Top 10 Defamation Cases 2021: a selection – Suneet Sharma

Inforrm reported on a large number of defamation cases from around the world in 2020.  Following my widely read posts on 2017,  2018,  2019 and 2020 defamation cases, this is my personal selection of the most legally and factually interesting cases from England, Australia and Canada from the past year.

Please add, by way of comments, cases from other jurisdictions which you think should be added.

  1. Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27

The controversial finding of the majority of the High Court of Australia that news organisations were publishers of third-party comments on their Facebook pages.

Mr Voller brought defamation proceedings against a series of media organisations alleging that each of the applicants became a publisher of any third party comment on its Facebook once it was posted an read by another user. He was successful at first instance and the successive appeals against the finding was rejected.  The position was summarised as follows

“each appellant intentionally took a platform provided by another entity, Facebook, created and administered a public Facebook page, and posted content on that page. The creation of the public Facebook page, and the posting of content on that page, encouraged and facilitated publication of comments from third parties. The appellants were thereby publishers of the third-party comments” [105].

Inforrm had a post about the decision.

The Australian Government are already proposing to reverse the effect of this decision by statute – see the Inforrm post here.

  1. Lachaux v Independent Print Limited [2021] EWHC 1797 (QB)

In the latest instalment in the long running saga of the Lachaux libel litigation, Mr Justice Nicklin dismissed the Defendants’ public interest defence and ordered the publishers of The Independent, The i and the Evening Standard newspapers to pay £120,000 in libel damages to aerospace engineer Bruno Lachaux. The defendants falsely alleged he had, amongst other things, been violent, abusive and controlling towards his ex-wife, that he had callously and without justification taken their son away from her, and that he had falsely accused his ex-wife of abducting their son.

The Judge provided important commentary on the standards to be upheld by defendants seeking to establish the public interest defence to what would otherwise be considered defamatory coverage.  He said:

I have no hesitation in finding that it was not in the public interest to publish [Articles], which contained allegations that were seriously defamatory of the Claimant, without having given him an opportunity to respond to them. The decision not to contact the Claimant was not a result of any careful editorial consideration, it was a mistake …journalists and those in professional publishing organisations should be able to demonstrate, not only that they reasonably believed the publication would be in the public interest, but also how and with whom this was established at the time…

Informm had a case comment as did, 5RB.

The saga has not yet concluded.  The defendants have been granted permission to appeal and their appeal will be heard by the Court of Appeal on 12 April 2022.

3. Hijazi v Yaxley-Lennon[2021] EWHC 2008 (QB)

A case concerning a short altercation between two pupils on the playing field of Almondbury Community School in Huddersfield. A video was taken of the incident which subsequently “went viral”, just after the perpetrator of the altercation was expelled from school. He later received a caution for common assault for the incident.

On 28 and 29 November 2018 Mr Yaxley-Lennon used his Facebook account to post two videos of himself giving his opinion on the incident. He suggested, contrary to narratives emerging from media coverage of the altercation, that some of the sympathy toward Mr Hijazi (the claimant) were undeserved as he had committed similar violence.

Both videos were found to be defamatory of Mr Hijazi

In finding for the claimant after the substantive trial, Mr Justice Nicklin stated:

“The Defendant’s allegations against the Claimant were very serious and were published widely. The Defendant has admitted that their publication has caused serious harm to the Claimant’s reputation. The consequences to the Claimant have been particularly severe. Although it was media attention on the Viral Video that first propelled the Claimant (and Bailey McLaren) into the glare of publicity, overwhelmingly that coverage (rightly) portrayed the Claimant as the victim in the Playing Field Incident. The Defendant’s contribution to this media frenzy was a deliberate effort to portray the Claimant as being, far from an innocent victim, but in fact a violent aggressor. Worse, the language used in the First and Second Videos was calculated to inflame the situation. As was entirely predictable, the Claimant then became the target of abuse which ultimately led to him and his family having to leave their home, and the Claimant to have to abandon his education. The Defendant is responsible for this harm, some of the scars of which, particularly the impact on the Claimant’s education, are likely last for many years, if not a lifetime.”

There was an Inforrm Case Comment

4.  Abramovich v Harpercollins Publishers Ltd & Anor [2021] EWHC 3154 (QB)

Chelsea FC owner Roman Abramovich succeeded at a preliminary issue trial on meaning. Mrs Justice Tipples found that all nine of the meanings of allegations relating to Abramovich’s purchase of Chelsea FC “on the directions of President Putin and the Kremlin” were defamatory.

