Month: July 2024

Top 10 Defamation Cases of 2023: a selection – Suneet Sharma

The Privacy Perspective1 Comment

Inforrm reported on a large number of defamation cases from around the world in 2023.  Following a now established tradition, with my widely read posts on 2017,  2018,  2019, 2020, 2021 and 2022 defamation cases, I present my personal selection of the most legally and factually interesting cases from England, Australia, Canada and New Zealand from the past year – with three “bonus” cases from the US. After a haitus TPP is delighted to re-post this annual article.

  1. Hay v Cresswell [2023] EWHC 882 (KB).Tattoo artist William Hay took libel action against Nina Cresswell, a woman who published a blog and social media posts stating that he had violently sexually assaulted her 10 years earlier. Mr Hay alleged that the posts had caused him serious distress and damage to his reputation. The court held that the meaning of the posts was defamatory at common law.  However, Ms Cresswell successfully defended the claim on the grounds of truth and public interest. The judge held that it was substantially true that Mr Hay had attacked Ms Cresswell. The court also considered that the public interest aspect of Ms Cresswell’s defence was made out since she had published the posts in light of the “Tattoo MeToo” campaign, which saw several cases reported of male tattoo artists sexually assaulting women, and she was driven to protect other women from Mr Hay’s behaviour.   The case is the first time a victim of sexual assault has relied on the public interest defence to justify naming the person responsible.  There was an Inforrm case comment.

2. Dyson v MGN Ltd [2023] EWHC 3092 (KB). Inventor and entrepreneur James Dyson sued the Mirror newspaper for an opinion piece declaring Dyson a “hypocrite” for campaigning for Brexit and then moving his own headquarters to Singapore, which made him a bad role model for children.  Upholding the paper’s defence of honest opinion, the judge ruled that the basis of that opinion (that the Dyson headquarters had moved to Singapore) was true and did not accept that it was merely the relocation of two senior executives. The judge held that a publisher is permitted to be selective in the facts relied upon as the basis for an opinion. Press Gazette

3. Banks v Cadwalladr [2023] EWCA Civ 219. Businessman and Brexit campaigner Arron Banks successfully appealed the dismissal of his libel claims against journalist Carole Cadwalladr, who had stated in a TED Talk and a tweet that Mr Banks had broken electoral law by taking money from the Russian government to fund his Brexit campaign. An official investigation reported a year after the TED Talk that there was no evidence of wrongdoing. The judge in the first instance concluded that the initial publication of the talk was protected by the public interest defence, while the ongoing publication of the tweet and the talk following the investigation result were not, though these claims still failed as Mr Banks did not suffer serious harm under section 1 of the Defamation Act 2013. The Court of Appeal court overturned the first-instance judge and held that he had been caused serious harm by the 100,000 views of the TED Talk in the first year of publication, which was relevant where the public interest defence no longer applied. Ms Cadwalladr was ordered to pay £35,000 in damages and held to be liable for very substantial costs.   There was a post about the case on Inforrm.

4. Packham v Wightman [2023] EWHC 1256 (KB). he TV presenter and naturalist Chris Packham sued the Editor of Country Squire Magazine over three allegations published on its website which alleged, among other things, that he had misled people in order to raise money for a tiger rescue charity. The High Court found that the accusations were not substantially true and amounted to a “hyperbolic and vitriolic smearing of Mr Packham” [163]. The Defendants were ordered to pay Packham £90,000 in damages. The BBC, the Guardian, The Telegraph, Zelo Street reported on the judgement. Doughty Street Chambers also covered the case in their blog.

5. Duke of Sussex v Associated Newspapers [2023] EWHC 3120 (KB). The claimant’s application to strike out and/or obtain summary judgment on the defence of honest opinion relied on by ANL was denied. The case will proceed to trial. The BBC, Independent, Spectator and iNews were some of the many outlets to cover the judgment.

