Take 10 - 1 May 2026

Welcome back to RPC's Media and Communications law update where we recap on the key media judgments and developments over the last few months.

"Article 10.1: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers."

High Court addresses interplay between open justice and Article 8 in civil recovery proceedings

On 24 April 2026, the Administrative Court handed down judgment clarifying the interaction between the principle of open justice and the reasonable expectation of privacy recognised in ZXC v Bloomberg LP [2022] UKSC 5 in the context of civil recovery proceedings under the Proceeds of Crime Act 2002 (National Crime Agency v GKC (No 2) [2026] EWHC 929 (Admin)).

In prior proceedings, the National Crime Agency (NCA) had obtained an unexplained wealth order (UWO) and an interim freezing order (IFO) against the respondent, GKC, and Mr Justice Fordham made interim orders for anonymity and reporting restrictions. Fordham J listed a separate hearing to determine whether these orders should continue. The BBC, Times Media Limited, Associated Newspapers Limited and Telegraph Media Group Limited intervened to oppose continuation of the orders.

The respondent argued that ZXC establishes that a reasonable expectation of privacy is the starting point for considering anonymity orders in this context, and that a compelling public interest in favour of publication is required to displace it. Fordham J rejected that argument as it put things “the wrong way round” [40]. The starting point in applications for anonymity and reporting restrictions is the principle of open justice. ZXC was not “rewriting the open justice principle” or “inverting the starting point” [41]. Any derogation from open justice must be justified as strictly necessary, as explained in R (Marandi) v Westminster Magistrates’ Court [2023] EWHC 587 (Admin)at [43]. Whilst ZXC might illuminate the question of whether there is an Article 8 interference, there still needs to be a cogent justification for a necessary derogation from open justice [44].

On the facts, the Respondent had failed to demonstrate that the continued derogations from open justice were necessary, notwithstanding the significant interference with her Article 8 rights [74]. 

Fordham J granted permission to appeal himself, including on the ground that his approach to the interplay between the open justice principle and Article 8 in the context of civil recovery proceedings was arguably wrong [77].

Court of Appeal rules that consent is an objective concept for the purposes of data protection law

On 21 April 2026, the Court of Appeal handed down an important judgment on the legal test for consent for the purposes of data protection law and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) (RTM v Bonne Terre Ltd and Hestview Ltd [2026] EWCA Civ 488).

An individual (referred to as RTM) with a gambling addiction brought a claim against Sky Betting and Gaming (SBG), alleging that it had acted unlawfully in its placement of cookies, its processing of his personal data, and its direct marketing communications, and that he had suffered financial loss and distress as a result. The High Court (Collins Rice J) had held that the concept of consent is subjective and that RTM had not given legally valid consent to SBG's activities. SGB appealed against the High Court decision, arguing that the test for consent is essentially objective. The ICO intervened in support of SBG's appeal.

The appeal was allowed on all grounds. On the key issue of the legal test for consent, Lord Justice Warby held that consent is a purely objective concept. To prove that a data subject has given consent, a data controller must show that the data subject made a statement or took clear affirmative action amounting to an “indication” of their wishes that “signifies agreement” to the relevant processing or marketing activity. Each of the criteria for consent listed in Article 4(11) GDPR (that consent must be freely given, specific, informed and unambiguous) are also objective in nature. A controller does not have to prove what was actually in the mind of the individual data subject at the time of the “indication”. It is neither necessary nor relevant to explore whether the data subject was vulnerable, with an impaired ability to make fully autonomous decisions [9; 54-55].

Warby LJ noted that, if the test were subjective, even the best processes would leave data controllers exposed to legal risk [66-70] and create unacceptable legal uncertainty [71-72].

Notably, the judgment left open the possibility that, where a controller is aware of a user's vulnerabilities, it may be that any indication of consent provided by them may not count as "unambiguous" or that the processing of personal data may not be considered "fair" pursuant to Article 5(1)(a) of the GDPR [83].

The court also allowed the appeal on other grounds, including on the ground that the judge had erred in deciding the case on the basis of an analysis that neither party had advanced. The case will be remitted back to the High Court following submissions from the parties on what issues need to be remitted.

High Court confirms requirement for harassment within the jurisdiction

In Franklin William Rzucek v Alan Vinnicombe [2026] EWHC 946 (KB), the High Court again considered the requirement for harassment under section 1(1) of the Protection from Harassment Act 1997 (PHA 1997) to be experienced within England and Wales. The Defendant lived in the UK and operated a YouTube channel, which had repeatedly posted videos speculating about the murder of the Claimant's sister and niece. The Claimant was based in the USA. At a prior hearing, the Defendant’s defence and counter claim had been struck out and judgment entered in the Claimant’s favour.

