Take 10 - 20 May 2022

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

News items

Fox denied defamtion trial by jury

Laurence Fox, the actor and founder of the Reclaim Party, has had an application refused for a trial by jury in his ongoing defamation litigation with three people he referred to as "paedophiles" on Twitter (and who themselves accused him of racism, prompting a counterclaim by Fox).  Whilst trials by jury in defamation claims used to be frequent, section 11 Defamation Act 2013 put a stop to that and the subsequent attempts since its enactment (of which this is only the second) to apply for such a trial have been unsuccessful.  Mr Justice Nicklin's decision is a very worthwhile read for anyone considering whether to apply for a trial by jury or indeed with an interest in the history behind such trials in defamation cases.  The key issue that would now tip the balance in favour of a trial by jury in a defamation claim, as opposed to the now established default position of a trial by judge, is whether there is a real prospect of "involuntary bias" on the part of any judge who was called upon to try the issues in the case and whether that could be overcome by ordering a trial by jury.  The Judge decided that there was no such prospect in this case and reiterated the valuable aspects of a trial by judge in defamation claims, such as: a) the importance of a reasoned judgment; b) its more proportionate nature and furtherance of the overriding objective, in particular the possibility of early determinations of meaning; and c) the fact that the law of defamation has become substantively more complicated since jury trials were abolished.  The Law Society Gazette has a report on the decision.

Serious Sussex 

Mr Justice Nicklin has refused an application from the Duke of Sussex to have serious harm determined as a preliminary issue alongside meaning in his ongoing libel case against Associated Newspapers Limited.  The Duke of Sussex is suing ANL, publishers of the Mail on Sunday, over an article reporting details of his Judicial Review proceedings against the Home Office.  Whilst the parties had agreed that a) meaning, b) fact/comment, and c) whether the article was defamatory at common law could and should be determined at a preliminary issue trial, the Duke of Sussex sought to have a determination under s1 Defamation Act 2013 (i.e. whether the article had caused or was likely to cause serious harm to his reputation) alongside these issues.  The decision is a reminder that, as per the Queen's Bench Guide, the court will be slow to direct a preliminary issue as to serious harm, which should ordinarily be left to trial.  The Judge's reasoning recognised that whilst the Duke of Sussex's case on serious harm was based solely upon inference, the issue of serious harm is one of fact (as per the Supreme Court determination in Lachaux).  A defendant in these circumstances is therefore entitled to advance a factual case in answer to a claimant's case which would require pleadings, disclosure, witness statements and (potential) cross-examination at trial, thus undermining the otherwise proportionate measure of a preliminary issue meaning trial.  RPC are acting for ANL in this case and the preliminary issue trial is listed for 9 June 2022.

Mr X  

A further judgment was handed down on Wednesday in the BBC's tussle with the Attorney General about the terms of the injunction prohibiting the BBC from identifying "X", the alleged covert human intelligence source working for MI5. The parties made further submissions about the specific information which is said to likely identify X. The Court held that whilst in most cases it was sufficient for reporting restrictions to be framed in general terms so as to prevent reporting of information "likely to lead to the identification" of an individual, and publishers could be trusted to make a judgement on whether information was likely to breach the order. However, in circumstances such as these where there was an imbalance of information in respect of what information is and isn't likely to identify X as a result of material being heard in Court without the BBC's presence, and where a dispute as to whether some information would breach the order had crystallised, the court held that it would be in the interests of all parties to resolve that dispute to avoid the possibility of an unnecessary interference with the BBC's Article 10 rights in the event that they chose not to publish material that the court would otherwise have allowed them to publish. As to the standard to be applied when deciding whether information is 'identifying', the BBC argued that only information which would tend to identify X to members of the public is caught by the order, but the Attorney General argued that the order required a much narrower interpretation and that information which would tend to identify X to "particular individuals with prior knowledge of X or of other aspects of the story" to be reported would be caught. The Court held that the focus must be on the risk of disclosure to the groups which might wish to do harm to X if they knew that the BBC alleges that he is a covert human intelligence source. The risk that members of those groups might combine the BBC's reporting with their own knowledge, causing X to be identified (in other words, jigsaw identification) must be taken into account).  A further judgment was handed down in private which determined the specific information which is said to identify X.  The BBC have now published their story. 

Wright v Granath 

His Honour Judge Lewis has handed down a decision in a claim by Craig Wright, a man claiming to be Satoshi Nakamoto (the inventor of bitcoin) against Magnus Granath.  The Judge dismissed Granath's summary judgment application, which had argued that Wright had no real prospect of succeeding in proving that publication of a tweet calling him a fraud had caused him serious harm.  This litigation is one of several claims brought by Wright against those who deny his claims to be Satoshi Nakamoto.  Of particular interest in the judgment is discussion of the extent to which "bad reputation" and evidence of similar allegations made by others can be considered by the court, as per the rules in Burstein v Times Newspapers Limited and Dingle v Associated Newspapers Limited (cases which considered the way in which defamation damages are assessed, but which are now informing caselaw on the determination of serious harm under s1 Defamation Act 2013).  The decision of HHJ Lewis affirms:  a) that in a case such as this where an inferential case of serious harm is pleaded, evidence as to the level and nature of publication is required (in particular of Twitter Analytics where the statement complained of is a Tweet); b) evidence of general bad reputation may only be admitted when it is within the relevant sphere of a claimant's reputation; c) but evidence of the same allegation having been made against the claimant may not be relied on in accordance with the rule in Dingle.  Craig Wright's separate libel claim (referred to in this judgment) against Bitcoin blogger Peter McCormack, represented by RPC, goes to trial on Monday and will also examine the extent to which an allegation that Wright's claim to be Satoshi is fraudulent caused serious harm.

