Insights Media Law Update 2023

Welcome to the Media Law Update, where we cover the key developments and insights in the ever-evolving landscape of English media law. In this edition we cover defamation, privacy, data protection, and the latest news (including anti SLAPP measures and the Online Safety Act).

This round-up outlines the latest court decisions, legislative changes, and industry trends which have made an impact in 2023.

Case round-up quick links

Dyson v MGN Ltd [2023] EWHC 3092 (KB)

Inventor and entrepreneur James Dyson sued the Mirror newspaper for an opinion piece declaring Dyson a “hypocrite” for campaigning for Brexit and then moving his own headquarters to Singapore, which made him a bad role model for children.

Upholding the paper’s defence of honest opinion, the judge ruled that the basis of that opinion (that the Dyson headquarters had moved to Singapore) was true and did not accept that it was merely the relocation of two senior executives. In the course of a helpful analysis of the law of honest opinion, the judge clarified that a publisher is permitted to be selective in the facts relied upon, as requiring more would make it a “struggle” for journalists to say anything potentially controversial without “assiduous research”.

Read the full judgment here.

Hay v Cresswell [2023] EWHC 882 (KB)

Tattoo artist William Hay took libel action against Nina Cresswell, a woman who published a blog and social media posts stating that he had violently sexually assaulted her 10 years earlier. Mr Hay alleged that the posts had caused him serious distress and damage to his reputation. The court held that the meaning of the posts was defamatory at common law, however Ms Cresswell successfully defended the claim on the grounds of truth and public interest.

The judge held that, on the evidence provided, it was substantially true that Mr Hay had attacked Ms Cresswell – that is to say, it was more likely than not that the assault had happened. This successful defence of truth was enough to defend the claim, however the court also considered that the public interest aspect of Ms Cresswell’s defence was made out since she had published the posts in light of the ‘Tattoo MeToo’ campaign, which saw several cases reported of male tattoo artists sexually assaulting women, and she was driven to protect other women from Mr Hay’s behaviour. The case is the first time a victim of sexual assault has relied on the public interest defence to justify naming the person responsible.

Read the full judgment here.

Blake and Others v Fox [2023] EWCA Civ 1000

Litigation concerning a 2020 Twitter spat has produced some interesting guidance on distinguishing between fact and opinion. A LGBT charity trustee, a drag performer and an actress separately tweeted that actor Laurence Fox was racist after he posted a tweet in October 2020 saying a supermarket’s Black History Month campaign promoted “racial segregation and discrimination”. Mr Fox responded with tweets calling the three individuals paedophiles. The individuals brought a libel action against Mr Fox for these tweets, and Mr Fox counterclaimed for libel in respect of the claimants’ initial tweets.

At a preliminary trial, the judge held that the tweets describing him as racist were statements of opinion, while those describing the claimants as paedophiles were statements of fact. On appeal, the court upheld the decision that two of the claimants’ tweets were statements of opinion, noting that both had retweeted Mr Fox’s original tweet and therefore provided an indication of the basis of their opinions as set out in s3 of the Defamation Act 2013. Mr Fox’s tweets, however, were found to be statements of fact, noting that both were short and pithy, and it may not have been obvious to readers that he was making a rhetorical point.

The full trial in this case drew to a close at the beginning of December, with two of the claimants relying on the defence of honest opinion. Judgment has been reserved, so it remains to be seen whether that defence has succeeded.

Read the full judgment here.

Banks v Cadwalladr [2023] EWCA Civ 219

Businessman and Brexit campaigner Arron Banks appealed the dismissal of his libel claims against journalist Carole Cadwalladr, who had stated in a TED Talk and a tweet that Mr Banks had broken electoral law by taking money from the Russian government to fund his Brexit campaign. An official investigation reported a year after the TED Talk that there was no evidence of wrongdoing. The judge in the first instance concluded that the initial publication of the talk was protected by the public interest defence, while the ongoing publication of the tweet and the talk following the investigation result were not, though these claims still failed as Mr Banks did not suffer serious harm under s1 of the Defamation Act 2013.

