Take 10 - 3 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.

The Spectator succeeds on serious harm and truth 

On 5 August 2025, Mr Justice Johnson comprehensively dismissed a defamation claim issued by Mohammed Hijab (a YouTube content creator with over 1.3m subscribers) against The Spectator and Douglas Murray. 

The claim related to an article published in September 2022, authored by Douglas Murray, in which the Claimant's conduct during the 2022 civil unrest in Leicester was criticised. The unrest was largely between the local Hindu and Muslim communities of Leicester and escalated after a cricket match between India and Pakistan in August 2022.  The article – which describes the Claimant as a man who rotates between presenting himself as a reasoned interlocutor and a street agitator – alleged that he whipped up his followers on the streets of Leicester by, among other things, making derogatory comments about Hindus by reference to their belief in reincarnation.  The Claimant argued that he was not talking about Hindus generally but specifically the "Hindutva" who he says were responsible for the violence in Leicester.

After a four-day trial in July 2025, Johnson J found that the Claimant failed to establish that the article had in fact caused, or was likely to cause, serious harm to his reputation. In rejecting the Claimant's case on serious harm, Johnson J referred to various factors including the significant views of the Claimant's own YouTube video of his speech in Leicester, which exceeded the number of readers of the article as well as the lack of credible evidence to substantiate his claim. 

Johnson J further held that the Defendants succeeded in their truth defences. He found that the Claimant's speech, which he determined was aimed at Hindus generally and was made to a "large group of excitable and engaged masked men", exacerbated the tensions in Leicester and that the Claimant's "innocent" explanations for his conduct did "not withstand scrutiny".  RPC acts for The Spectator.

Noel Clarke loses libel claim against The Guardian

On 22 August 2025, following a six-week trial earlier this year, Mrs Justice Steyn dismissed Noel Clarke's libel claim against the Guardian. The claim concerned 8 articles between April 2021 and March 2022 reporting allegations of sexual harassment, bullying, and misconduct made by 20 women.

The Guardian admitted that one of the articles met the threshold for serious harm.  However, Steyn J agreed with the Guardian that, by making his case on serious harm on a collective basis across the articles complained of, Clarke failed to properly plead his case or adduce evidence of harm attributable to each article.  As a result, he did not satisfy s.1(1) Defamation Act for the seven other articles so his claim failed in respect of those. 

For the remaining article, the Guardian's defences of truth and public interest succeeded and the claim was dismissed.  Steyn J found that the allegations the Guardian had reported on were substantially true, having regard to the extensive witness and documentary evidence.  In respect of the public interest defence, Steyn J accepted that the article concerned matters of public interest, including the abuse of power in the television and film industry to subject women to sexual harassment, mistreatment and bullying. Steyn J found the Guardian's belief that publication was in the public interest was "undoubtedly reasonable". The allegations were presented in a "measured and accurate way", with Clarke's individual responses to each allegation positioned in the article so as to allow readers to draw their own conclusions.  The Guardian's investigation was found to be thorough, including careful measures to prevent source contamination and "going to great lengths" to test the credibility and verify the allegations.  While Steyn J accepted some of Clarke's evidence, she concluded that he was not a credible or reliable witness overall and found that his allegations of an unlawful means conspiracy against him "lacked any proper foundation". 

Bukhari v Bukhari: Ex-Pakistani politician wins libel and harassment claim against cousin

Last month, Deputy High Court Judge Aidan Eardley KC gave judgment in favour of former Pakistani politician, Zulfi Bukhari, in the libel and harassment claim brought against his cousin, Tauqeer Bukhari.

The claim concerned 249 tweets posted by the Defendant between September 2019 and March 2020. 40 of the tweets were relied on in the libel claim, having been found to be defamatory statements of fact following a preliminary issues trial.  The tweets alleged that the Claimant (and his father) were corrupt and had taken part in theft, fraud and other illegal activities. The Claimant advanced an inferential case on serious harm based on his existing reputation, high profile in the UK Pakistani community, the seriousness of the allegations and extent of publication. 