A Real-y interesting jurisdiction battle

Mr Justice Julian Knowles handed down the judgment in the jurisdiction challenge brought in Kumlin and anor v Jonsson and ors last Wednesday. The case relates to a Swedish businessman and his English holding company who sued the Swedish news website Realtid Media, its editor and two of its journalists following publication of 8 Swedish-language articles alleging impropriety by Mr Kumlin and his group of companies. Realtid challenged the English court's jurisdiction on the basis that the Claimants could not demonstrate a good arguable case that the articles were defamatory and that they did not have their centre of interests in England & Wales. The court held that the Claimants had shown a good arguable case that just 3 of the 8 articles were defamatory at common law, but that the corporate Claimant could not show a good arguable case that it had suffered serious financial loss as a result of publication of the articles. Whilst the Defendants submitted evidence to suggest that the threshold for serious harm had not been met because the articles had been viewed fewer than 50 times in the jurisdiction, the Court held that the three articles in question had a tendency to cause actual harm to Mr Kumlin. However, Mr Kumlin can only recover damages suffered in the jurisdiction of England and Wales, as opposed to global damages as the Court found that Mr Kumlin had not displaced the general starting point that his centre of interests is Monaco, his place of residence and that alternatively, his centre of interests are so diffuse that he does not have a centre of interests at all. RPC acts for Realtid Media, as does Greg Callus who is this week's Lawyer of the Week.

Chatter

Reporters' Charter 

A new Reporters' Charter was launched on 11 May, jointly prepared by the Media Lawyers Association, Society of Editors and HMCTS, with the aim of promoting reporting in courts and tribunals.  The document encourages journalists’ access to courts by summarising the rights and obligations journalists have when reporting proceedings.  This includes guidance on ensuring journalists have access to the key documents and information they are entitled to. It is hoped that the new charter will increase public confidence in the judicial system by keeping them better informed with Justice Minister James Cartlidge describing the media as the public’s "eyes and ears in the courts".  The Ministry of Justice describes the charter as a key development following the Covid 19 pandemic which has seen remote hearings rising from just a "handful" pre-March 2020 to nearly 12,500 held per week in the present day.

Queen's Speech

The Government has outlined a Media Bill in the recent Queen's Speech which will include a provision to repeal Section 40 of the Crime and Courts Act 2013.  Whilst this provision has never been fully enacted it remains on the statute book and, despite its repeal being a Conservative Party manifesto commitment in the last two general elections, it is only now that steps are being taken to make that change.  Section 40, described in the Queen's Speech briefing notes as "a threat to the freedom and sustainability of the press", would have had the effect that any news publisher who was not a member of IMPRESS (being the only state approved press regulator) would be faced with paying the costs of a claimant in litigation even when they successfully defended the claim.  IPSO, who regulates the vast majority of the news media, has not applied for formal recognition by the Press Recognition Panel and its members (and indeed any other news organisation not regulated by IMPRESS) would therefore have faced those draconian costs measures even in respect of fully defensible journalism. The Queen's Speech also confirmed the Government's plans to publish draft legislation (the Digital Markets, Competition and Consumer Bill) giving the Digital Markets Unit new statutory powers to create a regime for the digital marketplace, including a code of conduct requiring meaningful payment for news publishers' content by tech platforms such as Meta and Google, on whose platforms such content appears.  

SLAPP'd

The Ministry of Justice's Call for Evidence on Strategic Lawsuits Against Public Participation (SLAPPs) closed yesterday and media lawyers will be keeping a close eye on how this issue is tackled by the Government.  There are certainly a wide variety of views on how to tackle the issue (or whether it is indeed an issue at all) and the Government will be tasked with reviewing the evidence submitted to the consultation and considering how to take any potential reforms forwards.  To the extent the Government does consider it an issue there are a wide variety of options, whether by enacting a new 'anti-SLAPP' piece of legislation, by reforming existing legislation around the Defamation Act, Data Protection Act or Human Rights Act (in relation to which there is another consultation ongoing), or by introducing procedural reforms.  RPC's own Rupert Cowper-Coles appeared at a House of Commons Justice Committee hearing last week alongside other media specialists – see a Law Society Gazette report here.

Data the dog 

‘Twitter Data Dash’, a game launched by Twitter to teach its users about privacy settings, is set to be a trendsetter for tech platforms to encourage user awareness of privacy and security when using the internet. The interactive game involves navigating 'Data the dog' safely to the park in PrivaCity, dodging 'cat ads', swimming through a sea of DMs, battling trolls, and teaching users how to extend more control over their Twitter user experience. It is yet to be seen what the social media platform’s new owner, Elon Musk, has in store for continued future innovative developments.

And, of course, Wagatha

There is relatively little to say in this edition of Take 10 about the Wagatha Christie trial, which reached its conclusion yesterday, that hasn't already been said.  It's certainly been a wild ride.  We've seen it all: tears, chipolatas, Davy Jones' locker, memes, off-field events at two international football tournaments, Scooby-Doo, fuming lads, Gemma Collins ice skating (and faceplanting), and evidence from England's record goal scorer Wayne Rooney.  Judgment will almost certainly be reserved for some time and Mrs Justice Steyn will be tasked with resolving one of the more unique libel cases that the courts have seen in recent years.  We will wait with bated breath to find out whether or not Coleen Rooney can prove that it was indeed……….Rebekah Vardy who was responsible for providing information about Rooney to the Sun newspaper.  One might be surprised to see such a case make it all the way to a full-blown trial, with the inevitable publicity that was always going to come with it, but if nothing else it has at least led the general public to take an interest in the work of media lawyers!