Reputation and Media Quarterly Round-Up: Q3 2020

15 October 2020

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 July to September 2020.
 

Defamation

  1. William Alexander Spicer v The Commissioner of Police of the Metropolis [2020] EWHC 1778 (QB)

The claimant brought an action in defamation against the defendant as a result of an article published on the Metropolitan Police’s news website with the title “Two guilty of killing a woman while racing their cars”. The article said that the claimant had been found guilty by a jury of careless driving but acquitted of causing both death and serious injury by dangerous driving.

The defendant put forward a defence of truth which the claimant sought to have struck out as an abuse of process due to the earlier criminal proceedings at which the claimant was solely convicted on the basis of careless driving. The High Court dismissed the claimant’s application on a number of grounds including that the parties to the two sets of proceedings are not the same (the criminal proceedings being brought by the CPS) and defendant’s right to free speech in defamation claims. The court held that it would be a violation of the defendant’s Article 10 ECHR rights to deny it of the opportunity to establish that the facts as stated were true.

  1. Richard Millett v The Right Honourable Jeremy Corbyn MP [2020] EWHC 1848 (QB)

In defamation proceedings brought by Mr Millet against Mr Corbyn, the then leader of the Labour Party, the High Court was asked to determine three preliminary issues relating to the meaning, namely (1) the natural and ordinary meaning of the statement, (2) whether the meaning conveys a statement of fact or opinion and (3) whether the meaning conveyed a defamatory tendency at common law.

Mr Corbyn appeared on the Andrew Marr show and made a statement that referred to the disruptive and abusive behaviour of “two people” during various meetings and a debate in the House of Commons regarding Israel and anti-Semitism, topics on which the claimant is an avid blogger and commentator. The statement did not refer to the claimant by name but both the claimant and the defendant were present at the debate.

The court held that the statements were “of fact” and referred to the claimant even though he was not specifically named. When considering whether the statements were defamatory, the court considered that the behaviour was “contrary to shared values in our society” as the claimant was accused of abusive behaviour towards a public speaker on a contentious issue and the police had become involved. The court found that this suggested behaviour which fell below the standard expected of citizens in modern British society and was therefore defamatory. This is a useful judgment which shows the courts’ approach to determining whether a statement is defamatory in nature.

  1. Scarsdale Grange LLP t/a Scarsdale Grange Nursing Home v JPIMedia NSMY Limited [2020] EWHC 1988 QB

The facts of this case are very topical in light of the current COVID-19 pandemic. The defendant is the publisher of the Sheffield Star and it published an article in relation to the crisis in Britain’s care homes as a result of coronavirus. The article named the claimant, which is a care home based in Sheffield, and referenced a number of inadequacies in relation to COVID-19 related deaths, shortages of PPE and the lack of testing facilities. The court considered that the statements of opinion (namely that the claimant ineffectively managed the care home and thereby placed its residents and employees at risk) were defamatory. The court held that this failure “had a tendency to substantially affect” other people’s perception of the claimant. However, the court did not consider the factual statements in relation to the shortage of PPE and the limited availability of testing to be defamatory. The court held that in the current public health crisis, which has been widely covered by the national media, the reader would be aware of the nationwide shortage of such equipment and would therefore appreciate that the inadequacies were not as a result of fault or mismanagement by the claimant. This case shows that the court will take into consideration the overall knowledge of the readership on heavily reported matters (such as the COVID-19 pandemic) when determining whether a statement is defamatory.

  1. Ghannouchi v Middle East Online Ltd [2020] EWHC 1992 (QB)

Ghannouchi, leader of the Tunisian opposition party Ennahdha and speaker of the Tunisian parliament, brought defamation proceedings against the defendant arising out of the publication of an article that made very serious allegations against the claimant relating to terrorism and permitting receipt of foreign funding.

