Take 10 - 15 March 2024
Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.
Petition for action against abuse of female journalists
Led by Reach, Women in Journalism and Reporters Without Borders, over 100 journalists and other prominent individuals in the news industry have penned a letter urging UK police chiefs to combat the growing online abuse of female journalists, which threatens media freedom and diversity. Research conducted last year revealed a significant rise in online abuse targeting women, with 18% of female journalists surveyed stating that they had considered leaving the industry due to threats. In 2021, the Media Lawyers Association published a guide to help journalists identify and combat illegal online harassment and abuse, but this new letter calls for stronger action by the authorities for the first time, including through improved crime recording, police training on gendered online violence and better dialogue between police and journalists. The signatories include both national and regional newspaper editors as well as broadcasters such as Sky News and BBC.
Tortoise Media Ltd v A Local Authority: A win for open justice
Tortoise Media has succeeded in an application to relax reporting restrictions on family court proceedings initiated by a local authority seeking an order to remove into care the children of a man and woman who are being investigated by police for a suspected illegal abortion. They were initially arrested and charged with an offence under section 60 of the Offence Against the Person Act 1861, but the charges were dropped in October 2023 to allow the police to gather more evidence.
Tortoise Media argued that reporting restrictions should be relaxed due to the considerable public interest in understanding the circumstances around the case, including the approach of the police to such offences, the use of powers to remove children from parental care and the use of covert recordings by the mother to evidence alleged misreporting by a social worker. Henke J held that where the mother wanted to tell her own story, the reporting restrictions represented a "very significant" level of interference with her rights under both Articles 8 and 10 of the ECHR. Further, while he noted that even informed and balanced reporting contained a risk of further harm to at least one of the children given their ability to access news media online, this was balanced by the fact that such reporting would allow for a more nuanced story to come out. As a result, Henke J ruled that almost all details from the care proceedings could be published, including the identity of the parents, but only after the conclusion of the police investigation or any subsequent criminal proceedings.
Damages of £90,000 awarded following defendants' no-show
Simon Schofield, a close friend of, but unrelated to, the TV personality, Philip Schofield, has been awarded damages of £90,000 in respect of his claim for libel, malicious falsehood and misuse of private information against Politicalite, an online news website, after obtaining judgment in default. Politicalite had published an article alleging Mr Schofield was involved in the grooming of children. In determining the level of damages to award, Steyn J considered the gravity of the allegation, the extent of primary and secondary publication, and evidence of harm. The Judge, relying on Nicklin J's observations in Monir v Wood, found the allegation that Mr Schofield was guilty of complicity in child grooming to be "inherently very serious" and "at the upper end of the scale of gravity", whilst the nature and content of the private information published was such that it amounted to a significant intrusion into his private and family life. Politicalite did not seek to engage with or defend the claim, , but the Court found that the allegations had been published widely and quickly, leading to an "onslaught of social media abuse and speculation" which exponentially increased the extent of publication. In making the damages award, the Court also took into account "the extreme distress" suffered by Mr Schofield "the detrimental impact it had had on his business relationships" and aggravating conduct, pre-action correspondence which repeated the allegations in abusive terms (including labelling Mr Schofield's solicitors "nonce-enablers").
Farley v Paymaster: positive act required to establish data protection claim
The High Court has dismissed the vast majority of over 400 claims brought in misuse of private information and data protection over a data breach by Sussex Police's pension scheme administrator in August 2019 when it delivered over 450 pension benefit statements to out-of-date addresses. The statements contained the claimants' names, date of birth, national insurance number, salary and pension details. Nicklin J dismissed claims where there was no evidence that statements had been opened by someone other than the claimant, finding that each claimant must show that s/he had a real prospect of demonstrating that their pensions statement was opened and read by a third party in order to have a viable misuse of private information or data protection claim. Where a statement had not been opened, the privacy in the information had not been compromised (or misused) and no real "processing" had occurred. Of over 400 claims issued, only 14 claims were allowed to proceed. While Nicklin J held that the appropriate time for an assessment of the evidence in relation to the question of whether these 14 claimants could surmount the threshold of seriousness was at trial, he did note, obiter, that the remaining claims appeared to be "very far from being serious cases".
Preliminary meaning trial over safeguarding concerns sent to school headteachers
Hill J has handed down judgment on meaning in a libel claim between two litigants-in-person over an email sent by the Defendant to the school's headteachers in which she raised allegations of sexual misconduct against him, having previously worked at the same school as the Claimant. At the preliminary issue trial, the Defendant conceded that the email bore the meaning that the Claimant (i) posed a safeguarding risk and was therefore not fit for his job as a teacher, (ii) posed a physical danger to female staff at the school and women in general, and (iii) lacked the professional honesty and integrity to be a teacher. However, Hill J rejected the Claimant's argument that the email held the meaning that he was guilty of sexual misconduct finding that the language use of "accusation" and "allegations" led to a Chase level 2 meaning that there were reasonable grounds to suspect that the Claimant was guilty of the sexual misconduct alleged. The Judge also rejected argument that the email contained an expression of opinion as it stated that Defendant had "zero" evidence to back up her concerns.
