Media Law

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.

Festive wishes from TPP

The Privacy PerspectiveLeave a comment

We would like to thank all our readers and subscribers for visiting TPP over the past year. Many thanks also to our contributors across the past year for their insight and expertise.

We are currently working on getting more informative pieces on privacy to you- including a series on what privacy law is like to practice as a professional (if you would like to contribute be sure to let us know) and our traditional Top 10 cases of the year across defamation, privacy law and data protection in association with the esteemed International Forum for Responsible Media Blog.

In the meantime, if any of our readers would like to guest write for us we encourage you to get in touch- we always welcome the opportunity to work with you.

Our case quote of the year is from the seminal case that was heard before the UK Supreme Court, ZXC v Bloomberg [2022] UKSC 5, finding that, as a legitimate starting point, criminal suspects have a reasonable expectation of privacy in the fact of an investigation at pre-charge stage:

…whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry which requires the evaluation of all circumstances in the individual case… We consider that the courts below were correct in articulating such a legitimate starting point to the information in this case. This means that once the claimant has set out and established the circumstances, the court should commence its analysis by applying the starting point.…

[And, as such:]

The courts below were correct to hold that, as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in all the circumstances this is a case in which that applies and there is such an expectation.

at p.144 and 146 from Lord Hamblen and Lord Stephens

See our comment on the case for more information.

A very happy Christmas and New Year to you all.

The Privacy Perspective Founder and Editor, Suneet Sharma

Privacy Law Monthly Round Up – September 2021

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Headlines

Ben and Deborah Stokes’ privacy claim against The Sun for the highly intrusive article detailing traumatic events in the Stokes’ family past was settled on 30 August 2021, with the newspaper agreeing to publish an apology and pay substantial damages. Paul Wragg wrote about The Sun’s “nonsensical” defence for the Inforrm Blog, concluding that the only party spared the anguish of trial was the newspapers’ defence team.

Government and General legislative developments

The controversial Police, Crime, Sentencing and Courts Bill had its second reading in the House of Lords this month. The Bill is notorious for its proposed restrictions on peaceful protest, which critics have predicted will have a discriminatory impact and breach the rights to freedom of expression and assembly. Broadened police powers would also enable the extraction of more information from mobile phones.

The Age Appropriate Design Code (aka the “Children’s Code”) entered into force on 2 September 2021 following a one year transition period. The Children’s Code explains to businesses how the UK GDPR, Data Protection Act and Privacy and Electronic Communications Regulations apply to the design and delivery of Information Society Services (“ISS”) – i.e social media, educational and gaming platforms – apply to children. The Children’s Code is the first of its kind worldwide, and has been welcomed by many as a positive development for keeping children safe online. The 15 standards that the Code sets can be found here.

Sticking with child safety online, Home Secretary Priti Patel launched a Safety Tech Challenge fund at the G7 meeting start of this month. Five applicants will be awarded up to £85,000 each to develop new technologies that enable to detection of child sexual abuse material online, without breaking end-to-end encryption.

The UK Government has launched a public consultation on data protection legislation reform following Brexit entitled Data: A new direction. The consultation is open until 19 November. Following the end of the Brexit transition period, the UK’s data protection regime, which had derived from the EU framework, will be transposed into domestic law known as the UK GDPR. The Government is seeking to use this opportunity to make some changes to the current regime. The Hawtalk Blog discusses how some of these proposals are unethical and unsafe. Further discussion can be found on the Panopticon Blog and the Data Protection report. 

Data Privacy and Data Protection

Cressida Dick, the Metropolitan Police Commissioner, has accused tech giants of undermining terrorist prevention efforts by virtue of their focus on end-to-end encryption. Writing in The Telegraph on the twentieth anniversary of the 9/11 attacks, she said that it is “impossible in some cases” for the police to fulfil their role to protect the public. Given the pressure on tech giants to ensure users’ privacy, companies are unlikely to reshape their platforms to facilitate more extensive monitoring.

Apple has delayed its plan to scan its users’ iCloud images for child sexual abuse material. The proposed detection technology would compare images before they are uploaded to iCloud against unique “digital fingerprints” of known child pornographic material maintained by the National Centre for Missing and Exploited Children. The plan was criticised by privacy groups because it involved using an individual’s own device to check if they were potentially engaged in criminal activity.

Surveillance

The Metropolitan Police have invested £3 million into new facial recognition technologies (FRT) that will greatly increase surveillance capabilities in the capital. The expansion of the Met’s technology will enable it to process historic images from CCTV feeds, social media and other sources in order to track down suspects. Critics argue that such FRT encroaches on privacy by “turning back the clock to see who you are, where you’ve been, what you have done and with whom, over many months or even years.” There is also concern that FRT can exacerbate existing racial discrimination in the criminal justice system. The UK’s Surveillance Camera Commissioner (SCC), Professor Fraser Sampson, has acknowledged that some FRT “are so ethically fraught” that it may only be appropriate to carry them out under license in the future.