The case concerned a claim of defamation against Catherine Belton and publisher Harper Collins of allegations made in the her book, Putin’s People: How the KGB Took Back Russia and Then Took On The West.

5.   Vardy v Rooney [2021] EWHC 1888 (QB) Inforrm Case Comment

Known as the “Wagatha Christie litigation” this concerned a claim of defamation brought by Rebekah Vardy against Coleen Rooney. The case stems from series of statements published by the defendant on her public Instagram account. Mr Justice Warby, previously found that the statements meant:

Over a period of years Ms Vardy had regularly and frequently abused her status as a trusted follower of Ms Rooney’s personal Instagram account by secretly informing The Sun newspaper of Ms Rooney’s private posts and stories, thereby making public without Ms Rooney’s permission a great deal of information about Ms Rooney, her friends and family which she did not want made public.

This part of the litigation concerns the claimants attempts to strike out and claim summary judgment. A number of paragraphs of the Amended Defence were struck out in relation to allegations of the claimants’ publicity seeking behaviour.

  1. Nettle v Cruse [2021] FCA 93

Sydney based plastic surgeon Dr Nettle refused to operate on Ms Cruse. Cruse posted comments which were highly defamatory of Dr Nettle throughout 2018. This included creating a website in the URL of Dr Nettle’s name. Allegations ranged from failing to keep records confidential to performing unauthorised surgeries. The court found in Dr Nettles favour concluding:

“Dr Nettle has proved that he was defamed by Ms Cruse in four publications in 2018.  Judgment will be entered for Dr Nettle with damages payable by Ms Cruse assessed at $450,000.  Injunctions restraining Ms Cruse from republishing the four impugned publications, or the imputations which have been found to be conveyed by them, will be made permanent.  Ms Cruse will also be ordered to pay Dr Nettle’s costs of the proceeding.”             

  1. Webb v Jones [2021] EWHC 1618 (QB)

A libel claim arising from Facebook postings. The claimant failed to comply with the pre-action protocol and failed to provide particulars of publication context in her pleading until three months after service of the Claim Form.  The defendant’s application for strike out in this case was successful.  The case provides useful guidance on the procedural niceties of conducting a libel claim. Inforrm has a case comment. 

  1. Corbyn v Millett [2021] EWCA Civ 567

The respondent issued defamation proceedings against Jeremy Corbyn in respect of an interview he gave on the Andrew Marr Show in which he had referred to people in the audience as “Zionists” who “don’t understand English irony”.  Saini J held that this made a defamatory allegation of fact.  Mr Corbyn, appealed.  Warby LJ held that the judge did not err in finding that the words ‘disruptive’ and ‘abusive’ were statements of fact?  The appellant was “presenting viewers with a factual narrative”.  He also held that the Judge’s approach to  ‘bare comment’ had been correct and there was no error of law in the finding that imputation were defamatory at common law?

  1. Greenstein v Campaign Against Antisemitism [2021] EWCA Civ 1006

A libel claim against the Campaign Against Antisemitism after the Campaign referred to Greenstein in a series of five articles published on its website. The appeal was against an order striking out particulars of malice and judgment entered into in favour of the Campaign. In upholding the first instance decision, Dingemans LJ reiterated the principles to finding malice from Horrocks v Lowe [1975] AC 135.

  1. Chak v Levant2021 ABQB 946

Rebel Media founder Ezra Levant, was ordered to pay damages of $60,000, following Leonard J finding he defamed a political science professor and former Liberal candidate during a 2014 Sun News broadcast. Levant claimed Farhan Chak “shot up” a nightclub when he was 19 years old.

Quotes from caselaw 6: HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810- Megan Markle successful in defending appeal by Mail on Sunday

An appeal against the finding for summary judgment for her misuse of private information and copyright claim.

