Reputation and Media Quarterly Round-Up: Q3 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 October to December 2020.
This case was arguably the most high profile defamation trial of the year and was widely reported in the mainstream media. The highly anticipated judgment was handed down on 2 November 2020 by Mr Justice Nicol, after the 16 day trial took place in July 2020. The case concerned the actor Johnny Depp who sued the publisher of the Sun newspaper and its Executive Editor for an article published in April 2018, which made references to allegations that Mr Depp had been violent towards his former wife, Amber Heard, and included in the headline that Mr Depp was a “wife beater”.
The meaning of the words, as agreed by the parties, was that Mr Depp had committed physical violence against Ms Heard and this had caused her to suffer significant injury and on occasion caused Ms Heard to fear for her life. The defendants relied upon a truth defence and upon 14 incidents of alleged violence towards Ms Heard. Mr Justice Nicol found that 12 of the 14 incidents were substantially true and dismissed Mr Depp’s claim for defamation.
Mr Depp has made an application for permission to appeal this decision, after spending a reported £5 million on the proceedings and facing negative repercussions to his acting career (it has already been confirmed that he will no longer appear in the Fantastic Beasts franchise). Mr Depp’s representatives released a statement that they found the decision “as perverse as it is bewildering”. A decision on the application for permission to appeal is likely to be made early this year.
THE STEEL DOSSIER – TAKE 2
Last quarter we summarised the successful Data Protection proceedings brought against the defendants in relation to a dossier (the “Steel Dossier”), prepared by the defendants in relation to possible links between Russia, President Putin and Donald Trump. Proceedings were also brought against the defendants in defamation, which concerned an article published by Buzzfeed in January 2017, under the headline “These Reports Allege Trump has Deep Ties to Russia”, that included a number of allegations made in the Steel Dossier.
Mr Justice Warby considered the meaning of the words complained of to be that there were “good reasons” to suspect the claimants took steps to undermine the Democratic Party in the USA. However, the claim failed on the basis that the defendants were not held to be responsible for the publication by Buzzfeed. This was because Mr Steele neither intended nor authorised Buzzfeed’s publication. The Judge found that Mr Gubarev, the first claimant, would have been entitled to a “substantial award” of damages had responsibility for publication been established, but the corporate claimant would not have met the serious financial loss threshold.
This case represented another defeat for claimants in recent libel proceedings. As noted last quarter, this trend could see more claimants pursuing claims under the Data Protection Act 2018, where there has been some success like in the first ‘Steel Dossier’ claim.
OPINION OR FACT?
In another recent defeat for claimants in libel proceedings, the Court determined the meaning of a publication in the Daily Telegraph to be the columnist’s opinion, as opposed to a statement of fact. The article concerned the founder of the airline easyJet, Stelios Haji-Ioannou, and an alleged dispute within easyJet over the purchase of aeroplanes. The claimant contended that the publication “made false and malicious claims that a group of major shareholders in easyJet have conspired with Airbus to prevent the cancellation of easyJeyt’s £5.4bn order of planes”. The defendant’s position was that the article was non-defamatory opinion and the claimant had advanced a “conspiracy theory”.
Mrs Justice Collins Rice held that an ordinary, reasonable reader of the article would not think any worse of the claimant based on the piece alone and the words complained of could not therefore be taken “literally or seriously”. As such the article complained of did not meet the threshold to substantially alter the view of people towards the claimant, and was not held to be defamatory at common law.
In defamation proceedings brought by Mrs Vardy against Mrs Rooney, the High Court was asked to determine the meaning of the words used in Mrs Rooney’s widely publicised 9 October 2019 Instagram post. Mr Justice Warby considered that the meaning of the words was substantially the same as that put forward by Mrs Vardy, namely: “the Claimant has consistently and repeatedly betrayed the Defendant’s trust over several years by leaking the Defendant’s private and personal Instagram posts and stories for publication in the Sun Newspaper including a story about gender selection in Mexico; a story about the Defendant returning to TV; and a story about the basement flooding in the Defendant’s new house.” Mrs Rooney put forward a less serious meaning that there were only “reasonable grounds” to suspect Mrs Vardy was responsible for passing information to the Sun newspaper, as the Instagram post only referred to “Rebekah Vardy’s account” rather than Mrs Vardy herself. This meaning was dismissed by the judge.
