Take 10 - 20 February 2025

Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.

Will Trump's presidency impact UK speech laws?

Trump's pro- free speech stance has prompted speculation that his presidency could impact the UK's approach to speech and content regulation. The Telegraph reported that Labour is willing to rework the Online Safety Act in order to avoid prospective tariffs from Trump's administration.  It is understood that the administration does not approve of the Act, in particular its potential impact on speech and the power it gives Ofcom to levy in-scope services (including US tech companies) with huge fines.

The administration's concerns over free speech were recently echoed by US Vice-President JD Vance at the Munich Security Conference where he accused European governments (including the UK) of no longer defending shared democratic values with the US.   Vance indicated that the greatest risk facing Europe "is not Russia, it's not China…[it] is the threat from within".  Whilst Vance's comments have largely been met with criticism, they have been defended by some including Mathias Döpfner, the chief executive of Axel Springer, who praised Vance's "inspiring message" in an interview with the FT.

Speculation that the UK's approach to content regulation may be impacted by  the administration's criticism is perhaps justified, with the UK recently refusing to sign an international AI statement declaration over the potential impact on national security (the US also notably refusing).  Whilst Keir Starmer's spokesperson rejected the suggestion the UK was trying to curry favour through its refusal, the Guardian reported comments from another Labour MP who said “I think we have little strategic room but to be downstream of the US.”

Truth and s3(4) tried as preliminary issues

On 11 February, judgment was handed down in Vince v Bailey.  This is the first decision to come out of various libel claims Dale Vince has brought over comments and reports on an interview he gave to Times Radio on 9 October 2023 in which Mr Vince said "one man's freedom fighter is another man's terrorist", when answering a question related to Hamas.  Mr Vince indicated elsewhere in the interview that Hamas are terrorists and that he didn't support their actions on 7 October 2023. The claim against Lord Bailey concerns comments he made on GB News (in which he said "You've had major Labour Party donors who have called Hamas freedom fighters") and a crowd funding page Lord Bailey launched to support his defence.

The recent decision determined various preliminary issues and a summary judgment application made by Lord Bailey.  Mr Justice Pepperall found both publications to bear the meaning that Mr Vince had called/described Hamas as freedom fighters, and that that was an expression of opinion, the basis of which was indicated in each case.

Lord Bailey's summary judgment application, which sought for the whole claim to be dismissed on the basis of both ss.2 and 3 Defamation Act 2013, was dismissed [118-119].  However, unusually, Pepperall J went on to determine substantial truth and the third condition of s.3 as preliminary issues, which was deemed appropriate because Lord Bailey limited the facts he relied on in his defence to the Times Radio interview.  On that basis, Pepperall J rejected the truth defence but found Lord Bailey had succeeded in establishing that an honest person could have held the opinion that Mr Vince had called Hamas freedom fighters [134-135].  

Subject to any successful appeal, the only issue left to be determined in respect of Lord Bailey's honest opinion defence is therefore s3(5).

Judgment is awaited in Vince v Staines and Vince v Tice, which relate to publications concerning the same interview.  RPC acts for Paul Staines.

Whistleblower protection

An employment tribunal has found that Josie Stewart, who was previously a civil servant for the Foreign, Commonwealth and Development Office (FCDO), was unfairly dismissed by the FCDO after she made disclosures to a BBC journalist related to the government's management of the 2021 Kabul evacuation. The dismissal came after Ms Stewart was accidentally identified as the BBC's confidential source.

The tribunal's further finding that Ms Stewart's disclosures to the BBC were protected pursuant to ss.43B-43H Employment Rights Act 1996 serves as an important reminder that employment rights can protect civil service whistleblowers, including in respect of confidential disclosures to the media. Amongst other issues, it was found that "it was reasonable for the Claimant to go to the UK's public service broadcaster when the relevant information and/or allegations had already been put into the public domain…and government ministers were publicly disputing them" [129]. 

Open justice appeal

On 25 February 2025, the Court of Appeal is due to hear an appeal of Mr Justice Nicklin's decision in PMC v A Local Health Board. 

At first instance, Nicklin J considered the law concerning anonymity orders and in particular the jurisdictional basis for making such orders.  Nicklin J expressed a number of concerns over the Court of Appeal decision in JX MX, a key authority on anonymity orders, including that it appears in some places to conflict with the principles of open justice.  Ultimately, Nicklin J refused an application for an anonymity order made by the Claimant (a child who is suing the Defendant in clinical negligence), putting an emphasis on open justice as the starting point.  It was highly relevant to the analysis that the Claimant had, prior to making the anonymity application, already featured in media reporting on the basis of information shared by his litigation friend. 

Whilst the facts are fairly unique to the case, the appeal decision is one to watch as it may clarify the position in JX MX and impact how courts approach anonymity applications in the future.

Meaning and context

A preliminary issue trial judgment has been handed down in Paisley v Linehan in which the meaning of various comments on an article was determined (the meaning of the article itself having been determined in a decision last year.  The judgment provides helpful analysis around the impact of contextual material on meaning, and in particular whether meaning ought to be determined afresh if the admissible contextual material changes over time.  Deputy Judge Aidan Eardley KC determined that it should be [26], which resulted in this case in two meaning determinations being made in respect of one of the publications complained of: one prior to the deletion of contextual material, and one following that deletion.

