Take 10 - 27 March 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."

Landmark SLAPPs judgment  

On 11 March 2026, Mrs Justice Collins Rice handed down judgment in Kamal v Tax Policy Associates Ltd.  The case is the first court-mandated SLAPP pursuant to the Economic Crime and Corporate Transparency Act 2023 (ECCTA).

In determining whether the claim was a SLAPP pursuant to s.195 ECCTA, the Court explored whether the Claimant's conduct was intended to cause distress "beyond that ordinarily encountered in the course of properly conducted litigation".  Collins Rice J determined the Claimant's intention was to interfere with the Defendants' journalism "beyond his arguable entitlements as a defamation claimant" [217].  In reaching this assessment, the Court noted the "chilling effect" of various factors, including the Claimant's purported requirement to access the Defendants' subscriber base and therefore compromising proper journalistic source protection [188, 217], disproportionate attempts to compel the Defendants to publish particular documents or statements (including an attempt to recognise the Claimant as "the country's leading tax barrister" [190, 201]) alongside failing to discharge duties of full and frank disclosure in respect of an injunction application, an inflated claim valuation and oppressive inter-partes correspondence. 

Collins Rice J noted that whilst the Claimant demonstrated intentional conduct, a lesser standard of recklessness or wilful disregard could be sufficient [220]. 

Under CPR 3.4(2)(d) (the new provision put in place pursuant to s.194 ECCTA), the Court held the Claimant had not demonstrated the claim was more likely than not to succeed at trial: his malicious falsehood claim lacked the particularity required to proceed [46], and he had no real prospect of defeating the Defendants' honest opinion defence to his libel claim [103]. Given the intentionality of the Claimant's conduct, the claim's inherent defects and that no good reason was presented for it to advance to trial, the Court would have exercised its discretion to strike out the SLAPP if it were necessary (it was not owing to the Defendants' concurrent strike out application pursuant to CPR 3.4(2)(a)-(c) which succeeded) [228].  

Judgment on preliminary issues in Paul Sculfor and Ors v MGN 

Following the trial of a preliminary issue in Sculfor & Ors v MGN, the Court has dismissed four of the claims on grounds that they are time-barred. Following his 2023 judgment in Sussex & Ors v MGN, in which Fancourt J found that two claims were time-barred, certain remaining claimants sought to distinguish their claims on the basis of different fact patterns and the Court ordered a trial of those matters as a preliminary issue, selecting five claims as test claims. The five Claimants also advanced a new 'counterfactual' case which had not been advanced at the 2023 trial. This was based on the argument that if they had consulted solicitors more than six years before issue, they would have been advised not to issue a claim and therefore time had not started to run.

The Judge held that MGN's limitation defence succeeded in four cases.  The four Claimants could not rely on s.32 of the Limitation Act 1980 to overcome the limitation defences due to a combination of their actual and constructive knowledge, i.e. they either knew or could with reasonable diligence have discovered MGN's concealment of its wrongdoing (for the purposes of the preliminary issue, MGN had conceded such concealment). The fifth Claimant, Paul Sculfor, a former male model, overcame MGN's limitation defence.  The Court found that he was causally misled into believing that specific family members and friends were the source of the articles complained of; he had heard very little about the phone hacking scandal due to his exceptional circumstances; and he had no connection or conversation with anyone who believed they had been hacked or had brought a claim. His claim will therefore now proceed to a hearing on its merits.

The Court dismissed the 'counterfactual' case, holding it was irrelevant: there is no requirement in s.32 for prospective claimants to obtain legal advice before time starts to run and the matter of whether a solicitor is willing to act under a CFA has no impact on whether a claimant could with reasonable diligence discover sufficient facts to appreciate they had a 'worthwhile claim'.  RPC acted for MGN.

Article 10 a "strong factor" in Norwich Pharmacal decision 

On 13 January 2026, the High Court handed down judgment in Tooley v Associated Newspapers and Guardian News & Media(a claim for malicious falsehood and libel brought against Associated Newspapers (ANL) and the Telegraph (TMG)) dismissing an applicationfor a Norwich Pharmacal Order (NPO) made against the third party respondent, the Guardian (GNM).  The judgment has only recently been made available.

The Claimant sought disclosure from GNM regarding the identity of a source alleged to have leaked confidential family court material. The identity of the source had according to the Claimant been disclosed verbally, yet the Claimant sought GNM's written confirmation [9].

