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Take 10 - 07 August 2023

Published on 07 August 2023

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

A right royal limitation 

Mr Justice Fancourt has granted NGN's application for summary judgment in respect of the Duke of Sussex's phone hacking claim, on limitation grounds. The Duke's remaining claims for unlawful information gathering, including those in relation to blagging and the use of PIs, will go forward to trial.

The Duke had opposed NGN's application with a witness statement in which he said he'd been informed in around 2012 of a "secret agreement" between the Palace and senior executives of NGN's parent company, by which members of the Royal Family would not bring phone hacking claims against NGN until after the group action against NGN was concluded. He argued that NGN was therefore estopped from relying on a limitation defence. The "secret agreement"/estoppel case had not been pleaded by the Duke so he made applications to amend his Reply and an RRFI, which were determined with NGN's application.

Fancourt J refused the Duke's applications, finding that the new case on the secret agreement "lacked credibility", arising from "the unexplained lateness of the plea…; the improbability of a secret agreement being made in the particular terms pleaded; the inconsistency with the Duke's currently pleaded case…and with his evidence in other proceedings, supported by [statements] of truth; the absence of any explanation for the new factual case being raised; and the absence of any other witness or documentary evidence to support it "[91].

NGN's summary judgment application was therefore determined on the basis of s32(1) Limitation Act 1980.  The Duke had given evidence that he knew in 2006 that his mobile phone had been hacked by a News of the World (NoTW) journalist on one occasion, and in 2012 knew of further evidence of other occasions by the same journalist.  On that basis, Fancourt J found that the Duke's claim for voicemail interception was time-barred, both against NoTW and The Sun, as he had no realistic prospect of proving at trial that he didn't know and couldn't with reasonable diligence have discovered facts to establish a worthwhile claim by 27 September 2013, i.e. six years prior to the date of issue [142].

Norwich Pharmacals

Mr Justice Nicklin handed down a helpful judgment in Davidoff & ors v Google LLC, which relates to the Claimants' application for a Norwich Pharmacal Order (NPO).  In refusing the application, the judgment provides a detailed overview of the approach to determining NP applications, and will be a useful reference for parties making or opposing them, particularly where the underlying "wrong" relates to online content posted anonymously.

The application sought to identify the person(s) operating Gmail addresses associated with Trustpilot accounts which had posted 11 reviews of the business that the Claimants claim to operate.  The Claimants indicated that they intended to commence proceedings for defamation and/or malicious falsehood in respect of those reviews. 

Applicants seeking an NPO must first show that a wrong has at least arguably been carried out.  In practice this requires applicants to "demonstrate, in the evidence in support of application, that s/he has, at least, a claim with a real prospect of success" [33]. The judgment provides guidance on what ought to be set out in the evidence where the alleged wrong is defamation or malicious falsehood in order to meet this threshold. In the present case, Nicklin J was only satisfied that two of the Claimants had demonstrated that a claim for malicious falsehood had a real prospect of success regarding 8 of the reviews [79-99].

However, they did not meet the third requirement, that the respondent must be mixed up in, so as to have facilitated, the wrongdoing, and be able to provide the information necessary to pursue the wrongdoer. Although Google arguably "facilitated" the alleged wrongdoer by providing an email address, that was not the basis of the NP application: "The alleged wrongdoing is the subsequent use of the Trustpilot account to post the Review. In that second phase, the Defendant, in its provision of a Gmail account, has played no role" [107].

£1 damages: Wright or wrong?

The Court of Appeal (CoA) has upheld Mr Justice Chamberlain's decision in Craig Wright v Peter McCormack to award Craig Wright nominal damages of only £1 after he was found to have put forward a deliberately dishonest case on serious harm.

The proceedings relate to a series of Tweets and a YouTube video in which D alleged that Dr Wright's claim to be Satoshi Nakamoto (the creator of bitcoin) was fraudulent. At trial, Chamberlain J found serious harm could be inferred based on the extent of publication and the seriousness of the allegation (amongst other factors) but also that Dr Wright had been advancing a "deliberately false" case on actual serious harm until shortly before trial.  Dr Wright was awarded £1 in damages on the basis that offered sufficient vindication for his reputation and he had suffered no distress. 