Mrs Rooney must now prove the meaning determined by Mr Justice Warby if she is to succeed at trial.
The Court has refused an application by the defendant, far right activist Tommy Robinson, to amend his defence to include a public interest defence. The libel claim was brought by a Syrian refugee schoolboy who was videoed being pushed to the ground and threatened with drowning. The video was posted online and caused public outrage. Mr Robinson subsequently uploaded two videos to his social media pages which made extremely serious allegations against the schoolboy, namely that he had participated in a violent assault on a young girl.
The application was refused on the basis that the defendant did not provide a proper explanation of why he did not include a public interest defence in his original defence. Instead, the defendant had “conspicuously and repeatedly failed to be candid with the Claimant about his intention” and the proposed amendments did not clearly distinguish between the subjective belief of the defendant and the objective truth. The Court went as far as to consider that the defendant made a “conscious and deliberate tactical decision not originally to include a public interest defence”. Mr Justice Nicklin did however grant the defendant permission to make some minor amendments to the particulars of truth and confirmed that the Court would be willing to consider a further application, if the defendant provided a “properly particularised” public interest defence and a satisfactory explanation for the belated decision to rely on it. This is a useful judgment when considering how a public interest defence should be pleaded.
On 10 December 2020 a statement in open court was read on behalf of the claimants, the founder and chief engineer of Dyson and his wife, after they accepted an Offer of Amends made by the Daily Mail. The claim related to articles published by the Daily Mail in July 2019, which made false and defamatory claims that the claimants had “behaved oppressively in 2018 towards their former housekeeper by bringing High Court proceedings against her in retaliation for her bringing an unfair dismissal claim against them”. The High Court proceedings brought by the claimants occurred before the Employment Tribunal claim, and were to recover private information (including medical records) which the housekeeper had taken and retained without the claimants’ consent.
As part of the Offer of Amends the Daily Mail agreed to pay £100,000 in damages and admitted that its claims were “false, defamatory and caused the Claimants serious reputational harm”. The claimants made clear that their primary concern was the vindication of their reputation and considered the three sentence apology, which the defendant made in the ‘Corrections and Clarifications’ section of the newspaper, to be “wholly inadequate to provide any vindication whatsoever”.
The defendant newspaper made an application to strike out the libel and malicious falsehood claim brought by Mr Ward, or to grant summary judgment against him. The defendant published articles in 1991 which alleged Mr Ward was involved in financial misconduct, of which he was subsequently found guilty. Mr Ward believed the newspaper had illegally obtained information to write the articles and had hoped such practices would be revealed in the second stage of the Leveson enquiry in 2018, but the government chose not to proceed with the enquiry. The claimant unsuccessfully applied for judicial review of the decision which was reported in an article on a news website. The article concluded with a statement from the defendant newspaper that the claimant's allegations had been raised and rejected by the courts 24 years previously and that there was no merit in them. Mr Ward issued defamation and malicious falsehood claims against the defendant on the basis that the statement seriously damaged his reputation, as it said that he had made allegations against the newspaper to the High Court that he knew to be untrue and which were proven to be untrue in the criminal courts 24 years previously.
The Court disagreed with the defendant’s argument that the claim was an abuse of process and a collateral attack on Mr Ward’s criminal convictions. The Court also held that there was insufficient evidence that that Mr Ward’s reputation was already so damaged that he had no real prospect of demonstrating serious harm to his reputation. The Court therefore did not consider the claim was appropriate for strike out or summary dismissal.