Eardley DHCJ accepted the "serious" nature of the allegations and that readers would understand the Defendant to be a close relative of the Claimant with privileged access to inside knowledge that formed the basis of the allegations. However, the "repetitive and obsessive" nature of the posts and the "fast-moving, conversational world" of social media meant some readers would be reluctant to rely on the bare assertions. The Judge also considered the Defendant's low follower count, the limited engagement (likes, reposts, views) with most of the posts and the uncertainty on whether readers were within the jurisdiction or abroad.  In these circumstances, only 8 of 40 publications were ultimately found to satisfy the threshold for serious harm. The Judge also found liability in harassment.  While the Claimant should have "broader shoulders than others" given his public profile, the Judge said no-one could reasonably be expected to tolerate "this relentless torrent of abuse".

The Judge awarded £40,000 in damages in respect of the 8 libelous publications and a separate award of £3,000 for harassment, given the "limited overlap between the distress caused" by each cause of action. The harassment award was limited to reflect that the court could only award damages for the distress the Claimant experienced during the limited time he was in the jurisdiction. The Judge refused to grant an injunction as the Defendant was found to have ceased his posting about the Claimant.

Court of Appeal considers the threshold for viable data protection claims 

On 22 August 2025, the Court of Appeal unanimously handed down its appellate decision in Farley and Ors v Paymasterrepresenting a significant departure from earlier authorities by lowering the bar for a claimant to bring a viable data protection claim.

At first instance, Mr Justice Nicklin had dismissed the vast majority of the 432 claims brought in response to annual benefit pension statements being sent to outdated and incorrect addresses (see our summary in a previous edition of Take 10). 

The key issues on appeal were the "Compensation Issue" and the "Jameel Issue".

The Compensation Issue concerned whether the Court could require the Appellants to overcome a “threshold of seriousness” to recover compensation for non-material damage, such as distress (derived from the Supreme Court decision in Lloyd v Google).  With reference to recent CJEU decisions, the Court of Appeal rejected the Respondents' submissions that such a threshold is an essential ingredient of a viable data protection claim.  The Court distinguished the proceedings from Lloyd v Google whichspecifically concerned the interpretation of "non-trivial" in order to assess damages under s.13 of the former legislation (the Data Protection Act 1998), in respect of which the GDPR was not in issue.  The Court found that claims for non-material damage can be brought for "various forms of emotional harm".  However, a claimant's fears must be (a) "well-founded" as opposed to based on hypothetical risk, and (b) not merely represent "fleeting…reactions" such as "irritation or "annoyance".

In respect of the Jameel Issue i.e. whether the claims constitute an abuse of process of the Jameel variety, the Court held that the modest scale of likely recovery in a claim cannot by itself be sufficient to justify dismissal of the claim.  Instead, the court must consider all the circumstances of the case in determining whether it amounts to an abuse, including the issues in the case, the procedural context in which it is brought, the claimant's conduct of the litigation, their objectives in pursuing it, and the equality of arms (or lack thereof).

Court of Appeal clarifies derogations to open justice

On 28 August 2025, the Court of Appeal granted an appeal in PMC v Cwm Taf Morgannwg University Health Board.  The appeal concerned an application made by the Appellant, who is a disabled child, for an anonymity order in personal injury proceedings brought against the hospital with conduct of his care.  Prior to making the application, the Appellant's identity had previously been published. 

At first instance, Mr Justice Nicklin refused to derogate from the principle of open justice in order to grant the requested anonymity order. Nicklin J relied on the dictum of Lord Sumption in Khuja v Times Newspapers Limitedholding that the Court lacks the "inherent power" to impose restrictions on what takes place in open court, particularly given the Appellant's identity was already in the public domain.

The Court of Appeal held that Khuja should not be the preferred authority to determine the necessity of derogations to open justice in this instance.  Importantly, the Court considered that it does possessed an inherent power to depart from the principle of open justice in civil or family court proceedings where "strictly necessary" in the interests of justice.  The Court cited the structured approach the Supreme Court devised in Abbasirequiring it to (a) consider the balancing of rights, (b) whether the restriction in question pursued a legitimate aim, and (c) whether the interference is necessary in a democratic society, against the backdrop of open justice being the starting point. 