The Judge found a combination of meanings which included an allegation of paedophilia being determined as an expression of opinion [53].  The judgment follows recent decisions in which the meaning of similar allegations of paedophilia in comments or on social media have been determined.  Whilst every case turns on its facts and are very context specific, in the decisions of Blake v Fox and Vine v Barton, the determined meanings were held to be factual allegations that each of the claimants in those cases was a paedophile.

Broadcasts reporting "liar" comment not defamatory

In a further preliminary issue judgment handed down on 10 February in El-Saeiti v The Islamic Centre (Manchester) & ors, the High Court determined the meaning of various publications related to evidence that the Claimant had given to an inquiry into the Manchester Arena bombing: (1) a press statement put out by the First Defendant (the Manchester Islamic Centre) which doubted the Claimant's credibility as a witness and suggested his evidence would have been "widely dismissed" had he been cross-examined, and (2) various BBC broadcasts which reported a comment made by the Third Defendant (a trustee of the First Defendant) calling the Claimant a "liar". 

The Court found the meaning of the press statement to be "whilst the Claimant's evidence [to the inquiry] was preferred by the Chair, if he had been cross-examined he would have been found to have given evidence which he knew to be false" [68].  Mr Justice Sheldon further found that the reasonable reader would not know that knowingly giving false evidence is a criminal offence but would know doing so is wrong [69].  The Court found that this was a defamatory expression of opinion.

The Court found that the meaning of the BBC broadcasts was, in each case, "Despite contrary protestations by the Chairman of the Didsbury Mosque, the Imam who had given evidence to the inquiry about political meetings had done so truthfully".  The Court found that meaning was not defamatory at common law and so, notwithstanding the Third Defendant's comment within the broadcasts that the Claimant was a "liar", a claim of defamation could not be made out.

Media Act 2024: Ofcom consultation

Ofcom has launched the latest consultation under the Media Act 2024 relating to the designation of Public Service Broadcasters' (PSBs') Internet Programme Services (ISPs).  Such ISPs currently include BBC iPlayer, ITVX and Channel 4 Streaming.

The Media Act introduces new rules which seek to ensure public service content is available and prominent online in the same way that the prior framework secured for linear programming.

The consultation sets out Ofcom's proposed methods for assessing which IPSs satisfy the conditions under the Act to benefit from the new availability and prominence regime.  It closes on 25 March 2025.

Data (Use and Access) Bill

The Data (Use and Access) Bill had its second reading in the House of Commons on 12 February, having finished its passage through the House of Lords. The Bill aims to regulate various aspects of data access and management, including provisions for accessing customer and business data; verifying individual identities; and maintaining registers for births and deaths. There were extensive discussions on amendments proposed by Baroness Kidron, aimed at safeguarding copyright materials created by the creative industries, reducing protections related to automated decision-making, and establishing a framework for regulating digital ID companies.

It will now be sent to a Public Bill Committee which will scrutinise the Bill line by line and is expected to report to the House by 18 March 2025.

Media organisations seek Prince Andrew's aide's witness statement

Several media organisations, including The Guardian and The Times, have reportedly sought access to various documents, including a witness statement from a senior adviser to Prince Andrew, from the proceedings in H6 v Secretary of State for the Home Department.  The underlying immigration case concerns the exclusion of Yang Tengbo from the UK.

The Special Immigration Appeals Commission heard arguments from the aide's lawyers who are seeking to prevent disclosure of the witness statement which allegedly contains "details of business dealings and relationships" and "highly sensitive" dealings with the UK government department.

The media organisations argued that it was standard for documents cited in judgments to be disclosed because the "public need to understand the issues" and that the aide must have known that his statement would become publicly available.  Judgment is awaited.

Wagatha: costs claim taxing Vardy

The Wagatha Christie proceedings continue with Rebekah Vardy most recently reportedly seeking access to privileged documents from Coleen Rooney. 

Ms Vardy was previously ordered to pay 90% of Ms Rooney's legal costs after losing the case in 2022. Ms Rooney's total costs claim is more than £1.8 million, £302,300.39 of which is VAT. Ms Vardy is disputing that sum on detailed assessment, saying that some of the VAT claimed has already been recouped by Ms Rooney.  Ms Vardy's lawyers have therefore applied for more information about the retainers between Ms Rooney and her solicitors. Ms Rooney's legal team argues that there is no genuine issue and that Ms Vardy's request is a "fishing expedition" and an "attempt to derail" the costs proceedings.  Senior Costs Judge Mark Whalan has reserved judgment.

Quote of the fortnight

“We cannot prepare for the turbulent decades to come by shielding ourselves from inconvenient arguments, wrapping ourselves in comfort blankets of cancellation, or suppressing minority views because they conflict with the beguiling certainty of a majority… we can disagree vigorously while sheltering each other from the abuse and hatred that are so often a substitute for rational opinion."

Lord William Hague during his official admission as the 160th Chancellor of the University of Oxford.