At a hearing to determine remedies, Dan Squires KC (sitting as Deputy High Court Judge) noted that there was a fundamental difficulty with the Claimant’s harassment claim. The Court was bound to follow the High Court’s previous decisions in Shakil-Ur-Rahman v ARY Network Ltd [2016] EWHC 3110 and Lawal v Adeyinka [2021] EWHC 2486 (QB) which confirmed that section 1(1) PHA 1997 requires that the impact on the victim is felt within the jurisdiction. As the Claimant was outside the jurisdiction at all material times, he could not obtain a remedy in relation to those past acts of harassment [35-41]. Mr Squires KC accepted that this interpretation might lead to undesirable results and leave claimants without a remedy where harassment is perpetrated in one jurisdiction but experienced in another. But he noted that a person who is outside the jurisdiction may have a remedy for apprehended harassment if he wishes to come to the UK in the future [43-45].

In contrast to the harassment claim, the court confirmed that defamation does not require the claimant to be present in the jurisdiction [47, 70]. However, the claimant's location can affect quantum of damages where England and Wales is not the main locus of their reputation or of those with whom they mostly deal [71-73]. The court awarded £40,000 in general and aggravated damages as well an injunction restraining further publication of the defamatory allegations [81].  An award for aggravated damages was warranted because the defendant had not issued an apology or retraction and had repeated the statements complained of during the litigation [75-78]. 

High Court strikes out libel claim with no prospect of showing serious harm

On 29 April 2026, Aidan Eardley KC (sitting as a Deputy High Court Judge), struck out a libel claim on the grounds that the Claimant had no realistic prospect of proving serious harm, as required by section 1 of the Defamation Act 2013 (Whittingham v Jones [2026] EWHC 979 (KB)). The claim concerned two emails sent by the Defendant (a school headteacher) to the Chair of Governors about the Claimant, whose children attended the school, alleging that she had behaved in a threatening and intimidating manner.

The Judge reiterated the principles from previous authorities, including Amersi v Leslie [2023] EWHC 1368 (KB), that where publication is to a limited number of publishees, the scope for reliance on inference in proving serious harm is much reduced [33-34]. The Claimant's case was entirely inferential, as she did not allege any actual effects of the statements complained of, and publication had been limited to a very small number of people. This put her "in a very difficult position" [37]. The matters the Claimant had identified were incapable of amounting to a case on serious harm with a realistic prospect of success: the allegations that the Claimant was threatening and intimidating were expressed in very vague terms, and were made to the Chair of Governors, who would be used to dealing with disputes between school staff and parents [38].

Ofcom opens investigation into Telegram and teen chat sites' compliance with child online safety obligations

The prevention of child sexual exploitation and abuse and prohibition on child sexual abuse material by service providers are emerging as Ofcom's top priorities. On 21 April 2026, it announced investigations into Telegram, Teen-Chat and Chat Avenue's compliance with CSEA and CSAM duties under section 10 of the Online Safety Act 2023 (OSA). The investigations form the latest of a series of investigations arising from the duties placed on service providers to protect users from illegal content under section 10 of the OSA.

Responses to letters sent by Ofcom in March in relation to child safety online are also due this week from Meta, Snap, TikTok and YouTube regarding the action they are taking to enforce their minimum age requirements, provide safer feeds for children and protect against grooming. Once received, Ofcom will report on their responses and set out its proposals for further regulatory action in May.  

High Court confirms approach to applications for interim injunctions affecting freedom of expression

In Benjamin Smith and Rise Capital Holdings Limited v Richard Copestake [2026] EWHC 924 (KB), the claimants brought various claims, including in defamation, harassment, breach of confidence and misuse of private information, against a former employee who published his grievances about them on a website, LinkedIn and in a WhatsApp group. They sought injunctive relief, including removal of the website and closure of the WhatsApp group.

Dismissing the application, Susie Alegre (sitting as a Deputy High Court Judge) applied section 12(3) of the Human Rights Act 1998, which provides that no relief which might affect freedom of expression is to be granted “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”. As explained by the House of Lords in Cream Holdings Ltd v. Banerjee [2005] AC 253, "likely" in this context means "more likely than not".

Recognising the extremely high bar for an injunction in libel in Bonnard v Perryman (1891) 2 Ch. 269, the claimant argued that the libel claim was secondary to the other claims brought. The Court rejected that approach: whether the claim is primarily in defamation or harassment does not affect the applicable legal test under section 12(3), as much of the relief sought clearly affected the defendant's right to freedom of expression, regardless of the basis of the claim [13]. 

The Court therefore applied the section 12(3) test to the claims for harassment, misuse of private information, breach of contract and breach of confidence, since the relief sought in relation to those claims would affect the defendant’s freedom of expression [22]. The claimant could not show that it was more likely than not that any of these claims would succeed [19, 23].

The defendant also raised the possibility that the litigation could amount to a SLAPP under section 195 Economic Crime and Corporate Transparency Act 2023. The Judge noted that this issue was not the subject of any formal application, but may need to be determined at a later stage [30].

High Court approves of the use of Live Facial Recognition technology by the Metropolitan Police in judicial review judgment

On 21 April 2026, judgment was handed down in R (Carlo and Thompson) v The Commissioner of Police of the Metropolis [2026] EWHC 915 (Admin). Dismissing the claim for judicial review,Lord Justice Holgate and Mrs Justice Farbey found that the Metropolitan Police's use of Live Facial Recognition technology ("LFR") complies with Articles 8, 10 and 11 of the ECHR.

