Take 10 - 4 March 2024
Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.
SLAPP Bill passes its second reading
On 23 February 2024, the Strategic Litigation Against Public Participation Bill (SLAPP Bill) passed its second reading in the House of Commons. The SLAPP Bill seeks to extend the measures introduced in the Economic Crime and Corporate Transparency Act (ECCTA) , by introducing an early dismissal mechanism and cost protection for any defendant reporting on matters of public interest that is subjected to a claim deemed to be a 'SLAPP'. Last year ECCTA introduced identical protections but only for defendants reporting on economic crime.
Free speech organisations have expressed concerns with the Bill in its current form, including the narrow definition of "public interest" and the focus in the Bill (when determining whether a claim constitutes a SLAPP) on the subjective intention of the claimant to cause the defendant (i) harassment, alarm or distress; (ii) expense; or (iii) any other harm or inconvenience, beyond that ordinarily encountered in properly conducted litigation. The subjective intention of a party is something courts have typically been reluctant to assess, particularly at an interim stage. The introduction of a mechanism to strike out SLAPP claims is also dependent upon the enactment of new Civil Procedure Rules, which creates further uncertainty. RPC's anti-SLAPP Group is monitoring developments closely.
WFZ v BBC
Mrs Justice Collins Rice has dismissed an application by a high-profile individual (WFZ) facing serious sexual offence allegations to use a witness statement for an ancillary purpose pursuant to CPR 32.12(2). The witness statement had been prepared by a BBC journalist to resist an earlier injunction application seeking to prevent the BBC identifying WFZ in the context of a report examining sexual offence allegations in his industry. The injunction was granted on contempt and privacy grounds. WFZ, who has been arrested but not charged, subsequently sought permission to use the witness statement to make representations to the CPS to inform its charging decision. The court addressed concerns raised about deploying journalistic material to public authorities and the test for a production order under the Police and Criminal Evidence Act (PACE).
Notably, the Judge held the BBC's witness statement could reasonably be characterised as a document created for the purposes of journalism (given it was produced to resist an application seeking to restrain publication of a BBC report). Regardless of whether the statement was 'journalistic material' under PACE, the Judge held that the statement contained material about the investigation which engaged “the interests of journalism and at least potentially the legal protections for journalism” [37]. The court also took into account that the CPS had not yet made an application under PACE so it was premature to assess either the Applicant's interests in using the statement to make representations to the CPS or the interests of the CPS in obtaining the witness statement for its own purposes. Accordingly, the application was dismissed. The case is a useful authority for a media organisation concerned about whether journalistic material put into evidence in proceedings could be used for an ancillary purpose. The decision could have increased importance given upcoming court rule changes which will make witness evidence more readily accessible to non-parties (see below).
Meaning decision in Dyson v Channel 4
HHJ Lewis has handed down judgment on meaning in the libel claim brought by Dyson against Channel 4 and ITN in respect of a Channel 4 news item that investigated exploitation of workers at a Dyson supplier company, ATA. The news broadcast was found to carry a Chase 2 level meaning of "reasonable grounds to suspect" that the Dyson companies: (i) were responsible for the abuse of exploitation of workers at ATA; (ii) were responsible for the persecution by ATA of a worker who blew the whistle on ATA's working practices; and (iii) tried to cover up the allegations and shut down public criticism. A fourth limb of the meaning, that the Dyson companies had not lived up to their advertised standards of ethics and corporate social responsibility, was found to be an expression of opinion. In holding that the final aspect of the meaning comprised opinion, the Judge agreed with the Defendants that whether someone's conduct matches up to, or falls short of, their self-presentation is an archetypal value judgment and would be seen as such by the ordinary reasonable viewer. The Court rejected the Claimants' argument that the broadcast alleged complicity by the Dyson companies, noting the broadcast was clear that the actual abuse was committed by ATA and, in particular, that Dyson had carried out a number of audit reports with an aim to discover what was happening.
This is the third decision in the proceedings following an earlier ruling by Nicklin J and the Court of Appeal on the question of reference. The first instance decision, which found that the Dyson claimant companies were not identified in the broadcast, was overturned on appeal.