The appellant was granted permission appealed the elements of the case on seven grounds:

i) The new evidence issue: Whether the new evidence provided by each of the
parties should be admitted.

ii) The nature of the attack issue: Whether the judge mistakenly failed to
recognise the significance and importance of the People Article’s attack on Mr
Markle.

iii) The reasonable expectation of privacy issue: Whether the judge adopted a
flawed analysis of the factors undermining the Duchess’s alleged reasonable
expectation of privacy.

iv) The appropriate test issue: Whether the judge wrongly stated the test, by
suggesting that the defendant had to justify an interference with the claimant’s
right of privacy, when the proper approach was to balance the competing article 8 and 10 rights.

v) The right of reply issue: Whether the judge wrongly applied a strict test of
necessity and proportionality to Mr Markle’s right of reply to the People Article.

vi) The public interest/article 10 copyright issue: whether the judge failed
properly to evaluate the interference with article 10, saying that it would be a
rare case in which freedom of expression would outweigh copyright.


vii) The fair dealing copyright issue: whether the judge wrongly relied on his
privacy analysis to reject the fair dealing defence to breach of copyright, bearing
in mind the limited scope of the copyright in the Letter and the wide scope of
the concept of reporting current events.

The Sir Jeoffery Vos decided against the defendant on all grounds dismissing the appeal, in a unanimous judgment, stating summarily:

Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.

p.106

Quotes from caselaw 5: Lloyd v Google LLC [2021] UKSC 50 – no one size fits all claim available in data protection “Safari Workaround” class action

In one of the most significant privacy law judgments of the year the UK Supreme Court considered whether a class action for breach of s4(4) Data Protection Act 1998 (“DPA”) could be brought against Google of its obligations as a data controller for its application of the “Safari Workaround”. The claim for compensation was made under s.13 DPA 1998.

The amount claimed per person advanced in the letter of claim was £750. Collectively, with the number of people impacted by the processing, the potential liability of Google was estimated to exceed £3bn.

“The claim alleges that, for several months in late 2011 and early 2012,
Google secretly tracked the internet activity of millions of Apple iPhone users and used the data collected in this way for commercial purposes without the users’ knowledge or consent.”

Lord Leggatt at p.1

The class action claim was brought under rule 19.6 of the Civil Procedure Rules.

Lord Leggatt handed down the unanimous judgement in favour of the appellant Google LLC:

“the claim has no real prospect of
success. That in turn is because, in the way the claim has been framed in order to try to bring it as a representative action, the claimant seeks damages under section 13 of the DPA 1998 for each individual member of the represented class without attempting to show that any wrongful use was made by Google of personal data relating to that
individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google.”

At p.159

It should be noted that the claim was brought under the Data Protection Act 1998 and not under the GDPR.

See the full judgement here. The Panopticon Blog has an excellent summary.

Quotes from caselaw 4: PJS v News Group Newspapers Limited [2016] UKSC 26 – privacy rights are broader than just confidentiality

It is a rare case where an application for a interlocutory injunction succeeds despite an article on the subject already being published. Such was the case in PJS, one of the most significant English law cases concerning privacy law to date.

The leading judgment was handed down by Lord Mance. It concerned the grant of an injunction to keep details of an extra marital affair between a claimant of great renown being published by the press.

Lord Mance observes the fact that privacy is a zonal right justifying protection, differing in character from the right of confidentiality. The esteemed judge highlights previous cases at paragraphs 58 and 59 of the judgment, endorsing the well entrenched approach from the Court of Appeal.

He characterises privacy, rightly, as extending beyond the bounds of confidentiality. In doing so ones private life becomes a space that should remain, in certain circumstances, free from intrusion.

However, claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone... “unwanted access to private information and unwanted access to [or intrusion into] one’s … personal space”

Lord Mance at p.58-59

Concluding Lord Mance opined on the capacity of the internet to change perceptions of privacy. He acknowledged that the courts need to remain cognizant of this. In doing so he affirmed the findings of previous caselaw, gave credence to commentators and noted the implications of tweeting and blogging:

 I also accept that, as many commentators have said, that the internet and other electronic developments are likely to change our perceptions of privacy as well as other matters – and may already be doing so. The courts must of course be ready to consider changing their approach when it is clear that that approach has become unrealistic in practical terms or out of touch with the standards of contemporary society. However, we should not change our approach before it is reasonably clear that things have relevantly changed in a significant and long-term way. In that connection, while internet access became freely available in this country only relatively recently, almost all the cases listed at the end of para 59 above were decided since that happened, and many of those cases were decided after blogging and tweeting had become common.

Lord Mance at p.70

TPP has commented further on the PJS case here.

Citation: INFORRM Blog, ZXC v Bloomberg LP: Privacy and Reputational Harm – Jeevan Hariharan

The INFORRM Blog has an excellent post on the inter-related nature of privacy and reputational harms.