The claimant sued the Campaign Against Anti-Semitism (CAA) for libel, misuse of private information and breach of statutory in duty in respect of five articles published on the CAA’s website between February 2017 and January 2018. The meaning was determined to be an expression of opinion that the claimant: (1) was anti-Semitic (2) had lied to The Guardian in relation to the definition of Anti-Semitism (3) had lied to the Charity Commission when he claimed the CAA was a “right-wing political Zionist organisation… who were anti-Semitic Holocaust deniers”.
Following the meaning hearing the CAA made an application for summary judgment and/or a strike out of the claims. The Court granted the CAA summary judgment in respect of the meaning set out above, on the basis that an honest person could express such an opinion and the claimant had no real prospect of succeeding on these issues. The Court also went on to strike out the malice pleas as Mrs Justice Tipples considered there was no proper factual basis for pleading it. However, the Court refused to strike out the data protection and misuse of private information claims, as Mrs Justice Tipples considered there was not sufficient information to justify doing so, albeit she accepted that there would likely be little value in pursuing these claims once the libel claims had been struck out.
At the preliminary issue trial the High Court was asked to determine the meaning of the words complained of, which appeared in an article published in the French language magazine ‘Le Point’, under the headline “United States: Israeli Agent targeted by Russian interference investigation”. The Judge considered the defendants had correctly identified the meaning (with some minor changes) to be that “The Claimant is a spy or a spook and there are grounds to investigate whether he has directly or indirectly used surveillance, military methods or data interception technology in his work; whether he was involved in the surveillance of police officers investigating President Netanyahu; and whether he was involved in Russia’s attempt to interfere in the 2016 election in the USA.” Mr Justice Nicol determined the words to be Chase level 3 meaning, as there were only grounds to investigate the allegations made. This was a much lower meaning than that pleaded by the claimant, who considered there to be allegations of fact that he was connected to the KGB, Donald Trump and was responsible for spying.
The defendant will now have the opportunity to file a full defence and there will likely be a trial later this year, if the matter does not settle.
The defendants to this libel action made an application for a declaration that the Court had no jurisdiction to try any of the claims made against them and for an order setting aside the claim form. The claimants issued libel proceedings against the defendants, a publisher of an Italian magazine and a publisher of an Italian newspaper, over articles published between October 2019 and January 2020, which the claimants argued made serious criminal allegations about them.
The Court accepted that some of the claimants had a “good arguable case” that the articles made serious allegations against them, however none of the claimants could satisfy the requirement of serious harm under s.1 Defamation Act 2013. Mr Justice Jay held that the claimants had to show serious harm in England and Wales as a consequence of the publications, and whilst some reputational harm may have been caused outside of the jurisdiction, there was no evidence of serious reputational harm within the jurisdiction. There are very few judgments which consider this aspect of a libel claim, as noted by the Judge, therefore this is a very useful judgment when considering the interpretation of section 1, particularly in the situation where potential harm has been caused within multiple jurisdictions.
A gynaecologist brought a defamation claim against the British Medical Journal (the ‘BMJ’), its editor and a journalist in relation to an article which reported on the decision of the General Medical Council (the ‘GMC’) disciplinary tribunal, finding the gynaecologist guilty of misconduct and removing him from the medical register. This decision was subsequently overturned on appeal.
Judgment was handed down on 23 December 2020 after the trial was heard in early October 2020. The Court dismissed the claim as it found that the article was protected by statutory qualified privilege under s.15 Defamation Act 1996, given that the disciplinary tribunal is a statutory committee of the GMC. His Honour Judge Richard Parks QC upheld the alternative defence that the article was a matter of public interest.Whilst the Judge was sympathetic to the claimant who had endured the consequences of the GMC’s decision, which was later found to be seriously flawed, he considered the distress suffered was a result of that decision and not the actions of the BMJ.