On Mr Banks’s appeal, the court overturned the first instance judge and held that he had been caused serious harm by the 100,000 views of the TED Talk in the first year of publication, which was relevant where the public interest defence no longer applied. Ms Cadwalladr was ordered to pay £35,000 in damages and held to be liable for very substantial costs. She sought permission to appeal to the Supreme Court, but this was denied. A harsh lesson on the impact of ongoing publication where material information has come to light that might alter support for the publication, particularly where litigation is being contemplated or pursued.

Read the full judgment here.

Amersi v Leslie and CMEC UK & Mena Limited [2023] EWHC 1368 (KB)

Businessman Mohamed Amersi brought a libel claim against former Conservative MP Charlotte Leslie for 15 memos she published about him to various individuals and containing a broad range of defamatory statements, including allegations that he posed a threat to UK national security, he had donated to the Conservative party to try to obtain a knighthood and that he had profiteered from the Covid-19 pandemic.

The defendants successfully applied to strike out the claim under s1 of the Defamation Act 2013, for failing to establish how each memo was defamatory and had caused serious harm. The court held that since the memos had been published to individuals rather than by the media at large, Mr Amersi could not rely on an inferential case of serious harm.

The serious harm standard has taken a beating in recent years, but this case demonstrates its significance as a threshold issue and the importance of clearly articulating how it has been caused (or is likely to be so) when bringing a libel claim in England.  The Court of Appeal dismissed Mr Amersi’s appeal, though in giving reasons for that has left open the possibility that aggregation of reputational harm caused by separate publications is legitimate where the statements complained of are identical or substantially the same.

Read the full judgment here and the Court of Appeal’s judgment on the refusal of permission to appeal here.

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Stoute v News Group Newspapers Ltd [2023] EWHC 232 (KB)

Having secured the UK’s most lucrative government contract for PPE during Covid, worth £2bn, a married couple sought an emergency injunction at first instance (and again on appeal), to prevent the publication of photographs of them walking along a public beach, fully dressed (her in a knee-length kaftan, him in board shorts and a polo shirt), on their way to a family lunch at a beach restaurant frequented by celebrities (and paparazzi). The court denied the couple’s application to prevent publication in The Sun of the photographs, over which the court said the couple had no reasonable expectation of privacy.

The Court of Appeal upheld the fact that there was simply no reasonable expectation of privacy in photographs in the circumstances, with some considerable interest placed on the “performative” manner in which the couple arrived at the beach with their larger party by way of loud jet skis from their luxury yacht parked just off-shore.

Read the full judgment here.

WFZ v BBC [2023] EWHC 1618 (KB)

The applicant, a high-profile man arrested for sexual offences against two women but not charged, sought an interim injunction pending trial to prevent the BBC from publishing his name as part of a broader story concerning the failings in the industry concerned properly to deal with such allegations. The applicant had not yet been named by the mainstream media. The basis for the injunction application was misuse of private information and contempt of court (a novel claim for a private individual to bring).

The High Court held that the applicant had a reasonable expectation of privacy in his arrest, indicating that courts are likely to restrain information about arrests as well as investigations (following the Supreme Court’s decision in ZXC) until the suspect is charged. Additionally, though controversially, the court found that having been arrested, publication of the man’s name would likely give rise to a contempt of court such as to justify restraint.

Read the full judgment here.

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Hurbain v Belgium (Application no. 57292/16)

The latest decision from the European Court of Human Rights (ECtHR) on the compatibility of the Right to be Forgotten with the right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR) reflects an important shift from imposing the obligation to delist a story on search engines, to putting the burden on publishers to decide whether or not to alter or remove the publication at issue. Given the time and costs entailed in considering and actioning these requests, the potential chilling effect on those publishing in Europe (including England and Wales) is concerning as well as the impact on the integrity of the historical archive.

On the facts, a Belgian doctor convicted of offences related to a road traffic accident complained that an electronically archived article about the incident was the first result returned in a Google search for his name and that its continued publication would damage his professional reputation. He successfully sued the editor of the publication, with the court requiring the article to be anonymised.