Collective proceedings continue in Gormsen v Meta Platforms
The Competition Appeal Tribunal has belatedly granted an opt-out collective proceedings order to legal academic Dr Liza Lovdahl Gormsen, allowing her to proceed with a legal action against Meta on behalf of 45 million Facebook users. The claim, which was initially refused last year on the basis that it was inadequately pleaded, alleges that the platform took advantage of a dominant position by imposing requirements on its users, including by collecting personal data of Facebook users from "non-Facebook" websites and combining it with on-platform data for the purpose of advertising. Meta has said that the claims "remain entirely without merit" and that it will vigorously defend them, pointing to the control it gives its users on how personal data shared on its platforms is used. The legal action reflects the wider trend of claimants, supported by litigation funders, seeking to bring claims in the Competition Appeal Tribunal, where "opt-out" class actions are permitted. Since the landmark decision of Lloyd v Google [2021] UKSC 50 attempts to bring "opt-out" representative claims in the Media and Communication List have been unsuccessful.
Hawrami v Journalism Development Network Inc.
Master Dagnall has dismissed a summary judgment application issued by the former Minister of Natural of Resources in the Kurdistan Regional Government of Iraq over an article published by two journalists and the Journalism Development Network, which operates the Organised Crime and Corruption Reporting Project (OCCRP). The judgment addresses thorny issues concerning (a) the circumstances in which "fair and accurate" qualified privilege reporting may be raised as a viable defence to a claim, including where privileged passages are intermingled with non-privileged, extraneous, material and (b) the effect a qualified privilege defence has on the process for determining meaning. A useful summary of the law in this area is provided at [38] to [52]. The Article reported on long-standing litigation relating to oil exploration in Iraq, including the Claimant's alleged involvement in the oil deal. The Claimant sought to argue that it was logically impossible for a defence of qualified privilege to be raised in circumstances where the underlying subject-matter (i.e., the Court Judgment) was not itself defamatory, on the basis that (a) if the report was not defamatory at all, then the qualified privilege defence need not arise and (b) if, conversely, the report was defamatory, then it is not possible for a defamatory report of non-defamatory material to be "fair and accurate", so the qualified privilege defence must fail [53]. Master Dagnall rejected this argument on the basis that it was inconsistent with authorities in this area including Curistan v Times Newspapers Ltd. Master Dagnall did not agree that the qualified privilege defence is only relevant if reporting on defamatory material, noting: "The process of arriving at meaning is a holistic one. It is perfectly possible…that if the privileged words are merely treated as context [as per Curistan], the non-privileged words will be insufficient to give rise to a particular (and perhaps any) defamatory meaning while, if the privileged words had been considered with the non-privileged words, they would give rise to a particular combined meaning(s) which would have been defamatory" [61]. In the circumstances, Master Dagnall found that the Defendants' qualified privilege defence did have a real prospect of success and the application was dismissed.
Consultation on rules allowing non-parties greater access to court documents
The Civil Procedure Rules Committee has commenced a consultation in respect of proposed amendments to CPR Part 5.4C to widen the scope of documents available to the public under court rules. Under current CPR r. 5.4C, non-parties can only obtain copies of judgments, orders and statements of case without the permission of the Court. The consultation envisages permitting access by non-parties to a broader range of court documents including skeleton arguments, witness statements and expert reports. To prevent access to those documents, a party must make a pre-emptive application (presumably prior to or at the time of filing the document with Court). The consultation appears to aim to formalise the Supreme Court judgment in Cape Intermediate Holdings v Dring which held that in certain circumstances the principles of open justice justify access to a broader range of court documents than that currently provided for under CPR 5.4C, so as to enable proper public scrutiny of litigated proceedings. The consultation will be of significant interest to journalists who may find their court reporting obstructed by an inability to access relevant documents relating to the proceedings. The consultation is open until 8 April 2024.
Journalism protections strengthened in Investigatory Powers Bill
The Investigatory Powers (Amendment) Bill underwent its second reading in the House of Commons last week. Following a long-running legal challenge by the human rights group Liberty (supported by the National Union of Journalists), the government has agreed to an amendment to the Bill which will require a review by an independent body before intelligence agencies can search for or retain confidential journalistic material obtained from bulk hacking data. Under the current legislation (the Investigatory Powers Act 2016), intelligence authorities can search for and retain journalistic material within the data they collect through "bulk hacking" devices without having to first obtain independent authorisation. Liberty has said it considers the amendment to be a significant victory for journalists' rights, yet it remains concerned about the broader impact of mass surveillance. Despite the government's concession, Liberty intends to continue its legal proceedings until the Bill has been enacted and clarity provided on when the safeguards will take effect.