Dr Wright appealed, arguing the decision amounted to an impermissible reduction of compensation for misconduct, which was contrary to the general principles of tortious liability. He maintained that litigation misconduct or dishonesty could impact costs or lead to contempt proceedings, but it was contrary to authority to reduce compensatory damages.

That argument was rejected by the CoA.  Lord Justice Warby found that on a proper analysis the Judge was not penalising C for misconduct but assessing what vindication was warranted where a claimant has shown himself to have acted fraudulently in evidence. The sting of D's libel "was one of dishonesty", which was "properly comparable" to Chamberlain J's findings that "the claimant had told lies [and had] attempted to obtain an advantage by deceiving the court", i.e. they were in the same "sector of reputation".  Those findings were therefore relevant to damages as they affected the extent of Dr Wright's reputation for which he was seeking recompense.  The CoA's decision is a helpful clarification of how nominal damages may be awarded in circumstances where a claimant damages their reputation to "vanishing point" during the course of proceedings. RPC acts for Peter McCormack.

Dyson who?

The CoA's judgment in Dyson Technology & Anor v Channel Four & Anor provides a detailed explanation around the thorny issue of reference in libel actions.  

The judgment summarises the two main ways in which a claimant can be referred to in a statement, namely: (1) where C is named or identified in the statement or where the words used would reasonably lead hypothetical persons acquainted with C to believe they were the referred to, and (2) where C is referred to by particular facts known to individuals ("reference innuendo") [34-35].  The judgment indicates how determinations on reference interplay/depart from those on meaning and serious harm, and sets out guidance on pleading reference. It also endorses Nicklin J's warning at first instance about the need for caution before ordering a preliminary issue trial on the issue of reference [57-59].

The CoA found that the Judge had erred by indicating that identification had to come from within the broadcast itself or from some extrinsic fact pleaded by way of innuendo [49]. The CoA overturned the order that "based solely on intrinsic evidence in the broadcast, the broadcast does not refer to the second and third claimants" and instead concluded that "a hypothetical reasonable viewer, acquainted with [the Cs] and therefore knowing the matters set out in [para 2 of POC introducing the Cs], would identify [the Cs] as being referred to". The CoA's analysis of the specific words and images used in the broadcast complained of and how they impacted its judgment is well-worth a read [49-56].

Another helpful reference 

In another judgment on reference, Davidoff & Ors v Hargrave (brought by the same Cs who issued the NP application referred to above), Mrs Justice Heather Williams found the Claimants' pleading of reference innuendos to be defective. The judgment provides guidance on what is required when pleading innuendo [41-64]. The Claimants' submission that Nicklin J, in Falter v Altzmon, had identified a "new ground" of a "hybrid innuendo" to which the well-established requirements of pleading innuendo do not apply was rejected [55-56].  

Heather Williams J also held that the Claimants were not permitted to adduce evidence regarding the Defendant's Twitter followers in relation to whether the hypothetical reasonable reader would click on the hyperlink in one of the Tweets complained of [23-38], rejecting that the following statement in Monroe supported them: "As to the characteristic of the readership, it has been said that in a Twitter case, 'The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant'.  She instead held that it was simply an application of one of the well-rehearsed principles in Koutsogiannis in the Twitter context, namely: "The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership."

Jusan Technologies

A hearing was held before Nicklin J in the libel claims of Jusan Technologies Limited v (1) The Bureau of Investigative Journalism and (2) Telegraph Media Group Limited and Jusan Technologies Limited v OpenDemocracy Limited.  Jusan Technologies, a UK company, is suing the Bureau, the Telegraph and OpenDemocracy in respect of articles published which investigated the connections between its company group and the former dictator of Kazakhstan.  At the hearing, Nicklin J directed that there should be no trial of preliminary issues in the claim against the Bureau and the Telegraph before full pleadings are exchanged.  Meaning will be determined before a defence is filed in the claim against OpenDemocracy.  

