Take 10 - 06 July 2023

Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.

ICO publishes new data protection and journalism code

Following two public consultations, the ICO has today published its long-awaited 'Data protection and journalism' code of practice.  The ICO has said the code aims to help media organisations apply data protection law in the context of journalism.  Some significant changes have been made since the draft code was first published, including in its guidance relating to the journalism exemption, criminal offence data and the significance of the open justice principle.  The code has been submitted to the Department for Science, Innovation and Technology and must be approved by Parliament pursuant to s. 125 DPA 2018 before coming into force.  Under s.127(3) DPA 2018, a court or tribunal must take relevant provisions of the code into account when determining questions arising in civil proceedings.

BBC report on sexual misconduct investigation injuncted on contempt of court grounds

An interim injunction has been granted against the BBC to restrain it from identifying a public figure with a "nationally (and internationally) known name" [56] who is the subject of "a continuing criminal  investigation into serious sexual offending" . The Claimant was arrested in 2022 on suspicion of three serious sexual offences, with no further action being taken in relation to one of the alleged offences. The BBC was planning to report the broad allegations against the Claimant as part of a wider story on the lack of policies and procedures for dealing with allegations of violence against women in the business sector in which the Claimant works. On 29 June 2023, Mrs Justice Collins Rice granted the injunction, both on privacy grounds and on the basis that the report "creates a substantial risk that the course of justice in the live criminal proceedings currently under way will be seriously impeded or prejudiced by it" [68]. The judge also found the Claimant had a reasonable expectation of privacy, following ZXC, and in circumstances where 'the dominant features of the present case are the intimate sexual and relationship nature of the conduct in question, and the likely destructive effect on the Claimant's human autonomy, reputation and prospects for justice, of immense publicity at this stage in the criminal proceedings' [86]. The granting of an injunction on contempt of court grounds is extremely rare, particularly in circumstances where the report was intending to report allegations in outline and neutrally.   

SLAPPs - early dismissal and cost protection introduced by the Economic Crime Bill

The Government has introduced an amendment to the Economic Crime and Corporate Transparency Bill currently making its way through Parliament to give power to judges in England and Wales to dismiss abusive lawsuits (or 'SLAPPs') related to economic crime. Section 193 of the ECCT Bill will require the Civil Procedure Rules to be amended to create an early dismissal mechanism to allow the courts to dismiss any claim that meets the Bill's definition of a SLAPP (defined at section 194) where the claimant has also failed to show that it is more likely than not that the claim would succeed at trial. Where a SLAPP is identified, rules will provide that the court cannot order a defendant to pay the claimant's costs except where misconduct by the defendant justifies such an order. The definition of SLAPP (section 194) is directed at identifying behaviour by a claimant that has or is intended to have the effect of restraining speech aimed at combatting economic crime, in circumstances where the claimant's behaviour is also intended to cause distress, expense, or other harm or inconvenience to the defendant "beyond that ordinarily encountered in the course of properly conducted litigation".  The amendments have been broadly welcomed by journalists and free speech campaigners, but have been heavily criticised by many practitioners representing claimants. The success of the amendments will potentially influence plans to introduce a general anti-SLAPP law (applicable in non-economic crime cases), which both the Conservatives and Labour have committed to introducing.

Bill of Rights scrapped for the final time? 

The Bill of Rights Bill has officially been scrapped. The Bill sought to introduce a raft of "re-balancing" measures, including vesting new power to the UK courts over rulings by the ECHR (European Court of Human Rights) which would have, for example, restricted foreign nationals from challenging their deportation from the UK at the ECHR on the grounds of human rights. The Bill also claimed to attach "greater weight to freedom of speech…as a matter of utmost public interest", but since its introduction to Parliament in June 2022, the Bill has seen fierce criticism. The UK Parliament's Joint Committee on Human Rights recommended it be almost entirely abandoned, and it was branded a "rights removal bill," as its proposal to repeal and replace the Human Rights Act 1998 was scrutinised. Despite the Bill's minefield waltz through the House of Commons, it seems that the Government's plans are not quite over. Lord Chancellor Alex Chalk, the Justice Secretary, said that "the Government remains committed to a human rights framework which is up-to-date and fit for purpose and works for the British people".

