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Take 10 - 09 June 2023

Published on 09 June 2023

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

"SLAPP" struck out - Amersi v Leslie

 Judgment was handed down on Wednesday in a case brought by businessman and Conservative party donor Mohamed Amersi.   Mr Amersi had sued ex-conservative MP Charlotte Leslie for defamation over memos she wrote and circulated to various people, including fellow MPs and the ambassador from Bahrain to the UK. Mr Amersi alleged that the memos bore a number of defamatory meanings about him, including that he posed a risk to national security, that he was trying to take over the Conservative Middle East Council (a position Ms Leslie) held at the time, and that he was dishonest and responsible for making false claims. In striking out Mr Amersi's case and refusing him permission to replead, Mr Justice Nicklin held that he had failed to establish that serious harm had been caused to his reputation.  Whilst the claim was not struck out as an abuse of process, the judge found that Mr Amersi's claim was not truly about seeking vindication and referred to the delay in commencing proceedings, the way in which the claim was initially advanced (relying on multiple causes of action) and his approach to costs, and that parts of his witness statement and interviews with the media suggest that the libel action was used as an opportunity to embarrass the Conservative party for having wronged him.  Mr Justice Nicklin found that Mr Amersi had taken an "exorbitant approach" to the case and was satisfied that allowing Mr Amersi an opportunity to re-plead his claim would not serve the overriding objective.   David Davis referred to the judgment in the House of Commons shortly after it was handed down, describing the case as a SLAPP and the outcome as a "great victory for free speech".  Mr Amersi is reported to be considering an appeal.

You can read the full judgment here.

Roberts-Smith v Fairfax Media Publications

 In what has been dubbed 'the Defamation Trial of the Century' in Australia, and described as 'a war crimes trial masquerading as a defamation action', Ben Roberts-Smith VC, a high profile Victoria Cross recipient and former Australian SAS soldier, has lost his defamation action after a marathon trial lasting 110 days and costing an estimated $25 million. Mr Roberts-Smith brought the claim against the Age, The Sydney Morning Herald and the Canberra Times over a series of investigative journalism articles in 2018 regarding alleged war crimes committed by Australian special forces in Afghanistan. In a 2,618 paragraph judgment, Justice Besanko found that the defendants proved that Mr Roberts-Smith had murdered unarmed Afghani civilians, including by kicking one man off a cliff.  Although the defendants failed to make out the truth of a further allegations, including one of domestic violence, given the seriousness of the allegations of war crimes which were proved it was held that no further harm was caused to Mr Roberts-Smith's reputation and the case was dismissed.  James Chessell and Executive Editor of The Sydney Morning Herald and The Age, Tory Maguire said that "Publishing a story of this magnitude is never easy, but high quality investigative journalism is vital to a thriving democracy".

You can read the full judgment here.

MGN Hacking Litigation: claimant-specific trial kicks off with the Duke of Sussex

 Following a one-week court holiday, the Mirror Group newspapers hacking litigation resumed this week with the Duke of Sussex's claim kicking off the claimant-specific portion of the trial at the High Court. The Duke of Sussex gave over eight hours of evidence in Court on Tuesday and Wednesday – the first royal to do so in over 130 years – over allegations that MGN journalists intercepted his voicemails and used other unlawful information gathering methods to collect information to write news stories about him. 33 of the 148 articles relied on by the Claimant are subject to determination at this trial. The 7-week trial is now half-way through with Coronation Street stars Nikki Sanderson and Michael Turner, along with Fiona Wightman, the ex-wife of comedian Paul Whitehouse, expected to give evidence in the coming weeks. 

RPC act for MGN

Hugh Grant v News Group – Summary Judgment application partly dismissed 

On 26 May 2023, judgment was handed down following NGN's application that Hugh Grant's misuse of private information claim was time barred under section 2 of the Limitation Act 1980. NGN accepted that there was some concealment of facts pertaining to Mr Grant's claim, however the Court considered whether the Claimant had a "realistic prospect" of proving that he did not know about or could not have discovered with reasonable diligence the concealment prior to 9 March 2016. Mr Justice Fancourt held that the Claimant's action relating to phone-hacking is statute-barred, however found that other allegations of landline tapping, blagging, instructions to private investigators, and other unlawful information gathering methods would proceed to trial.  A judgment in a similar application brought by NGN against the Duke of Sussex's claim, heard at the same time as the application in Mr Grant's claim, is awaited. 

Independent external review of IPSO

The Independent Press Standards Organisation (IPSO), has faced a recent independent external review conducted by Sir Bill Jeffrey.  His review was conducted over the course of six months, speaking to a range of internal and external stakeholders, and it was openly advertised with anyone free to make a confidential submission.  The evaluation covered three broad areas: “How and to what extent IPSO has established itself as an independent, credible, and well-managed organisation?”, “How well has IPSO adapted to change in its strategic context and what should it do to prepare itself for the future?” and finally general effectiveness. The report found that the regulator has "influenced the industry for the better", is "operating independently" and that there was "no sign of improper influence by the industry on complaints decisions, or that decisions were taken in other than an impartial way".  The report also made recommendations for further change.  This covered ways in which it could develop its standards and complaints work to keep pace with changes in the news industry, calling for greater publication of its work (in particular key services like its whistleblowing hotline and arbitration service), and improving accessibility and transparency to complainants and the public about its service.   The IPSO chair Edward Faulks commented on the review and its recommendations, describing "some [as] familiar, some novel", confirming that they expected to accept most of the recommendations relating to IPSO's operations, with recommendations relating to governance to be considered further.

