Take 10 - 21 November 2024

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

Non-party access to documents

In the recent decision of Moss v The Upper Tribunal [2024] EWCA Civ 1414, the Court of Appeal has clarified the guidance in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 concerning non-party access to documents.  The case emphasises that whilst non-parties have no default right to documents, the threshold for making a case for them (particularly where the documents are central to understanding the case) is low.

The Appellant had made an application to the Upper Tribunal for parties' "written submissions" (including skeleton arguments) in a case to which he was a third party.  He had been present at the hearing via remote link and had made the application just two days after judgment was handed down.  His basis for seeking the documents was “I am a campaigner and writer with a particular interest in information rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view.” 

Adopting the principles set out in Dring, the Judge refused the application.  Her reasons are set out at [14] and included that the appellant had not shown a "good reason" why disclosure would advance the principle of open justice, that he had not explained why the judgment would be insufficient to provide him with an informed understanding, and that he had previously given a different reason for wanting the documents.

In considering the appeal, Lord Justice Coulson confirmed that there is no "default" right to see every document referred to in a case.  Rather, the non-party must first explain why they seek it and how granting them access will advance the open justice principle. Whilst that is a low threshold (at least in respect of skeletons, or other written submissions which are central to understanding the case), it is still a threshold and it needs to be surmounted.  If that is satisfied, the court must then consider as a second step any countervailing factors such as practicality, risk of harm or prejudice, and proportionality.

Coulson LJ found that the Judge had erred in her approach by concluding that the Appellant had not shown a good reason for access, without setting out the reasons why.  On reconsidering the application, it was found the Appellant had "just" surmounted the threshold and that there were no countervailing factors which should prevent disclosure to him. 

ECtHR judgment over "eyewatering" costs

In ANL v UK (no. 37398/21, 12 Nov 2024), the Strasbourg court found that the UK Government had violated ANL's Article 10 right through its costs regime which, until 6 April 2019, allowed claimants who were successful in publication and privacy proceedings to recover success fees payable under CFAs from defendants. 

The Government had submitted that the UK's costs regime had developed since MGN v UK (no. 39401/04, 18 Jan 2011) (in which it was established that the recoverability of success fees from a media organisation would normally infringe its Article 10 rights), in particular through active costs budgeting, with the effect that that general rule should not apply.  However, the Court was unpersuaded by this as the MGN v UK findings were based on four flaws identified with the regime (set out at [28]) which were not related to controlling base costs, and in any event "it is not clear how significant the [cost budgeting] developments relied on by the Government have been in practice…the  sum awarded [in one of the underlying cases] was still "eyewatering"".

On a separate question related to the recoverability of ATE premiums, the Chamber found that that recoverability also interfered with ANL's Article 10 rights.  However, unlike success fees, there is no general rule tending towards a violation, rather the proportionality of the recoverability of premiums has to be considered on a case-by-case basis.  In respect of the two underlying cases, there had been no violation.  The Court noted that there was no evidence to suggest that the two claimants would have been in a position to pay ANL's costs had their claims been unsuccessful (meaning that ATE not only assisted the claimants but protected ANL in the event it was successful), and that ANL appeared to be well-resourced.  The analysis may therefore be different where a claimant is well-resourced and/or a media defendant under-resourced.

The Government's arguments that the application was inadmissible because ANL had not exhausted its domestic remedies and did not have "victim status" (having settled the underlying claims) were unsuccessful.   The Court recognised that ANL could in theory have challenged the recoverability of the additional cost liabilities domestically but, given the UKSC decision in Frost, Miller and Flood ([2017] UKSC 33), it had no "effective" domestic remedy.  On the question of victim status,  the Court found that media defendants are directly affected by the costs regime from when proceedings are brought against them and could therefore claim to be a victim from that time, subject to the claim against them being dismissed with no costs order at which point they would cease to be a victim.

The issue of pecuniary damage has been reserved.  RPC acts for ANL.

Application of OSA to Generative AI and Chatbots

In an open letter addressed to online service providers, Ofcom has set out how the Online Safety Act (OSA) applies to Generative AI and chatbots. The letter indicates that Ofcom was prompted to provide the guidance having seen multiple incidents of online harm that involved the use of Generative AI.  It seeks to encourage providers to comply now before the duties applicable to user-to-user and search services start to take effect from December 2024.

Examples addressed in the letter include sites or apps with a Generative AI chatbot with 'group chat' functionality (which will fall within the user-to-user rules); sites or apps which allow users to create their own 'user chatbots' (ibid); generative AI tools that enable the search of more than one website or database (which amount to 'search services' under the OSA); and Generative AI tools that can generate pornographic material.

The letter indicates that Ofcom has a supervision team which can assist with Generative AI queries and what websites and applications can do to stay compliant: see enquiry page. 

Times Media secures costs order against Charlie Elphicke

Former MP, Charlie Elphicke has been ordered to pay Times Media more than £200,000 by way of an interim payment towards Times Media's costs of the claim. Mr Elphicke issued libel proceedings in 2019 following the publication of a number of articles in The Sunday Times concerning an allegation of rape made against him. Mr Elphicke discontinued his claim shortly after the exchange of witness evidence in March 2022. CPR 38.6 states that unless the court orders otherwise, a claimant who discontinues his claim is liable for the defendant's costs incurred on or before the date of discontinuance. Though a deemed costs order was in place, Times Media was required to make an application pursuant to CPR 44.2(8) in order to secure a payment on account from Mr Elphicke.  Almost 2.5 years later, and despite Mr Elphicke's position that Times Media should not recover any of its costs, the order for an interim payment has now been made.  RPC acts for Times Media Limited.

