In this chapter of our Annual Insurance Review 2021, we look at the main developments in 2020 and expected issues in 2021 for media.Key developments in 2020
The scope of privacy claims continues to expand. Specifically, the question of whether an individual under criminal investigation has a reasonable expectation of privacy in respect of that investigation was considered by the Court of Appeal. The question was determined in the claimant's favour. The likelihood is that this will result in an increase in privacy claims against the media – not just by individuals under investigation but more generally.
The Court of Appeal's ruling was made in ZXC v Bloomberg. ZXC's claim concerned an article which published details of an ongoing criminal investigation into alleged fraud, corruption and bribery and named ZXC as one of the individuals under investigation. At first instance, the Court (following the decision in Cliff Richard v BBC) held that the article represented a misuse of the claimant's private information.
The Court of Appeal confirmed that there is, in general, a reasonable expectation of privacy in respect of criminal investigations up to the point of charge. This signals a growing acknowledgement by the courts of the importance of Article 8 privacy rights compared with Article 10 freedom of expression rights.
In reaching this decision, the Court took into account the alleged reputational damage suffered by the claimant when considering whether their Article 8 rights were engaged. This conflation of reputational and privacy rights – traditionally thought to be separate concepts - sets an unwelcome precedent for media organisations, increasing the avenues available for complainants to seek redress for perceived reputational damage.
What to look out for in 2021
The long-awaited (and much delayed) Online Harms Bill is due to be published by the Government in 2021. It is set to introduce a new regulatory framework, underpinned by a statutory, systemic duty of care, aimed at policing user-generated content online.
Following the Online Harms White Paper in April 2019, the Government gave us a flavour of what we can expect from the legislation when it published its initial response to the subsequent public consultation. The duty of care will apply to all online service providers who facilitate the sharing of user-generated content. They will be expected to take reasonable steps to keep their users safe, including by monitoring for, and removing, illegal content. An independent regulator – mooted to be Ofcom - will oversee and enforce compliance with this duty of care and will provide codes of practice for online platforms to abide by.
Several key questions remain unanswered. The scope of the regime has not been defined. The Government has indicated that it could apply to private channels of communications, but the proposed monitoring of such communications raises legitimate concerns as to impact upon users' freedom of expression and privacy rights. Further clarification is also required as to the extent and nature of the obligations placed on online platforms. This includes what (if any) liability will arise if the duty of care is breached. While the duty will be systemic, not individual, online platforms may still be exposed to claims arising out of adverse findings by the regulator.
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