Reputation and Media Quarterly Round-Up: Q1 2021

26 May 2021

This quarterly media and reputation management update provides a summary of a cross-section of reported decisions handed down in the courts of England and Wales in the period January to March 2021.

Defamation

Depp v News Group Newspapers [2021] EWCA Civ 423

Last quarter we commented on the unsuccessful libel proceedings brought by Mr Depp against the Sun, over an article published by the newspaper in 2018 which made allegations that he had been violent towards his former wife Amber Heard. Mr Depp subsequently made an application for permission to appeal this decision which was heard in the Court of Appeal on 18 March 2021. In the judgment handed down on 25 March 2021, Lord Justice Underhill and Lord Justice Dingemans sitting in the Court of Appeal rejected Mr Depp’s application finding that none of the criticisms put forward about Mr Justice Nicol’s reasoning or the conclusions drawn at the trial had a real prospect of success.

The judgment highlights the difficulties appellants face in persuading an appeal court to overturn the decisions of a trial judge purely on questions of fact and concluded that there was “no real prospect of it being prepared to do so in this case.” Lord Justice Underhill and Lord Justice Dingemans found that Mr Justice Nicol had given thorough reasons for the conclusions drawn and that there had been a full and fair trial.

This concludes the actor’s legal avenues in the English courts; however his legal team has since issued a statement confirming that Mr Depp intends to pursue libel proceedings against Ms Heard in the US courts.

 

Duke of Sussex v Associated Newspapers Limited

As noted last quarter, a claim issued by the Duke of Sussex against Associated Newspapers settled at the beginning of the year after the newspaper accepted that its reports accusing the Duke of “snubbing” his colleagues in the Royal Marines and “turning his back” on the British Armed Forces were false.

A statement in open court was read on behalf of the Duke on 1 February 2021, which claimed that the Duke had in fact “made repeated and concerted efforts” to support the Royal Marines and wider members of the Armed Forces and described the articles as “baseless, false and defamatory”. Whilst the Duke agreed to settle the matter, the statement made clear that the Duke did not consider the prominence of the agreed apology on the MailOnline or at the bottom of page 2 of the Mail on Sunday were “commensurate with the original story and subsequent harm caused” and were unlikely to have attracted the same level of attention. The Duke claimed that his reason for making the statement was because the apology “significantly underplayed the seriousness of the accusations made against him” by not expressly acknowledging they were false and because they incorrectly stated that the Defendant had made a donation to the Invictus Games Foundation. The Duke chose to make this donation to the charity personally.

The statement in open court concludes the Duke’s claim against the Defendant newspaper.

Wright v Granath [2021] EWCA Civ 28

In January 2021 the Court of Appeal heard an appeal brought by Mr Wright, an English computer scientist, who originally brought a libel claim against Mr Granath, a Norwigan citizen. The original proceedings arose out of a tweet posted by Mr Granath stating that Mr Wright’s claim to be Satoshi Nakamato (the individual thought to have founded bitcoin) was false. Mr Wright issued the libel claim in June 2019, but the defendant requested that the English court decline jurisdiction on the basis that he had already issued a claim in Norway for determination that his tweet was not defamatory (negative declaratory relief). The High Court agreed with the defendant on the basis that under the Lugano Convention, the Norwegian Court would be the court first seised of the dispute and that the two claims involved the same cause of action.

Lord Justice Moylan, Lord Justice Singh and Lord Justice Popplewell, sitting in the Court of Appeal, overturned the decision on the basis that the two claims did not have the same cause of action therefore the Lugano Convention was not applicable. The judgment also made reference to the negative declaratory relief sought by the defendant in a potentially favourable jurisdiction, noting that it would not be “unfair” to pursue the action and was indeed the defendant’s right to do so.

The applicability of this judgment going forward in English Law will depend on whether the UK implements the Lugano Convention following the Brexit transition period.

 

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB)

The judgment relates to various claims brought by Mr Soriano against the US based defendants (a news website, its owner and associates). One of the key issues dealt with at the hearing in January 2021 was whether Mr Soriano had satisfied the court that England and Wales was the most appropriate place to bring an action in libel. Section 9 of the Defamation Act 2013 requires the court to conduct an analysis of “all the places in which the statement complained of has been published” to ultimately decide where the most appropriate jurisdiction to bring a claim would be.

