Take 10 - 16 October 2025

Welcome back to RPC's Media and Communications law update. As we return from the summer break, we recap on the key media judgments and developments over the last few months.

Unsuccessful public interest defence after Defendant lacks contemporaneous evidence 

On 9 October 2025, Richard Spearman KC gave judgment dismissing the Defendant's public interest defence in Naseer v Raja.  The claim was brought by a former Pakistani Brigadier who was the subject of 10 posts across the Defendant's Twitter, Facebook and YouTube accounts.  The meanings of the posts were all centred around allegations of election manipulation and other corrupt practices said to have been carried out by the Claimant. 

The relevant requirements of the Claimant's case were met, including the inferential case on serious harm on the basis the words complained of had "such an inherent tendency" to cause serious harm[59] and the number of publishees were "sufficiently large" based on figures presented in relation to the Defendant's social media followings in the jurisdiction which were as high as 53,600 in respect of the Defendant's X followers[54, 69].

In respect of the Defendant's public interest defence, the discussion centred around whether the Defendant could demonstrate his reasonable belief that publication was in the public interest. 

It was found that the Defendant's evidence lacked detail as to whether the Defendant believed the allegations advanced, with evidence suggesting the Defendant did not intend to publish the publications as drafted.  The judge recognised that, for s4 purposes, where a defendant intended a meaning that is less defamatory than the single natural and ordinary meaning of the publication, the reasonable belief of the defendant generally falls to be assessed by reference to the less damaging meaning, "unless the natural and ordinary meaning is one obvious possible meaning", which was the case for the publications in issue  [89 – 92].  The Court considered this alongside various Reynolds factors such as the seriousness of the allegations and no attempt being made to seek comment [94].

The Defendant's evidence was unsupported by contemporaneous records evidencing information gleaned from sources and steps taken to verify the allegations, which left the Court "in great difficulty" in assessing whether the Defendant's belief was genuinely held or reasonable.  The Court remained unpersuaded by the Defendant's attempts to justify this on the basis of source protection, noting that even brief or anonymised notes would be sufficient to demonstrate the Defendant's due diligence prior to publication [87 – 88].

Clearview: jurisdictional reach of the UK GDPR and ICO

On 7 October 2025, the Upper Tribunal (UT) granted the ICO's appeal in Clearview AI v Information Commissioner.  Clearview is a US-based company which scrapes images from the internet which are uploaded into a database.  Clearview sells access to the database to private and public sector clients for the purpose of national security and criminal law enforcement activities.  The appeal concerned the reach of the GDPR and UK GDPR and relatedly whether the ICO had jurisdiction to issue an enforcement notice and monetary penalty notice against Clearview. See here for a previous edition of Take 10 covering the background and the First-tier Tribunal's decision.

The UT considered whether the GDPRs applied to Clearview's processing with respect to (1) material scope (specifically, whether Clearview's processing was an "activity which falls outside the scope of Union law" under Article 2(2)(a)); and (2) territorial scope (specifically, whether Clearview engaged in "behavioural monitoring" such that Clearview's processing put it within territorial scope pursuant to Article 3(2)(b) even though it is based in the US). 

On material scope, the UT adopted a narrow interpretation finding that an activity only falls "outside of the scope of Union law", and therefore the reach of the GDPR, when processing relates to activities which are "reserved to national governments of Member States" [191].  The UT therefore rejected Clearview's argument that its work for foreign governments placed it beyond the GDPR's reach [187 – 188].

By contrast on territorial scope, the UT adopted a broad interpretation of “behavioural monitoring”, including even “"passive” collection, sorting, classification and storing of data by automated means" without "active…human involvement" [275].  As such, the UT found that Clearview's activities, being sold with a view to assist clients with investigations on matters of national security or law enforcement did constitute processing “related to” behavioural monitoring.

The UT also dismissed submissions that Clearview benefits from state immunity and comity, as despite Clearview engaging in "quintessentially state activities", it undertakes these as a commercial entity with no agency relationship to the state body [217 – 219]. 

Strengthened media access in criminal courts

On 6 October 2025, changes to the Criminal Procedure Rules came into force requiring parties applying for discretionary reporting restrictions in criminal cases to notify the media of such applications.

The changes expressly require notification of the media as soon as reasonably practicable, in place of the previous provision where the media only fell to be notified as an interested party.  The amendments aim to secure more consistent practice and to better equip the media to challenge proposed restrictions which they believe fall short of the threshold for imposing limits to open justice.  The amendments only apply to discretionary reporting restrictions and do not affect automatic reporting restrictions which the court has no power to vary or remove.  