£35,000 in damages for libel claimant for broadcast to <1000 viewers

The High Court has ordered the publisher of Urdu language Samaa News Channel to pay £35,000 in damages to Nasir Mehmood, a senior member of a Pakistani political party and former associate of Nawaz Sharif, the former Prime Minister of Pakistan. Mr Mehmood's claim was over allegations that he had threatened and tried to bribe the judge hearing Mr Sharif's corruption trial. Samaa defended the claim on the basis of substantial truth and public interest. Samaa's truth defence failed on the basis that the only evidence it relied on was a "heavily disputed" [87] written account by Judge Malik, who is now deceased. Samaa also failed to establish its public interest defence on the grounds that there was no evidence that the relevant staff member held, at the relevant time, the subjective belief that the defamatory statement was in the public interest [97], noting that Samaa had failed to seek comment from Mr Mehmood prior to publication [100]. While the broadcast was seen by less than 1,000 viewers [69], Mrs Justice Heather Williams found that the Claimant had established serious harm due to the "extremely serious" nature of the allegations, his high public profile, and the considerable interest in the story in the Pakistani community [69].

Not a 'dalan' nor a SLAPP - retired doctor wins £30,000 in damages over allegations of collusion

The High Court has decided to uphold a default judgment awarding Dr Than Wai, a retired ophthalmologist originally from Myanmar, £30,000 in damages for a defamatory statement in Burmese published on a Facebook news page. In December 2021, former GP Dr Htay Kywe accused the Claimant of being a 'dalan' i.e., an informant to Myanmar's military government, on a Facebook page called Moe Joe News. The Defendant failed to file a defence and default judgment was entered in February 2023. In April 2023 the Defendant applied to have the judgment set aside. Master Davison refused the application on the basis that no defence was before the Court and the Defendant had failed to demonstrate a real prospect of successfully defending the claim. No translation evidence was available to support the Defendant's interpretation of the word "dalan" (which he said had been used to mean "puppeteer", not "stoolie") and the Defendant's argument that the claim was a SLAPP was branded "absurd" [19]. The damages award was based on the seriousness of the allegation and the reach of the post. Master Davison held that calling someone an informer for a murderous regime was a "very serious allegation" [20]. Moe Joe News published the post for a week and the page has approximately 14,000 followers, so Master Davison held that although "the scale of publication is probably in the hundreds rather than the thousands" [21], the post was likely to have had a grapevine or percolating effect within the small community of Burmese speakers [21].

Civil standard of proof applies to ICO monetary penalty notices

A pharmaceutical company Doorstep Dispensaree has failed in its appeal of an ICO Monetary Penalty Notice (MPN) in which it argued that the criminal standard of proof must be met for a (MPN) to be enforced.  The ICO fined the company £275,000 after it found the company was more likely than not to have mishandled 47 crates worth of customers' pharmaceutical documents, including special category personal data. The fine was reduced to £92,000 by the First-tier Tribunal, but the appeal was otherwise dismissed. In the Upper Tribunal, Doorstop Dispensaree argued that the criminal standard of proof applied in appeals against the imposition of MPNs under the DPA 2018, rather than the lower, civil standard. The Upper Tribunal agreed with the First-tier Tribunal and ruled that the civil standard should apply – meaning that whether conduct has occurred that carries monetary penalties under the DPA 2018 will be decided on the "balance of probabilities" rather than "beyond reasonable doubt".

MGN Limited phone hacking trial concludes

The seven-week trial in the MGN Limited Hacking Litigation concluded on Friday 30 June. Judgment has been reserved and is not expected for several months. RPC acted for MGN Limited.

Quote of the fortnight:

'Free speech matters—that is a truism of our age—but why does it matter? There are many reasons, but the important one is that free speech helps keep our society clean; free of corruption, criminality and the abuse of power'.

The Rt Hon David Davis MP in his introductory speech to the House of Commons on SLAPPs on 29 June 2023