Take 10 - 13 February 2023

Published on 13 February 2023

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

Blogger's appeal against Countdown star is unsuccessful

Blogger Michael Sivier's application for permission to appeal the judgment in Rachel Riley's successful libel claim against him has been refused. Ms Riley succeeded at first instance in November 2022 when she was awarded £50,000 in damages by Mrs Justice Steyn following the blogger's allegations that Ms Riley was a "serial abuser" [22] who had bullied a teenager. We previously reported on the first instance judgment in our November 2022 edition

UK placed in tier three on Global Index of Free Expression

Disappointingly the UK has been placed into the third tier of a new global index of freedom of expression. The global index of freedom of expression (known as the Index Index) is a ranking index that tracks the state of freedom of expression around the globe. By taking into account academic, digital and media/press freedoms and assigning an individual ranking to each of these areas, the Index can provide an overall picture of the level of protection free expression is granted in each country. Countries with the highest overall ranking, such as Sweden and Australia, are listed as "open", whereas the poorest performing countries are ranked as "closed". This category contains the likes of North Korea, Saudi Arabia and Belarus, all of whom have "long clamped down on free expression". The UK was graded as only "partially open" in each of these key metrics, ranking it below almost all other western European countries. Some of the factors believed to have contributed to the UK's lowered ranking are the recent journalist arrests during the Just Stop Oil protests, the Government's Online Safety Bill and SLAPPs (strategic lawsuits against public participation). Ruth Anderson, Index's CEO commented that these issues "all point to backward steps for a country that has long viewed itself as a bastion of freedom of expression". Read more about the Index Index here.   

King's Counsel brings libel claim against The Times

The Times is facing a claim brought by Dinah Rose KC over an article published in September 2022 concerning Ms Rose's decision to represent the Cayman Islands government in its opposition to same-sex marriage. The Bar Standards Board released a statement in November 2022 concerning the matter, including the assertion that "Ms Rose was correct to act in accordance with her obligations under rC28 when deciding whether to accept the instructions". Rule c28 of the Bar Code of Conduct provides that a barrister must not withhold their services on the grounds that the nature of the case of the conduct or opinions of the client are objectionable or unacceptable. The Guardian had an article about the case here.

Defamatory reviews on Trustpilot

Mrs Justice Tipples has handed down judgment in the case of BW Legal Services Ltd v Trustpilot, which concerned 20 negative reviews published on the Trustpilot website. The question for the court was how the wording of these reviews would strike the hypothetical reasonable reader, whether the meaning of each review was defamatory at common law, and whether the reviews were statements of fact or expressions of opinion. In arguing that the individual reviews were not defamatory, Trustpilot's counsel argued that “the ordinary reasonable user” [42] of the Trustpilot website would read multiple reviews before forming an opinion, rather than forming their opinion from a single review. However, Tipples J said this approach was "fundamentally flawed" [43]. On the question of whether the reviews were expressions of opinion, Tipples J determined that "the statements complained of are, in every case, a statement of fact, which include an expression of opinion" and that "the addition of comment in relation to a reviewer's own experience does not turn that experience into comment/opinion" [39]. Ultimately after careful analysis of each review, the court found that all 20 complained of reviews contained defamatory allegations. We will await to see how this claim progresses given the potential impact on other online review platforms.  

Public consultation open for the Editor's Code of Practice 

Journalists and the public can now provide suggestions on the Editors' Code of Practice to shape how Britain's newspaper, magazine and news website journalists work. The Code sets the framework for the highest professional standard that members of the press subscribing to IPSO aim to maintain. Public consultations on the Code are held every three years. The Editors' Code of Practice Committee has the responsibility to ensure that the editors and publishers apply the Code to editorial material in both printed and online publications. The most recent version of the Editors' Code of Practice came into effect on 1 January 2021. The current consultation is focusing in particular on mental health, which has been added to Clause 2 (Privacy) to underline the protection that the Code offers to help people with mental health issues. Submission on the Code can be sent to codereview2023@gmail.com and the deadline for submission is Friday, 31 March 2023. 