LFR is a tool used to help detect individuals on police watchlists by scanning faces in public places. Where a match is identified, the software alerts a trained officer who will assess whether the match is viable. If no match is generated, biometric data is automatically and immediately deleted. Any facial images detected by the system which have not been matched are blurred in the images visible to officers [86-88].

The claimants contended that the Met's policy leaves too much discretion to individual officers within the Met when deciding whether and where to deploy LFR to satisfy the “quality of law” requirements in Articles 8, 10 and 11 ECHR. Specifically, they submitted that the policy violates Article 8 ECHR because it permits interferences with private life which are not “in accordance with the law”, and breaches Articles 10 and 11 ECHR because any restrictions on freedom of expression and assembly are not “prescribed by law” [6-9, 190].

The Court held that that the policy contains adequate and lawful constraints governing why LFR may be used, the persons whom it may be used to detect and where it may be deployed, and does not authorise the making of arbitrary decisions by the police. The requirement of proportionality in the policy also acts as an overarching constraint on all aspects of LFR deployment and acts as an effective safeguard against arbitrary outcomes. Accordingly, the Claimants’ rights under Articles 8, 10 and 11 of the ECHR had not been breached [216-229].

Preliminary meaning judgment handed down in Pearson v Essex Police

The court has handed down a preliminary meaning judgment in Judith Pearson v (1) Chief Constable of Essex Police and (2) Roger Hirst [2026] EWHC 961 (KB). Ms Pearson is a journalist for the Telegraph and co-founder of British Friends of Israel. She was visited by Essex Police at her home and questioned about a post on X in which she criticised the police for appearing to pick sides and refusing to pose for a photo with British Friends of Israel and calling them “Jew haters”. Essex Police then published a series of press release relating to the incident, which she alleged were defamatory.

The court assessed each press statement as an individual publication. It preferred the meanings advanced by the Defendant, namely that that there were grounds to investigate a woman at an address in Essex for an alleged offence of inciting racial hatred, linked to a post on social media. It relied on the fact that, although the ordinary reasonable reader lacks specialist legal knowledge, he or she knows that the police investigate complaints of alleged criminal conduct, sometimes by speaking to or interviewing the subject of the complaint, before deciding whether to proceed to take any further action, such as arresting or charging someone. The statements made clear that the investigation was at an early stage and that the woman was not arrested or charged [36].

Chamberlain J considered that the additional words contained in the final press release – which said that there was no further action to be taken against the claimant – were a complete antidote to the imputation in the earlier two statements that there were grounds for investigation [38]. The court rejected the Claimant's argument that the meaning of the previous two imputations could nevertheless be read into the final statement, commenting that this was exactly the kind of "over-elaborate analysis" of which earlier authorities warn [39].

The court’s conclusions on the meaning of the other publications are summarised at [66].

Government pledges to introduce social media restrictions for under-16s

Earlier this week, the Government pledged to implement social media restrictions for under-16s, regardless of the outcome of the current consultation. Olivia Bailey, the education minister, said in the Commons that the government would introduce “some form of age or functionality restrictions for children under 16”, focused on "addictive features, harmful algorithmically-driven content and features such as stranger pairing". This development brings to an end a parliamentary deadlock between the House of Lords and House of Commons over the Children's Wellbeing and Schools Bill. The Lords had four times voted in favour of a social media ban for under-16s.

Following the Government's commitments, the Lords accepted the Commons' amendments and the Bill received Royal assent on Wednesday. The Act inserts a new section 214A into the Online Safety Act 2023 so that ministers "must" (rather than "may") act to require internet service providers to prevent or restrict access by certain children to specified internet services, or to specified features or functionalities of such services.

Bridget Philipson, the Education Secretary, said the Government had not committed to a full ban for under-16s, as that would prejudge the outcome of the current consultation.

Judicial Appointments Commission (JAC) seeks to recover £14k in costs

The JAC is seeking to recover £14,270.70 in costs from a journalist, Barnie Choudhury, accusing him of acting unreasonably in pursuing contempt of court proceedings following failures by the JAC to comply with freedom of information (FOI) requests he made against it. Writing for the Eastern Eye, Choudhury has engaged in a long-running campaign against the JAC and published 23 articles investigating the appointments process in the judiciary. The articles have covered allegations of judicial secrecy, misogyny, bullying and general misconduct.

Laura Davidson from the National Union of Journalists said that this attempt to recover costs is "highly unusual". She went on to say, if the application is upheld, "it would create a significant new risk for journalists using FOI requests to hold power to account and add to the weaponry of those who use SLAPPs to silence media scrutiny".

Quote of the fortnight

"There is a clear public interest in the Court publishing a full report of the judgment…  It enables media reporting of the case being vivid and embodied, not dehumanised and disembodied."

(National Crime Agency v GKC (No 2) [2026] EWHC 929 (Admin)) at[70])