In November 2020 the Duke of Sussex issued proceedings against Associated Newspapers for defamation, which is reportedly the sixth claim filed by either the Duke or his wife, Meghan Markle, in just over a year. The Duke’s complaints related to two articles published in the Mail on Sunday and the Mail Online in October 2020. The Duke’s primary case was that each article bore the same defamatory meaning that he “snubbed and turned his back on his Royal Marine comrades” and acted “in dereliction of duty by failing to attend any of their events… not even bothering to stay in touch by phone, letter or email.” The Duke pleaded serious reputational harm to his public profile as an ambassador for a number of military charities and amongst the military community in general.
The claim has now settled out of court, and the newspaper has since published an apology and correction and paid damages to the Duke, which will be donated to the Invictus Games Foundation that he founded. A statement in open court was read on 1 February 2021 (see the next Media and Reputation Management Quarterly Round-Up for an update).
The Information Commissioner’s Office (the “ICO”) published a penalty notice to British Airways, under s.155 Data Protection Act 2018, after the company was found to have breached its data security obligations under Articles 5(1)(f) and 32 GDPR. The cause of the investigation was a cyber-attack on British Airway’s systems in 2018, which resulted in an attacker accessing the personal data of a number of British Airway’s customers, including their card payment details. In July 2019 the ICO issued the company with a notice of intent to impose a penalty of £183.39 million, which would have been the highest fine of its kind issued by a data regulator in Europe.
On 16 October 2020 the ICO issued British Airways with a fine of £20 million, a significant reduction to the figure earlier threatened. It seemed that the ICO abandoned its earlier method of calculation, which was largely based on the turnover of a company. The ICO’s reasons for issuing this level of fine included: (1) British Airways did not receive a financial gain from the breach (2) the breach was neither intentional nor deliberate (3) British Airways fully co-operated with the investigation and had complied with all past notices. There were also a number of mitigating factors which the ICO took into consideration including the COVID-19 pandemic, which reduced the fine by £4 million.
The huge reduction in the level of fine should be a relief to data controllers with a substantial turnover. However this decision also demonstrates the importance of early notification of breaches to the ICO and full co-operation with the investigation.
On 30 October 2020 the ICO issued Marriott International with the second highest fine of its kind (the highest being to British Airways) for breach of its security obligations under Article 5(1)(f) and Article 32 GDPR. Marriott International had been the subject of a cyber-attack, which compromised the data of an estimated 339 million customer records over a period of 4 years before it was detected.
The ICO identified four key failures by the company: (1) insufficient monitoring of accounts that would have detected the breach (2) insufficient monitoring of databases (3) failure to implement server hardening as a preventative measure (4) failure to encrypt certain personal data, including some passport numbers. The ICO stated that whilst Marriott International was not responsible for the attack, it disclosed “the failure by Marriott to put in place appropriate security measures to address attacks of this kind and/or other identifiable risks to the system.” There was also a massive reduction in the fine from £99.2 million to £18.4 million. The fact that Marriott International had acted promptly and has since improved its security measures were all factors the ICO took into account, as well as a small reduction for the impact of the COVID-19 pandemic. We shall wait to see whether such large reductions in fines threatened by the ICO will be a continuing trend.
Wan-Bisaka, a premier league football player, was granted an interim injunction to prevent his ex-girlfriend from publishing any further private information about their relationship, after she published snippets of their private messages on social media. The Court considered that Wan-Bissaka’s right to privacy was likely to outweigh Ms Bentley’s right to freedom of expression and it was likely that he would obtain a final injunction. However, Wan-Bissaka was not successful in obtaining an interim injunction to prevent alleged acts of harassment, as Ms Bentley’s conduct in posting private messages on social media, although distressing to Wan-Bissaka, did not amount to harassment as it was not unacceptable or oppressive behaviour, or capable of sustaining criminal liability under the Protection from Harassment Act 1997.