Mr Justice Jay concluded that England and Wales was the “place where the Claimant’s reputation is most obviously centred” and rejected the defendant’s argument that the claimant’s reputation was global. Additionally, whilst the readership of the articles on the website were primarily based in the US and Mr Justice Jay accepted that there would be greater inconvenience to the defendant litigating in England than the reverse, he still concluded that England and Wales was the most appropriate jurisdiction to pursue libel proceedings.

This is an interesting judgment as s.9 Defamation Act 2013 is often an element of libel proceedings which claimants struggle to satisfy. The judgment also has a Data Protection element which will be considered below.

 

Summerfield Browne Ltd v Waymouth [2021] EWHC 85 (QB)

A West End law firm brought a libel claim against a former client, Mr Waymouth, over an online review he posted on Trustpilot headed “A total waste of money another scam solicitor”. The law firm applied to strike out Mr Waymouth’s public interest defence and sought summary judgment in relation to the truth defence.

At the hearing on 18 January 2021, Master Cook struck out the defences of truth and public interest, the latter on the basis that Mr Waymouth had requested money from the law firm to remove the review which in the Master’s view wholly undermined the principal of a public interest defence. The Master determined the statement that the firm was a “scam solicitor” was an allegation of dishonesty and therefore an allegation of fact. He concluded that the defence was “fanciful” and it was disproportionate for the case to continue to trial.

When considering serious harm the Master concluded that it was “beyond dispute” that the review had a tendency to detract prospective clients from dealing with the claimant firm. The law firm was therefore awarded £25,000 in general damages (but note that its special damages claim was rejected as the claim was not made out) and the £3,450 it sought in costs.

 

Kim v Lee [2021] EWHC 231 (QB)

In our Quarter 3 2020 round up , we covered the strike out application brought by the defendant on the basis that, amongst other things, England and Wales was not the correct jurisdiction to bring the claim. The application was wholly dismissed by the court and the case proceeded to trial on 26 January 2021. The court considered that the trial could proceed despite the defendant having been debarred from defending the claim and deciding not to attend.

At trial, Mrs Justice Steyn DBE agreed with the claimant that the posts made by Mr Lee accusing Mr Kim of fabricating stories and misleading readers were defamatory at common law and met s.1 Defamation Act 2013 of causing serious harm to his reputation as a sports journalist and pastor. Mr Kim claimed he had suffered a loss in income of £31,250 as a result of the defamatory claims made. An interesting point considered by the judge was whether Mr Kim would have suffered a reduction in his income in any event due to the impact of the COVID-19 pandemic on Premier League football matches which Mr Kim reported on. She concluded that there would have been some reduction in earnings and reduced Mr Kim’s claimed loss of income by £400.

It will be interesting to see whether the COVID-19 pandemic is a factor the court will take into account when assessing financial loss suffered in libel claims going forward, given the huge economic impact that the current restrictions have had in the UK.

 

Ware v French [2021] EWHC 384 (QB)

At the trial of preliminary issue, Mr Justice Saini determined that the meaning of words published by Mr French on the Press Gang website were “clearly defamatory”. The allegations relate to a BBC Panorama programme presented by the claimant which reported on allegations of anti-Semitism in the Labour party. Mr French accused Mr Ware of “rogue journalism” and of bending the truth “to breaking point”. Whilst the judge considered these statements to be on an important issue of public interest, he considered that they went beyond the expression of an opinion and accused the claimant of “deliberate wrongdoing” and “selectively presenting one side of the story”.

Mr French issued a statement after the hearing that he is committed to fighting the case at a full trial and is continuing to crowdfund his defence.

 

Mirza v Farooqui [2021] EWHC 532 (QB)

This libel action was brought by Mr Mirza, an entrepreneur of Canadian and British Pakistani heritage, due to an article published on the Gulf News website which he claimed alleges that he was a ‘fraudster’ who operated a Ponzi scheme which was being investigated by HMRC. The defendant has not engaged in the proceedings and the article complained of continues to be published. On 9 April 2020, Mr Mirza obtained default judgment.