6. Dyson v Channel 4 [2023] EWCA Civ 884. The Court of Appeal upheld an appeal by Dyson Technology Limited and Dyson Limited against the decision of Nicklin J on 31 October 2022 ([2022] EWHC 2718 (KB)) that based solely on intrinsic evidence, they were not referred to in the Channel 4 broadcast that was the subject of their libel claim.  It was held that the test for “ordinary” reference was whether hypothetical reasonable viewer, acquainted with the claimants would identify them as being referred to in the publication.  There was an Inforrm case comment

7. Roberts-Smith v Fairfax Media Publications Pty Limited (No 41)[2023] FCA 555  After a year long trial, in a judgment of 607 pages and 2618 paragraphs Anthony Besanko J dismissed this libel action, the defendants’ truth defence succeeding.  He held that on the balance of probabilities, Roberts-Smith kicked a handcuffed prisoner off a cliff in Darwan in 2012 before ordering a subordinate Australian soldier to shoot the injured man dead and that in 2009, Roberts-Smith ordered the killing of an elderly man found hiding in a tunnel in a bombed-out compound codenamed “Whiskey 108”, as well as murdering a disabled man with a prosthetic leg during the same mission, using a para machine gun.

8. Hansman v. Neufeld 2023 SCC 14, The Supreme Court of Canada restored the decision of the first instance judge in dismissing a defamation suit brought in 2018 by a then Chilliwack school board trustee against a former teachers’ union leader, who described comments made by the trustee as bigoted, transphobic and hateful. Case in Brief, Comment on CBC

9. Clancy v. Farid, 2023 ONSC 2750. The Ontario Superior Court of Justice assessed defamation damages aggregating $4,773,000 in a case involving claims by 53 plaintiffs against one individual defendant over a targeted campaign involving tens of thousands of postings on the internet.  Each of the 53 plaintiffs was awarded general damages, in amounts ranging from a high of $90,000 to a low of $55,000 depending on their individual circumstances.  The aggregate sum awarded for general damages amounted to $4,245,000.  Aggravated damages in the amount of $1,500 were awarded to each of 34 of the plaintiffs, aggregating $51,000.  Punitive damages in the amount of $9,000 were awarded to each of the 53 plaintiffs, aggregating $477,000. The Court held that the defamatory publications at issue were salacious, outrageous and malevolent. In addition to the damage award, the Court enjoined the defendant from posting further defamatory statements or comments of the nature and kind which were the subject of this litigation.

10. Syed v Malik [2023] NZHC 1676. Libel claim arising out of social media posts which attack virtually every aspect of the claimant’s life. There were 20 defamatory publications including 5 videos which caused very serious harm to the claimant’s business and reputation.  The Judge awarded damages of NZ$225,000.  There was a report of the case on Stuff

And three “bonus” cases from the US:

  • US Dominion, Inc. v. Fox News Network, LLC, a democratically notable defamation case concerning Fox News statements that vote systems sold by Dominion switched votes from former President Donald Trump to Democrat Joe Biden in the 2020 Presidential election. The case ultimately settled for $787.5 million, the claim itself being valued at $1.6 billion.
  • E Jean Carroll v Donald J Trump, twin cases against the former US president one of which came to trial in 2023. It was found that Trump was liable for defaming and sexually abusing Carroll who was awarded damages in the sum of $5 million. The second case is scheduled for trial on 15 January 2024.
  • Freeman v Guliani, a case where two ex-Georgia election workers entered a defamation suit against Rudy Guliani. The case concerned allegations of election fraud made by Guliani against the two workers whilst he was Trump’s attorney. The pair were awarded a total of $148,169,000.

Top 10 Privacy and Data Protection Cases 2023: a selection – Suneet Sharma

The Privacy PerspectiveLeave a comment

Inforrm covered a wide range of data protection and privacy cases in 2023. Following my posts in 2018, 2019,  2020, 2021 and 2022 here is my selection of notable privacy and data protection cases across 2023. TPP is delighted to repost its annual article on this topic after a haitus.

  1. Stoute v News Group Newspapers Ltd [2023] EWHC 232 (KB)
    Having secured the United Kingdom’s most lucrative government contract for PPE during covid-19, worth £2 billion, a married couple sought an emergency injunction at first instance (and again on appeal), to prevent the publication of photographs of them walking along a public beach, fully dressed (her in a knee-length kaftan, him in board shorts and a polo shirt), on their way to a family lunch at a beach restaurant frequented by celebrities (and paparazzi).(6) The court denied the couple’s application to prevent publication in The Sun of the photographs, over which the court said the couple had no reasonable expectation of privacy.