Tattersall v Tattersall: failure to establish serious harm

On 8 October 2025, Mrs Justice Collins Rice handed down judgment in Tattersall v Tattersall granting the Defendant's strike out and/or summary judgment application in respect of the Claimant's claim in libel.  The claim concerned a single Facebook post in the context of a family dispute, carrying a meaning that (1) former mutual friends of the parties had taken the Claimant's side, (2) the Claimant had attempted to deprive the Defendant of her home and (3) had lied about the Defendant (with only the meanings (2) and (3) held to be defamatory).

The Defendant's application was founded on the fact the Claimant's pleaded case on serious harm relied on the Claimant’s own distress and subjective reaction to the post and did not set out a coherent basis on which serious harm could be established in line with the objective test required in Lachaux [29].  Such defects were incapable of remedy given the lack of cogent evidence available to demonstrate that readers thought less well of the Claimant "at all, or seriously so" [46], instead the evidence only focused on the Claimant's subjective views on the consequences of the post (such evidence only to be considered on assessment of quantum).

Collins Rice J placed weight on the Claimant's confirmation she had no intention of amending her pleading to address the deficiencies and that no further evidence in respect of serious harm would be available.  In the circumstances, the Court had all the available evidence that was going to be advancedand was therefore "unusually well-placed at an interlocutory stage" to assess the final merits of the claim[43].

The Defendant's alternative submissions that the claim fell to be struck out as an abuse of process were not considered in full.  However, the Court noted it was not in the interests of justice (nor the Claimant's interests) to pursue proceedings over a personal grievance [60].

Successful appeal of conviction for man who burnt a copy of the Quran

On 10 October 2025, Southwark Crown Court allowed Hamit Coskun's appeal against his conviction for a religiously aggravated public order offence after burning a copy of the Quran outside the Turkish consulate.

In recognising the protections afforded by Article 10, particularly with respect to political speech, the Court acknowledged that "insulting conduct is not sufficient" to form the basis of any inroads into this right [34].  The Court also considered the particular factors of Mr Coskun's conduct which meant it did not cross into the realms of criminality, including (1) his conduct was merely generalised protest and not aimed at particular individuals, (2) was located in front of the consulate, being an established site for political protest and (3) was of a short duration. 

Lawrence & Others v ANL

On 10 October 2025, Mr Justice Nicklin delivered a judgment in Lawrence & Others v Associated Newspapers, the on-going proceedings against Associated Newspapers which allege unlawful information gathering.  Nicklin J addressed the Claimants' application to amend their Particulars of Claim, the Defendant's cross-strike out application and the permissible scope of the litigation.

The Defendant succeeded in substantially narrowing the proceedings. The Court accepted its argument that “propensity” or “generic” evidence, suggesting misconduct by one journalist implies wrongdoing by others, was inadmissible unless directly connected to the individuals accused.  Citing O’Brien, the Court held that such evidence must be relevant and "logically probative", not merely suggestive of institutional culture [19 – 22].  The Court also struck out the so-called “Ward Allegations”, concerning a 1992 alleged 'burglary' relied upon as propensity evidence.  Nicklin J held that "the Claimants' insistence on maintaining the Ward Allegations as part of their case reflects a continued and fundamental misunderstanding of the proper scope of this litigation" on the basis (1) the Claimants do not allege any particular link from this incident to any Claimant or particular journalist and (2) the allegation was disproportionate to investigate in any event [45 - 49]. The judge determined that litigation must be conducted proportionately, with focus on specific, provable allegations rather than sweeping assertions [22, 39]. The trial is listed for January 2026.

ECHR: disbarment of lawyer violated Article 8 and 10 rights

On 7 October 2025, the European Court of Human Rights (ECtHR) determined the disbarment of human rights lawyer Yalchin Imanov by Azerbaijan violated both his Article 10 and Article 8 rights. 

Disciplinary proceedings in 2019 resulted in Mr Imanov being disbarred.  He was found to be in breach of his professional obligations after statements he made to the press regarding his client's alleged mistreatment in Gobustan Prison were determined to be "unsubstantiated".   

The ECtHR found a clear and unjustified interference with Mr Imanov's Article 10 rights. In particular, it recognised the public interest in speech which relates to, or makes complaints about, public officials particularly where these statements concern persons under control of such officials, such as prisoners.  The Court acknowledged the strength of the meaning of Mr Imanov's statements, which called into question the professionalism of targeted individuals. However, Mr Imanov's right to freedom of expression outweighed the need to protect the relevant individuals' rights to reputation, particularly in circumstances where Mr Imanov was fulfilling his duty "in his capacity as a lawyer" requiring him to "protect the interests of his client by using all the means provided for by the law" [45].  The ECtHR also recognised Mr Imanov's statements were not baseless given he had the benefit of a statement from his client and evident signs of ill-treatment.

