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Take 10 - 27 April 2023

Published on 28 April 2023

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

Alleged abuser's libel claim against victim fails on truth and public interest grounds

On 26 April 2023 Mrs Justice Heather Williams gave judgment in Hay v Cresswell [2023] EWHC 882 (KB) - upholding public interest and truth defences relied on by the defendant, who had published allegations that she had been the victim of a violent sexual assault from the claimant. Nina Cresswell alleged that in 2010, Mr William Hay, a tattoo artist from Glasgow, sexually assaulted her. Ms Cresswell was 19 at the time of the alleged attack and no police action was taken. Inspired by the #MeToo movement in 2020, Ms Cresswell shared details of the experience online, including a blog, two Facebook posts, and an Instagram post. 

Mr Hay brought a libel case against Ms Cresswell, claiming that she lied about the assault and that all that happened in 2010 was that the two 'almost kissed'. He sought damages for the 'embarrassment, distress, and damage' he suffered as a result of the online posts. 

The case was heard on 26 April 2023 at the High Court by Mrs Justice Williams DBE who found that Ms Cresswell's allegation that she had been sexually assaulted was substantially true, and ordered Mr Hay to pay Ms Cresswell's legal costs. Justice Williams commented that the way the police treated Ms Cresswell was 'deficient' and 'superficial'. She also held that the need to protect women from sexual abuse by raising awareness as Ms Cresswell did was 'clearly a matter of public interest'. Justice Williams also noted that there is a 'prevalence of sexual abuse committed in the tattoo industry' which was a significant public concern, leading to the term "Tattoo MeToo". You can read the judgment here.

UK agrees to pay £502,000 to Independent Print and Evening Standard over the success fee regime in the Lachaux proceedings

Following the conclusion of the long-running Lachaux libel claim in 2021, the UK Government has accepted that the CFA success fees claimed by the claimant against Independent Print and Evening Standard breached Article 10 of the European Convention on Human Rights and therefore agreed to pay the newspapers £502,000 in compensation. The defendant newspapers jointly lodged an application to the European Court of Human Rights in December 2021 asserting there had been an infringement of their Article 10 (freedom of expression) and Article 35 (admissibility criteria) rights. The European Court of Human Rights has previously found in the case of Times Newspaper v Flood [2017] that requiring a publisher to reimburse a successful claimant's success fees and ATE premium was a breach of the publisher's rights under Article 10. Recoverable success fees were abolished by the government in April 2019, while ATE premiums remain recoverable.

Prince Harry (again) versus the Media 

An application issued by News Group Newspapers for summary judgment on limitation grounds in claims brought by the Duke of Sussex and Hugh Grant is being heard in the High Court before Mr Justice Fancourt. The Duke of Sussex is seeking at least £200,000 in damages over allegations of phone hacking and blagging by The Sun in the 2000s. NGN is arguing that the claim should be struck-out as the claimants filed their claims after the 6-year limitation period. If NGN's application is unsuccessful, it is expected that a full trial will take place in January 2024. The Duke of Sussex has brought a similar claim against Mirror Group Newspapers. RPC acts for MGN.

WhatsApp and Signal's reactions to Online Safety Bill

WhatsApp and Signal have expressed concerns that the UK's Online Safety Bill would break end-to-end encryption which would impact on the safety of citizens.  End-to-end encryption ensures a message can only be read by the sender and recipient on their apps. However, the Online Safety Bill proposes to let the regulator ask platforms to monitor users' exchanges, to combat the sharing of images of child abuse.

WhatsApp and Signal have written an open letter to ministers emphasising that 'weakening encryption, undermining privacy and introducing the mass surveillance of people's private communications is not the way forward.' Both WhatsApp and Signal have indicated that they would rather be blocked in the UK than weaken the privacy that comes with end-to-end encryption.

The government has recently responded to these concerns, explaining that officials have created 'client-side scanning' which can scan users' devices using 'neural hashing'. Neural hashing converts an image to a unique number specific to that image – only another identical image can produce the same number. The idea is that users' devices can be analysed for numbers (or 'hashes') that match those of illegal pictures, rather than having to look at a user's photos and messages. This would, the government says, allow monitoring of private communications for illegal images without interfering with the end-to-end encryption. 

Youth murderer named by Senior Judge on his own volition

Mr Justice Spencer has lifted reporting restrictions on the press naming Leighton Amies, 15, who stabbed and killed Tomasz Oleszak, 14, without anyone making an application for the reporting restrictions to be set aside. 

