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Take 10 - 5 February 2024

Published on 05 February 2024

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

Serious Harm: Laurence Fox Loses Libel Case in High Court

This week brought the news that Laurence Fox lost a High Court libel trial where he was both a defendant and counter-claimant. The judgment, handed down by Mrs Justice Collins-Rice, is the latest interesting example of the application of the serious harm threshold test which proved to be the downfall for Mr Fox's counter-claim. 

The claims against Mr Fox resulted from an exchange on X (formerly known as Twitter), in which Mr Fox tweeted that Simon Blake and Colin Seymour were paedophiles in response to their tweets labelling Mr Fox a racist (for which he issued a counterclaim in libel). 

The Court rejected Mr Fox's defence of common law 'reply to attack' qualified privilege, awarded damages to the Claimants on the ruling that Mr Fox's accusations were "seriously harmful, defamatory, and baseless", and dismissed Mr Fox's counterclaim .

In demonstrating the seriousness of the harm that they had suffered, the Claimants each pointed to "overwhelming and distressing" abuse they had faced since Mr Fox's accusations – this abuse being an "entirely foreseeable" consequence of Fox's tweets [100]. The harm was compounded by evidence of their public profile as gay men and activists, their professional proximity to children, their "pristine" reputations prior to Mr Fox's allegation, and the coincidence that each Claimant shared a name with a convicted sex offender.

In considering Mr Fox's counterclaims, Mrs Justice Collins Rice rejected the argument that the Cross-Defendant's allegations of racism caused serious harm to Mr Fox's reputation,. Collins-Rice J held that the inherent gravity of the "racism" accusations was tempered by their context as expressions of opinion in cultural discourse, and that there was no evidence that Fox's agent had dropped him because of the tweets. In terms of causation, there were many alternative explanations for the negative impact caused to Mr Fox’s reputation. The Court considered that these opinions reached the public eye because of Mr Fox's own republication and incendiary ripostes, and that the words had caused no material change to the position of Fox's acting career. 

Duke of Sussex drops libel claim against Associated Newspapers 

The Duke of Sussex has discontinued his libel claim against ANL.  The Duke had sued ANL over an article published on 20 February 2022 in the Mail on Sunday (and Mail Online) that reported on his Judicial Review proceedings against the Home Office concerning his security arrangements when visiting the UK.  The defamatory sting of the article, which ANL was defending as honest opinion, was that the Duke was responsible for making misleading and confusing public statements about the true nature of his Judicial Review proceedings; essentially, that he and his advisers were spinning so as to suggest he was judicially reviewing the Government refusing his offer to privately pay for police protection, when in fact no such offer had been made to them.

As reported in our previous edition of Take 10, the Duke's application for strike out of ANL's honest opinion defence and for summary judgment on the claim was dismissed, with the Judge concluding that ANL had a real prospect of demonstrating that the Duke's public statements, promoting the Judicial Review claim as his battle against the Government's (perverse) decision to refuse to allow him to pay for his own security, were misleading, and that ANL's honest opinion defence had a real prospect of success.  The Duke's claim was due to go to trial in July, but instead a notice of discontinuance was served just six hours before disclosure lists were due to be exchanged on 19 January 2024.  RPC acts for ANL.

Summary judgment and strike out application refused by High Court in Mir v Hussain

Syed Mir, a former senior member of the Muttahida Qaumi Movement ("MQM"), brought libel proceedings against, amongst others, Altaf Hussain, the self-described "founder, historic leader and figurehead" of MQM. Mr Mir claimed that four MQM publications on the MQM website and Facebook page made allegations of dishonesty about him, and in response Mr Hussain applied for summary judgment, or to strike out Mr Mir's claim. The question for the Court was whether Mr Mir has a reasonable prospect of demonstrating that Mr Hussain is responsible for the publications as an "editor" for the purposes of Section 10 of the Defamation Act 2013, or alternatively as responsible under the agency principle. 

Mr Hussain's evidence (which was supported by evidence from other MQM members) was that as a "figurehead" of MQM who is not good with technology he is not involved in the daily decisions of the organisation, and exerts no control over what MQM publishes online. Evidence for Mr Mir was that during his association with MQM, Mr Mir never witnessed any material being published on MQM's platforms without Mr Hussain's approval, and that Mr Hussain's position was contradicted by evidence given by Mr Hussain in other proceedings (Haque v Hussain) to the effect that MQM had to obtain Mr Hussain's approval for all political, policy and organisational decisions. Further, Mr Mir asserted in evidence that the MQM website appears almost exclusively as an homage to Mr Hussain, with articles attributed to Mr Hussain as author.