In respect of Article 8, alongside the background above, the ECtHR considered the disproportionality of the interference in circumstances where disbarment represented the "harshest disciplinary" sanction available with "irreversible" consequences on a lawyer's professional life [67].  

Advocate immunity

On 8 October 2025, the Court of Appeal handed down judgment in XGY v Chief Constable of Sussex Police & CPS where it re-instated the County Court's earlier strike out decision. The case arose after XGY’s confidential address was inadvertently disclosed in open court by a CPS advocate during a bail hearing.  XGY brought claims against the Chief Constable and CPS under the Human Rights Act 1998 (HRA) and Data Protection Act 2018 (DPA), and for misuse of private information and breach of confidence.

At first instance, Her Honour Judge Brownhill struck out the claims, holding that both the police and CPS were protected by the common law principle of advocate immunity. On appeal, Mr Justice Ritchie disagreed, holding that such immunities required case-specific justification.

The Court of Appeal, however, allowed the CPS and police's appeals in full.  The Court set out the principles of core immunity, which exists to protect the administration of justice by ensuring those involved in proceedings (including the parties themselves, witnesses, advocates and judges) have unfettered freedom of expression.  In contrast to Ritchie J's findings, the Court also determined (1) that immunity must be foreseeable and should not be determined on a case-by-case basis [30, 64 – 65] and (2) that the principle is not displaced by either the HRA or DPA [75 – 76].

Whilst expressing sympathy for XGY, the Court determined that public policy prohibited the availability of a remedy in the circumstances [99].

Ofcom's update on its ongoing enforcement activity

On 13 October 2025, Ofcom published an update into its ongoing enforcement activity. The update flags one investigation which has proceeded to a fine and other investigations which have concluded following the service's engagement with Ofcom. 

Ofcom imposed a fixed penalty fine of £20,000 on 4chan in respect of its failure to respond to two statutory information requests.  Ofcom's information requests required 4chan to supply (1) its Illegal Content Risk Assessment and (2) qualifying worldwide revenue.  4chan is now required to take immediate steps to comply.  Until the requested information is provided, 4chan will be subject to a daily rate penalty of £100 per day (for a maximum of 60 days).  4chan, a US-based tech company, is currently challenging the extra-territorial scope of the Online Safety Act (see discussion in our previous Take 10).

Meanwhile, Ofcom is not taking further action in respect of 1Fichier.com and Gofile.io's potential breaches of their duties to protect users from encountering child sexual abuse material (CSAM).  The platforms demonstrated "willingness to make timely improvements to the design and operation of their services" and implemented perceptual hash matching technology, which Ofcom recognises in its Codes of Practice as the recommended measure to detect and remove CSAM. 

Also under Ofcom's CSAM enforcement programme, Ofcom has ceased enforcement activity into four file-sharing services for a failure to prevent UK users accessing their sites.  The services implemented geo-blocking of UK users which Ofcom noted "significantly reduced" the likelihood UK users would be exposed to harmful content.  However, a similar investigation remains ongoing in respect of an online suicide forum.  Whilst the platform has implemented geo-blocking and re-designed its service to prevent access by UK users, the investigation remains open whilst Ofcom monitors the impact of the measures.

Digital Services Act: enforcement of rules on protecting minors online

In other online safety related updates, on 10 October 2025 the European Commission (EC) announced the steps it has been taking to protect minors under the Digital Services Act.

The EC has sent information requests to certain service providers regarding their age verification measures and their prevention measures to stop minors accessing illegal products and certain content on their services.  For example, the EC has requested information from Snapchat on how it enforces its terms of service which prevent use by under-13s and on features it has implemented to prevent the sale of illegal goods to children on the platform.  Similarly, the EC has requested information from (1) YouTube in respect of its age assurance and recommender system and (2) the App Store and Google Play in respect of their app age ratings and their measures implemented to prevent users downloading illegal or harmful apps.

Smaller online platform compliance will be monitored by the European Board for Digital Services' Working Group alongside national competent authorities.  Such platforms will be categorised in accordance with the risk they pose to children and monitored using tools which are yet to be developed to ensure consistent enforcement approaches across the EU.

Separately, the EC has published its second EU age verification blueprint, which builds on the earlier blueprint published in July 2025, designed to assist platforms with developing age-verification measures.  The revised blueprint includes the use of passports, identity cards and eIDs to establish proof of age.  The blueprint is set to be developed with further privacy measures by the end of 2025, which will be followed by Member State specific implementation guidance.

Quote of the fortnight

"One of the precious rights that affords us is to express our own views and read, hear and consider ideas without the state intervening to stop us doing so. The price we pay for that is having to allow others to exercise the same rights, even if that upsets, offends or shocks us.”

R v Hamit Coskun (Southwark Crown Court, 10 October 2025, Bennathan J) at [3].