Mrs Justice Heather Williams considered the test to grant an NPO as clarified in Davidoff v Google.  The Judge considered that the first and second conditions (requiring (1) a wrong to have been carried out and (2) a need for the NPO to enable action to be brought against an ultimate wrongdoer) were "just about" made out. The Court considered that, in respect of (1), "there was some potential" that private information related to the family court proceedings was shared whilst it was confidential [34-35], and in respect of (2), considered the delay the Claimant could face if obtaining the information via alternative means (by the ICO and/or a data subject access request) albeit it still doubted whether this met the "strict threshold of necessity" [40-41]. 

However, the Court held that the third condition was not met.  It held GNM was not properly mixed up in or facilitated the alleged wrongdoing given GNM was a mere recipient of the relevant information and did not take steps to publish [43].  Even if the three threshold conditions had been met, the Court would not have exercised its discretion to grant the NPO given the apparent weakness of the Claimant's underlying claim and, in particular, the public interest in "maintaining the confidentiality of journalistic sources".  The Court held that Article 10 was a "strong factor" in GNM's favour [49-50].

Similarly, on 23 March 2026, Mrs Justice Steyn handed down a judgment in the same proceedings, in respect of various applications made by the Claimant against the Defendants, ANL and TMG. 

The Court refused the Claimant's application for interim relief with reference to the rule in Bonnard v Perryman.  The Court did not agree with the Claimant's submission that the articles were "unarguably" defamatory, and the Defendants confirmed that they intended to plead a truth defence [71].  The Court also noted the terms of the injunction sought were unnecessarily wide, ANL had the benefit of limitation arguments, and unjustified intrusions into Article 10 rights would arise if the application was granted given the Claimant's "lengthy delay" prior to issue [77].  As with GNM, the Claimant's application for an NPO against ANL was rejected, with the Court again reiterating the importance of "strong protection against disclosure of journalistic sources" [96]. 

County Court remains the appropriate forum for simple, low value data protection claims 

On 29 January 2026, the Court of Appeal handed down judgment in Wysokinski v OCS Security Limited (the judgment was only recently made publicly available).  The judgment endorses earlier High Court judgments which indicate that the County Court is the appropriate forum for low-value, straight-forward data protection claims which do not raise matters of significant public importance.

The Claimant alleged unauthorised disclosure of special category data (being the Claimant's medical data) without consent.  On the facts of the case, the Court of Appeal determined that the County Court was the appropriate forum. The Claim Form valued the claim between £15,000 and £30,000 ("well within the ambit of the County Court"), the claim did not suggest any factual or legal complexity which would warrant nomination to a High Court judge (particularly as the Defendant had admitted liability pre-action) and there was nothing to suggest any significant general public importance [31].

Meaning determined in Raphael Berg v Owen Jones

On 12 March 2026, Mrs Justice Steyn gave judgment on the meaning of an article published by Owen Jones on Drop Site News, titled "The BBC's Civil War Over Gaza".  The article analysed the output of the BBC's Middle East Online desk, which the Claimant, Mr Berg, oversees as editor.

The Claimant argued for a factual meaning that the Claimant "is a rogue journalist and editor" with a deliberate disregard for impartiality to present reporting in a manner "falsely favourable to Israel" [17].  The Defendant contended the Claimant's stated meaning was too high, submitting that the article bore an opinion meaning that the Claimant is responsible for coverage on Israel-Palestine "that appears to show bias in favour of Israel, in breach of the BBC's own Editorial Guidelines" [18].  

Steyn J ruled that the article bore an opinion meaning that the Claimant had "consistently failed to meet the BBC's editorial standards…by shaping coverage of the Israel-Palestine conflict" favourably to Israel, including in ways that "promote the government of Israel's narratives" and "fail to humanise Palestinians killed or injured" [32].

In rejecting the Claimant's submission that the article meant the Claimant had a deliberate bias, the Judge commented that whilst a couple of sentences in the article could support this submission, the hypothetical reader's overall impression would be an allegation of unconscious bias [29].

In respect of the opinion finding, the Judge noted that the article is (1) clearly "based on the product of the Claimant's editing and writing", (2) presented as a subjective assessment and (3) cites a body of "extraneous material…which by its nature invites comment". The judgment noted that the reader was permitted to form their own view, particularly given the article was set in the "polarised" context of Israel-Palestine [30]. RPC acts for Owen Jones.

Babbs v ICO – First-tier Tribunal dismisses appeal against ICO and Ofcom 

On 17 March 2026, the First-tier Tribunal (FTT) dismissed a second appeal against Ofcom's refusal to disclose information concerning meetings held with major technology companies throughout the development of its Illegal Content Codes of Practice (Codes) under the Online Safety Act 2023 (OSA). 

The information was sought via a freedom of information (FOI) requestfrom the organisation Clean Up the Internet (of which the Appellant is the lead consultant).  The Appellant's stated purpose of the request was to understand Ofcom's decision-making regarding content of the Codes as the Appellant is concerned that Ofcom "may have been influenced by arguments and information from large tech platforms",which had not been properly scrutinised in the public domain [3].