Treasury under review following allegations it helped sanctioned Russian to sue journalist

The Treasury is reviewing its processes amid reports it assisted a Russian oligarch to evade UK sanctions to take a British journalist to court. The media website openDemocracy reports that a Treasury team issued licences to allow lawyers to help Wagner Group boss Yevgeny Prigozhin commence legal action against a Bellingcat journalist, Eliot Higgins, in the UK in 2021, whilst the Russian oligarch was subject to sanctions. Exchequer Secretary to the Treasury James Cartlidge said that the Treasury’s Office of Financial Sanctions Implementation (OFSI) follows a stringent set of rules when granting sanctioned individuals permission to bring lawsuits, “for strong constitutional reasons”. According to Mr Cartlidge, “applications are assessed solely on a costs basis, and as a country with checks and balances, it is right that the relevant court should decide the outcome of the substantive merits of a case rather than the Government." He further said that "the Treasury is now considering whether this approach is the right one, and if changes can be made without the Treasury assuming unacceptable legal risk and ensuring that we adhere to the rule of law.” Shadow foreign secretary David Lammy stated that this was a perfect example of a SLAPP, "designed to silence critics through financial intimidation.” Mr Cartlidge said he would not comment publicly on the case but confirmed that a review is under way on its decision-making.

Read further reports on the matter here.  

Defamation claims against political activists supporting former Pakistani Prime Minister 

A London-based Pakistani journalist has argued that he has been defamed by a series of YouTube videos, tweets and a change.org petition created by political activists who were supporting former Pakistani Prime Minister, Imran Khan. The claimant, Murtaza Ali Shah, had been a vocal critic of the Pakistani government. On 26 January 2023 there was a trial on the meanings of the six publications before Mrs Justice Steyn. Determining these issues was complicated by the fact that the YouTube videos were published in Urdu. In her judgment, the meanings found by Steyn J included that the claimant "is a corrupt journalist" and has been "misusing his position by reporting news which he knows to be false" [74]-[76]). Accordingly, the meanings were all held to be defamatory. 

Tate Modern: Flat owners win viewing platform privacy case 

The owners of four flats overlooked by the Tate Modern have won their appeal in a Supreme Court privacy bid over the use of the gallery’s viewing platform. The Supreme Court found that the first instance trial judge made a "cluster of mistakes", as he applied the wrong legal test when deciding "whether the Tate Modern, in operating the viewing gallery as it does, is making an unreasonable use of its land" [54]. The Court ruled that the appellants should be afforded protection under the law of nuisance, after it was claimed that the viewing platform breached the owners' rights to ‘private and family life’ under Article 8 of the ECHR. In the majority judgment, Lords Leggatt, Reed and Lloyd-Jones said the way in which the viewing gallery offered constant observation of the flats by hundreds of thousands of spectators each year left the residents feeling like they were "on display in a zoo" [48]. Further, it was found that visual intrusion can give rise to legal liability in nuisance [104]. Although the flat owners were successful in their bid, the majority regarded the reference to a breach of Article 8 rights as an "unnecessary complication and distraction" [113]. It stated that the general principles of the common law of nuisance are adequate to deal with such circumstances, and that no new privacy laws are needed. It also stated that in cases of overlooking, the concepts of invasion of privacy and damage to interests in property are "not mutually exclusive" [112]. The case will now be returned to the High Court to determine a solution for the owners. Read further reports about the case here

The Online Safety Bill - a shift in Government

UK Prime Minister Rishi Sunak announced a cabinet reshuffle on 7 February. The most prominent of the changes was the splitting up of the Department for Digital, Culture Media and Sport (DCMS). The former minister, Michelle Donelan, has now become the minister for the new Department of Science Innovation and Technology (DSIT), with Lucy Frazer now the secretary for DCMS. The new DSIT has absorbed the Digital brief of the DCMS, with the legacy department now  focusing on Culture, Media and Sport (CMS). The refshuffle could have implications for the Online Safety Bill which had previously sat within DCMS' 'Digital' remit. Read further about the reshuffle here.

