Take 10 - 12 May 2023

Published on 12 May 2023

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

Palmer v Farmer & Ors [2023] EWHC 976 (KB) (28 April 2023)

The  Metropolitan Police and a police officer have apologised in Court in response to a claim in defamation and misuse of private information brought by a Mr James Palmer over a false statement to the effect that Mr Palmer had been "convicted for a sexual offence" [1]. A substantial financial settlement was also accepted by Mr Palmer from PC Farmer and the Metropolitan Police. 

However, summary judgment was entered in favour of the third and fourth Defendants, to whom the defamatory publication was forwarded. These Defendants' employees had only passed on the PC Farmer allegation internally, with one making no comment on it and another expressing surprise at its inclusion. In regards to the serious harm requirement, The Hon. Mr Justice Saini commented on the "limited nature of the circulation of the emails" [40], which were entirely internal, and that "Mr Palmer not only suffered no harm, but under [a] settlement agreement assumed the tenancy of the property" [40]. Accordingly, Saini J held that "the suggestion of any negative impact is fanciful" [40]. The claims were also struck out.

The libel and misuse of private information claims against the third and fourth Defendants were also struck out on the basis of Jameel abuse, with Saini J stating that "this not a case where a real or substantial wrong has been committed and litigating the claim will yield a benefit proportionate to the likely use of court procedures" [51]. 

AEP and others v The Labour Party [2023]

An interim judgment has been handed down by Mr Justice Chamberlain in the case of AEP and others v The Labour Party [2023] EWHC 935 (KB). The central claims arise out of the publication of a report written by Labour Party staff entitled, 'The Work of the Labour Party's Governance and Legal Unit in relation to antisemitism 2014 – 2019'. The Claimants maintain that their inclusion in the Report amounted to "a breach of their rights under the GDPR, a misuse of their private information, a breach of confidence and unlawfully discriminatory contrary to the Equality Act 2010" [3]. The Defendant claims that the report was not published under its authority, but instead was leaked by third parties against which they have brought a Part 20 claim. 

Chamberlain J addressed three applications, namely: an anonymity application by two of the nine Claimants, an application for an unless order by the third parties for the Defendant (as representative of the Labour Party) to substitute another defendant or to particularise why the Part 20 claim can be brought by him, and an application by the Defendant for a declaration that an email sent to a lawyer was not privileged. 

The Claimant's anonymity application, which was granted by Chamberlain J, sought an order for two of the Claimants be allowed to remain anonymous on the claim form and statements of case, as well as for all Claimants to omit their addresses from appearing on publicly accessible court papers. In both cases, the Claimants stated that the interests of justice required them to stay anonymous. Chamberlain J considered that the increase of "an appreciable risk to them [the Claimants] and their families" [32] to be a sufficient basis for the order.

The other two applications were refused by Chamberlain J. The application by the third parties was held to be unnecessary at the current stage of the proceedings [45]. The privilege application was concerned with an email sent by one of the third parties to a lawyer the day before the Report was published. The Defendant sought an order that it was not privileged, however Chamberlain J concluded that where (inter alia) the email was clearly a request for advice from a lawyer, and headed "LEGALLY PRIVILEGED" [64], "the circumstances in which the email were communicated were not such as to destroy its confidentiality as against the Labour Party" [65]. Accordingly, the third party remained entitled to assert privilege over the email and the application was refused. 

Armstrong Watson LLP V Persons Unknown

Mr Justice Linden has continued an interim injunction on 24 April 2023 in the case of Armstrong Watson LLP V Persons Unknown [2023] EWHC 921 (KB), following the granting of an ex parte interim injunction on 28 March 2023 by Mr Justice Ritchie against the unknown perpetrators of a cyber hacking attack and subsequent blackmail attempt. Linden J decided to continue the injunctions citing both the reasoning by Ritchie J and noting the need had "grown stronger" [7] since the hearing prior, as the Defendants had taken steps to act on their threats of blackmail. The matter is a reminder for practitioners of the practical considerations to take into account when determining whether to seek a ‘persons unknown’ injunction following a cyber-attack. 

A further hearing ordered in Duke of Sussex v NGN 

Fancourt J has ordered a further hearing in July in the Duke of Sussex's hacking claim against News Group Newspapers, relating to the Prince Harry's allegations about a ‘secret arrangement’ between Buckingham Palace and Rupert Murdoch’s company. This is a continuation of the hearing heard between 25 and 27 April 2023, which we reported in our last edition, and relates to the Duke's response to NGN's application to strike out the Duke's claim on the basis of limitation. While the 'secret arrangement' was set out in the pre-hearing documents, it was not pleaded as part of his claim and the Duke only sought to add it by way of amendment on the second day of the hearing. The Duke has claimed that the secret arrangement in part explains why he could not have brought a claim against NGN sooner. 