The Court of Appeal allowed the appeal, holding that granting a prospective anonymity order was "clearly and strictly necessary" in light of, in particular, the Appellant's "extreme vulnerability" and the "serious infringement"to his Article 8 rights if his medical details, family and financial circumstances were reported in the media alongside his name.  The Court noted that the prospective anonymity order would not prevent the media reporting on future open hearings altogether, including on public interest matters such as the Defendant's conduct and the events which led up to the injury.  Prior reporting was also not considered to be "a reason to refuse the Claimant a modicum of protection at this crucial stage of his personal injury claim". 

Court of Appeal dismisses jurisdiction argument as "an affront to common sense"

On 22 September 2025, the Court of Appeal unanimously held that the court is able make a range of orders in respect of an injunction, including to award costs, even in the absence of a claim form being issued by the applicant. 

The Appellant (the founder of a nationwide cosmetic surgery chain, Signature Clinic) took issue with statements made about Signature on social media, which he alleged were defamatory and were made by the Respondent under an alias. In July 2023, the Appellant filed a defective Form N16A in the County Court for an interim injunction under the Protection from Harassment Act 1997. In spite of the Respondent (who was self-represented at the time) providing evidence denying that she was the alias and that the injunction sought would damage her business, an interim injunction was granted "forbidding" her from posting "or…encouraging others to post" or being "involved in any social media groups actively posting comments or remarks considered to be defamatory against [Signature] or its staff present or past". No claim form was issued at the time the injunction was granted or subsequently.

The injunction lasted for 7 months, until the Respondent applied to discharge it, and sought damages and costs. On receipt of that application, the Appellant accepted that the injunction should be set aside but argued the court lacked jurisdiction to deal with consequential matters because of the lack of "proceedings" in the absence of a claim form. The decision was unsuccessfully appealed.  The Court of Appeal, hearing the second appeal, also dismissed the Appellant's position, concluding that an application for an injunction issued under CPR Part 23 prior to a claim form constitutes "proceedings".  Alternatively, CPR r. 3.10 would allow the court to "remedy" the "error of procedure" in relation to the type of application form used (in this case treating Form N16A as a Part 8 claim form).

The Court of Appeal also described the underlying injunction itself as "deeply misconceived" given (a) it was "well-established" that an interim injunction is unavailable in defamation actions where a defendant seeks to defend the defamatory imputation, (b) the County Court does not have jurisdiction to hear any action in libel or slander unless the parties agree otherwise, (c) the terms of the injunction were "vague and almost certainly unworkable", and (d) the Appellant lived in Scotland so the English court lacked jurisdiction under the PfHA 1997.  RPC acts for the Respondent. 

Disclosure of criminal suspects' ethnicity and nationality details

On 12 August 2025, interim guidance from the National Police Chiefs’ Council and the College of Policing came into force, which allows police forces to confirm information related to the ethnicity and/or nationality of suspects in certain circumstances at the point of charge (the Interim Guidance).

The Interim Guidance permits the publication of ethnicity and/or nationality information of the suspect or defendant, where this information is known or recorded in "high profile or sensitive investigations or operations" and there is:

1. a "policing purpose" in publishing such information;
2. relevant risks including impact on public safety i.e. increased community tensions (in particular, where attributed to misinformation); or
3. "significant" media or social media interest.

The Interim Guidance also requires forces to "proactively release" information where: (a) the crime or incident is of a serious nature, (b) the incident has already been reported in the media or on social media, or (c) for public reassurance, albeit the information will only be provided contemporaneously with tiered decision-making requiring approval from the most senior investigating officer. 

This marked increase in the types of information police forces are directed to disclose at the point of charge has been prompted by previous incidents where inaccurate details of a suspect's nationality and/or ethnicity have circulated online.  Final guidance will be included in the revised Media Relations guidance, expected in Autumn 2025, coinciding with the expected publication of the Law Commission's review of contempt of court.   