Mr Justice Chamberlain concluded that the evidence allowed for an inference to be drawn that Mr Hussain participated as editor in the website and Facebook publications or that those who did so were acting as Mr Hussain's agent, holding that Mr Hussain had failed to show that the case has no real prospect of success. 

Craig Wright's defamation damages appeal refused by Supreme Court 

The Supreme Court has refused Craig Wright's application for permission to appeal the Court of Appeal decision in Wright v McCormack.  The Court of Appeal had previously upheld the decision to award Wright nominal damages of £1 after he was found by Mr Justice Chamberlain to have maintained a 'deliberately false' case in support of his plea of serious reputational harm.  Wright's dishonesty in the claim was found to be relevant to the calculation for damages as the defamatory meaning also related to allegations of dishonesty.

Wright is involved in separate proceedings due to start later this month, in which the Court will decide whether or not he is 'Satoshi Nakamoto', the pseudonymous creator of Bitcoin. RPC acts for Peter McCormack

British entrepreneur Mike Lynch takes action against Serious Fraud Office 

British entrepreneur Mike Lynch, former owner of software firm Autonomy, has brought a Part 8 data protection claim against the Serious Fraud Office in retaliation to the agency's refusal of his request for information under the Data Protection Act 2018. The request follows fraud charges against Mr Lynch over claims that he committed accounting fraud during the 2011 acquisition of Autonomy by US tech company Hewlett-Packard, causing the latter to overpay by $5 billion. HP's six-year civil fraud case in the UK against Mr Lynch was eventually successful in 2022. However, prior to the civil claim, the takeover was investigated by the SFO between 2013 and 2015 - ultimately ceasing the probe when it found there was not enough evidence to secure a criminal conviction. Jurisdiction was eventually ceded to the US to investigate other aspects of the case. Following the success of the civil claim, the SFO, provided a statement of belief to the court that 'the UK would not be the most appropriate forum for the prosecution' spurring Mr Lynch's extradition to the US in May 2022 to face a criminal trial. Mr Lynch's request for information relates to the evidence provided by the SFO to bolster the US case. However, lawyers for the SFO have stated that providing this information to Mr Lynch "could result in valuable evidence being obtained which would not ordinarily be disclosed during the trial process." Mr Lynch, who has pleaded not guilty, is currently under house arrest in the US and could face up to 20 years in prison if convicted.

Public interest arguments succeed in journalistic subterfuge complaint to IPSO

IPSO has ruled in favour of the Daily Mail in response to a complaint that it breached the Editors’ Code of Practice for using clandestine devices and subterfuge for articles exposing serious impropriety in immigration law firms. The articles in question, titled “Lawyers charging up to £10,000 to make fake asylum claims” and “‘Don’t admit you came here to work – they will send you back’,” resulted from an undercover investigation in which the complainant (an immigration lawyer) was secretly recorded. 

The Daily Mail defended its use of subterfuge on the basis of public interest, stating it was essential for exposing serious impropriety in immigration law firms, and emphasised the significant public interest in the results of its investigation. The IPSO Committee considered that although the subterfuge was extensive, it was proportionate, given the nature of the services provided by the complainant, and that the information could not have been obtained in another way. The Committee found no breach of the Editors' Code and the complaint was not upheld.

Govdata v Indeed – Expectation of anonymous reviews upheld

In a win for review platforms, the High Court has refused a Norwich Pharmacal type order sought by Govdata Limited in an attempt to uncover the identities of individuals who had published anonymous critiques about Govdata (the claimant and their former employer), on the Indeed employment website. 

The claimant sought to bring claims of defamation and malicious falsehood against the targets of the order. In response to the order, Indeed did not dispute that it is "mixed up" in the alleged wrongdoing of the targets in a manner that would make it the potential subject of a Norwich Pharmacal type order. However, His Honour Judge Pearce  refused the application on the grounds that the claimant's case against the targets was weak (the reviews were unlikely to have been the cause of any serious financial loss) and because the litigation was being conducted not with a view to seeking redress but with a view of restraining any and all criticism. Citing Davidoff, the court held that "there is a public interest generally in those who post anonymous comments having their anonymity respected" and that "harm to the interest of the author losing anonymity is greater than the harm to [the Claimant] being prevented from pursuing a claim which, if successful, is likely to be of minimal value" [80]. 