The Court of Appeal upheld the fact that there was simply no reasonable expectation of privacy in photographs in the circumstances, with some considerable interest placed on the “performative” manner in which the couple arrived at the beach with their larger party by way of loud jet skis from their luxury yacht parked just off-shore.

2. WFZ v BBC [2023] EWHC 1618 (KB)
The applicant, a high-profile man arrested for sexual offences against two women but not charged, sought an interim injunction pending trial to prevent the BBC from publishing his name as part of a broader story concerning the failings in the industry concerned properly to deal with such allegations.(7) The applicant had not yet been named by the mainstream media. The basis for the injunction application was misuse of private information and contempt of court (a novel claim for a private individual to bring).

The High Court held that the applicant had a reasonable expectation of privacy in his arrest, indicating that courts are likely to restrain information about arrests as well as investigations (following the Supreme Court’s decision in ZXC) until the suspect is charged. Additionally, though controversially, the court found that having been arrested, publication of the man’s name would likely give rise to a contempt of court such as to justify restraint.

3. Prismall v Google
In the latest attempt to open the floodgates for group data privacy claims, a representative claimant brought a misuse of private information claim against DeepMind and Google on behalf of £1.6 million people arising from the transfer of their NHS medical records.

The claim was struck out by the High Court for failing to show that, on the lowest common denominator basis, all claimants would be able to establish a reasonable expectation of privacy in the data shared and were entitled to more than nominal damages. The claim would have been a means of getting around the finding in Lloyd v Google that there were no recoverable damages in data claims for loss of control of data. The Court of Appeal has granted permission to appeal.

See the comment from the Panopticon Blog.

4. Baroness Lawrence & Ors v Associated Newspapers Ltd [2023] EWHC 2789 (KB)

A summary judgment where the claimants alleged that the Daily Mail, the Mail on Sunday and MailOnline acquire the private or confidential information through unlawful methods including voicemail interception, eavesdropping on calls, deception and use of private investigators. This information was then alleged posted online by the outlets.

The Defendants made an application to challenge the claim on two grounds- limitation; that the claims were made over six years after the misconduct occurred and contesting the use of ledgers from the leveson inquiry of which there were three orders in place.

It was held that each of the claimants had a real prospect of success with reliance on section 32 of the Limitation Act 1980. In relation to the orders it was found that the approach needed to be regularised which could be achieved in three ways- (a) by the defendant voluntarily disclosing the Ledgers; (b) the relevant government Minister varying the order; or (c) amending the Particulars of Claim to remove the material from the Ledgers.

 There was a 5RB case comment on the case.

5. Duke of Sussex v MGN Ltd [2023] EWHC 3217 (Ch). 

Fancourt J held that phone hacking had been habitual and widespread at The Daily Mirror, The Sunday Mirror and The People newspapers from 1998 until 2006, and had continued extensively but on a reducing basis from 2007 until 2011. The editors and in-house legal departments knew it was being used, and the group legal director and CEO had known about or turned a blind eye to it. Although claims by the Duke of Sussex and others for damages for loss caused by publication of their private information obtained by phone hacking and/or other unlawful means were statute-barred, some of their claims for damages for misuse of private information succeeded. When assessing damages, losses flowing from publication of their private information were recoverable as damages for the original unlawful information gathering.  5RB news, has a comment.

6. VB v. Natsionalna agentsia za prihodite (C‑340/21)

A case which clarified the concept of non-material damage under Article 82 of the EU General Data Protection Regulation (“GDPR”) and the rules governing burden of proof under the GDPR.   

Following a cyber attack against the Bulgarian National Revenue Agency (the “Agency”), one of the more than six million affected individuals brought an action before the Administrative Court of Sofia claiming compensation. In support of that claim, the affected individual argued that they had suffered non-material damage as a result of a personal data breach caused by the Agency’s failure to fulfill its obligations under, inter alia, Articles 5(1)(f), 24 and 32 of the GDPR. The non-material damage claimed consisted of the fear that their personal data, having been published without their consent, might be misused in the future, or that they might be blackmailed, assaulted or even kidnapped.