Whether an individual has a reasonable expectation of privacy that outweighs the public interest in cases where there has been an investigation, but no charge, by the police is an imminent case before the Supreme Court in the case of ZXC v Bloomberg LP.

The case is before the UK Supreme Court on 30 November and 1 December next week and was cited by Hariharan in his analysis of the proximity between privacy and reputational harms.

The Court of Appeal judgment can be found here. The Court found that there could be a reasonable expectation of privacy in the fact of a police investigation. This builds upon notable caselaw such as the Cliff Richard case.

ICO launches consultation on the Draft Journalism Code of Practice

The ICO’s consultation on its Draft Journalism Code of Practice has begun.

Be sure to have your say- the deadline to submit responses is 22 January 2022.

The Code covers privacy safeguards among many other topics. In particular, it covers the journalism exemption under the Data Protection Act 2018 and its broad exemption that disapplies requirements to holding and processing data.

Journalism should be balanced with other rights that are also
fundamentally important to democracy, such as data protection and the
right to privacy.

at p.4

The Code substantively addresses the safeguarding of journalism under the exemption, briefly touching on balancing a free press against privacy rights before going on to discuss how this balance is struck under data protection laws:

Why is it important to balance journalism and privacy?


It is widely accepted that a free press, especially a diverse press, is a
fundamental component of a democracy.

It is associated with strong and
important public benefits worthy of special protection. This in itself is a public
interest.

Most obviously, a free press plays a vital role in the free flow of

communications in a democracy. It increases knowledge, informs debates
and helps citizens to participate more fully in society. All forms of journalistic
content can perform this crucial role, from day-to-day stories about local
events to celebrity gossip to major public interest investigations.

A free press is also regarded as a public watch-dog. It acts as an important
check on political and other forms of power, and in particular abuses of
power. In this way, it helps citizens to hold the powerful to account.

However, the right to freedom of expression and information should be
balanced with other rights that are necessary in a democratic society, such
as the right to privacy. The public interest in individual freedom of expression
is itself an aspect of a broader public interest in the autonomy, integrity and
dignity of individuals.

The influence and power of the press in society, and the reach of the

internet, means that it is particularly important to balance journalism and
people’s right to privacy.

This code provides guidance about balancing these two important rights by
helping you to understand what data protection law requires and how to
comply with these requirements effectively.

at p.25

Healthcare data and data protection in the time of coronavirus – Olivia Wint

The processing of special category personal data (including health data e.g. vaccination status, blood type, health conditions etc) was a common topic before the COVID-19 pandemic (the “pandemic”), with various resources published that explored this topic.

For example, the European Data Protection Board (“EDPB”) published an adopted opinion on the interplay between the Clinical Trials Regulation and the General Data Protection Regulation* (“GDPR”) (23January 2019), the Information Commissioner’s Office (“ICO”) posted a blog on why special category personal data needs to be handled even more carefully (14 November 2019) and the ICO published guidance on the lawful basis for processing special category data compliance with the GDPR (November 2019).

The pandemic has brought about a number of data protection considerations, all of which were already in existence but exacerbated by the pandemic (employee monitoring, contact tracing, workforce shift from office to home etc.) One that is more prevalent than ever before is the processing of health data, this piece aims to cover some key data protection themes and practical insights into the processing of health data.  

Health data, a subset of special category personal data by its very nature comes with an increased risk profile.  When processing this data type, not only are there legislative data protection requirements, the expectation of good clinical governance practices but also regulatory body considerations too.                                                           

For example, the NHS Care Quality Commission have in place a code of practice on confidential personal information, the NHS Health Research Authority have in place GDPR guidance specifically for researchers and study coordinators and technical guidance for those responsible for information governance within their organisation and the NHS more generally, has in place it’s Data Security and Protection Toolkit (the “Toolkit”). The Toolkit is an online self-assessment tool that enables organisations to measure and publish their performance against the National Data Guardian’s ten data security standards. The Toolkit covers records management and retention, training and awareness, system vulnerability management and crisis management to name a few.                                                                  

The above is all on a national level (UK), on an international level, there are data protection laws which specifically cover health data such as HIPAA in the US, the Patient Data Protection Act in Germany, and various provincial health data privacy laws in Canada such as the Health Information Act in Alberta.