Meta appeals €1.2bn fine by the Irish Data Protection Commission

Meta has appealed a €1.2 billion fine by the Irish Data Protection Commission, after it found the company's transfer of EEA data to the US to be unlawful, following the Schrems II decision in 2020. The fine was imposed alongside an order to suspend all future transfers within five months and to bring processing obligations into line with the GDPR, chapter five. Meta has announced that it will seek a stay of the order and launch an appeal of the decision, calling the fine "unjustified and unnecessary" and "setting a dangerous precedent". It noted that thousands of companies rely on the transfer of data between jurisdictions, and that this is a matter of conflict between the law of two jurisdictions which is on its way to being resolved. 

Media condemns Conservative Party over fees

Several media and news outlets, including the News Media Association, Society of Editors, News Media Coalition and the Foreign Press Association are refusing to attend the Conversative Party Conference which is being held in Manchester this autumn. Editors from several media organisations have asked that the Conservative Party scraps the 'undemocratic and detrimental' fees imposed on the media for attending the conference. The Conservative Party is charging £137 for each journalists' application prior to 31 July 2023, rising to £880 for later bookings.  The organisations have said that the imposition of fees for media attendance at any press conference sets a "deeply concerning precedent in a democratic society". A Conservative Party spokesman has referred to the fee as a "modest charge" that has been introduced to "discourage over-accreditation". 

Civil Justice Council Costs Review – Final Report

 Back in April 2022, at the request of the Master of the Rolls and led by Lord Justice Birss, a Civil Justice Council working group was established to consider key elements of the civil costs regimes. These were: 

1.Guideline hourly rates
2.Costs budgeting
3.Pre-action and digitisation
4.Consequences of the extension of fixed recoverable costs

The final report, published in May, concluded that costs budgeting should be maintained but be allowed to vary between different areas of civil justice, instead of a one size fits all approach. Significant support was flagged for the digital justice system as a means to save costs, and more encouragement to use this was pushed. In regard to the consequences of extending of fixed recoverable costs (referred to in our last edition), the working group commented, among other areas, that the FRC should be set at the right level and that this level should be subject to "regular review and uprating in line with inflation". It was further recommended that a pilot scheme is established to consider a "costs budget light" for any matter between £100,000 and £1 million, mainly for personal injury and property.

You can read the full report here

DPDI Bill – ICO warms up to proposals

 As per the ICO's response to the Data Protection and Digital Information Bill, John Edwards, the Information Commissioner, has stated that the Bill "has moved to a position" where he can "fully support it". The Bill, which seeks to update and clarify the UK's data protection framework, has been formulated through various public consultations as well as constructive input from the ICO regarding compliance with the UK GDPR. In December 2021, The ICO expressed concerns over the Bill's then proposals to grant the Secretary of State the power to appoint the CEO and approve all significant ICO guidance. The particular concern was that this would curtail the ICO's position as an independent body from the government and reduce regulatory certainty for organisations subject to data protection laws. The Government has now proposed that guidance approval will remain with the ICO, and the CEO will be appointed by the Chair and Board of the ICO.

ECHR rules that Croatia did not breach former President's privacy rights

The former President of Croatia Stjepan Mesić's application against the government of Croatia for allegedly violating his right to a private life under Article 8 of the ECHR has been dismissed by the European Court of Human Rights. Mr Mesic brought the application after the Croatian domestic court dismissed his defamation claim against news website, following the latter's publication of an article in February 2015 alleging that the former President was bribed by Patria, a Finnish company, in the procurement of armoured vehicles for the Croatian army. Mr Mesic went on to claim that the Croatian court did not uphold his right to respect for his private life by failing to protect his reputation and that a fair balance was not struck between Article 8 and Article 10 – the media's right to freedom of expression. The ECHR agreed with the Croatian's court's decision that the content of the article was a matter of public interest due to allegations of criminal activity undertaken by a former President but did not comment on the accuracy of the article. Furthermore, the ECHR highlighted the role of the media in acting as a "watchdog" by ensuring that public authorities are held accountable for their actions. The application was dismissed following a vote of five to two however, it is emphasised that the judgment should not be a free pass for irresponsible journalism as the method of information gathering carried out by the news site was nevertheless considered to "depart from the tenets of responsible journalism".

Read the full judgment here.

Quote of the fortnight:
'There has been a campaign in this House for over a year to stop SLAPPs—strategic lawsuits against public participation—which are used by very rich men to oppress free speech in this country. Just in the last hour or so, the High Court has ruled one of those SLAPPs cases out of order: the case of Mr Mohamed Amersi against the ex-Member of this House Charlotte Leslie has been struck down. In my view, that is a great victory for free speech.'
David Davis MP in the House of Commons, 7 June 2023