Amies remained anonymous during his trial in October 2022, however Mr Justice Spencer lifted the reporting restrictions once he was convicted on the basis that there is a strong public interest in 'trying to deflect young people from the carrying of knives' which outweighs Amies' interests in anonymity. The judge also noted Amies' sentence will go beyond Amies' 18th birthday, at which point the anonymity order would lapse. 

Dominion defamation case settles

Fox News has settled the defamation lawsuit brought by Dominion (the voting machine company) over its reporting of the 2020 US presidential election for $787.5 million, with Fox acknowledging that "certain claims" made about Dominion were false. The settlement did not involve an apology from Fox News. Dominion was originally claiming damages of $1.6 billion. 

Dominion had alleged that Fox News spread false information about the 2020 US presidential vote being rigged against Donald Trump. The parties settled just before a highly anticipated trial which may have heard evidence from senior Fox News executives, including Rupert Murdoch. 

The settlement is one of the largest ever in a defamation case, though doesn't quite surpass the $965m that conspiracy theorist Alex Jones was ordered to pay to those affected by his lies that the Sandy Hook shooting was a hoax. 

Surrey and Sussex Police reprimanded by ICO

The ICO has reprimanded both the Surrey and Sussex police forces for each allowing access to an app that recorded phone conversations and unlawfully retained personal data. Over 1,000 staff members had the app on their work mobile phones which resulted in more than 200,000 recordings of phone conversations being automatically saved. It is believed the phone conversations would have included conversations with victims, witnesses, and suspects. 

The app was rolled out in 2016 and was intended to only be used by specific officers rather than by all police station staff. The police officers that downloaded the app are said to have been unaware that their calls were being recorded. People on the other end of phone conversations with police staff were not informed of the calls being recorded, nor did they consent to recording.

Instead of issuing £1 million fines to each force, the ICO formally reprimanded them. The new policy of generally reprimanding public bodies rather than fining them was set out by the Information Commissioner John Edwards in a speech in November 2022 "How the ICO enforces: a new strategic approach to regulatory action" in which he stated the ICO would avoid issuing monetary penalty notices against public authorities to avoid a "money-go-round" of public funds.  Stephen Bonner, ICO Deputy Commission explained, "this case highlights why the ICO is pursuing a different approach, as fining Surrey Police and Sussex Police risks impacting the victims of crime in the area once again."  

As matters stand, the ICO appears intent on continuing to impose large fines on private bodies that breach data protection legislation.

Update - Data Protection and Information Bill

The House of Commons Public Bill Committee is accepting written submissions from anyone with expertise or a special interest in the Data Protection and Digital Information (No.2) Bill. The Bill will be reviewed at a first sitting on 10 May 2023 with a report from the Committee being expected by 13 June 2023. It is advised that written evidence should be submitted as soon as possible as there is a possibility that the Committee will conclude the review of the submissions ahead of the 13 June deadline.

As a reminder, the Bill seeks to amend a number of data protection provisions set out by the Data Protection Act 2018 and the UK General Data Protection Regulation including: clarification of the duties expected of data controllers and processors; strengthening rules around international transfer of personal data; creating an enhanced user-friendly cookies opt-out system; and providing increased protection for users against nuisance calls and texts under the PECR.

AI Michael Schumacher interview wreaks havoc at German magazine

German magazine, Die Aktuelle has been threatened with legal action over an AI generated interview titled 'Michael Schumacher, the first interview' on 15 April 2023. The 'interview' was accompanied by a smiling picture of the racer whose physical condition, following a skiing accident in 2013, remains private. Funke media group, the magazine's publisher, has condemned the article and has fired the magazine's editor. Schumacher's family intend to take legal action against the magazine but it remains yet to be seen what the cause of action will be. 

Vardy trademarks 'Wagatha'

Following the so-called 'Wagatha Christie' libel case between Rebekah Vardy and Coleen Rooney last year in which the High Court ruled in Rooney's favour and dismissed the claim, Vardy has reportedly trademarked the phrase 'Wagatha Christie'. 

Her trademark of the pun is reported to extend to drinks, clothing, and jewellery, but it is unclear whether it covers entertainment. The producers of the Wagatha Christie play in London have said that they do not see any reason to change its name despite the trademark. Eleanor Lloyd, the play's producer, has remarked that Vardy trademarking the term shows that people are still talking about the saga.

Quote of the fortnight:

"The interests of the public and press is at this moment when he is convicted of murder and there will be some significant reporting of this matter in the next 24 hours. This is the moment when I would have thought the press interest would be most keen to be able to reveal the identity of the defendant.”

Mr Justice Martin Spencer on lifting reporting restrictions in naming teenage killer, Leighton Amies.