Arguing that the anonymisation of the article violated his right to freedom of expression under Article 10 of the ECHR, the editor appealed the decision to the ECtHR. Setting a new test for balancing Article 8 (privacy) and Article 10 (expression) rights in such circumstances, the court found that anonymisation did not impose an excessive burden on the publisher, while being the most effective way of protecting the individual’s privacy.

Read the full judgment here.

Prismall v Google [2023] EWHC 1169 (QB)

In the latest attempt to open the floodgates for group data privacy claims, a representative claimant brought a misuse of private information claim against DeepMind and Google on behalf of 1.6 million people arising from the transfer of their NHS medical records.

The claim was struck out by the High Court for failing to show that, on the lowest common denominator basis, all claimants would be able to establish a reasonable expectation of privacy in the data shared and were entitled to more than nominal damages. The claim would have been a means of getting around the finding in Lloyd v Google that there were no recoverable damages in data claims for loss of control of data. At the time of writing the Court of Appeal is considering whether to grant permission to appeal.

Read the full judgment here.

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After years of campaigning and months of consultations, the Economic Crime and Corporate Transparency Act 2023 has received Royal Assent, marking the UK government’s first legislative step to tackle the oppressive use of litigation to silence freedom of expression (so called strategic lawsuits against public participation, or SLAPPs).

The Act introduces provisions allowing the court to strike out claims before trial where it can be shown they meet the definition of a ‘SLAPP’ and the claimant has failed to show it is more likely than not that the claim would succeed at trial. Further work is needed to devise the procedural rules necessary to effect the terms of the legislation.

This is a welcome first step by campaigners, but the limitation of the provisions to economic crime (continuing to leave many other aspects of public interest expression unprotected) along with the scope for satellite disputes over definitional matters are obvious areas of concern. The Government says that it is considering future legislative options when parliamentary time allows.

 Online Safety Act

The long-anticipated Online Safety Act (OSA), which aims to make the UK “the safest place in the world to be online”, received Royal Assent on 26 October 2023 and will see broadcast watchdog Ofcom widening its scope to cover the regulation of platforms including social media providers, search engines and messaging services. The OSA does not lend itself to a pithy summary due to its 241 sections and 17 schedules, but in among those are carve outs protecting freedom of expression.

As the OSA went through Parliament, concerns were raised that it would have a chilling effect on publishers’ Article 10 rights. Steps have been taken to address these fears: for example, news publishing entities are expressly excluded from the scope of the OSA if they meet particular conditions – including that news publishing is their principal purpose, their content is subject to editorial control and they have a complaints policy. The OSA also requires regulated platforms to protect journalistic content, news publisher content and content of democratic importance.

Whether these protections will be effective remains to be seen, since the OSA is being phased in with most of its provisions not coming into force until late 2024. However, one point worth noting is that news publishers will only be protected by the OSA if they have a registered office or other business address in the UK, leaving smaller international publishers potentially more exposed to content removal.

Draft Media Bill

The Draft Media Bill is making its way through Parliament, proposing a mass of changes to overhaul media regulation in the UK.

One result of the Leveson Inquiry, which investigated the culture, practices and ethics of the press and reported in 2012, was the introduction of s40 of the Crime and Courts Act 2013. The law (if it had ever been brought into force) would have meant that news publishers who were not signed up to a state backed regulator could be required to pay the costs of claimants who sued them, even if the publisher was to win.  After many years of campaigns against s40, the Draft Media Bill plans to scrap it.

The Draft Media Bill also proposes that, for the first time, Ofcom will regulate large international VOD services operating in the UK. A government press release on the issue is here. This change would see VOD services needing to comply with a new Ofcom code mirroring guidelines applied to national broadcasters, including impartiality standards, provisions to protect minors and concerning the provision of accessible content. Introducing impartiality standards for non-news content is likely to be a particular issue for streamers. The Draft Media Bill remains in the early legislative stages.

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