Whilst the previous paragraph highlights the complexities of processing health data whether on a national and international level in comparison to other data types, there are a number of mitigations that organisations can put in place to adequately reduce the risks associated with processing this type of data. Mitigations such as Data Protection Impact Assessments (“DPIAs”), updated privacy notices and appropriate security measures amongst other things should all be considered.

Many organisations that never historically processed health data may now do so as a result of the pandemic…

Covering your bases

The first base that must be covered when processing data is ensuring that an appropriate legal basis has been established for each data processing activity, so for example if health data is processed for employee monitoring and research, a legal basis for both of these activities will need to be established. Legal bases can include for the performance of a contract, for legitimate interests** of the organisation and/or in order to perform a legal obligation.  Where processing of health data is concerned an additional category under Article 9 of the UK GDPR must be met. In the healthcare context, applicable additional categories may include explicit consent, health or social care purposes, public health purposes and/or archiving research and statistical purposes. 

Many organisations that never historically processed health data may now do as a result of the pandemic or alternatively organisations that processed health data pre-pandemic may now be doing so in larger amounts, organisations that fit either side of the coin should also assess the extent to which their privacy notice(s) have been updated and/or need to be updated in order to make data subjects aware any applicable data processing changes and to comply with transparency obligations.

Next, large scale processing of health data may pose a ‘high risk to the rights and freedoms of natural persons’ and in such cases, will trigger the requirement of a DPIA. In order for a DPIA to have value, it is important for organisations to ensure that the DPIA is assessed and considered early on to ensure privacy by design and default is incumbent of any system or processing activity.

A DPIA will assess the likelihood and severity of harm related to the processing activity in question and should the DPIA identify a high risk with no available mitigations, consultation with the ICO will be needed. The ICO has set out a 9-step lifecycle for the DPIA, all of which should be considered before any data processing has taken place:

  1. Identify a need for a DPIA;
  2. Describe the processing;
  3. Consider consultation;
  4. Assess necessity and proportionality;
  5. Identify and assess risks;
  6. Identify measures to mitigate risk;
  7. Sign off and record outcomes;
  8. Integrate outcomes into plan; and
  9. Keep under review.

Internally, organisations should have appropriate technical and organisational measures in place which reflects the risk presented. In relation to technical measures, appropriate internal controls and security measures should be utilised. Organisations may wish to consider a myriad and combination of controls to ensure that health data has the best level of protection, this may include end to end encryption for data both in transit and at rest, role-based access within organisations and the adoption and accreditation of industry recognised security standards such as ISO 27001.

In respect of organisational measures, it may be apt for training and awareness sessions to be implemented with tailored training administered to employees that will doing data processing activities and a robust policy suite in place which covers key circumstances such as data breaches and business continuity.

Data sharing

A specific data processing activity that may be utilised more in the wake of the pandemic is that of data sharing between organisations for information and research purposes. In the England, the soon to be implemented GP Data Sharing Scheme aims to improve and create a new framework for creating a central NHS digital database from GP records and the UK’s Department of Health and Social Care (“DHSC”) has recently published a draft policy paper titled ‘Data saves lives: reshaping health and social care with data’. The policy covers the aspiration of the DHSC to introduce new legislation as part of the Health and Care Bill (currently at Committee stage) to encourage data sharing between private health providers and the NHS and have more guard rails around the sharing of data generally through mandating standards for how data is collected and stored.

With data sharing as evidenced by the above, is something that will be advocated for and welcomed in due course, it is important that organisations have in place the appropriate contractual and practical measures to protect data as data in motion is when it is most vulnerable. Contractual measures include ensuring data sharing and/or transfer agreements are in place which cover all necessary contractual provisions and provide adequate assurances as to the data sharing/transfer arrangements. The NHSX has published a template Data Sharing Agreement which has been labelled as suitable for use by all health and care organisations and includes risk management, legal basis and confidentiality and privacy provisions amongst other things. Practical measures include conducting due diligence checks on all organisations which may be in receipt of data as part of the data sharing process (including third parties) and anonymising/ pseudonymising data. The ICO has put in place a comprehensive data sharing checklist which invites organisations to consider data minimisation, accountability and data subject rights.

The pandemic has changed the world that we knew it in more ways than one and in the context of processing of health data, what seems to be certain is that the processing of health data is on the rise. As such, organisations should continue to monitor guidance and developments in this area and ensure data protection principles are at the core of all data processing activities as a first port of call.