NGO’s

Big Brother Watch published an opinion piece warning that the imposition of vaccine passports could reorganise Britain into a two-tier, checkpoint society. The article responds to the Scottish Parliament’s vote in favour of vaccine passports earlier this month. Wales has since followed Scotland and announced mandatory vaccination and COVID status check schemes. The English government has not yet committed to such a regime. The ICO has emphasised that data protection laws will not stand in the way of mandatory vaccination and COVID status checks, but rather facilitate responsible sharing of personal data where it is necessary to protect public health. 

Privacy International has considered how data-intensive systems and surveillance infrastructure, developed by national and foreign actors, in Afghanistan as part of developmental and counter-terrorism measures will fare under the Taliban regime.

From the regulator

ICO

The ICO has announced two fines this month;

  • A total of £495,000 was imposed against We Buy Any Car, Saga, and Sports Direct for sending more than 354 million “frustrating and intrusive” nuisance messages between them. None of the companies had permission to send recipients marketing emails or texts, making their behaviour illegal;
  • The Glasgow-based company DialADeal Scotland Ltd was fined £150,000 for the making of more than 500,000 nuisance marketing calls to recipients who had not given their permission to receive them.

The ICO has also released a communiqué from a meeting on data protection and privacy held by the G7 authorities at the start of the month. The meeting is closely aligned with the Roadmap for Cooperation on Data Free Flow with Trust announced by G7 Digital and Technology Ministers on 28 April 2021.

IPSO

IPSO has published a number of privacy rulings and resolutions;

IMPRESS

There were no IMPRESS rulings relating to privacy this month.

Cases

The Inforrm Blog has published an article detailing the continued decline in privacy injunction applications in England and Wales for 2021. There were only three applications in the first six months of the year, down from ten in 2020. All three applications were successful. Only 4% of the new issued cases on the Media and Communications List related to misuse of private information or breach of privacy.

No judgements relating to privacy have been handed down this month.

Written by Colette Allen

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.

Tackling hate speech- Intersecting approaches and the Raheem Stirling case

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The case of footballer Raheem Stirling provides an avenue into the oft-overlooked issue of hate speech prevention and deterrence. The adequacy of English law in tackling hate speech, a nuanced and increasingly difficult to isolate issue.  This is due to an instance of hate speech having the potential to cover a wide variety of legal actions and regulations. This in and of itself can be problematic; actions may not quite fit the scenario to which they apply or require careful adherence and scrutiny to ensure a just outcome. Continue reading →

Citation: News: Specialist Media Barristers’ Chambers One Brick Court announces dissolution

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Sad news indeed from the media law Bar, One Brick Court has announced its closure. Our best wishes are with members of Chambers and our greatest respect to its distinguished reputation over 130 years of practice.

INFORRM's avatarInforrm's Blog

One Brick Court, the long established set of specialist media law barristers has announced today that it is to dissolve, with effect from 24 June 2019. The set has explained that the dissolution is due to “recent unexpected departures and a retirement“.

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A brief introduction to the concept of privacy under English law – Part III

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For context please see Part’s I and II of our analysis.

Eraser Picture

From the hallmark case of Campbell and the development of breach of privacy as an action, it is clear that the integration of privacy as a concept in English law is still in its formative years. In Part III we consider some of the significant cases post-Campbell to date, bringing into relief key issues and developments in privacy law, many of which are ongoing or merit further consideration by the courts. In particular, the broad nature of an individual’s reasonable expectation of privacy becomes clear (covering issues of children’s privacy and biometric data retention) and the degree to which this can be qualified against other rights is explored.

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Imperfect solutions for access to justice -success fees are no longer recoverable in English defamation and privacy cases

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On 29 November 2018, the Government published its response to the 2013 consultation on costs protection in defamation and privacy claims. In particular, the written statement by the Lord Chancellor and Secretary of State for Justice summarizes the amendments to costs provisions, raising access to justice concerns.

In short, the Government has decided to implement s.44 of the Legal Aid, Sentencing and Punishment of Offenders (LAPSO) Act 2012, making claimant lawyers success fees under conditional fee agreements (“CFAs”) unrecoverable from defendants in defamation and privacy cases commencing 6 April 2019. The consolation is that after-the-event insurance (“ATE”) fees remain recoverable. This article considers how these changes perpetuate imperfect solutions that harm access to justice.

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A brief introduction to the concept of privacy under English law – Part II

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In Part II we consider the legislative framework under English law which enshrined privacy and the recent development of the action for misuse of private information, underpinned by privacy as a value.

The right to privacy was codified into legislation at European Union level in the European Convention of Human Rights, which provides a higher level interpretive layer of guidance on the application of such rights. However, these provisions required integration into English law via legislation to be effective. In taking the lead from the European authorities Parliament passed the Human Rights Act 1998 (“HRA”) to achieve such harmonisation. Article 8 of the HRA addresses the right to a private life:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

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A brief introduction to the concept of privacy under English law – Part I

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This article is meant to illustrate the development of the concept of privacy under English law, is by no means exhaustive and provides a general reference to key developments.

Many doctrines under English law form due to common law, also known as judge-made or case law, where a series of legal cases create and form doctrines or principles which underpin legal rights. Privacy emerged as a notion in common law in the 18th century, developing through cases, until it was legislated in the 20th century under the European Convention on Human Rights, which was integrated into English law by the Human Rights Act 1998. In Part I we explore the early common law cases which introduced the concept of privacy to English law.

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