In its judgment, the CJEU takes the view that the mere fact that a personal data breach occurred does not mean that the Agency did not implement appropriate technical and organizational measures to comply with Articles 24 and 32 of the GDPR. The EU legislator’s intent, as explained by the CJEU, was to “to ‘mitigate’ the risks of personal data breaches, without claiming that it would be possible to eliminate them.” National courts should assess the measures implemented “in a concrete manner, by taking into account the risks associated with the processing concerned and by assessing whether the nature, content and implementation of those measures are appropriate to those risks.” 

That said, the CJEU further notes that the fact that an infringement results from the behaviour of a third-party (cyber criminals) does not exempt the controller of liability and that, in the context of an action for compensation under Article 82 of the GDPR, the burden of proving that the implemented technical and organizational measures are appropriate falls on the controller and not on the individual.

Finally, building on its Österreichische Post judgment, the CJEU indicates that the fear experienced by individuals with regard to a possible misuse of their personal data by third parties as a result of an infringement of the GDPR may, in itself, constitute non-material damage. In this respect, the national court is required to verify that the fear can be regarded as well founded, in the specific circumstances at issue for the concerned individual.

7. Delo v Information Commissioner [2023] EWCA Civ 1141 

A case which considered the approach to be taken by the Information Commissioner’s approach to complaints made by data subjects. Mr Delo made a data subject access request to Wise Payment Limited to which Wise responded that it was exempt from providing much of the information requested. Upon Mr Delo complaining to the Information Commissioner he was advised that Wise had declined to provide the information sought in keeping with its obligations.

Mr Delo escalated his request by bringing a claim for judicial review and suing Wise.   

In finding that Wise had complied with his obligations two matters were clarified by the Court of Appeal as matter which were in the public interest:

1) Is the Commissioner obliged to reach a definitive decision on the merits of each and every complaint or does he have a discretion to decide that some other outcome is appropriate?

(2) If the Commissioner has a discretion, did he nonetheless act unlawfully in this case by declining to investigate or declining to determine the merits of the complaint made by the claimant

Both questions were adjudicated by the Court to be negatives.  

Panopticon Blog has an excellent summary of the case.

8. Ali v Chief Constable of Bedfordshire [2023] EWHC 938 (KB)

A informed the police that her husband was a cocaine dealer and a danger to her family, she indicated that she was providing the information on the basis that she would not be identified as a source.

The police informed the local council social services department. However, a malicious council employee informed A’s husband of what A had said.

Whilst the council was not held vicariously liable for the criminal acts of their employee. Her action against Bedford Police succeeded for breaches of the GDPR, misuse of private information and contravention of Article 8 of the ECHR.  

For a summary of the case see the Panopticon Blog.

9. Hurbain v Belgium

In 2008 the newspaper placed on its website an electronic version of its archives dating back to 1989 (including the Article). In 2010 Dr G contacted Le Soir, requesting that the article be removed from the newspaper’s electronic archives or at least anonymised. The request mentioned his profession and the fact that the article appeared among the results when his name was entered in several search engines.  The newspaper refused to remove the article.

In 2012 Dr G sued Mr Hurbain (in his capacity as editor of Le Soir) to obtain the anonymisation of the article. His action was founded on the right to private life, which (under Belgian law) encompassed a right to be forgotten. Ultimately, the Grand Chamber found that there had been no violation of Article 10, the interference with the right here had been necessary and proportionate.

10. FGX  v Gaunt [2023] EWHC 419 (KB)

The covert recording of naked images of the claimant and their publication on a pornographic website gave rise to this claim for (i) intentionally exposing the claimant to a foreseeable risk of injury or severe distress which resulted in injury; (ii) infringement of the claimant’s privacy; and (iii) breach of the claimant’s confidence.

Said to be the first case of its kind in England and Wales, the case resulted in an award of damages in total of £97,041.61.

Inforrm had a case comment.