OSA update

Two US-based tech companies operating the online platforms, 4chan and Kiwi Farms, have filed a legal challenge against Ofcom in the US federal court. The heart of the challenge is the extra-territorial scope of the Online Safety Act 2023 (OSA). Specifically, the Claimants allege Ofcom has "committed unlawful acts by sending threatening communications to US-based internet companies" and that Ofcom's enforcement of the OSA infringes their rights under the US constitution. Both providers assert that they have "no presence, operations or infrastructure" outside of the "territorial limits" of the US.  The companies seek declarations that Ofcom's attempts to serve the companies were invalid and that Ofcom's orders are unenforceable in the US, as well as a permanent injunction to prevent Ofcom from attempting to enforce the OSA in the US.   Ofcom has said it's aware of the lawsuit and that "under the [OSA], any service that has links to the UK now has duties to protect UK users, no matter where in the world they are based".

Meanwhile, in July and September 2025 Ofcom launched investigations into 56 pornography websites across a number of service providers to consider whether the companies have implemented "highly effective age-assurance" measures for UK users.  It has issued information notices to a number of companies (including several incorporated outside of the UK) and on 18 September, issued a provisional notice of contravention to Itai Tech Ltd after concluding there were "reasonable grounds to believe" it was failing to comply with the age assurance requirements under section 81 of the OSA.  

New legal duties in force to protect freedom of speech in universities

On 1 August 2025, the government announced new measures to promote freedom of speech and academic freedom within universities. The measures include an enhanced legal duty on higher education providers to '"actively promote" freedom of expression, including by safeguarding academic staff's jobs, privileges and opportunities for promotion.  The duty is, however, limited to steps which are "reasonably practicable".  Other measures include banning non-disclosure agreements in respect of university misconduct. 

The measures are introduced as further provisions under the Higher Education (Freedom of Speech) Act 2023, which already require higher education providers to implement "robust" codes of practice and give the Office for Students fining powers for complaints over free speech (see our discussion in an earlier edition of Take 10 here).

Supreme Court weighs in on the public interest balancing exercise for Freedom of Information Requests 

On 23 July 2025 the Supreme Court handed down judgment in Department for Business and Trade v Information Commissioner, a case concerning the "public interest" balancing exercise under s.2(2)(b) Freedom of Information Act 2000 (FOIA) applied by public authorities receiving freedom of information requests.  The right to receive information is subject to a number of exemptions e.g. where disclosure would be likely to prejudice the UK's international relations or ongoing government research.  Certain exemptions require the public authority to weigh up the public interest in maintaining the exemption against the public interest in disclosing the information.  The Supreme Court was asked to consider whether, if a public authority relies on more than one qualified exemption, the public interest in maintaining each exemption could be aggregated, or if the balancing exercise must be conducted separately for each exemption.  The Department for Business and Trade argued in favour of the aggregated approach whereas the ICO favoured the independent approach. 

By a 3-2 majority, the Supreme Court concluded that where multiple qualified exemptions apply to the same piece of information, the cumulative approach should be followed. It reasoned that these exemptions were intended by Parliament to reflect various aspects of the public interest in disclosure so they should be viewed holistically. The majority Judges found this was the more workable and effective approach which saved the "mental gymnastics" and "minefield" of potential errors when taking the independent approach. The dissenting judges argued that the complexities of the FOIA's wording and exemption structure favoured the independent approach. They expressed concern of the "real risk" of decision makers taking a "broad view" of the need to disclose information rather than carefully weighing up the individual interests and how, if at all, that affected the overall balance.

Quote of the fortnight

"This judgment is a deserved victory for those women who suffered because of the behaviour of Noel Clarke. Going to court is difficult and stressful, yet more than 20 women agreed to testify in the High Court, refusing to be bullied or intimidated…It was important to fight this case. This was a deeply researched investigation by some of the Guardian’s best reporters, who worked diligently and responsibly. The judgment is clear that our investigation was thorough and fair, a template for public interest journalism."

Katharine Viner, Editor-in-Chief of the Guardian on Noel Clarke v Guardian News judgment

Legal 500

We are very pleased to say that we have maintained our top-ranking across the media categories, along with receiving a brand-new ranking for 'Media: Film & TV' in this year's Legal 500. We're grateful to our clients and contacts who took the time to speak to Legal 500 for the rankings and for the very kind feedback about the team.