The claimant made an application for default judgment as the defendant had failed to file and serve a defence. The application was successful, so the court only had to consider the level of damages. The court took into account the serious allegations published by the defendant, the absence of any apology to the claimant and the fact that the defendant did not remove the article until the order for default judgment had been granted, which was 8 months after the initial publication. However, as the article was only published to a relatively small readership, the court assessed the damages at £45,000 plus legal costs. This is a useful case which highlights the factors the court will take into consideration when assessing damages in defamation proceedings.

  1. Kim v Lee [2020] EWHC 2162 (QB)

Mr Kim brought defamation proceedings against Mr Lee in relation to eight posts published on two of Mr Lee’s social media accounts. At the time of the posts, the parties were both sports journalists based in England who predominantly covered English Premier League football for South Korean media. Mr Kim claimed the meaning of the posts was that he fabricated stories or misrepresented their factual position and was guilty of misleading and defrauding readers of his articles.

This judgment is in relation to a strike-out application brought by Mr Lee on the basis that (1) England and Wales was not the correct jurisdiction to bring the claim as Mr Lee was not domiciled there at the relevant time (he claimed that he was domiciled in South Korea) (2) Mr Kim cannot achieve a worthwhile vindication as he had already been publically vindicated by the South Korean authorities (3) the proceedings are an abuse of process as the South Korean authorities refused to take any criminal action (4) Mr Kim cannot establish a real and substantial tort in England and Wales.

The High Court dismissed the application and held that there was sufficient evidence to support the argument that Mr Lee was domiciled in England or, in the alternative, it was arguable that England and Wales was the most appropriate jurisdiction to bring the claim pursuant to s.9(2) Defamation Act 2013. The High Court also rejected Mr Lee’s arguments that the proceedings were an abuse of process as the criminal complaints made to the South Korean authorities were not pursued.

  1. Gilham v MGN Limited [2020] EWHC 2217

The claimant, a primary school teacher, brought defamation proceedings in relation to four articles published by the defendant in the Sunday Mirror (print and online versions) and on the Kent Live website. The claimant had been dismissed from his role after disciplinary proceedings had been brought by his employer in relation to an incident with a pupil. The agreed meaning of the articles was that the Teaching Regulation Agency had found the claimant guilty of unacceptable professional conduct when in fact the claimant’s conduct was not considered to meet the threshold to constitute misconduct of a serious nature.

Following a qualified offer of amends, which was accepted by the claimant, the High Court was asked to consider the level of damages to be awarded. The court initially awarded Mr Gilham £85,000 given the articles were highly damaging to his professional reputation, but subsequently made a number of discounts to account for the apology published by the defendant and the application of Burstein particulars(particulars of mitigation pursuant to the principle established in Burstein v Times Newspapers). When considering Burstein particulars the court considers the background context directly relevant to the damage which the claimant has been caused by the defamatory publication. Taking these factors into account, the court reduced the damages to £49,000.

  1. Burleigh v Telegraph Media Group Limited

The Claimant wrote an article about Mrs Melania Trump that was published in the Daily Telegraph during January 2019. The Defendant subsequently published an apology to Mrs Trump correcting certain statements which had been made in the article and agreed to pay to her substantial damages. Whilst the Defendant did not identify the Claimant as the author of the article, the Claimant contended that the apology was defamatory of her as readers who knew she was the author would consider the apology to mean that she had negligently or maliciously written the piece. Following the meaning hearing, the High Court agreed with the Defendant that the apology was not defamatory of the Claimant, as it did not imply that she was culpable for the publication of the false statements and that the reader is told nothing of how the false statements came to be included in the article, whether oversight, carelessness or malice.

 

Data Protection and Privacy

  1. Aven v Orbis Business Intelligence [2020]EWHC 1812 (QB)

The claimants alleged that a dossier (the “Steele Dossier”), prepared by the defendant in relation to possible links between Russia, President Putin and Donald Trump, included their personal data within the meaning of section 1 of the Data Protection Act 1998. They claimed that the information published was inaccurate and had been unfairly or unlawfully processed by the Defendant, contrary to the first and fourth data protection principles of the Data Protection Act 1998.