Ofcom withheld the requested information pursuant to s.44(1) Freedom of Information Act 2000 (FOIA) which determines information is exempt from disclosure if prohibited by statute. Ofcom relied specifically on s.393 of the Communications Act 2003, which provides that information with respect to particular businesses which have been obtained in exercise of a power conferred by the OSA cannot be disclosed without the business' consent, and makes it an offence to disclose such information outside of prescribed circumstances. 

The FTT rejected the Appellant's argument that s.393 should be interpreted narrowly and only apply to information obtained by Ofcom via compulsory powers i.e. not information provided voluntarily [15i].  The FTT held that the reference in s.393 was to the OSA in its entirety (rather than specific provisions) which meant it could be inferred Parliament intended s.393 to apply to all provisions of, and therefore all information received by virtue of, the OSA [24-25].  

Siniakovich v Hassan-Soudey & Ors – Court of Appeal holds that High Court was wrong to grant "backdating" order 

On 4 March 2026, the Court of Appeal allowed the Defendants' appeals in relation to an order which backdated the date of issue for claims in defamation and malicious falsehood.  

The Claimant's filing of the Claim Form and Particulars of Claim was rejected by court staff on the basis she had paid the incorrect court fee.  The attempt to issue the claim was made one day prior to expiry of the limitation period meaning later attempts to re-issue would fall outside.

The Claimant therefore made an application for relief to treat the claim as being issued on the original date of submission under CPR 3.10 and CPR r.3.1(2)(p).  The High Court granted the relief sought.

The Court of Appeal considered two central questions being (1) whether the High Court had the power to backdate the issue; and (2) whether failure to pay the correct court fee on that date meant that the action was not brought in time for limitation purposes.

In respect of (1), the Court of Appeal held that a court does not have power to backdate the issue date of a Claim Form, or to alter the date that an action is brought as this is fixed by statute and does not form part of its case management powers [40 – 44].  

However, in respect of (2), the Court held that the claims were not time barred for limitation purposes and were brought on the original date of issue as the date a claim is "brought" solely relied on the actions of the Claimant (i.e. the date it sought to issue) and not the steps subsequently taken by the Court office in order to process (and therefore its later assessment of whether the correct court fee was paid) [97, 101].  

BBC files motion to dismiss Trump's claim  

On 16 March 2026, the BBC filed a motion to dismiss President Trump's lawsuit in Florida relating to the Panorama episode “Trump: A Second Chance?” (see our reporting in a previous edition of Take 10 for the background).  The BBC seeks to challenge jurisdiction and Trump's defamation pleading.

In relation to jurisdiction, the BBC focuses on the fact the Panorama episode was not broadcast in, or aimed at, the Florida jurisdiction and/or the BBC did not itself make the episode available via other platforms.

The motion also alleges that Trump fails to properly plead both (a) 'actual harm' (relying on Trump's re-election afterthe episode aired, and his increase in votership at the 2024 election compared to the 2016 and 2020 elections) and (b) 'actual malice' (an element required by US defamation law where the plaintiff is a public figure).  In the alternative, the BBC argues that the episode contained expressions of opinion related to "hotly contested events…which have been the subject of extensive controversy and litigation", which is the sort of content that the US constitution offers strong protection. 

Online Safety Act updates: age assurance measures

On 12 March, the ICO published an open letter to social media and video sharing platforms calling for their implementation of robust age assurance measures, citing recently developed technology that more accurately verifies age in order to stop under-13s accessing services. The ICO notes many services are still relying on self-declaration of age as opposed to technologies such as facial age estimation, digital ID or photo matching.

On the same day, Ofcom wrote to Facebook, Instagram, Roblox, Snapchat, TikTok and YouTube with a call for further action, paired with statutory information requests, in respect of the measures they have taken for the protection of children on their services.  The call for action again focuses on the implementation of effective age assurance alongside the steps taken to protect children from harmful algorithms.  Ofcom is expected to report on the platforms' responses in May and has indicated an intention to take enforcement action if it is not satisfied with those responses. 

Quote of the fortnight

"Libel claimants are entitled to seek redress for tortious reputational harm according to the law. To do so is always to challenge defendants' entitlement to say whatever they want about claimants… A libel claimant is fully entitled to test that through litigation, whether or not the publication challenged has to do with economic crime or was made for a purpose related to the public interest in combating it. …What converts a claim into a statutory SLAPP, however…is all about how litigation is conducted."

Mrs Justice Collins Rice in Kamal at [155-156]: