There was a three day media law hearing in the Supreme Court this week, with the Daily Mail, the Times and Mirror Group using the Human Rights Act to challenge conditional fee agreements. These newspapers have refused to join a recognised regulator and are now asking the court to remove the only other “access to justice” route available to ordinary litigants.
With one exception, these newspapers failed to carry any report of their own attempts to defend the human rights of the media. The exception was a curious report in the Times entitled “Newspapers fight ‘casino’ of legal fees” which mentioned only the arguments advanced on its own behalf.
On Monday the Supreme Court handed down the “Article 50 Brexit” judgment. The Guardian had a summary of most the coverage noting that, in general, the Brexit supporting press did not repeat its front page outrage at the original ruling. But, as Roy Greenslade noted in a blog piece, the Daily Mail, once again showed itself to be a newspaper apart – by devoting several pages to attacking the judges and the claimant.
Roy Greenslade is giving up his valuable and insightful daily media blog in the Guardian. He has been interviewed by the Press Gazette to mark his retirement.
It is reported that Bodey J has ruled that the public cannot be told the result of a divorce money dispute between a wealthy businessman and his wife, although media organisations have already reported that a hearing named those involved.
The Court of Appeal has ruled that media organisations should have been allowed access to video footage shown at a manslaughter trial following the death of a man who was put in a police cell after being forcibly restrained.
The Bar Standards Board should update its social media policy amid concern about barristers’ conduct online, the regulator’s independent observer has suggested.
Internet, Search and Social Media
John Delaney in Socially Aware has argued that Trump’s focus on trade as the biggest threat to American jobs is misguided, and that it is in fact tech that poses a bigger threat.
The Wall Street Journal has identified ‘five things to know about Google’s privacy battles.’
Data Protection and Data Privacy
Peter Fleischer, Google’s global privacy counsel has attacked France’s bid to extend the so-called right-to-be-forgotten to global search results, saying internet freedom would be brushed aside if less democratic parts of the world embraced the same policy.
A House of Lords Committee has heavily criticised the data sharing provisions in Part V of the Digital Economy Bill; it has reported that the provisions should not be supported in their current form.
Information Commissioner Elizabeth Denham has delivered a speech entitled “The Extent of our Care: Archives, Memory and Information Rights,” at a conference titled ‘Is there a democratic deficit in our archives?’, at Northumbria University.
The Centre for Information Policy Leadership (CIPL) at Hunton & Williams LLP has submitted formal comments to the Article 29 Working Party’s Guidelines on Data Protection Officers (DPOs).
President Donald Trump’s Executive Order on domestic safety eliminates Privacy Act protection for foreigners, as it directs U.S. government agencies to “ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information,” but only if doing so is “consistent with applicable law.” The European Commission has moved swiftly to confirm that the Privacy Shield does not rely on the U.S. Privacy Act of 1974 (“Privacy Act”).
A new report has said that an artificial intelligence watchdog should be set up to make sure people are not discriminated against by the automated computer systems making important decisions about their lives.
Newspapers Journalism and Regulation
The Guardian has published an extract from a book by former managing director of the Mail titles Guy Zitter’s where he explains how it might be possible to regain advertising revenue, whether online or in newsprint.
A Frontline Club panel discussed the problem of ‘alternative facts’ and concede that social media is not the only organisation publishing falsehoods.
The co-director of a Bristol-based magazine publisher has accused the Daily Telegraph of exploiting his criminal past to “attack” and “undermine”press regulator Impress. Steve McNought, co-director of Arkbound, has said he is considering legal action after a story headlined: “Armed robber turned publisher wins approval from state-approved Press regulator funded by Max Mosley”, was published on the paper’s website
Dominic Ponsford in the Press Gazette has called for IPSO to intervene in the way that the press misrepresents Islam.
The Daily Record has criticised a Daily Mail investigation into a charity launched by the footballer Didier Drogba.
Last week in the Courts
On 24 January 2017, Warby J gave judgment in the data protection “subject access” case of Holyoake v Candy ( EWHC 52 (QB)), heard 13 and 14 December 2016. There was a case comment on the Panopticon blog.
As already mentioned, on 24, 25 and 26 January 2017, the Supreme Court (Lords Neuberger, Mance, Sumption, Hughes and Hodge) heard the joined appeals in the cases of Flood v Times Newspapers, Miller v Associated Newspapers and Frost v MGN. Judgment was reserved.