The court confirmed the established principles that merely informing a third party about the contents of the Steele Dossier did not amount to processing of personal data and the leaking of the dossier by a third party (and subsequent publication by Buzzfeed) were acts of processing for which the Defendant was not the controller. However, the court held in favour of the claimants in respect of the inaccuracy claim and they were subsequently awarded £18,000 in damages. It is interesting to note that the court’s consideration of whether the data was accurate and the consideration of meaning in defamation trials were very similar and may signal more claims being brought under data protection laws rather than under the Defamation Act 2013 in the future.

  1. R (on the application of Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058

The Court of Appeal was asked to consider whether the police’s use of automatic facial recognition technology was unlawful. It held that the use of such technology was unlawful as it was not “in accordance with the law” for the purposes of Article 8 ECHR. A primary factor which the court took into account was the fact that the technology had been used on a national scale without any limits on its scope, therefore it could have been used to track the movements of a large number of people around the whole country. This could have amounted to almost complete surveillance of the UK population. This is the first legal challenge of its kind and is therefore an important case in relation to the regulation of such surveillance technology. The ICO released a statement on 11 August 2020 stating that “we welcome the Court of Appeal’s judgment that provides clarification on the police use of live facial recognition technology in public places”.

  1. HRH The Duchess of Sussex v Associated Newspapers Ltd [2020] EWHC 2160 (Ch)

As part of her on-going claim against Associated Newspapers, HRH The Duchess of Sussex made an application to keep secret the identities of five friends who gave an anonymous interview to People magazine. The court granted the application and made an order pursuant to CPR 18.2 and CPR 5.4C to prevent the publication of the names for the time being and held that this supported the proper administration of justice by shielding the friends from the “glare of publicity” in the pre-trial stage.

 

Miscellaneous

  1. Simon Oliver v Javed Shaikh [2020] EWHC 2253 (QB)

On 10 December 2019, the court granted the claimant summary judgment on his claim for harassment against the defendant. The defendant was responsible for posting abusive and harassing material about the claimant online and was restrained from continuing to do so by an injunction.

In 2020, the claimant alleged that the defendant had committed multiple breaches of the injunction (27 separate breaches were cited in the judgment) and should, therefore, be found in contempt of court. The defendant did not attend the committal hearing and whilst many of the breaches were found substantiated the court fixed a separate penalty hearing as a safeguard against prejudicing a defendant found liable in their absence.

  1. Piepenbrock v Associated Newspapers Limited [2020] EWHC 1708 (QB)

The claimant failed to serve the claim form until the very last moment and, on the penultimate day of the period for service, sought to serve his defamation claim by email on the defendants who had not first indicated that they were willing to accept service by email. The court refused to grant the claimant’s application for relief from sanctions and refused to retrospectively extend time for or otherwise validate the service of a defamation claim. It, therefore, followed that the claimant’s claim for summary judgment was also dismissed.

  1. Depp v (1) News Group Newspapers Ltd (2) Dan Wootton [2020] EWHC 1734 (QB)

The court granted Mr Depp relief from sanctions for his failure to comply with the disclosure requirement of an “unless order” in circumstances where the failure to comply was based on an error made in good faith by his solicitors. The court held that it would not be just to strike out the claim as Mr Depp had not sought to deliberately conceal documents and the trial began on 7 July 2020. The judgment is expected imminently.

 

 

About the Author

Siân trained at Kingsley Napley and is an Associate in the Dispute Resolution team. Siân’s practice covers a wide range of commercial litigation with a particular focus on the fields of media law and civil fraudSiân has advised on privacy and reputation management matters for a number of individual and corporate clients, including celebrity and high-profile individuals. Her experience in this field includes pre and post-publication advice, defamation, privacy and harassment. 

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