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Take 10 - 20 November 2023

Published on 20 November 2023

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

Duke of Sussex's phone hacking claim allowed to continue

Mr Justice Nicklin has handed down his judgment on ANL's strike-out application in respect of a number of high-profile phone hacking claims brought by the Duke of Sussex and others. ANL made two applications, which were heard in March 2023. The first asked the Court to prevent the phone hacking claims from going ahead on the basis that they are time barred, by reference to the fact that all the acts complained of are alleged to have taken place over 6 years before the claims were issued. The claimants argued that the alleged wrongdoing had been deliberately concealed by ANL and so the limitation period ought to be extended. In his judgment on that application, Nicklin J held that the claims should be allowed to continue to trial as there are questions of fact, including those relevant to limitation, which should have the opportunity to be determined in a full trial. ANL's second application concerned the claimants' reliance in their statements of case on certain documents that ANL had been required to produce to the Leveson Inquiry (the Ledgers). ANL challenged this part of the claimants' pleadings on the basis that use of the Ledgers is subject to continuing restrictions imposed by the Inquiry. Nicklin J held in ANL's favour, which means that the claimants are prohibited from advancing those parts of their pleadings that rely on information drawn from the Ledgers, unless the claimants obtain a variation or revocation of the relevant restrictions. ANL has since said it looks forward to establishing that the claimant group have made "lurid claims" in court.

Not worth the candle? Supreme Court considers significant abuse of process issues

The Supreme Court heard an appeal earlier this month which could have very significant ramifications for abuse of process strike out applications in the future (see case summary here).

The Appellant was convicted in absentia in 2013 in relation to crimes against humanity during violence in Bangladesh in 1971. He has always maintained his innocence and says he was unable to attend his trial in fear of the death penalty. The Appellant sued the Secretary of State for the Home Department in defamation and data protection over a report published in 2019 which contained a footnote referring to the Appellant's conviction and suggested he had links with violence in 1971. In November 2021, the Appellant's claims were struck out as an abuse of process by virtue of the Appellant's 2013 conviction. The Appellant unsuccessfully appealed to the Court of Appeal in July 2022.

The appeal is in respect of that Court of Appeal decision. The Supreme Court was asked to decide a number of significant questions including the admissibility of prior publications of defamatory allegations as evidence of bad reputation, whether a defendant's difficulties in proving truth can be a relevant factor supporting a finding of abuse, and the application of the Hunter and Jameel abuse jurisdictions. Watch this space.

Miller v Turner – guidance on serious harm and harassment by publication

On 8 November 2023, Mrs Justice Collins Rice handed down judgment in a libel claim brought by Daniel Miller and Nina Power concerning 16 Tweets and an archive of online material posted by artist Luke Turner. The previously determined meanings of the publications included imputations that one or both of the claimants are racist, antisemitic, homophobic, transphobic, ableist, misogynistic, and had threatened violence against the defendant. The defendant brought a counterclaim for harassment. 

Collins Rice J found that the claimants were not able to show that the specific imputations of the publications complained of caused or were likely to cause serious harm to their reputations. The judge accepted that "accusing anyone of antisemitism and threatening violence is a serious matter", but emphasised that clear articulation and evidence of serious harm in real life is needed as opposed to "pessimistic guesswork" [73]. The court emphasised that s2 is a threshold issue and that the basic rules of causation apply: "evidence contrary to the imputation of causal responsibility is no less potentially important than evidence tending to favour it" [74]. Collins Rice J acknowledged that her decision did not mean that she did not conclude that the claimants' reputations had been harmed, but rather that they simply could not demonstrate that Mr Turner's publications were the cause of such harm [75]. Collins Rice J asked "how probable it was that serious harm to Mr Miller's reputation was…caused by a handful of tweets saying the same sort of things as were already in circulation in the public domain on an unlitigated basis" [61], noting that "Mr Turner's tweets drew attention to, and were comments on, Mr Miller's and Ms Power's own comments, actions and associations, and all of those had public lives of their own" [66]. As serious harm was not proved, the court did not need to consider Mr Turner's defences of truth, honest opinion, public interest, and "reply to attack" qualified privilege. The libel claim was dismissed.

Furthermore, although the judge accepted that the claimants had subjected the defendant to the "full lexicon of Twitter trolling" [91], she deemed that their actions could only amount to "bullying" and so did not meet the quasi-criminal conduct standard required for harassment. The counterclaim was also dismissed. 