Recent updates on the progress of the Online Safety Bill include a proposed amendment by a group of Tory peers, expected to be backed by Labour, to give Ofcom the power to fine digital platforms 10% of their global revenue if they fail to comply with a code prohibiting online misogyny. This development comes after provisions prohibiting 'legal but harmful' content were removed from the Bill. 

Harry and Meghan to be questioned in Samantha Markle defamation case

Samantha Markle is suing the Duchess of Sussex in Florida for "defamation and injurious falsehoods" arising out of the 2021 TV interview the Duchess gave to Oprah Winfrey. Following Justice Charlene Edwards Honeywell's decision, Harry and Meghan may now have to give evidence in the proceedings by way of deposition. In the US, a deposition is a formal statement of evidence taken of a witness or party to litigation by a court. In the proceedings commenced in March 2022, Samantha Markle alleges that the Winfrey interview "disseminated false and malicious lies" and had subjected the Duchess' half-sister to "humiliation, shame and hatred on a worldwide scale". However, the judge has since suggested that some of Samantha Markle's claims may be "ripe for dismissal". 

It promises to be a busy year in the courts for the Duke of Sussex who is involved in multiple High Court claims, including his libel claim against Associated Newspapers Limited, his privacy claim against ANL and his phone hacking claims against News Group and MGN. The Media team acts for ANL in the libel claim and MGN

Iranian and Russian hackers target UK journalists and politicians 

Officials have warned that Iranian and Russian hackers are targeting British politicians and journalists with espionage attacks. The National Cyber Security Centre (NCSC), part of GCHQ, has issued a new alert about increased hacking attempts to gain access to information. The NCSC explained that the targets were usually those doing research and work on Iran and Russia. Paul Chichester, NCSC director of operations said: "We strongly encourage organisations and individuals to remain vigilant to potential approaches and follow the mitigation advice in the advisory to protect themselves online." The hackers will often impersonate real contacts to build trust with victims, and then send fake online meeting invites containing malicious codes. Once clicked on, the hackers then have access to potentially sensitive information. A Russian group known as SEABORGIUM has previously been linked to the leaking of emails belonging to an ex-MI6 head and the targeting of nuclear laboratories, and, similarly, an Iranian group – known as TA453 or Charming Kitten – has also been linked to the country's Islamic Revolutionary Guard Corps and is accused of targeting US politicians. Whilst the campaigns are not linked, a joint warning has been issued due to their reliance on similar techniques and targets. Read more about the story here.

The EU Media Freedom Act: A path to pluralism 

On 31 January 2023, MEPs and experts assessed new draft legislation aimed at "strengthening media pluralism and freedom in the EU" at the Committee on Civil Liberties, Justice and Home Affairs. The catalyst for the proposed legislation (the ‘European Media Freedom Act’) was a political commitment from President von der Leyen, who stressed the importance of information as a public good in her 2021 State of the Union address, affirming that media companies cannot be treated as any other business, with their independence being fundamental to the values of the EU in preserving media pluralism and freedom (enshrined in Article 2). 

The proposed legislation seeks to establish a common framework for media services in the internal market by facilitating cross-border service provision, cross-border coordination tools and EU-level opinions and guidelines, mitigating the risk of undue public and private interference in editorial freedom, and ensuring transparent and fair allocation of economic resources. The proposal is accompanied by a recommendation for a catalogue of voluntary good practices for media companies to promote editorial independence and recommendations to media companies and Member States aimed to increase media ownership transparency. Questions were raised at the Committee over the proposed legislation's effectiveness in certain EU regimes (such as Hungary) and the need for further clarity over the rights afforded to journalists. Additional concerns were raised on the need to have strong anti-SLAPP and anti-surveillance provisions for the act to be effective in strengthening media freedom in the EU. Watch the Committee here and read the European Media Freedom Act here.

Quote of the fortnight:

‘Democracies die in silence and the free media is the most powerful tool we have. If we fail to protect this voice, we are equally responsible for the death of our democracies’ - Ramona Strugariu in the public hearing on the EU Media Freedom Act 

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