Media

In this chapter of our Annual Insurance Review 2024, we look at the main developments in 2023 and expected issues in 2024 for Media.

Key developments in 2023

The Economic Crime and Corporate Transparency Act (ECCTA) received Royal Assent in October this year. The ECCTA, which is primarily aimed at fighting fraud and corruption, also contains the first Anti-SLAPP legislative provisions to be enacted in any jurisdiction across the UK or Europe. SLAPPs (strategic lawsuits against public participation) have stayed relatively prominent on the legal agenda since Russia's invasion of Ukraine in early 2022, which highlighted the need to dispose of baseless legal claims threatened by oligarchs and Russian-controlled entities connected to Putin’s regime.

The ECCTA contains two provisions that are critical for the fight against SLAPPs – a definition of a SLAPP claim (although it is focused only on economic crime), and an early dismissal mechanism for those claims deemed to be SLAPPs. Pursuant to section 195, a SLAPP claim is, amongst other factors, defined as a claim in which the claimant's behaviour has or is intended to have the effect of restraining the defendant's exercise of the right to freedom of speech, is brought in relation to information that is disclosed for a purpose related to the public interest in combating economic crime, and the claimant's behaviour is intended to cause the defendant harassment, alarm, distress, expense, harm or inconvenience beyond that ordinarily encountered in the course of properly conducted litigation. Section 194 requires the Civil Procedure Rules (CPRs) to be amended so as to provide that a claim that falls within the definition of a SLAPP claim may be struck out before trial where the claimant has failed to show that it is more likely than not that the claim would succeed at trial. That provision also contains a subsection that requires the Civil Procedure Rules to be amended in the case of a SLAPP claim to prevent a court from ordering a defendant to pay the claimant’s costs, except where, in the court’s view, misconduct of the defendant in relation to the claim justifies such an order.

What to look out for in 2024

The Online Safety Act (OSA), which recently received Royal Assent, introduces a new regulatory regime for online platforms and search engines which target the UK, imposing wide-ranging obligations on in-scope services with serious consequences for non-compliance. The OSA will impose new duties on 'user-to-user' services and search services to tackle (1) illegal content, which includes content relating to terrorism and child sexual exploitation and abuse, and (2) content that is harmful to children on their platforms. New offences have also been created, including the offences of epilepsy trolling, cyber-flashing, and sharing intimate images online, including "deepfake" pornography.

However, a major feature of the OSA is the role of Ofcom in publishing Codes of Conduct that, if followed, will allow in-scope digital platforms and search engines to be compliant with the requirements of the OSA. Given the complexity and reach of the OSA, the fact that compliance can be achieved by adherence to ready-made Codes of Conduct is significant.

Now that the OSA has received Royal Assent, the onus is on Ofcom to draft Codes of Conduct that will not only be capable of implementation but that will actually result in the online safety outcomes sought by the OSA.

Written by Isabella Boag Taylor.