Successful counterclaim in harassment by publication 

Following a two-day trial in March 2023, Mr Justice Julian Knowles has dismissed a passing off claim for over £1.4 million brought by therapist, Siobhain Crosbie, against ex-colleague, Caroline Ley.

Ms Crosbie had claimed that Ms Ley had passed off her therapy centre as Ms Crosbie's business. Ms Ley counterclaimed in defamation, harassment, and breach of data protection rights in relation to a series of Facebook and Twitter/X posts published by Ms Crosbie over the course of 2016 to 2020, which accused Ms Ley of passing off, fraud, unethical behaviour, and of being a danger to clients. The claimant also threatened violence against Ms Ley. 

Julian Knowles J found that Ms Crosbie's claim was without merit as she had failed to prove any actionable misrepresentation by Ms Ley and could not produce evidence of any subsequent damage. It was noted that the merging error in the Google listing which resulted in Ms Ley's business being advertised under Ms Crosbie's address was likely due to a well-documented issue with Google's past technology meaning it was unlikely Ms Ley had intentionally tried to mislead clients. 

Julian Knowles J further found that Ms Crosbie's social media posts were false, defamatory, and formed part of a four-year long public targeted vendetta against Ms Ley which he deemed to be harassment, which is relatively unusual given the conduct in question was limited to publications (compare to Miller v Turner above). Ms Ley was therefore awarded £75,000, consisting of both general and aggravated damages, the latter due to the criminality allegation, and the fact that the posts were viewed by a large number of people, many of which were Ms Ley's peers, including through percolation – a classic "hidden springs" case [312]. With regards to serious harm, Julian Knowles J held: "Given the nature of the allegations; the extent of their publication; the identities and predominant occupation of the publishees; the evidence of their reaction; percolation; and the inherent probabilities, there is an ample basis for me to conclude that the test in s 1 of the DA 2013 is satisfied in respect of each publication complained of" [319]. Julian Knowles J also granted an injunction against Ms Crosbie to prevent further publications, and an order under s.12 Defamation Act 2013 which requires her to publish a summary of the judgment. 

The King's Speech

King Charles delivered the first King's Speech in 70 years earlier this month. The government's legislative plans for the next year include the Digital Markets, Competition and Consumer Bill which will introduce a new competition regime for the digital market, in particular those with "strategic market status". The current draft of the bill proposes that the CMA be able to impose conduct requirements on platforms which fall within scope of their regulatory remit. There is on-going discussion as to whether those requirements will include an obligation on platforms to pay for news publisher content which they benefit from – Labour has reportedly already committed to pushing that through if elected. The King's Speech vowed to protect "public interest journalism" which was likely a reference to the intended repeal of the much-debated s40 Crime and Courts Act 2013 through the Media Bill. The Media Bill will also update the television legal and regulatory landscape, including by introducing a new Ofcom code to which video-on-demand platforms will be subject. The Data Protection and Digital Information Bill, which will update the UK's data protection regime, is also one to watch for the media and tech sector. Debate on the Speech in the Commons and Lords finished on 15 November. The Lords debated topics specific to the tech and media sector on 14 November.

Ofcom consults on illegal harms duties under the Online Safety Act 

Ofcom, as regulator of the new Online Safety Act, has published the first of four major consultations, which sets out their proposals for how 'user-to-user' services and search services should approach their illegal content duties. Ofcom have provided guidance in relation to governance, content moderation, reporting and complaints mechanisms, terms of service, supporting child users, and user empowerment. The suggested measures include default settings for child users which ensure (1) they do not appear in 'suggested friends list' or other users' connection lists, (2) they cannot be sent direct messages by users outside their connection list, and (3) their location information is not visible to anyone. Ofcom are recommending that 'hash matching' technology be used to detect and remove child sexual abuse and exploitation material. Certain targeted steps to tackle fraud and terrorism have also been recommended. Ofcom's overview of the consultation provides further detail. Anyone can respond to Ofcom's consultation and the deadline for doing so is 5pm on 23 February 2024. Ofcom's codes and guidance, once enacted, will guarantee compliance with the legislation, but adopting a different approach would also be sufficient provided the service can demonstrate they are complying with their duties.

