Take 10 #19

Published on 10 November 2021

Welcome to RPC's media and communications law update. This issue reports on key media developments and the latest cases.

News items

Duchess of Sussex v ANL 

The Court of Appeal has heard Associated Newspapers' appeal against the summary judgment rulings of Warby J (as he then was) for misuse of private information and copyright infringement. ANL appealed on a number of grounds, and relied on, amongst other things, new evidence provided by Jason Knauf, a former member of the Kensington Palace Communications staff. The Court of Appeal's judgment is awaited. RPC act for ANL.

Lloyd v Google

In a keenly anticipated judgment that has significant ramifications for UK data protection, the Supreme Court overturned the Court of Appeal's decision in Lloyd v Google and restored the original order made by the High Court, refusing the claimant's application for permission to serve proceedings on Google outside the jurisdiction. The judgment has firmly rejected the basis of this class action and many others that were waiting in the wings (some of which had been stayed pending handing down of this judgment). It is likely to have a very significant impact on UK industry across many different sectors that handle customer data, as well as the UK legal market, including claimant firms, litigation funders and ATE insurers. RPC acted for techUK on its intervention in the case. For more analysis please see our blog here.

Data claims and the Small Claims Track  

Master Thornett recently handed down judgment in Johnson v Eastlight, a claim which related to the sending of an incorrect attachment in an email to a third party. The Master described the personal data involved in the incident as "routine", held that the Jameel jurisdiction is applicable to claims brought under data protection legislation and stated the claim was not appropriate for the High Court and should be allocated to the County Court small claims track. Whilst it was perhaps surprising that the Court did not  not "grasp the nettle" on summary judgment, the allocation to the small claims track (in which minimal costs can be recovered) is likely to lead to fewer of these trivial claims being brought in the High Court.   

RPC are also hosting a webinar on 1 December on this topic - join us as we discuss the judgment and how this has transformed the litigation landscape for data controllers in the UK tech sector. You can find further information here

Reporting restrictions lifted in Court of Protection case

On Wednesday, the BBC and Sky News successfully applied to lift reporting restrictions in the case of Tony Hickman, a man with learning disabilities and autism, who has been detained 100 miles from his family since 2001. The news organisations had argued that the restrictions imposed were a disproportionate restriction on the media's, the public's and Mr Hickman's parents' right to freedom of expression under Article 10 of the ECHR. RPC acted for the BBC.

'Putin's People' libel actions 

Tipples J has handed down judgments in two libel actions arising from the book 'Putin's People' brought by Rosneft and Roman Abramovich. In the Abramovich case, the Judge held that the meanings identified were all defamatory of the claimant at common law and are statements of fact. The Rosneft case served as a helpful reminder that an imputation is only actionable by a company if that imputation has a tendency to cause a substantial effect on people's attitudes towards the company (see Triplark v Northwood) and that it is necessary for a company to prove that the harm to its reputation has caused or is likely to cause it serious financial loss – S.1(2) Defamation Act 2013. Tipples J found that three out of the four contested meanings were not defamatory of the claimant at common law.  

The Court refuses the Claimant's application to disapply the limitation period 

The judgment in Johnson v Shooters Hill serves as a reminder of the importance of adhering to the statutory limitation period for bringing a defamation claim. The Claimant had sought to disapply the one-year limitation period under section 32A of the Limitation Act 1980, but in taking account all the circumstances of the case, former RPC partner, His Honour Judge Lewis (sitting as a High Court judge), held that it would not be equitable to disapply the limitation period in the case 

Councillor to pay "substantial damages" to Jeremy Corbyn for defamatory tweet

Conservative councillor Paul Nickerson has agreed to pay substantial damages and legal costs to Jeremy Corbyn for a tweet containing a fake photograph of the Islington North MP laying a poppy wreath at the scene of the Liverpool terrorist attack. Mr Nickerson later apologised, saying he had taken "full responsibility" for the post, adding that it gave the "completely untrue impression" that Mr Corbyn supports terrorist violence. Mr Corbyn said the tweet "did a disservice to all those affected by the attack and their loved ones" and announced he would use the settlement to support charities close to his heart.


ZXC v Bloomberg in the Supreme Court 

On 30 November and 1 December, the Supreme Court will hear Bloomberg's appeal in ZXC v Bloomberg. The Supreme Court will have to answer one of the most significant privacy issues at present – whether a person who has not been charged with an offence has a reasonable expectation of privacy in a police investigation into their activities. RPC acts for Bloomberg

Ofcom publishes annual report on BBC

Achieving impartiality continues to be a complex challenge for the BBC, says Ofcom, and improving how audiences feel they are represented and portrayed will also be critical to its success. The report, which looks at output since regulation began in 2017, found the broadcaster has a good record of complying with rules intended to ensure programming is impartial. Each year audiences have rated the BBC highly for trust and accuracy in news output, but have consistently rated the BBC less favourably for impartiality. The report said the BBC must continue to evolve to be relevant to all audiences but acknowledges that the BBC is taking steps to better represent those from different backgrounds. Ofcom describes the BBC's accountability to its own goals as "critical" to long-term success.

Home Secretary Priti Patel and the Government have apologised and paid compensation to website editor falsely labelled "extremist hate preacher" in press release

British Muslim Dr Salmon Butt brought legal action, seeking damages for libel and breaches of the DPA 1998 after his name appeared in a September 2015 press release entitled "PM's Extremism Taskforce: tackling extremism in universities and colleges top of the agenda". The High Court heard that Dr Butt, chief editor of the Islam21C website, had suffered "very great distress, anxiety and damage to his reputation" as a result of the false allegation, which was made "significantly worse" after the Government "refused" to remove the press release from the internet for five years.

Ofcom: UK Media plurality at risk from online algorithms 

Ofcom have found that online algorithms present a series of risks to media plurality in the UK. They cited the most significant concerns as a lack of transparency, reduced exposure to news sources, and the consumer's ability to understand why algorithms serve them the news content they see. They describe a diverse media as "the cornerstone of a well-functioning democratic society" and highlight the concern about "the level of influence any on intermediary may be able to exercise over the range of viewpoints that citizens can access and consume", especially where viewpoints are restricted through the lens of political agenda. 

Man falsely identified as Cleo Smith suspect sues Network Seven for defamation

West Australian man Terrance Flowers, 27, who uses his mother's maiden name, Kelly, on Facebook, was incorrectly identified by the news organisation in a series of broadcasts, articles and social media posts as having been a suspect in the abduction of Cleo Smith. Police had arrested Terence Darrell Kelly, 36, whose name is spelled differently. Flowers has now launched defamation proceedings against the network, filing a case in the WA supreme court. Lawyers said Seven had obtained "four full screen colour photographs" from Flowers' Facebook account without his consent and used them across its broadcast and social media accounts. Social media posts contained the heading "PICTURED: the man accused of abducting Cleo Smith".

Quote of the fortnight:

"Countless examples could be found daily in virtually every County Court in this jurisdiction where limited time and resources and the requirements of the overriding objective combine to oblige the pragmatic and proportionate application of legal principle. The lure of adopting a more elaborate and expensive approach just because the subject matter can so permit is simply unacceptable. Put bluntly, the garment must be cut according to the cloth."

– Master Thornett at [24.5] of the judgment in Johnson v Eastlight, on the appropriateness of allocation to the County Court for straightforward data protection claims.