Take 10 – 26 April 2024
Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.
He said, she said – judge dismisses libel case as no proof of publication
On 19 April 2024, Mr Justice Farbey dismissed a libel and misuse of private information claim finding that publication did not occur. The Claimant, Richard Parsons, a Cumbria-based businessman, sought damages and an injunction against firefighter, Douglas Atkinson whom he accused of publishing a "poison pen" letter by reading the letter out loud to a number of fellow firefighters at a fire station. The letter's "salacious and tendentious" defamatory meaning was not disputed, however Mr Atkinson denied that he read the letter out loud. The Defendant also asserted that even if publication did take place, serious harm would not have been caused to the Claimant's reputation.
As there was no recorded evidence of the alleged incident, the only evidence available was the testimony of witnesses which amounted to a stalemate with both parties accusing the other's witnesses to have lied. The judge found Claimant could not prove that the Defendant had published the letter, and therefore both the libel and misuse of private information claims failed. As no publication was proven, Farbey J declined to deal with the issue of serious harm as it would be a "complex and risky task" to "make further findings of fact founded on a hypothetical publication".
The SRAs thematic review on SLAPPs
On 19 April, the SRA published its thematic review on Strategic Lawsuits Against Public Participation ("SLAPPs") looking at the knowledge and practises of solicitors working in reputation management.
Whilst the review only identified one case of the forty reviewed which had strong indicators of SLAPP-style litigation, the SRA noted that it cannot "fully uncover" all issues. Instead, the review identified several causes of concern reported by the participants which are taking place generally. Examples included pursuing meritless claims and engaging in aggressive conduct, particularly through sending excessive correspondence or claiming extreme remedies or costs consequences the client is unentitled to. The review noted that more reports should have been made to the SRA regarding inappropriate litigation conduct. The respondents had also seen an increase in data protection claims to overcome limitation issues or the availability of defences in defamation claims which resulted in further litigation being brought without legal basis. Issues such as responding to Right of Reply requests in bad faith and using private investigators to obtain evidence illegally were also discussed.
The report suggests these issues are compounded by a lack of firm policies or training and a lack of diligence regarding the conduct of PR agencies, private investigators or other third parties to ensure they are acting "appropriately and lawfully". The report did note that the SRA's warning notice did have a positive impact, yet more action was needed in light of the above.
The ICO's Consultation on AI and the Accuracy Principle
The ICO has launched a consultation and published its initial analysis on whether generative AI meets the requirements of the GDPR's accuracy principle. The ICO distinguishes between two definitions of accuracy, one in relation to the accuracy principle arising from the GDPR which should always be met, and the other being 'statistical accuracy' of the model itself, which is not always required. The ICO gives the example of appropriately processing historical records which are now out of date as an example of statistical inaccuracy which may not fall foul of the accuracy principle.
However, for certain forms of AI, statistical accuracy helps determine whether the AI model meets the GDPR's accuracy principle. The ICO suggests that consumer-facing services and models used to make decisions about people require high statistical accuracy due to potential negative impacts including reputational and financial harm and spreading misinformation. Video games are less likely to have this risk and so may not require as high statistical accuracy.
Developers should therefore consider the purpose of their model to determine the level of statistical accuracy required. If statistical accuracy cannot be achieved, they should clearly communicate with users about the limitations of their model's outputs, which may include labelling measures such as 'generated by AI' or 'not factually accurate' and monitoring their user-base's ability to understand outputs.
The call for evidence closes at 5pm on 10 May 2024.
Meaning Judgment in Amersi v BBC [2024] EWHC 774 (KB)
On 9 April 2024, HHJ Lewis handed down judgment in a preliminary issue trial on meaning following the BBC's Panorama reporting on the Pandora Papers. The publications complained of included a Panorama episode and accompanying article which alleged Mohamed Amersi's involvement in a corrupt transaction when working for Telia, a Swedish telecoms company.
The dispute centred around the Chase level of meaning to be applied, with some dispute on whether the article and programme had the same meaning. The Claimant submitted the reporting suggested "strong grounds" to suspect a corrupt transaction took place, making small distinctions between meaning of the article and programme, with the article making "slightly" stronger allegations. This was in marked contrast to his wide-ranging submissions on meaning in defamation proceedings against Charlotte Leslie and the Conservative Middle East Council which were subsequently struck out. The BBC submitted the same meaning for both the article and programme of "reasonable grounds" to suspect the Claimant's involvement in corrupt transactions at Telia, albeit arguing that attaching a level of suspicion to meaning was unnecessary.
Whilst noting that including the Claimant's denials "diluted [the meaning] to a degree", the Judge favoured the Claimant's interpretation relying on the seriousness of the allegations and elements of the publications which gave rise to stronger grounds of suspicion. These included: a graphic explaining how the bribe worked, references to the amount of money involved, the fact the Claimant lost his job and suggestions political donations should be returned. No order was made as to costs.
Children's privacy at the forefront of the ICO's mind
The Information Commissioner's Office (ICO) has taken steps to further entrench its 2021 Children's Code of Practice by requesting social media and video sharing platforms to consolidate their data protection measures in order to promote the safety of children using their platforms. Some of the key issues to tackle include: preventing children from being tracked using their geolocation; reducing the profiling of children in order to minimise targeted advertisements which would otherwise affect children's decision-making autonomy; the use of algorithms using behavioural information which may prolong the time spent online and risk suggesting harmful content; and solidifying age verification procedures to ensure that the personal information of children under 13 is not collected without the approval of their guardian. The ICO is keen to collaborate with Ofcom and other national and international regulators ultimately to globally standardise data protection measures relating to the privacy of children. This was kickstarted with the ICO's attendance at the Global Privacy Summit 2024 in Washington DC earlier this month which was attended by privacy professionals from all over the world.