Non-compliance of FOIA meets regulatory action from ICO
The Information Commissioner’s Office (ICO) has taken measures against five public authorities for consistently failing to fulfil their obligations under the Freedom of Information Act 2000 (FOI Act). Section 10 of the FOI Act stipulates that a public authority must, upon receiving a FOI request, comply promptly and no later than 20 working days following the date of receipt. Enforcement notices were issued to South Yorkshire Police and Sussex Police on grounds that the ICO considers their response rate to FOI requests to be unacceptable. The authorities, whose recent response rates were 18% and 32% respectively, have been instructed to clear their backlogs by 31 August 2024. The Department of Education , Foreign Commonwealth and Development Office, and Financial Ombudsman Service were given practice recommendations to enhance their compliance. They each have until 31 May 2024 to confirm they have complied with these recommendations, and explain how they have done so, otherwise enforcement notices will be issued. This action comes after the ICO has issued an open letter calling for senior leaders in the public sector to take transparency seriously.
The Lost King – a defamatory dramatisation?
On 29 February 2024, HHJ Lewis presided over a preliminary issues trial on meaning in a claim brought by an academic, Richard Taylor, against Pathe Productions Limited, Baby Cow Productions Limited and Steve Coogan. Mr Taylor alleges that Mr Coogan portrayed him as a "devious, weasel-like person" with "dismissive, patronising and misogynistic" tendencies in a film based on the search for the remains of King Richard III (The Lost King). The hearing sought to determine the natural and ordinary meaning of the film; whether the meaning was defamatory; and whether the film or its contents were statements of fact or opinion. The defendants argued that the film was "based on a true story" and was therefore not a literal portrayal of events or conversations, and that the film would be understood to reflect Ms Langley's perception, as opposed to a literal portrayal, of events. With judgment reserved, we must wait to see how the claim progresses. While it is unusual for defamation claims to be brought in respect of dramatisations, it is trite law that libel proceedings can still be brought over fictional works where there is sufficient information to allow the reasonable and ordinary viewer to believe the claimant is being referred to in the work.
Dan Wootton GB News Interview Ruled to Breach Ofcom Regulations
Ofcom has ruled that an episode of Dan Wootton Tonight on GB News violated broadcasting rules designed to protect viewers from offensive content after Laurence Fox made various comments about political journalist Ava Evans which prompted nearly 8,900 complaints and became the most complained-about broadcast of 2023. Fox's remarks, which included questioning Evans' sexual desirability, were found to be "degrading and demeaning" and "unambiguously misogynistic". Ofcom criticised Wootton's reaction for failing to mitigate the offence, both by not challenging the comments at the time and as no apology was issued after the incident. Both presenters were suspended from GB News, and Wootton was subsequently fired from MailOnline. Wooton has now left GB News to launch his own independent platform that he says will not be regulated by "Ofcommunist censors". Evans welcomed Ofcom's recognition of the sexism but emphasised the need for meaningful consequences for such behaviour.
BBC Launches New Content Verification Feature to Improve Transparency
BBC News has introduced a new feature - 'Content Credentials' - to enhance transparency and combat disinformation on their website and news app amid concerns over deepfakes and misinformation. The feature confirms the authenticity of images and videos by embedding verification information directly within the media itself, and also allows users to delve into the verification process. The verification process includes checking against multiple sources, examining metadata, and assessing contextual factors. It will initially only be available on the BBC News site and app, but the BBC plans to work with external publishers and social media platforms to implement content credentials more broadly in the future.
Online Safety panel event with RPC and techUK
RPC are hosting a panel discussion on the Online Safety Act with representatives from Ofcom, the Meta Oversight Board and industry body techUK to discuss the new legislation, the illegal content codes, and the implications for the tech industry on 27 March 2024. If you'd like to attend the event, please register your interest here.
Quote of the fortnight:
"Open justice is of vital importance to a democratic society and a properly functioning judicial system. Any infringement of that principle needs to be carefully justified. …With public scrutiny comes a greater knowledge and understanding of the work of the Family Courts and that is in the public interest. I consider that scrutiny is an important aspect of accountability in a democratic society. It holds our court system and the Family Court, in this instance, up to the light. It has a high value."
Henke J, Tortoise Media Limited v A Local Authority & Ors [2024] EWFC 50 [55]