Media lawyer threatens legal action against former clients Michelle Mone and Doug Barrowman

Scottish entrepreneur Baroness Michelle Mone's former lawyer, Jonathan Coad, is seeking an apology and charitable donation from the former Conservative peer after "instructing me repeatedly to disseminate lies" to the media about her involvement in the company PPE Medpro. Mr Coad claims that Ms Mone and her husband had caused "severe and irreparable damage" to his reputation by appearing to suggest in a BBC interview that they had been advised to hide involvement in PPE Medpro, a company contracted for £200 million by the government to supply PPE during Covid-19. The National Crime Agency is now investigating allegations of bribery and fraud against the couple regarding the supply contract. Mr Coad went on to apologise to the media for having previously told them that the couple had no involvement with the company. Ms Mone's current lawyers have accused Mr Coad of breaking client confidentiality by issuing the apology. Mr Coad said the suggestion that he had acted in breach of his regulatory obligations was “unsustainable”. Read more from The Guardian.

ICO issues data protection and journalism code of practice

On 1 February, the ICO issued the data protection and journalism code of practice, designed to help the media apply data protection law in a journalism context. The code will come into force on 22 February 2024. It sets out how the media may use personal information securely, lawfully, fairly, transparently, and accurately, and how to apply the journalism exemption.  

ICO launches first public consultation on generative Al 

The Information Commissioner's Office has launched a series of public consultations on generative AI to ascertain how different facets of data protection law should apply to the development of technology. The first consultation, open until 1 March 2024, seeks to gather views on the legality of training generative AI models using personal data available on the internet. This is an important development for various platforms, particularly social media platforms, who hold the bulk of personal data on the internet. The outcome of this consultation could determine how platforms may process the data they hold in the context of developing their own AI software. 

New communications offences under the Online Safety Act come into force 

Part 10 and Schedule 14 of the Online Safety Act 2023 ("OSA") was brought into force on 31 January. It repeals existing communications offences under s.127(2) of the Communications Act 2003 and replaces them with a number of new offences. These include: intentionally sending an unsolicited sexual image with the intention to cause alarm, distress or humiliation or for sexual gratification; sending a communication that encourages self-harm or threatens death or serious harm; sending or showing flashing images electronically where it is reasonably foreseeable an individual with epilepsy would see it and it is intended to cause harm; and knowingly sending a false communication with the intention to cause harm. 

In other OSA-related news, to support online services in their compliance with the OSA, the Information Commissioner's Office ("ICO") has published updated opinions on age assurance. Specifically, the ICO explains how organisations can meet their new obligations both in terms of data protection and the OSA. It does so by providing guidance on how online platforms should navigate technological developments and what they must do if their services are likely to be accessed by children. This follows Ofcom's consultation on age assurance duties for service providers publishing pornographic content which opened on 5 December 2023. The deadline to respond to this consultation is 5 March 2024. 

Open justice prevails as child is named in bedbug poisoning case

Following "helpful and very succinct submissions" from the BBC and PA Media, the identity of an 11-year old girl who allegedly died from inhaling a poisonous gas substance that her neighbour had used to treat bedbugs can now be revealed. Fatiha Sabrin, who died on 11 December 2021, could not be identified under an order made by Thames Magistrates’ Court in August 2022 under section 45 of the Youth Justice and Criminal Evidence Act 1999. The media challenged this on the basis that the court only had the power to make this order in relation to living, not deceased, children. The BBC and PA Media made an application citing Judicial College guidelines to have the order lifted, encouraging the court to uphold the principle of open justice. Judge Simon Mayo KC agreed with the media and lifted the order. The decision is significant as it comes against the backdrop of an increase in anonymity orders being made, sometimes in inappropriate circumstances. It is promising to see the court having regard for transparency in matters of wider public importance. 

Quote of the fortnight:

"...the use of anonymity here is not an expedient to avoid the reviewers taking responsibility for their words; rather it is the very condition that frees them to make the comments in the first place. It would be inimical to free speech to allow the disclosure of the identity of those who would not post their comments if they believed that their identity would be disclosed." - Mr Justice Pearce in Govdata v Indeed at paragraph [59]