Take 10 - 30 May 2023

Published on 31 May 2023

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

Carole Cadwalladr seeks permission to appeal costs 

Carole Cadwalladr, the award-winning journalist, has applied to the Court of Appeal for permission to appeal a costs order it made on 17 May 2023.  Ms Cadwalladr originally won the libel trial brought by Leave. EU backer Arron Banks in June last year after successfully establishing a public interest defence under s4 Defamation Act 2013 for a TED Talk she delivered in 2019.  However, in February this year the Court of Appeal held that continued publication of the talk on the TED Website after Ms Cadwalladr's public interest defence fell away due a change in circumstances in 2020 had caused serious harm to Mr Banks' reputation, and he was awarded damages which were agreed at £35,000.   The Court of Appeal last week awarded Mr Banks 60% of the costs before the High Court, and one-third of his costs before the Court of Appeal.  In seeking permission to appeal, Ms Cadwalladr has said that the costs decision set 'a chilling precedent for UK journalism', and that if she was unsuccessful in having the order overturned by the Supreme Court, she intended to take the matter to the European Court of Human Rights in Strasbourg.

RPC acts for Carole Cadwalladr.

Representative action in MPI fails at first hurdle

A representative action in misuse of private information, brought on behalf of 1.6 million patients whose medical records were used for the purpose of clinical testing of a diagnostic app, has been struck out.  The claim, which was originally brought by representative Claimant Andrew Prismall under data protection legislation, was reframed as an action in MPI after the Supreme Court in Lloyd v Google held that to succeed in data claims each Claimant needs to establish individual damage or distress.  MPI was apparently considered a more effective route for representative actions given "loss of control" damages are available – which can more easily be demonstrated by the entire class.  However, the attempt to reignite class actions under a separate cause of action failed after the Judge held that the "same interest" requirement under CPR 19.8(1) was still not established under the law of MPI – not everyone in the claimant class would be able to establish a claim in misuse of private information, and when harm is assessed on a "lowest common denominator" basis (which is relevant to assessing whether the class had the "same interest") the class would not be entitled to more than trivial damages.  The judgment is a welcome indication for defendants that Lloyd v Google cannot easily be circumvented through a new route of privacy class actions.  

You can read the full judgment here.

US Supreme Court rules in favour of Twitter and Google

Judgment has been handed down by the US Supreme Court in Taamneh v Twitter and Gonzalez v Google, with the Court refusing to directly address the question of whether the well-established protections available to online platforms under s. 230 Communications Decency Act should be overhauled.  The protection in s.230 CDA provides legal immunity for tech platforms in the United States in respect of third-party content generated by users and posted online.  The two claims centred around pro-terrorist content found to be available on YouTube (owned and operated by Google) and Twitter: the claimants alleged in part that the content had been knowingly recommended and distributed via algorithms and that this constituted aiding and abetting terrorism.  The Court did not directly address the legal interpretation of s. 230, finding instead that under existing anti-terrorism law Twitter's actions had not aided or abetted terrorism and sending the Google case, which contained "materially identical" allegations, back to the US Court of Appeals for it to take another look "in light of our decision in Twitter".  Whilst sidestepping the s. 230 issue, the court nevertheless made some tech-friendly findings: noting that "the Defendants' mere creation of their platforms is no more culpable than the creation of email, cell phones, or the internet generally"

ZXC principles not extended in open justice ruling

International businessman and Conservative Party donor Javad Marandi has been named in connection with a global money laundering investigation in an important decision for open justice.  Marandi, who was not a party to the underlying forfeiture proceedings but had connections to the respondents, initially obtained an anonymity order after learning that prejudicial references were likely to be made about him during the hearing – citing ZXC v Bloomberg to argue that his Article 8 rights were engaged due to the significant damage naming him could do to his reputation.  The decision was challenged by the BBC and the Evening Standard and the anonymisation order lifted.  In March 2023, Warby J and Mostyn J dismissed his appeal of that decision and found that the District Judge had not erred in law when resolving the conflict between the requirements of open justice and the rights of a non-party to respect for his private life.  Marandi, who denies any wrongdoing, can only now be named after his application for permission to appeal to the Court of Appeal was refused. 

...and another open justice sucess as reporting restriction varied

On 10 May 2023, HHJ Crowther at Cardiff Crown Court varied an order made under section 45 of the Youth Justice and Criminal Evidence Act 1999 to allow a mother to identify her ex-partner convicted of violently shaking his seven-week-old child and causing him permanent brain damage.  In March 2018, Nicholas Bateman's actions caused multiple fractures and a bleed on the brain which resulted in the child having seizures and cerebral palsy. The child is likely to need lifelong medical care.  On 4 May 2023, Nicholas Bateman was found guilty of actual bodily harm and grievous bodily harm with intent and sentenced to 10 years and nine months in prison at Merthyr Tydfil Crown Court.  Following the hearing, the BBC applied to vary the section 45 order to allow the mother of the child (and Bateman’s previous partner) to identify Bateman and her son and to discuss details of the conviction in an interview with the BBC.  HHJ Crowther granted the application and stated that the variation “makes clear to the public precisely what happened and endorses the principle of open justice”.