On 28 October 2020 the claimant was granted a without notice interim injunction against the defendant for harassment, defamation and misuse of private information, in relation to posts that the defendant had made on social media. In the posts the defendant criticised the claimant for being a bully and a serial vexatious litigator, and included details of the claimant’s spent conviction from over 20 years ago. The claimant sought the continuation of the injunction until trial to prevent the defendant from publishing further private information about her on social media and contacting her in any way except through a legal representative. Whilst the Court considered the claimant’s article 8 right to privacy in relation to the spent conviction would slightly outweigh the defendant’s article 10 right to freedom of expression, the Court refused to grant an injunction as it was not considered necessary since the defendant’s bail conditions prohibited her from carrying out the acts sought to be restrained. Further, an injunction preventing the defendant from contacting the claimant would be unnecessary and disproportionate as the claimant had the option of blocking the defendant's communications. The application was heard by Mr Justice Nicklin and was therefore refused.
As part of her on-going claim, the Duchess of Sussex has made a further interim application, this time to adjourn the trial which was due to take place this month. The primary basis relied upon by the Duchess was a “confidential ground”. The Court granted the application and the trial will be re-fixed for autumn 2021.
An application for summary judgment was heard by Mr Justice Warby in January 2021 and judgment has been reserved.
In July 2020 the Court heard applications by Tesco for anonymity and reporting restrictions during Mr Wright’s criminal trial to prevent the supermarket from being identified as the victim in the case. Mr Wright was subsequently sentenced to 14 years’ imprisonment for contaminating baby food and blackmailing Tesco by demanding substantial payment for information on which stores he had placed the contaminated food in.
Mr Justice Warby was asked to consider whether corporate blackmail engages the same policy considerations as blackmail against individuals, namely to avoid the deterrence of future victims of blackmail from reporting such threats. Tesco’s primary argument was the risk of reputational harm but the supermarket confirmed that it would still give evidence in the criminal trial and report any future blackmail to the police even if application was not granted. Mr Justice Warby refused Tesco’s request for anonymity on the basis that it was not necessary to ensure that future victims of ‘classic blackmail’ would be deterred from reporting such matters to the police because a major corporate entity had been refused anonymity. Mr Justice Warby held that granting Tesco anonymity would not be consistent with the overriding objective and would have a negative impact on the fairness and practicalities of the trial. The decision was not reported until October 2020, once the criminal proceedings had concluded.
Following the criminal trial of the former MP, Charles Elphicke, a number of media organisations requested disclosure of 34 character references which were put before the Judge ahead of sentencing. The media organisations argued that there was a legitimate public interest in knowing how the Court had arrived at sentence, and what was said about Mr Elphicke by those who knew him.
Dismissing the defence’s case that the references should not be disclosed, the Judge held that “Character references are evidence, like any other evidence. The evidence is received by the Court for the purposes of passing sentence, at a public hearing.” The Judge did not consider that the GDPR and the DPA 2018 were relevant, given that “there is no general expectation of privacy in relation to personal data which is processed by the judiciary exercising judicial function” and deemed the article 10 right of freedom of expression to be engaged. The default position is therefore that character references are disclosable. In this case the Court then carried out a balancing exercise of each reference based on whether the reference had been made by the referee in a public or private capacity, to determine whether and in what form it should be disclosed.
The Children’s Commissioner for England made a pre-action application as a child’s litigation friend, for anonymity of the child claimant in an intended action against TikTok and those involved in its operation. The intended claim is for misuse of private information and breach of data protection legislation, and will be brought on behalf of the child and all other children under the age of 16 who are current or former users of the social media platform.
Mr Justice Warby permitted the anonymity application on the basis that there was not sufficient public interest in identifying the claimant, as the intended claim was for the general “loss of control” over personal data and not specific to the individual claimant. Whilst he recognised the need to be conscious of broad appeals to keep identities secret, he considered that denying anonymity could deter future claims by children to protect their data rights and was therefore necessary to secure the administration of justice.
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