Journalists challenge surveillance by UK authorities
In a similar vein, last week the Investigatory Powers Tribunal heard a case brought by two investigative journalists, Barry McCaffrey and Trevor Birney, concerning allegations they were subject to unlawful surveillance by the Police Service of Northern Ireland (PSNI), Durham Constabulary and other UK authorities. The case stems from their arrest in 2018 during a police investigation into the alleged leaking of a Police Ombudsman report, which featured in their documentary investigating murders in Northern Ireland during the Troubles. At the time of their arrest, their homes were raided and police warrants issued to seize millions of pages of journalistic material. The warrants were overturned following a judicial review application in 2019; subsequently the PSNI apologised to the journalists and paid them substantial damages. The hearing before the Investigatory Powers Tribunal aims to reveal the extent of covert surveillance to which they say they were subjected at the time of the investigation.
Meaning decision examines "permissible context"
Mr Justice Kerr has handed down judgment on meaning in the libel claim brought by boxing referee Jeff Hinds against his governing body, the British Boxing Board of Control (BBBofC). Mr Hinds alleged that through publication on the BBBofC website of the statement: "The British Boxing Board of Control – Southern Area Council – June 2019 Notices- Regulation 25 - Jeff Hinds given words of advice for the future", he was falsely portrayed as being guilty of misconduct. The judgment provides useful guidance on the admissibility of contextual material in a meaning determination. The Court reiterated that "permissible context" extends only to material that could reasonably be expected to be known or read by all the publishees. In this case, all publishees could reasonably be expected to have read the other notices available on the website (some of which identified other individuals who had been "found guilty of misconduct", "admitted misconduct and fined" or "reminded of responsibilities"), but they would not necessarily all have read the full text of Regulation 25 (which would only have been known to a smaller sub-class of publishees with familiarity of disciplinary procedures in British boxing). Nor would all publishees have read third-party blog posts or articles which made it apparent that Regulation 25 was a disciplinary rule – this was extrinsic evidence not admissible to determine meaning. Kerr J held that there was a clear dividing line in the notices on the website between those who were punished under Regulation 25 and those who were merely offered words of advice for future. The ordinary reasonable reader, reading the statement in the context of the other notices, would understand it to mean that the Claimant was the subject of a decision under Regulation 25 in relation to alleged misconduct, but he was not found guilty of misconduct, and he was given relevant words of advice for the future. The Judge ruled the meaning was not defamatory at common law.
ICO Guidance on content moderation and data protection
The ICO has produced guidance that explains how data protection law applies to platforms' content moderation processes in an effort to ensure that adequate regard is paid by online services to users' data subject rights. The guidance is aimed at organisations who may be reassessing their content moderation processes when considering implementation of the Online Safety Act. Content moderation involves analysing user-generated content via human or automated review, which by its very nature will engage data protection law. For example, incorrect content moderation decisions may lead to wrongful content removal or user expulsion, which can subsequently lead to complaints that a platforms' processing of user data is not accurate or fair. The guidance highlights the importance of carrying out a DPIA when engaging in content moderation; identifying lawful bases when moderating content; and ensuring that moderation systems perform accurately and produce unbiased, consistent outputs. Platforms incorporating AI processes into their moderation systems should pay close consideration to the ICO guidance due to the risk that AI technologies can be susceptible to bias resulting in unfair or discriminatory outcomes.
The guidance reflects the UK's data and online safety regulators' intention to work closely together, often under the umbrella of the Digital Regulation Cooperation Forum, when managing online safety risks and regulation.
Launch of Next Generation Media Lawyers
The launch party of the Next Generation Media Lawyers was held on 22 February. The NGML is a newly formed professional association and networking group for private practice and in-house media law practitioners under 10 years PQE/Call. Its aim is to help members expand their networks and build relationships with likeminded individuals at similar stages in their careers, as well as providing educational talks and webinars on pertinent media law issues. Associate Jess Kingsbury is on the committee – please feel free to reach out to her to learn more.
Quote of the fortnight:
"For close to a decade, confidential journalist material has been spied on en-masse with few safeguards or protections for how that information is gathered or used…This undermines core pillars of our democracy, and has left journalists particularly exposed to state surveillance and interference."
- Megan Goulding, Liberty