friday that a Rolling Stone journalist defamed a former University of Virginia associate dean in a 2014 magazine article about sexual assault on campus that included a debunked account of a fraternity gang rape. Former dean Nicole Eramo wants damages of $7.5 million from the magazine.
A Playboy model who used social media to shame a woman at her gym was charged with invasion of privacy by the Los Angeles city prosecutor on Friday, just three months after her Snapchat post mocked the 70-year-old.
Hulk Hogan will be receiving at least $31 million to settle his privacy case against Gawker, after the media company published his sex tape, according to court documents.
Research and Resources
- Search Engine Liability for Autocomplete Suggestions: Personality, Privacy and the Power of the Algorithm Int J Law Info Tech (Autumn 2015) 23 (3): 261-289, Stavroula Karapapa and Maurizio Borghi, University of Reading and Bournemouth University – Centre for Intellectual Property Policy & Management (CIPPM).
- Keep Out! The Efficacy of Trespass, Nuisance and Privacy Torts as Applied to Drones 33 Georgia State Law Review, Forthcoming, Hillary B. Farber, University of Massachusetts School of Law at Dartmouth.
- Data Protection in South Africa: The Protection of Personal Information Act 4 of 2013 in Light of Recent International Developments (2) Journal of Contemporary Roman-Dutch Law, Vol. 79, p. 213-230, 2016, A Naude and Sylvia Papadopoulos, Private Practice and University of Pretoria – Faculty of Law.
- Entrepreneurs: Privacy and Reputation, Adam Wilkinson, Schillings.
- Information Emissaries, Magnus Boyd, Schillings.
Next Week in the Courts
The trial in the case of Shakil-Ur-Rahman v Ary Network Ltd & Anor will continue before Sir David Eady on Monday 7 November 2016 and is expected to conclude that day.
On the same day Sir David Eady will hand down judgment in the case of David v Gabriel (heard on 7, 8 and 18 July 2016).
On 8 November 2016 there will be a PTR in the case of Fly Me Now Ltd v Quick Air Jet Ltd.
On the same day there will be an oral renewal of the application for permission to appeal in the case of Weston v Bates
On 11 November 2016 there will be an offer of amends compensation hearing in the case of Lisle-Mainwaring v Associated 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).
Mionis v Democratic Press heard 27 October 2016 (Gloster, Sharp and Lindblom LJJ).
Holyoake & Anor v Candy & Ors heard 4 November 2016 (Warby J).
This post was compiled by Georgia Tomlinson who is a researcher.