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Take 10 - 24 February 2023

Published on 28 February 2023

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

SRA emphasises duties on solicitors to report SLAPPs

In a new thematic review on SLAPPs published by the SRA, emphasis has been placed on the duties of solicitors to report conduct by other solicitors that may contravene the SRA's guidance on SLAPPs. Following visits to 25 law firms working in the reputation management sector, the SRA found overall a good level of compliance with its Code of Conduct and Principles in respect of litigation conduct but identified the need for improved training to ensure that individuals understand their professional obligations to report potential misconduct by others. However, the SRA warned that reporting a firm for an alleged breach of the Code of Conduct without cause would be regarded as an abusive litigation tactic and such matters would be taken seriously.  The SRA has 40 live investigations linked to SLAPPs and noted that it will not hesitate to take strong action if it finds evidence of misconduct.  It issued a 'warning notice' in November 2022 outlining their concerns and another thematic review to address further concerns on SLAPPs is due to take place in the future. 

Amendments to Online Safety Bill proposed to impose disclosure obligations on platforms

As first reported in the Telegraph, former Health Secretary Sajid Javid has backed amendments to the Online Safety Bill aimed to provide a framework for platforms to provide account data to parents of deceased children so they can understand the possible causes of their child's death. The amendments would require Ofcom to work in conjunction with the coroner to ensure that social media platforms are being cooperative and sharing relevant information within a fair timeframe. Sanctions for non-compliance are proposed to be fines of up to 10% of the global turnover of the company or a maximum one year's jail sentence for senior managers. Another amendment has been proposed to Clause 110 (previously 104) which appears designed to remove the ability of Ofcom to potentially require monitoring of private communications – a concern raised by many organisations including Index on Censorship

Safe harbour under threat 

The fate of the safe harbour defence in this jurisdiction remains unclear as the Retained EU Law (Revocation and Reform) Bill continues to speed through Parliament with no express reassurances from the Government yet that the EC Directive which contains the safe harbour provisions will be retained or replaced with an equivalent: see the bill's webpage here. The bill entered the Committee Stage in the House of Lords yesterday. Across the pond, the US Supreme Court has heard argument in the case of Gonzalez v Google over whether the US-equivalent provision known as 'section 230' should continue to remain in place or whether tech companies can be legally liable for harmful content promoted by their algorithms. A summary of the oral arguments in Gonzalez v Google can be found here, as reported by the Washington Post.

Wilson v Mendelsohn & others: law lecturers' 2-year twitter spat reaches High Court 

A strike-out and reverse summary judgment application has failed in a claim brought by a law lecturer following a social media spat with 3 other lecturers. The claim, brought in harassment, defamation, the DPA 2018 and misuse of private information stems from a Facebook post by a non-party which included an image of the claimant following an altercation over parking outside of a school gate and referred to the claimant as a "weirdo and a freak". The post was then screenshotted and shared as part of a Twitter thread posted by the Ds criticising C in the context of a debate about antisemitism, which were sued upon in this action.  

Dealing with each cause of action in turn, Master Davidson determined that as the 8 Tweets published by D1 in the thread were published over the course of several hours and the conversation spanned two days, it was at least arguable that the tweets were deemed to constitute a "course of conduct" and that the contents of them were arguably oppressive under the Protection from Harassment Act 1997. A single tweet published by D3 did not amount to harassment and this part of the claim was struck out. Secondly, on serious harm in the libel claim, the Master determined that it was reasonable to infer substantial publication due to the D3's 2,500 followers, which warranted a "fuller investigation into the case" (as per . In the DPA action, D3 submitted that his tweet was part of his personal or household activities and therefore not within the scope of the GDPR, which Master Davidson found "inherently implausible" by virtue of the fact that his Twitter biography describes him as someone "raging against anti Semitism, populism and the silence of clever people" and the fact that the tweet was an attack on a stranger with whom he had political differences. Finally, in respect of the privacy claim, the Court was not persuaded that the Claimant had no real prospect of demonstrating a reasonable expectation of privacy in respect of the photograph published of him outside his child's school. Whilst there has recently been a spate of 'kitchen sink' claims struck out by the courts, Master Davison noted that the power of the court to strike claims out on the grounds of Jameel abuse would be exercised sparingly. He said that "litigants are prima facie entitled to deploy the causes of action at their disposal and there are often legitimate reasons to do so" [47]. Defendants should therefore be mindful of claims which might lend themselves to other causes of action on the same facts, and the potential impact on the costs of defending such claims. In summary, Ds' application was refused, save that C's harassment claim against D3 was struck out. You can read the full judgment here.  