SLAPPS debate

MPs have today been debating strategic lawsuits against public participation and freedom of speech through a motion put forward by Lloyd Hatton MP: see Hansard report here.  

Hatton MP explained his concern that "important investigations that are in the public interest [are being] blocked from ever seeing the light of day" through "lawfare", legal threats and intimidation.  Relying on parliamentary privilege in order that "the current legal mess" could be better understood, he and other MPs cited various examples of public interest stories which they said had become "silent stories".   

Hatton MP is calling on the Government to introduce comprehensive anti-SLAPP legislation which would provide the swift dismissal of SLAPPs, protect those targeted from prohibitive legal costs and introduce significant financial deterrents.  The Strategic Litigation Against Public Participation Bill which was progressing through parliament earlier in the year was never enacted owing to the change in government. 

Notional damages treated as a loss

The UKSC has made a decision on costs following its seminal judgment in George v Cannell [2024] UKSC 19 earlier in the year in which it was held by a majority that claimants do not have to demonstrate financial loss to establish liability for malicious falsehood, but that those unable to demonstrate such loss are limited to nominal and (where applicable) aggravated damages (see our summary of the substantive decision here).  The Claimant was ultimately awarded £5 in nominal damages.

Brabners, who acted for the Defendants, have reported that the Claimant's attempt to recover her costs of almost £1.5m, on the basis that she had established the Defendants' wrongdoing, was unsuccessful.  Following an established line of authority, the UKSC treated the award of £5 damages as a loss and subsequently awarded the Defendants the majority of their costs.  

EU AI Act

Following the enactment of the EU AI Act in August, the European Commission (EC) has launched a consultation inviting AI systems providers, businesses and other stakeholders to make submissions related to (1) any clarification required around the Article 3 definition of an 'AI system', and (2) AI practices prohibited under the Act set out at Article 5(1), such as untargeted scraping of the internet. Consultation responses will feed into further guidance to be published by the EC.  The consultation is open until 11 December 2024 and is available here. 

Separately, a draft code of practice which seeks to address key considerations for providers of  general-purpose AI (GPIA) models (as defined at Article 3(63) of the Act) has been published.  The final code of practice is expected to be published in May 2025 with specific rules on GPAI models coming into effect on 2 August 2025.  

Data legislation reform

The government has proposed  some reforms to data protection law through the Data (Use and Access) Bill (DUAB).  The reforms are limited – we have set out those of most relevance to media and content lawyers below:

The DUAB introduces a new lawful basis for processing, namely that processing is necessary for the purposes of a "recognised legitimate interest".  The proposed recognised legitimate interests are set out in Schedule 4 to the Bill and cover specific scenarios related to national security/public safety, emergencies, crime, safeguarding vulnerable individuals and disclosures to controllers carrying out tasks in the public interest.   

The DUAB gives the Secretary of State various powers including to vary the list of recognised legitimate interests, and to designate new special categories of personal data within Article 9 UK GDPR.

The DUAB modifies the time period within which controllers must respond to DSARs at clause 76 to reflect existing ICO guidance and practice.  Time only starts running under the DUAB once the controller has received any information required to verify the data subject's identity and any applicable fee.  The DUAB also clarifies that controllers may extend the standard one month period by up to two months owing to the complexity or number of requests from the data subject, provided notice is given to the data subject. 

Codifying existing caselaw, the DUAB also clarifies that individuals making DSARs are only entitled to such data and other information in response "as the controller is able to provide based on a reasonable and proportionate search".  Some controllers may be disappointed that the DUAB has dropped the last Government's proposal of allowing controllers to refuse to engage with DSARs on the basis they are vexatious.

The DUAB is continuing through Parliament: it had its second reading in the House of Lords on 19 November and is due to go to Committee Stage on 3 December.

Investigation into X post closed

Essex Police have today announced that they have closed the criminal investigation into Allison Pearson, a Daily Telegraph journalist.

Pearson had reportedly been under investigation by the police for an alleged offence of inciting racial hatred in respect of a post made on X. The post was published in November 2023, shortly after the 7 October Hamas attacks on Israel.  It included a photo featuring supporters of the political party Pakistan Tehreek-e-Insaf who were standing beside police officers and waving the party's flag.  Pearson mistook the individuals in the image for Palestinian protestors and suggested that the flagbearers were "Jew haters".  Pearson deleted the post after the error was pointed out to her.

The police visited Pearson at her home and invited her to attend a voluntary interview about the post.  It is understood that they were investigating a potential offence under Section 18 of the Public Order Act 1986, which provides that a person who displays "threatening, abusive or insulting" material is guilty of an offence where the material is likely to stir up racial hatred.  The incident proved controversial and sparked a debate about the policing of speech.

In its statement announcing the end of the investigation, the police said that there would be an independent review of their handling of the matter.

Quote of the fortnight

"SLAPPs are just another name for lawfare, legal threats, intimidation or—simply put—bullying… a select few can abuse our legal system to evade scrutiny and stop important information ever reaching the public."

Lloyd Hatton MP, Debate: Strategic Lawsuits Against Public Participation, Hansard (House of Commons), 21 November 2024