* EDPB guidelines are no longer directly relevant to the UK data protection regime and are not binding under the UK regime.

** A legitimate interest assessment should be considered when relying on legitimate interest as a lawful basis.

Olivia Wint is a seasoned data protection professional, with over five years experience in this area. Olivia has worked in a range of sectors including local authority, third sector, start-ups and the Big 4 advising on all aspects of data protection compliance.

Big Brother Watch publishes The State of Free Speech Online Report

Government surveillance interest group Big Brother Watch has released an insightful Report entitled: The State of Free Speech Online.

The Report looks at crucial provisions of the English Government’s proposed Online Safety Bill, critiquing its impact on freedom of speech.

The Report in particular focuses on social media platforms and the impact of the Bills provisions on their ability to facilitate free speech.

TPP supports free speech unequivocally, recognising that in a democratic society both rights of free speech and the protection of ones private life must be carefully balanced and safeguarded.

The recent move of Facebook in removing the publication of third parties Australian news from its site in protest to the provisions of the proposed News Media Bargaining Code, in doing so lobbying the Australian government, serves to highlight the unequal bargaining position of online platforms and their extensive influence.  

Furthermore, Twitter permanently suspending then US President Donald Trump highlighted the ability of a platform to  operate at the highest levels as arbiters of free speech.

It serves to bring into sharp relief the need for proper safeguards and guidelines of, as the Report states, private companies who “wield power… comparable to that of governments”.

As arbiters of free speech companies such as Facebook, Instagram, YouTube and Twitter hold substantive sway over millions of conversations where the rights of free speech and those of privacy intersect. This Report is a welcome examination of the coming reforms in the Online Safety Bill through a lens of safeguarding free speech.

It argues that enforcement of free speech rights have been “questionable, inconsistent and problematic” across the platforms. It goes on to opine that such platforms need to mirror the rule of law and reflect human rights principles.

As English law moves to take the next step in regulating the activities of those online via the Online Safety Bill TPP with be reporting focusing on both sides of the free speech and privacy debate.

Cricketer Ben Stokes and mother Deborah Stokes achieve settlement in privacy case against the Sun newspaper, securing rare unreserved apology

Following the publication of an article in 2019 in the Sun newspaper concerning a family matter before the cricketer was born, Ben Stokes and his mother have achieved a settlement from the Sun newspaper.

Mother of Ben Stokes, Deborah Stokes commented: “The decision to publish this article was a decision to expose, and to profit from exposing, intensely private and painful matters within our family. The suffering caused to our family by the publication of this article is something we cannot forgive.

“Ben and I can take no pleasure in concluding this settlement with the Sun. We can only hope that our actions in holding the paper to account will leave a lasting mark, and one that will contribute to prevent other families from having to suffer the same pain as was inflicted on our family by this article.”

The family were represented by Brabners LLP. Paul Lunt, solicitor to Ben and Deborah Stokes and Head of Litigation, said “The Sun has apologised to Ben and Deborah. The paper has accepted that the article ought never to have seen the light of day. The apology to our clients acknowledges the great distress caused to Ben, Deborah and their family by what was a gross intrusion – and exploitation – of their privacy. Substantial damages have also been paid, as well as payment of legal costs.”

See the Brabners LLP press release here.

The Sun stated: “On 17 September 2019 we published a story titled ‘Tragedy that Haunts Stokes’ Family’ which described a tragic incident that had occurred to Deborah Stokes, the mother of Ben Stokes, in New Zealand in 1988. The article caused great distress to the Stokes family, and especially to Deborah Stokes. We should not have published the article. We apologise to Deborah and Ben Stokes. We have agreed to pay them damages and their legal costs.”

Coverage of the settlement can be found in the Guardian, Press Gazette and BBC Sport, amongst others.

An Introduction to English laws tackling revenge pornography – Colette Allen

As the UK moved online in response to the COVID-19 pandemic, reports of image-based abuse – ‘revenge porn’ – doubled. One reason for the increase is that the national lockdown pushed dating lives online, and the sharing of sexual images became one of the few ways to show intimacy. Disclosing, or threatening to disclose, intimate images has a massive psychological toll on victims, and is therefore an effective means of exerting control. Financial pressure, a surge in domestic violence, and relationship breakdowns have contributed to the rise of reported cases.