Nicklin J also heard an application by the Claimant to prevent details of the earnings of its directors, including a Labour member of the House of Lords and a former Deputy Prime Minister of Kazakhstan – which are relied on as part of the company's claim for serious financial loss – from being made publicly available.  An order was made temporarily preventing public disclosure of the individuals' hourly rates, but other details of the financial loss claimed by the company will form part of its particulars of claim and become accessible to the public.  RPC acts for the Bureau of Investigative Journalism.

Big Tech concerns

Apple has suggested iMessage and FaceTime may be withdrawn from the UK market following changes proposed to the Investigatory Powers Act 2016, relating to the Home Office's access to encrypted content via a technology capability notice, or TCN (see Guardian report).  Apple says some of the changes would in effect grant the UK Government control over Apple's security and encryption updates globally, given the interplay between the proposed provisions, making "the Home Office the de facto global arbiter of what level of data security and encryption are permissible".

This follows concerns already raised by platforms including WhatsApp and Signal about clauses in the OSB which are also said to risk undermining end-to-end encryption. 

ICO reminds banks to maintain their duties of confidence

The ICO has released a statement expressing concern at banks sharing personal information with the media in the wake of the recent furore around Nigel Farage. On the suggestion that banks gather "excessive dossiers" on their customers, the ICO recognised that banks need to hold a lot of information about their customers to run accounts and comply with MLO requirements, but reminded banks of their responsibilities to the public not to hold inaccurate or unnecessary information, or to use information in an unexpected way.  

In light of Mr Farage accessing information held about himself through a DSAR, the Information Commissioner said "Nigel Farage’s experience shows why data protection rights remain so important. The right to require an organisation to show you the information they hold about you, known as a subject access request, is a powerful one, and is one that is open to us all. It brings transparency, reassurance, and it can flag where errors have been made and where the record should be corrected".

ICO updates guidance on sites "likely to be accessed" by children

The ICO has updated its guidance on when services designed for adults are "likely to be accessed" by children and therefore within scope of the Age Appropriate Design Code (Children's Code).  The updates follow a consultation earlier this year.  The ICO's response to the consultation summarises the responses and changes to the guidance.  It now includes an FAQ which provides a list of non-exhaustive factors which may be relevant to the assessment of whether a "significant number" of children are likely to access a service, and explains why the ICO has not set a numerical threshold for making that assessment.  Other changes include new case studies to assist a wider range of services seeking guidance, and clarification that the guidance relates to the processing of personal data of children and any references to "high risk" relate to personal data processing activities, which has been made to meet stakeholders' concerns over potential inconsistency or incoherence between different regulators' requirements under the Children's Code versus the OSB.

Largest ever damages from an image-based abuse case

Stephen Bear has been ordered to pay Georgia Harrison £207,900 in damages, after being found to have misused her private information by sharing an explicit video of her without her consent on OnlyFans (see 5RB blog). This amount was made up of £120,000 in general and aggravated damages and special damages of £87,900.  It is the highest damages ever awarded for a case of its kind. Stephen Bear is currently serving 21 months in jail in relation to the incident after being found guilty in December 2022 of voyeurism and disclosing private, sexual photographs and films (see BBC report).

Quote of the fortnight:

"…Article 10 protects both speech by an identified individual and anonymous speech. Whilst anonymity on the Internet can be used as a cloak behind which to harm others by unlawful acts, not all anonymous speech is of this character. Such speech, particularly in a political context, as a dimension of freedom of expression, can have a real value and importance…As a starting point, therefore, where a Norwich Pharmacal order is sought to unmask an anonymous online poster, the terms of that order are likely to interfere with the privacy interests of the target. Depending on the nature of the speech, for example if anonymity is (or maybe) being used to avoid recrimination/retribution/punishment (e.g. a whistle-blower), it may also interfere with the Article 10 rights of the target (and the respondent)…"

Mr Justice Nicklin, Davidoff & ors v Google LLC [2023] EWHC 1958 (KB)