Meanwhile, the 6th group trial in the Mirror Newspapers Hacking Litigation commenced on Wednesday. RPC represents MGN Limited in the litigation

Automatic expiration of retained EU laws to be scrapped 

The UK government has abandoned its proposal for thousands of EU laws to expire automatically at the end of the year. The Retained EU Law (Revocation and Reform) Bill would have seen most retained EU laws expire by 31 December 2023 unless ministers replaced or decided to retain them. Instead, Business Secretary Kemi Badenoch has said the cut-off point would be replaced with a list of 600 laws the government wants to replace by the end of the year. The news will be welcomed by online platforms, as the loss of 'safe harbour' provisions had been, until now, a looming possibility. The move also ensures legal certainty for businesses, who will no longer need to grapple with the possibility of important legislation slipping through the cracks. However, ministers will be given new powers to amend or replace EU laws using secondary legislation, so businesses should not breathe a sigh of relief just yet.

CJEU: Case C-300/21, Österreichische Post

TA recent CJEU data protection case with similarities to the Supreme Court case of Lloyd v Google was handed down on 4 May 2023.

Österreichische Post, the Austrian postal service, had collected information on the political opinions of Austrian people in its role as an address broker. It fed this information into an algorithm that categorised individuals into groups based on social and demographic data, before selling this information for the purpose of targeted advertising. The proceedings came about after the Claimant (who had not consented to the processing of his personal data) was incorrectly categorised as having a "high degree of affinity" with an Austrian political party, which "offended" him [12]. He claimed that the processing caused him "great upset, a loss of confidence and a feeling of exposure" [12]. 

However, no recoverable damage, which requires distress or financial loss, was found to have been caused by the Defendant. The ECJ held that "Article 82(1) of the GDPR must be interpreted as meaning that the mere infringement of the provisions of that regulation is not sufficient to confer a right to compensation" [42]. In Lloyd, the Supreme Court also found that compensation can only be awarded for a non-trivial breach of the Data Protection Act 1998 if material damage (i.e. financial loss) or distress is suffered. By contrast, the ECJ has not found that a triviality threshold exists under EU data protection legislation. 

Chris Packham libel trial draws "Marmite" remark

The naturalist Chris Packham CBE is currently in the midst of a heated libel trial. Packham claims that nine articles on the Country Squire Magazine website allege that he attempted to manipulate the public into donating to a tiger rescue charity by dishonestly claiming that five tigers were rescued from a Spanish circus following mistreatment, when he knew the animals were well looked after. The claims are being defended on grounds of truth and public interest, with the Defendants telling the High Court that "it is clear that the tigers had not been rescued from a circus, were not then in need of rescue, and were not rescued by Mr Packham". The hearing concludes on Friday.

World Press Freedom Day 2023

3 May marked another World Press Freedom Day, a worldwide event to raise awareness of the importance of a free press for democracy and of Article 19 of the Universal Declaration of Human Rights, which enshrines freedom of expression into international law. With World Press Freedom Day comes a fresh round of national rankings produced by Reporters Without Borders (RSF). The UK has fallen two positions to number 26 this year, with RSF quoting "worrying legislative proposals, the approval of Julian Assange’s extradition to the United States, and the treatment of journalists covering protests marred the UK’s press freedom record".

RSF also note the impact of SLAPPs (Strategic Lawsuits Against Public Participation) on investigative and public interest journalism, with independent media outlets and freelance journalists who are concerned about costly libel lawsuits prevented from pursuing sensitive investigations.

Legislation empowering the CMA's Digital Markets Unit introduced into Parliament

Legislation that could require tech companies to pay to display news content on their platforms has now been introduced to Parliament. On 25 April 2023, the UK government published its long-anticipated Digital Markets, Competition and Consumers Bill. The stated objective of the Bill is to target how the UK digital markets are regulated, with the aim of increasing competition among tech companies and safeguarding consumers and businesses.

As highlighted in our previous Take 10 (see here), the Bill would grant power to the Digital Markets Unit (DMU), an administrative unit within the CMA, to enable them to designate specific platforms with 'strategic market status' (SMS). Designated platforms would be subject to tailored conduct requirements and pro-competitive interventions.

One such conduct requirement could be to oblige these designated firms to pay for the news content that appears on their platforms. It is thought that the DMU is intending to follow a similar model to what is already in force in Australia, where firms can be required to pay licence fees to news publishers.

The Bill will be subjected to parliamentary debate and is anticipated to take effect in 2024.

RPC sponsors Prospect magazine discussion about SLAPPs

A discussion organised by Prospect Magazine and the Foreign Policy Centre titled 'SLAPPs — a threat to liberal democracy?' is being held at 7pm next Tuesday 16th May 2023. Alan Rusbridger, Prospect magazine’s editor, will lead a discussion about SLAPPs with investigative journalist Carole Cadwalladr and Gavin Millar KC.  RPC is sponsoring the evening.  You can register to watch the stream here.  If you are interested in attending in person, please email Saffron.Adams-Hayes@rpc.co.uk to see if space is available.

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