Privacy injunction against the Sun refused

The Court of Appeal has dismissed an appeal brought by Richard and Sarah Stoute which sought to restrain the further publication of photographs of the couple on a public beach on the basis that they amounted to a misuse of their private information.  Mr and Mrs Stoute run a company which sells PPE to NHS and private hospitals and secured government contracts worth around £2 billion during the Covid-19 pandemic.  An article was published in the Sun on 1 January 2023 reporting on Mrs Stoute's wealth and featuring photographs of her and her husband holidaying in Barbados.  In January 2023 the High Court refused to grant an interim injunction preventing further publication.  The Court of Appeal found that the first instance decision made no error in deciding that it was unlikely that Mr and Mrs Stoute would be able to establish they had a reasonable expectation of privacy in the photographs. They also held that the High Court correctly found that the balance of the risk of injustice favoured the refusal of the interim injunction application.

The judgment is a useful reminder of the current law relating to misuse of private information and in particular the factors likely to engage Article 8 in the context of photographs published without consent.  You can read the full judgment here.

Success for Chris Packham in libel trial 

Naturalist, television presenter and campaigner Chris Packham has been awarded £90,000 after suing in libel over articles published on the Country Squire Magazine website and associated Tweets.  The editor of the website, Dominic Wightman, and writer Nigel Bean had made various allegations of fraud and dishonesty against Packham, including that he made dishonest statements in order to raise funds for an animal charity of which he is a trustee.  Defences of truth and public interest failed: Mr Justice Saini found the articles lacked any proper evidential basis and also criticised the defendants' behaviour during both the investigation and in the subsequent civil proceedings – finding they targeted Mr Packham as a person against whom they had an agenda and continued to drive a campaign of online hatred and abuse causing him anxiety and distress.  The claim against the third defendant (Paul Read) failed as the Judge found he did not have any liability for the contents of the articles – acting as a mere proof-reader rather than as author or editor.

GB News breaches Ofcom rules

GB News breached the Ofcom Broadcasting Code by airing claims about the COVID-19 vaccine that were said to be 'unopposed', 'dangerous' and 'included misinformation', a recent decision has found.  Dr Naomi Wolf, who was a guest on the show, compared the rollout of the COVID-19 vaccination to 'mass murder' and made comments comparing vaccinations to the behaviour of 'doctors in pre-Nazi Germany'. Ofcom investigated the incident under its "harm and offence" rules (Rule 2.1 of the Code) which focus on ensuring broadcasters take adequate steps to protect viewers from potentially harmful or offensive content. One consideration given significant weight by Ofcom was the portrayal of Dr Naomi Wolf as an expert in the COVID-19 field: she would be understood by viewers to be a figure of authority and a credible source of knowledge on the topic, increasing the likelihood of harm. Nor was any challenge or scrutiny posed by the presenters to the comments she made.  This is a useful decision on the approach taken by Ofcom to "health and wealth" claims in programming, which are understood to have a higher potential for harm due to the significant impact that those claims can have on viewers.  You can read the full decision here.

Digital Markets, Competiton and Consumers Bill - call for written evidence 

The House of Commons Public Bill Committee has released a call for written evidence on the Digital Markets, Competition and Consumers Bill, which is currently passing through Parliament. The Bill aims to reform competition and consumer law relating to digital markets, including introducing more stringent obligations relating to transparency and fairness and granting broader powers to the CMA.  The legislation could force tech platforms to pay to carry news content in the UK; if they are designated as having "strategic market status", the Digital Market Unit (DMU) of the CMA will be able to impose conduct requirements which provide that news publishers are "paid fairly" for their content hosted on the platforms.  This is likely to receive fierce opposition from tech companies who consider the proposals could distort competition and create uncertainty.   The first sitting of the Public Bill Committee is expected to be on Tuesday 13 June.

New Fixed Recoverable Costs regime to be introduced

The new Fixed Recoverable Costs (FRC) regime is due to come into force on 1 October 2023.  The new rules provide that simpler and lower-value claims (where the amount sought is between £25,000 and £100,000) will be allocated to a new intermediate track, for which the amount of recoverable costs will be fixed.  Factors affecting costs recovery will include the stage of the litigation at which the claim is resolved and the size of the claim.  The amount of costs recoverable for these claims will now range from between £0 (where a fast track complexity band 1 claim settles pre-action) to £29,000 plus 22% of damages and £11,600 for counsel's fees (where a band 4 intermediate track claim is determined after a 3 day trial). More complex or higher value claims will continue to be allocated to the multi-track where the usual rules of cost budgeting and recovery apply.  The new rules will be particularly relevant to smaller and simpler media claims, for example small claims issued in data protection or for misuse of private information. You can find out more about the new regime here.

Quote of the fortnight:

"Rather than approaching the task with an investigative mind, these Defendants targeted Mr Packham as a person against whom they had an agenda. I underline that having an agenda does not, in and of itself, disqualify a person including citizen journalists such as D1 and D2 from being able to benefit from a public interest defence. Indeed, in general terms many publications and professional journalists approach stories with what might be called an agenda. However, the agenda adopted by D1 and D2 meant that they approached what might be facts suggesting (at the very highest) that questions might be asked about the accuracy of the fundraising statements, as proving fraud and dishonesty on the part of Mr Packham."  Mr Justice Saini on the s. 4 public interest defence, in Packham v Wightman & Ors [2023] EWHC 1256 (KB) 

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