Media criticism in Nicola Bulley case 

Following the disclosures by Lancashire Police that Nicola Bulley had suffered with "significant issues with alcohol" and "ongoing struggles with menopause", apparently in an effort to stymie speculation in the media, the ICO has confirmed it is investigating the disclosures by the force of her personal information. Lancashire Police will likely need to show to the ICO that the processing conditions set out in Schedule 8 of the DPA 2018 have been satisfied, i.e. that the processing was necessary for the purposes of the investigation and for reasons of "substantial public interest".  Similarly, Ofcom has written to Sky News and ITV to ask them to explain their actions after the broadcasters were criticised by Ms Bulley's family for contacting them following reports that a body (later determined to be Ms Bulley's) was found in the river Wyre.  Whilst it appears that some media organisations may have been in some dialogue with the family at previous stages of the investigation, the broadcasters will now likely have to show that they have complied with Section 8 of the Ofcom Broadcasting Code in respect of the observance of privacy rights, the avoidance of 'doorstepping', and the obligation to reduce distress on relatives.  It is now well documented that many individuals (largely using TikTok) were publishing inappropriate information about the investigation and Ms Bulley's family whilst the search was underway.  The justifiable criticisms of such conduct appear to have morphed into criticisms of the media more generally.  Whilst broadcasters are bound by the Ofcom Code, referred to above, and most of the print media are covered by Clause 4 IPSO's Editors' Code of Practice (concerning intrusion into grief or shock), this incident is likely to prompt scrutiny of coverage of incidents such as Ms Bulley's disappearance and in particular the Police's media relations practice.  The most recent College of Policing Guidance promotes openness and transparency by the police, and in particular encourages the provision of non-reportable information to the media to help guide coverage appropriately.  It is unclear the extent to which this practice was followed in this case but will no doubt be subject to further debate and consideration in the coming weeks.

Journalists' explicit protection proposed in amendment to Public Order Bill

An amendment has been proposed by the House of Lords to the Public Order Bill in order to provide explicit protection to journalists. The new clause states that officers "may not exercise any police power for the principal purpose of preventing a person from observing or otherwise reporting on a protest". The protection extends to legal observers, academics and bystanders who observe or report on protests. Although the amendment faced opposition by a number of MPs for being "obvious", Lord Garnier, supporting the amendment, argued that "if we are not careful, we will move to preventing the media from creating fair and accurate reports of our courts and even of this place". You can read more here

BBC facing 'intimidation' after broadcast of "India: the Modi Question" documentary 

Just weeks after the broadcast of a documentary which was critical of the Indian Prime Minister, Narendra Modi, the BBC's offices in India were raided by tax authorities and some staff were subjected to overnight questioning last week. The raid follows the invocation of an emergency law by the authority to block the documentary from being available on social media. Whilst the India Central Board of Direct Taxes claimed to have found "several discrepancies and inconsistencies" after the raid, MPs in the House of Commons have described the searches as "intimidation" and called on the Government to summon the Indian High Commission to explain itself.  Amnesty International has described the raids as "a blatant affront to freedom of expression". The Indian Government are yet to respond to the comments made in the Commons.

IPSO launches consultation on the reporting of sex and gender identity 

IPSO is seeking views on its draft guidance on the reporting of sex and gender identity. It has discussed with editors, IPSO committees and advisory groups the challenges journalists face regarding the reporting of this area whilst trying to comply with the Code, such as the reporting on gender diversity in the context of legal proceedings, the use of terminology around gender identity and reporting on the area's complex guidelines and legislation. These discussions led to the draft guidance which is designed to aid the decision-making process on content about sex and gender identity. The guidance is not mandatory, and IPSO acknowledges its role isn’t to settle the range of opinion within the reporting of this topic, but it aims to advise journalists and editors by providing questions and case studies to illustrate how the Code applies. The consultation on the draft guidance is open to anyone with an interest in the reporting of this topic until Friday 10 March 2023. Meanwhile, IMPRESS has launched a new Standards Code, intended to hold publishers to stricter account on discrimination and misinformation, amongst other things.

NHS 111 Advisor illegally accessed child's medical records 

Following an ICO investigation, Martin Swan, a former 111 service advisor, has been found guilty and fined for unlawfully accessing the medical records of a caller and their child without consent or a lawful reason to do so, following a disagreement over which medical centre the caller should attend. Following a complaint by the caller,  Mr Swan produced screenshots of the child's medical notes at an internal investigation meeting in June 2016 in a bid to aid his defence and contacted the caller again with accusations of falsifying events and threatening to report him for neglect. It is noteworthy that Mr Swan was prosecuted as an individual and that his employer does not appear to have been investigated. It remains to be seen whether the family will pursue a civil claim against the employer for breaches of data protection legislation or misuse of private information by vicarious liability, though given the ruling in Morrisons Supermarkets v Various Claimants [2020] UKSC 12, such a claim may be difficult to prove.

Roald Dahl classics rewritten

Roald Dahl's children's classics are being edited to remove language deemed offensive. Puffin, the publisher, appointed 'sensitivity readers' to analyse and rewrite parts of the texts in an effort to encourage inclusivity and suitability for the modern audience. Descriptions of characters’ appearance, race and gender, have been edited in 10 out of 19 books. In Charlie and the Chocolate Factory and The Twits, the words "fat" and "ugly" will become "enormous" and "beastly". The books also now include gender neutral terms where Oompa Loompas are referred to as "small people" rather than "small men". Puffin and the Roald Dahl Story Company made the changes with Inclusive Minds, an organisation supporting the children's book world with authentic representation that believe in "breaking down barriers and challenging stereotypes to ensure that every child can access and enjoy great books that are representative of our diverse society." However, the updates are not welcomed by all. Rishi Sunak's spokesperson stated works of fiction should be "preserved and not airbrushed". Laura Hackett, deputy literary editor of the Sunday Times, likened the amendments to "botched surgery".

Quote of the fortnight:

"You protest only when you cannot get anywhere with anything else, when letters to MPs, to the local council and the newspaper have been explored and you take to the streets. But just as this is a fundamental right, so is it more than just a fundamental right—it is a duty— of journalists to report on demonstrations, because demonstrations are where we see where society is fracturing and where people really care."  - Baroness Boycott, in the House of Lords debate on the Public Order Bill