This precedes Meta's latest measures to tackle 'financial sextortion' whereby scammers threaten to reveal intimate images of victims in a bid to extort money. Some of the new tools include: reminders to senders to be cautious and think twice prior to sending or re-sharing intimate images; the blurring of sensitive images when sent via direct messaging on Instagram which allows recipients to choose not to view the image; preventing scammers from engaging with children by identifying the former through online behavioural patterns; and providing more resources such as pop-up messages suggesting helplines to users who may already be in contact with a scammer.
Criminalising AI used to create sexually explicit deep fakes
On 16 April 2024, the Ministry of Justice proposed an amendment to the Criminal Justice Bill which seeks to criminalise the creation of deepfake sexually explicit images, often through the use of AI, without the consent of the victim it portrays. The amendment will supplement the existing offence in the Online Safety Act which criminalises the sharing of such images. The CPS could then charge offenders who both create and share sexually explicit deepfakes under two offences, both with the potential threat of a custodian sentence if the images are shared widely. This amendment is in line with the government's plans to crack down on degrading conduct, particularly towards women and builds on the existing 'upskirting' offence. The Bill is currently in the Report stage of the House of Commons.
In related news, a sex offender convicted of creating over 1,000 indecent images of children has been banned from using any 'AI creating tools' for five years in a landmark case for sexual harm prevention orders.
Lehrmann v Network Ten Pty Limited in Federal Court of Australia
A significant judgment has been handed down in the Federal Court of Australia by Justice Michael Lee in the highly-publicised defamation case of Lehrmann v Network Ten Pty Limited. Bruce Lehrmann (a former political staffer) sued Network Ten over a 2021 broadcast in which he alleged veteran journalist Lisa Wilkinson published statements that carried the meaning that he had raped his colleague Brittany Higgins in the office of the then Defence Minister at Parliament House. Ten advanced a defence of truth in the event it was found the broadcast identified Mr Lehrmann – in a significant win for the media and for victims of sexual assault, Justice Lee found the defence of truth was made out.
Originally, a criminal charge was brought against Mr Lehrmann for the alleged rape of Ms Higgins, but the trial was abandoned due to juror misconduct and no retrial was ordered due to concerns about the mental health of Ms Higgins. In the absence of criminal findings, Mr Lehrmann took the decision to sue Ten, even if this risked the rape allegation being decided at a lower standard of proof. In his judgment, Justice Lee memorably stated "Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat".
Prince Harry issues royal apology after 'comprehensive' loss against Home Office
The Duke of Sussex has apologised after breaching the terms of the confidentiality ring in his High Court security claim against the Home Office. The Duke had shared private information with Veterans minister and long-term friend, Johnny Mercer as well as with a partner of the law firm Schillings who was not part of the confidentiality ring. The Duke's barrister detected the breach at the time and informed the Duke's acting solicitors at Schillings who proceeded to notify the Defendant. In a costs ruling handed down on 15 April relating to the Claimant's failed application for judicial review, Mr Justice Lane concluded that although the breach did not affect the overall determination of costs, he did not want to minimise the "seriousness" of the breach especially as the Home Office asserted that it had caused unnecessary costs. The Claimant was unsuccessful in his application to appeal his failed judicial review claim over the Home Office's decision to remove his right to automatic police protection with Lane J deeming it a recapitulation of the case advanced by the claimant at trial which the Duke had "comprehensively lost". The Claimant was ordered to pay 90% of the Home Office's costs but is still able to appeal Lane J's decision at the Court of Appeal.
New KB Guide
On 19th April 2024, the 10th Edition of the King's Bench Guide was published. The guidance restresses that the principle of open justice should only be departed from to the minimum extent strictly necessary and gives additional guidance on example wording to be used in anonymity applications and non-disclosure orders.
Updated due impartiality guidance from Ofcom
On 24 April 2024, Ofcom strengthened industry guidance on the application of Rule 5. The guidance focuses on Rules 5.1 and 5.3 which provide the requirements for news programmes to maintain "due impartiality" and prohibits them from appointing politicians as newsreader without justification. Ofcom's focus on these rules follows its recent decisions on news presented by politicians (see our previous Take 10 for discussion) and Ofcom's notice to broadcasters to retain due impartiality in advance of the General Election.
The guidance gives some clarity over factors that could take a programme into the remit of the news broadcasting rules. Examples of news programmes include a newsreader that presents to the audience, short form stories and live reports. Instead, current affairs programmes are more likely to be long form, include extensive discussion and often be presented live with guests. A programme can however be a mix of both news and current affairs, meaning the Rules 5.1 and 5.3 come into play at the specific points the programme becomes news.
Ofcom stresses that the broadcaster retains editorial freedom and so suggests some ways programmes can remain within the spirit of the guidance. Ofcom suggests seeking views from different sources, providing unbiased summaries, and challenging such views. If broadcasters wish to use a politician as presenter, the programme must remain as current affairs, giving the examples of audience phone-ins and discussion programmes.
The guidance also covers the rules on special impartiality requirements including requirements not to misrepresent facts and to make personal interests of reporters known.
Quote of the fortnight:
"Having escaped the lions’ den, Mr Lehrmann made the mistake of going back for his hat" Justice Lee