On 27 January 2017, the Court of Appeal (Patten, King and Simon LJJ) handed down judgment in the case of His Highness Prince Moulay Hicham Ben Abdullah Al Alaoui of Morocco v Elaph Publishing Limited ( EWCA Civ 29) , heard 30 November 2016. There was a case comment on the Panopticon blog
On the same day Warby J gave judgment in the case of Suresh v Samad & Ors ( EWHC 76 (QB)).
31 January 2017, Book Launch, Private Power, Online Information Flows and EU Law: Mind the Gap by Angela Daly, 50 Bedford Square, London, WC1B 3DP) on Tuesday 31 January (6-8pm) with Chris Marsden (Sussex) and Orla Lynskey (LSE) as discussants. Attendance is free, but RSVP essential, to email@example.com or via this link.
24 March 2017, the European Centre for Press and Media Freedom conference on Media Freedom in Strasbourg, entitled: “Promoting dialogue between the ECtHR and the media freedom community”
Media Law in Other Jurisdictions
On 25 January 2017, in the case of Rana v Google Inc (No.2)  FCA 17 Charlesworth J in the Federal Court of Australia dismissed an application for leave to serve proceedings out of the jurisdiction on the basis that there was no adequately pleaded “federal” matter.
A Melbourne dentist has taken defamation action against a patient who posted a negative online review after claiming he was quoted $1200 for a filling that would take only 45 minutes.
The federal privacy watchdog is looking into complaints against so-called “sharing economy” companies for the first time. Privacy commissioner Daniel Therrien’s office has warned of a “growing risk” created by companies including Uber and Airbnb.
Dozens in women in the Montreal area have had photos of them naked or nearly naked uploaded to an anonymous message board without their consent.
Germany is to abolish a slander law specifically protecting heads of state and government against insults, after Turkish President Recep Tayyip Erdogan tried to sue a prominent satirist.
The Office of the Privacy Commissioner for Personal Data has urged vigilance after less than 5% of the cases they forwarded to the police led to prosecution last year.
Academics have criticised a defamation judgement by a Hyderabad court convicting Dalit scholars for ‘defaming’ a professor at the city’s English and Foreign Languages University (EFLU), claiming that the students were raising an issue of caste discrimination.
Economy Minister Simon Hamilton is to publish the names of 1 000 names of claimants in the the Renewable Heart Incentive (RHI) case, however a judge has granted the claimants leave to seek a judicial review of this decision.
The Press Council of Ireland has said that Ireland’s media is threatened by ‘unreasonable and frequent’ actions by small number of wealthy individuals who use the frequent threat of defamation actions against newspapers and “whose access to finance may be disproportionately greater than that of the press”.
The latest Edelsman survey has found that trust in Irish media has declined to an all-time low in the 17-year history of the poll. The Irish Times argues that this needs to be addressed and that a review of the press council and ombudsman could help revive public confidence.
The Court of Appeal has ruled the “interests of justice” warranted the dismissal of libel proceedings by communications consultant Monica Leech, over an article in the ‘Sunday Independent’ 12 years ago.
A professor whose book about Japan’s World War II-era military brothels angered Korean women who once worked there was has been acquitted of defaming the women.
A court has cleared former Ombudsman Mr. Justice Joseph Said Pullicino of criminal defamation and libel of Judge Lino Farrugia Sacco.
A court hearing in a libel case involving Gozitan civil society activists ended acrimoniously after a witness claimed that he had been threatened outside the courtroom.
The Director General of the Nigerian Maritime Administration and Safety Agency (NIMASA), Dr. Dakuku Peterside, has lost a bid to stop a N6 billion defamation claim brought against him by former Rivers State governor, Dr. Peter Odili, at the state High Court, Port Harcourt.
The number of cybercrime complaints in the Philippines has increased over the past 3 years, with online libel, online scams, and identity theft being the most common complaints.
A police officer has been charged with illegally accessing police files to look in to cases involving former Ranger’s footballer Steven Naismith’s sister – and three more ex-girlfriends.