At the hearing on 10 February 2021, Mrs Justice Collins Rice DBE dealt with the quantum of damages to be awarded to Mr Mirza. Taking into consideration the serious nature of the allegations which asserted amongst other things, criminal misconduct, the extensive publication in the UK particularly amongst the Muslim community, the harm caused to Mr Mirza’s reputation and business enterprises, and the fact that no apology or retraction of the allegations had been made, the judge awarded Mr Mirza £75,000. The judge highlighted that when considering damages in defamation cases, regard should be made to awards in personal injury cases to ensure damages to compensate for reputational damage are proportionate.

 

Data Protection

HRH the Duchess of Sussex v Associated Newspapers Limited [2021] EWHC 273 (Ch)

In another recent victory for the Sussex’s against Associated Newspapers, the Duchess of Sussex was successful in her application for summary judgment on certain elements of her ongoing claim against the defendant newspaper. In the judgment handed down in February, Mr Justice Warby concluded that Associated Newspapers had no real prospect of successfully defending the Duchess’ claims in misuse of private information and copyright. The Duchess was therefore successful in most aspects of her application, meaning that the only remaining issues are as to who owns the copyright in the letter at the centre of the claim and whether there has been a breach of data protection laws.

During a subsequent case management hearing, the court disagreed with the Duchess on the form of the apology to be published stating that it would interfere with freedom of expression to demand the newspaper to publish it with the same prominence as the original article. The court also granted the newspaper an extension of time to publish the apology in the event that it would seek permission to appeal. Whilst the exact form of financial compensation has not yet been decided, it transpired at the hearing that the Duchess is seeking an ‘account of profits’ rather than conventional damages in an attempt to secure the equivalent profits the newspaper made in breaching her rights. Whether this will be an accepted remedy will be decided at a later hearing. Mr Justice Warby also awarded the Duchess 90% of her costs and ordered Associated Newspapers to make an interim payment to her of £450,000.

The defendant newspaper has since made an application for permission to appeal the judgment which was dismissed by the High Court on the basis that there was ‘no prospect’ of any other court reaching a different conclusion to the one made. It has not yet been confirmed whether the newspaper will seek to challenge this decision by making an application for permission to appeal to the Court of Appeal. We will provide an update on this next quarter.

 

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB)

As referred to above, this case is also a useful judgment in relation to when the General Data Protection Regulation (“GDPR”) applies to data controllers based outside of the UK. This was a necessary consideration in this claim as the defendants were domiciled in the US. Mr Soriano sought the permission of the court to serve the data protection claim out of the jurisdiction.

Mr Justice Jay found that Mr Soriano satisfied the first stage of the test, as there was no dispute that the claimant satisfied the “habitual residence limb” under Article 79(2) GDPR, which states that proceedings should be brought in the jurisdiction where the “controller or processor has an establishment” or “where the data subject has his or her habitual residence”. The judge considered that this meant that an individual has the option to sue in the Member State where he/she is habitually resident rather than anywhere else. However Mr Justice Jay did not consider that Mr Soriano satisfied the second limb of the test, that he had a real prospect of success in establishing that the defendants were subject to the GDPR, as he could not show that the defendants had “stable arrangements” in the UK to constitute an “establishment” for the purposes of Article 3(1) GDPR or that the “targeting of goods or services” related to the specific activities complained of under Article 3(2). Here the judge considered that the defendant’s use of cookies amounted to monitoring but that this was unrelated to the defendant’s journalistic activities which Mr Soriano complained of.

Mr Justice Jay concluded that the claimant had no arguable case under the GDPR. We have noted in the past that there has been an increase in data protection cases being brought over traditional claims in defamation, however this case demonstrates that pursuing a claim under the GDPR is not necessarily always a more straight forward option.

 

Misuse of Private Information

Santi v Santi [2021] EWHC 388 (QB)

The parties to these proceedings were husband and wife who were in the process of a divorce. The husband suspected that his wife had misused his private information and had obtained documents and information in breach of confidence and privacy. He applied for an interim injunction which required his wife to specify what information she had accessed and how, and restrained her from disclosing it to third parties. The interim injunction was granted by the court in December 2020.

The return date was heard on 3 February 2021 at which the parties agreed the undertakings given by the defendant to the court would continue and the proceedings would be transferred to the Family Division to be dealt with as part of the overall dispute. The claimant was awarded his costs on the successful parts of his application rather than reserving them for determination at the end of the proceedings in the Family Division, as is normal practice, as there were no outstanding issues relating to the information dispute.