Too often, the victim is blamed when their image ends up online. This response disregards the victim’s right to privacy and denies them of their sexuality. Most would agree that a person’s consent to have sex with another does not amount to consent to sleep with all of his/her friends – but that is the very logic of those who say individuals ‘should have been more careful’ when their image is disclosed.

If you are a victim of revenge porn, the law can help you regain control and achieve justice.

The uploading of sexual or intimate images online, without the consent of the individual pictured, and with the intention to cause the victim humiliation or embarrassment, is a criminal offence in England and Wales.

The relevant law differs depending on whether or not the victim is over 18 years of age.

Section 33 of the Criminal Justice and Courts Act 2015 (‘CJCA 2015′) applies to adult victims and establishes a maximum sentence of 2 years’ imprisonment following conviction.

For s.33 CJCA 2015 to apply, the image(s) must be private and sexual. Certain parts of the body, like exposed genitals or pubic area, are considered inherently private for the purposes of the offence. Posing in a sexually provocative way will be regarded as private if the image depicts something that would not ordinarily be seen in public.

The victim must show that the reason, or one of the reasons, that their intimate image was shared without their consent was to cause the victim distress (the ‘distress element’). Without proving this, a victim will not be able to secure a conviction against the defendant. The distress element is a distinct part of the trial that will require its own evidence. It is not enough that distress is or would be a natural consequence of the disclosure.

Doctored and computer-generated images, also known as ‘deep fakes’, are not covered by the CJCA 2015. A victim who has had an innocent image transposed onto a pornographic photograph or film does not, unfortunately, have any specific law to draw on. Victims in this scenario should, however, discuss with their solicitor the possibility of securing a conviction under section 1 of the Malicious Communications Act 1988 and/or section 127 of the Communications Act 2003. Victims pursuing this route will still have to find evidence for the distress element in order to secure a conviction, as both s.1 and s.127 require that the message be sent to cause distress or anxiety, or be of a menacing character, respectively.

It is not guaranteed that a victim of revenge porn will be able to secure legal aid funding, but this is something you should ask your solicitor.

If you are a victim of revenge porn, the law can help you regain control and achieve justice.

Defences

It is a complete defense if the defendant reasonably believed that the disclosure was necessary for the investigation, prevention or detection of crime (s.33(3) CJCA 2015), or if the image is disclosed by a journalist who reasonably believes that publication is in the public interest (s.33(4)). A journalist relying on the s.33(4) defense will have to show that there was a legitimate need to publish the photograph or film that goes to the value of a story on an important matter. ‘Public interest’ in this context is not simply something with which the journalist believes the public will be interested.

It is a defense if the defendant believed that the image(s) had previously been made public for financial purposes, i.e. commercial pornography (s.33(5) CJCA 2015). However, a defendant will not be able to rely on s.33(5) if they had reason to believe that the victim had not consented to prior release.

Anyone who forwards on the image(s) without the victim’s consent is only guilty of a s.33 offence if they do so with the intention to cause the victim distress. Re-sending the image(s) as a joke or for sexual gratification will not amount to an offence merely because distress was a natural consequence of their actions (s.33(8)).

Children 

Possessing, taking, distributing or publishing sexual images of individuals under the age of 18 are offences under section 1 of the Protection of Children Act 1978 and section 160 of the Criminal Justice Act 1988. If you are under the age of 18 and your image has appeared online, the process is much simpler than if you were an adult. There is no need to show a distress element on behalf of the defendant.

Parents who have been made aware that their children have shared or have been sent sexual images should be aware that Crown Prosecution Service Guidelines on revenge pornography makes clear that consensual ‘sexting’ between minors of a similar age is not to be treated as an offence. Where there is evidence of grooming, harassment or exploitation then it will be treated as a criminal matter.

Websites

The CJCA 2015 makes it possible for the website operator who hosts the site on which an intimate image was illegally shared to be liable, but only when the operator has actively participated in the disclosure, or failed to remove the material once they have been made aware that it is criminal in nature. In reality, most social media sites will be compliant in removing such material on request.

If any of the matters discussed in this article affect you, visit https://revengepornhelpline.org.uk


Colette Allen has hosted “Newscast’” on The Media Law Podcast with Dr Thomas Bennett and Professor Paul Wragg since 2018. She has recently finished the BTC at The Inns of Court College of Advocacy and will be starting a MSc in the Social Sciences of the Internet at the University of Oxford in October 2021.