The Society of Media Lawyers - Anti-Anti-SLAPPs

A newly formed media lawyers' association, The Society of Media Lawyers, has written to the President of the Law Society over concerns about a "false" narrative being perpetuated relating to strategic lawsuits against public participation (SLAPPs). The society, which predominantly consists of claimant lawyers, state in their letter that abusive litigation is rare and "grossly exaggerated" by pressure groups and the media. It also said that there is no credible evidence to support the prevalence of SLAPPs. The letter requests the Law Society to share its analysis of SLAPPs evidence and to ensure that a member of the Society is appointed to the Civil Procedure Rules Committee (which has been tasked with effecting the changes to the CPR outlined in ss194-195 of the newly passed Economic Crime and Corporate Transparency Act 2023), and to the DCMS SLAPP Task Force.

Meaning determination in Clarke v Guardian

Mr Justice Johnson has determined the meaning of eight articles published by The Guardian about the actor Noel Clarke (the claimant) in 2021. The first seven articles reported on allegations of sexual misconduct made against Mr Clarke by 20 women who had previously worked with him in the film and television industry. The eighth article referred to a police decision to not investigate the claimant. The central issue between the parties was the degree of the defamatory sting of each of the first seven articles and, in particular, whether they bear the meaning that the claimant is guilty of the conduct alleged, or some lesser meaning such as that there are merely grounds to suspect that he is guilty [38]. Mr Clarke argued that all eight articles convey a Chase level 1 meaning (a direct allegation of guilt) by reference to the repetition rule and the women's allegations [26]. Johnson J rejected this application of the repetition rule [39-41], stating: "I do not agree that…the [claimant's] denials are reported in a way that suggests that no credence can be attached to them. Nor do I agree that the clear and conscientious reporting of the claimant's denials have no mitigating effect on the meaning that the articles would otherwise convey. Only a reader "avid for scandal" would accept the allegations at face value and entirely disregard the denials. A reasonable reader would take account of the denials" [49]. Overall, Johnson J held that the first seven articles convey a level 2 meaning (grounds to suspect guilt) [69] and that the eighth article conveys a level 3 meaning (grounds to investigate allegations of guilt) [53]

Anonymity and risk to life

A judge has ruled that the name and date of birth of the police marksman charged with the murder of Chris Kaba will be publicly revealed in January 2024. The marksman who fired the fatal shot at the 24-year-old last year was charged with murder in September this year, however, his name has remained anonymous in legal proceedings. 

Recorder of London Mark Lucraft KC examined “raw underlying intelligence material” before deciding that revealing the policeman's name and date of birth posed no “real and immediate risk” to the life of the defendant or to his family. Further information such as his home address or any image of him still cannot be published. Although there were significant safety risks in naming the officer immediately after he shot the victim, Lucraft J held that any risks involved in lifting the anonymity order next year could be mitigated. As a result, the judge has allowed three months for any mitigating measures to be put in place. Metropolitan Police Assistant Commissioner Matt Twist said “I recognise that for officers this decision will be hugely concerning" while Mr Kaba's family issued a statement thanking the court for “working in the public interest of open justice”.

IPSO issues updated guidance for journalists regarding the reporting of unusual suicide methods

Earlier this month IPSO published updated guidance for the reporting of suicide which consists of separate notes for both journalists and the general public. Whilst media organisations already generally avoid reporting details of suicide, the guidance particularly emphasises the need to take precautions when publishing information relating to novel suicide methods in order to prevent attention being drawn to them which may lead to copycat acts especially amongst vulnerable groups such as young people. The guidance states that even though journalists have a duty to report suicide accurately, they should not report unnecessary details of the suicide method and must also be sensitive when approaching bereaved friends and family for information. The guidance also reminds the press that IPSO can provide non-binding, 24-hour pre-publication advice on the Editor's Code of Practice should they need assistance when making decisions in this area. 

Quote of the fortnight:

"...We recognise that freedom of the press and of our media is sacrosanct. Through this Bill we are fulfilling our manifesto pledge to repeal Section 40 of the Crime and Courts Act 2013…This section could have had a negative effect on freedom of speech, undermining high-quality journalism and our newspapers, which play such a vital role in our political discourse and our wider democracy." – Viscount Camrose, HL Deb following the King's Speech, 14 November 2023, vol 834, col 397