 

Newman v Southampton City Council & Ors [2021] EWCA Civ 437

An investigative journalist sought to appeal a decision made in the High Court refusing her application for disclosure of court documents in relation to a care and adoption case of a 7 year old child. On 25 March 2021, Lady Justice King, Lady Justice Macur and Master of the Rolls Sir Geoffrey Vos sitting the Court of Appeal handed down its judgment which affirmed the original decision of the High Court Judge stating that the balancing exercise between competing Article 8 and Article 10 rights had been undertaken with “meticulous care” and without “error of law”.

Ms Newman’s appeal was primarily based on 3 grounds, that Mrs Justice Roberts had failed to give adequate weight to: (1) the mother’s consent to the disclosure of the documents (2) Ms Newman’s freedom of expression rights and public interest in supporting investigative journalism (3) the fact that Ms Newman only applied to access the material and not publish at this stage. The Court of Appeal rejected all 3 grounds. In relation to the first and primary ground, the Court of Appeal considered that the child had separate and different privacy rights to those of her mother, given that the effect of the adoption case had been extremely traumatic on her and she was in therapy. The other two grounds were dismissed on the basis that the trial judge’s reasoning had been lawful and the arguments amounted to no more than the journalist disagreeing with the outcome of the balancing exercise.

 

Miscellaneous

Pallett v MGN Ltd [2021] EWHC 76 (Ch)

This was a phone-hacking claim brought by the actress Roxanne Pallett for an infringement of her privacy rights by the defendant. In October 2020 she made a Part 36 offer of £99,500 plus costs, which was open for acceptance for a period of 21 days. The defendant deliberately delayed acceptance until it was outside the specified period of acceptance and then argued that it was entitled to invite the court to consider its liability for costs under CPR 36.13(4) rather than an automatic payment of costs had it accepted the offer within the relevant timeframe.

Mr Justice Mann accepted this position, however considered on the facts that the usual cost consequences of a claimant’s Part 36 offer should follow and Ms Pallett should have all the costs of the proceedings. This was on the basis that the court considered the claimant’s conduct had been reasonable even though there had been a delay in engaging in settlement discussions until after the disclosure stage. It is worth noting that this case had turned on its facts and Mr Justice Mann stressed that this should not be taken as a ‘green light’ for claimants to refuse to enter into negotiations before disclosure is complete.

This judgment is a useful consideration of a notable anomaly in the rules surrounding Part 36 offers. Claimants should therefore carefully consider their conduct during proceedings prior to making a Part 36 offer, given the possibility that a defendant may give late acceptance and be in a position to argue on the point of costs.

 

R (Finch) v Surrey County Council [2021] EWHC 170 (QB)

The BBC was fined £28,000 for contempt of court after a recording of a remote hearing was taken and used as background footage in a report aired on BBC South East Today. It is a criminal offence to take and broadcast pictures (including video footage) of court proceedings, which includes proceedings conducted remotely as a result of the Coronavirus Act 2020.

The court did not consider it to be a mitigating factor that the proceedings took place online as “any competent journalist should know” that court proceedings fall into a different category when it comes to recordings. However, whilst the conduct merited a fine of £40,000 to £45,000 it was reduced to £28,000 by the judge on the basis of the BBC’s timely acceptance of liability and issuance of an apology. The court took a strict approach to the BBC’s contempt on the basis that it was the principal news provider in the country and was expected to lead by example when it comes to such laws. This was seemingly the first time that the court has imposed sanctions for contempt in relation to remote hearings and is a useful reminder that contempt laws are still applicable whatever format a court hearing takes.

 

Oldknow v Evans (as representative of the Labour Party)

The applicant, a former Labour Party official, made an application for pre-action disclosure and/or a Norwich Pharmacal order to compel the Party to disclose the identity of individuals who it believed leaked an internal report regarding the response of the Labour Party to allegations of anti-Semitism and the conduct of certain officials. Ms Oldknow’s personal data was contained in the leaked report and she sought to uncover the identities of those who had leaked her data in order to bring proceedings against them.

The Labour Party had opposed the application on the basis that it did not know the identity of the guilty parties and any names given would be speculative and would then be subject to litigation. It has been reported that the application was rejected on the basis that it was a mere “fishing expedition”. The judgment will be interesting to consider once handed down in the hope that it will identify when such an exercise constitutes a fishing expedition and when it is a legitimate course of action for a victim of a data breach to access the judicial process.

 

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