The Workers’ Party (WP) has cautioned against amending the Protection from Harassment Act (Poha) to allow the Government to invoke a provision to deal with falsehoods. The Ministry of Law responded by stating that the WP had misrepresented their position, saying: “The Government has never said that it needed protection from harassment. Nor does the Government intend to amend POHA (Protection from Harassment Act) to protect itself from harassment.”
The Bakersfield Californian has looked at a number of policies that came out of the Democratic-controlled Legislature that limit unfettered speech.
A judge has said Melania Trump can pursue a defamation claim against a Maryland blogger who published claims that she had worked as a “high-end escort” and later, during the campaign, suffered a “mental breakdown.” The blogger, Webster Tarpley of Gaithersburg, had sought to have the lawsuit dismissed. The Washington Examiner has called the case ‘a warning for anyone publishing unverified information.’
A chiropractor in South Carolina has $112,100 of damages in a defamation case from two women who accused him of indecent exposure.
A blogger from Yonkers, New York faces a $2 million defamation claim filed by a former Yonkers fire commissioner, John Darcy, over articles written about him last year accusing him of pension padding and misappropriation of public funds.
Research and Resources
- From quantitative precision to qualitative judgements: Professional perspectives about the impartiality of television news during the 2015 UK General Election, Stephen Cushion, Richard Thomas
- Internet Ethics, American Law, and Jewish Law: A Comparative Overview, 21 J. Tech. L. & Pol’y 37 (2016), Gertrude N. Levineand Samuel J. Levine Fairleigh Dickinson University – Fairleigh Dickinson University and Touro College – Jacob D. Fuchsberg Law Center
- Wiretapping and Eavesdropping: Surveillance in the Internet Age, 3rd Ed., Penn State Law Research Paper, 2017, Anne Toomey McKennaand Clifford S. Fishman, Pennsylvania State University, Penn State Law and Independent.
- Virtues of Comparative Constitutional Privacy Law in Times of Conceptual Disarray, Media and Arts Law Review Vol. 21, No. 2 (2016), Kinfe Micheal Yilma, Addis Ababa University, School of Law
- Adequacy of Data Protection in the EU – General Data Protection Regulation as Global Benchmark for Privacy Laws?, Lothar Determann, Baker & McKenzie LLP
- Privacy: Primus Inter Pares ― Privacy as a Precondition for Self-Development, Personal Fulfilment and the Free Enjoyment of Fundamental Human Rights, Sandra Wachter, The Alan Turing Institute
- Why a Right to Explanation of Automated Decision-Making Does Not Exist in the General Data Protection Regulation, Sandra Wachter, Brent Mittelstadtand Luciano Floridi, The Alan Turing Institute, University of Oxford – Oxford Internet Institute and University of Oxford – Oxford Internet Institute.
- Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism, Cornell Legal Studies Research Paper No. 17-2, Michael C. Dorfand Sidney Tarrow, Cornell Law School and Cornell University – Law School
Next Week in the Courts
On Tuesday 31 January 2017, Warby J will hear the compensation application in the long running case of Barron v Collins.
On the same day there will be an application in the case of Baines v DNT and the Court of Appeal in Northern Ireland will hear an application in the case of CG v Facebook.
On Wednesday 1 February 2017 the hearing of the trial in Hourani v Thomson will begin before Warby J. The trial is due to last 10 days.
The following reserved judgments in media law cases are outstanding:
Mionis v Democratic Press heard 27 October 2016 (Gloster, Sharp and Lindblom LJJ).
Otuo v Watchtower Bible and Tract Society 8 November 2016 (Chancellor, Gloster and Sharp LJJ).
Lisle-Mainwaring v Associated Newspapers heard 11 November 2016 (HHJ Parkes QC).
Lachaux v Independent Print, heard 29 and 30 November and 1 December 2016 the Court of Appeal (Macfarlane, Davis and Sharp LJJ).
Lisle-Mainwaring v Associated Newspapers heard 12 December 2016 (HHJ Moloney QC).
Coulter v Sunday Newspapers, heard 19 December 2016 (Court of Appeal of Northern Ireland).
PNM v Times Newspapers, heard 17 and 18 January 2017 (UK Supreme Court)
Flood v Times Newspapers, Miller v Associated Newspapers and Frost v MGN , heard 24, 25 and 26 January 2017 (UK Supreme Court)
This post was compiled by Georgia Tomlinson who is a researcher.