Take 10 - 30 June 2025
Welcome to RPC's Media and Communications law update. This month's edition on key media developments and the latest cases.
RPC's Media and Communications law update
"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."
ECCTA 2023 SLAPPs provisions came into force on 18 June
On 18 June, the amendments to the CPR required by the Economic Crime and Corporate Transparency Act 2023 (the "ECCTA") in relation to Strategic Litigation Against Public Participation cases ("SLAPPs") came into force by virtue of the Economic Crime and Corporate Transparency Act 2023 (Commencement No. 5) Regulations 2025 (SI 2025/718). The amendments were introduced by the Civil Procedure (Amendment) Rules 2025 on 6 April 2025, but we have had to wait for section 194 of the ECCTA to come into force for all purposes through last week's statutory instrument for them to take effect. CPR Part 3.4(d) grants the court the power to strike out a claimant's statement of case if it is a SLAPP claim and the claimant has failed to show that it is "more likely than not" the claim would succeed at trial. While CPR Part 44.2(9) and (10) provides that, when assessing costs in a SLAPP claim, a court may only exercise its discretion to order a defendant to pay a claimant's costs where, in the court's view, the defendant's misconduct in relation to the claim justifies such an order. As a reminder, these provisions are only of relevance to SLAPP claims which fall within the narrow scope provided by section 195 of the ECCTA, i.e. they relate to the publication of information concerning the commission or occurrence of economic crime and thereby fall within the narrow scope provided by the ECCTA.
Ofcom proposes a fee and penalty regime under the Online Safety Act
On 26 June, Ofcom published its policy statement on the implementation of the fees and penalties regime under the Online Safety Act 2023 (the OSA). This follows a consultation process which closed in October 2024. The OSA places regulated tech companies under a statutory duty to pay for Ofcom to provide its new online safety responsibilities, save where an exemption applies, and also provides for financial penalties in respect of information offences carried out by those companies. Both the fees payable and the level of the maximum fine that can be imposed on a regulated company are to be set by reference to the company's "qualifying worldwide revenue" (QWR) among other factors.
For the calculation of fees, Ofcom defines QWR as a firm's global revenue from relevant parts of the regulated services they provide. Fees will only be payable by regulated companies who meet the QWR threshold and Ofcom have proposed that the threshold be set at £250 million. If their proposals are accepted, Ofcom estimates that fees will be equivalent to approximately 0.02 to 0.03% of a regulated companies' QWR each year. This would equate to an annual fee of at least £5 million. Ofcom have also proposed that any regulated companies with less than £10 million of UK revenue be exempt from the fee regime. The Secretary of State is expected to reach a decision on the QWR threshold regime before year-end. Ofcom anticipates that the first invoices under the fee's regime will be issued for payment in Q3 next year.
Ogunkanmi v Chia – remedies judgment in defamation and harassment claim
On 17 June, the Court handed down judgment on remedies for a claim in harassment and defamation (Ogunkanmi v Chia [2025] EWHC 1404 (KB)). The claim relates to a course of conduct from May 2016 by which the Defendant threatened to send damaging messages to the Claimant's family and associates, repeatedly contacted the Claimant and his workplace and continued to do so in breach of bail conditions following criminal harassment proceedings, and subsequently published numerous social media posts in 2018 which alleged rape, the bribery of public officials, drugging, and unspecified child abuse. While the Claimant lives and works outside the jurisdiction, the libel and harassment all occurred within the jurisdiction. Default judgment was entered against the Defendant in February as a result of her lack of engagement in the case.
In light of the default judgment, the court assessed damages on the basis of the Claimant's unchallenged particulars of claim in line with CPR 12.12(1). The Claimant was awarded a global sum of £25,000 in damages for the harassment and libel. The Claimant had argued that he should be awarded damages in line with those awarded in Aaronson v Stones (£110,000) and Blake v Fox (£90,000 per claimant) due to the similarities between the gravity of the libels. However, the Court held that the extent of publication was significantly more restricted than in those cases and had more similarities with Monir v Wood (£40,000) where a tweet alleging sexual abuse had been published to around 1000 people. However, much of the damage suffered by the Claimant had already occurred by the time the defamatory posts were published online and limited evidence of harm had been evidenced. The posts did not come out of the blue but after several years of harassment when people would be unlikely to believe there was any truth in the posts. Further, in respect of the harassment claim, the Court was unable to find more than negligible harm actually experienced within the jurisdiction as, on his own evidence, the Claimant had only conducted three short visits to England since 2016. The Court also awarded injunctive relief to put a stop to the ongoing harassment against the Claimant.
GB News oppose Ofcom's proposed amendment to the Broadcasting Code
GB News has published its response to Ofcom's proposed amendment to Rule 5.3 of the Broadcasting Code to prohibit politicians from delivering news content in any type of programme save where there is exceptional editorial justification. The current rule prohibits politicians from delivering news content in news programmes only. Ofcom's proposals follow the High Court's decision in February to quash two Ofcom rulings against GB News for perceived breaches of its rules on due impartiality for Jacob Rees-Mogg, then a serving MP, delivering news content in two editions of a current affairs programme. The response sets out GB News' strong opposition to Ofcom's proposal stating that the proposed amendment represents an unjustified fetter on the editorial freedom of broadcasters while increasing the regulatory burden on regulated entities and thereby restricting competition and media plurality. Ofcom's consultation on the proposed amendment closed on 23 June, and Ofcom's formal response to the consultation is awaited. GB News' response can be read in full here.
A statement of fact or opinion?
On 20 June 2025, Richard Spearman KC handed down judgment following a preliminary issue trial in the case of Johnson v Helm [2025] EWHC 1546 (KB). The claim relates to a review posted online by the Claimant which made various allegations about the standard of the Defendant's work while fitting a kitchen at his property. The Defendant claimed that the Claimant had "damaged everything", fitted pipes in such a way that they backed up waste from a toilet into the dishwasher and washing machine, negligently cut out the backs of units and "admitted liability" by refunding a deposit paid to him by the Defendant. The parties agreed that the natural and ordinary meaning of those words was (1) "that the Claimant had undertaken the works described and caused the damage described" and (2) as to the words "admitted liability", "that the Claimant had admitted to the Defendant that he had made the errors described and caused the damage described". The parties were agreed that the words complained of were defamatory at common law, so the only issue for determination was whether the words were statements of fact or opinion. The Court found that the words "damaged everything" and "admitted liability" were statements of opinion. In respect of the former, the substance of the review consisted of listing various things the Defendant was said to have done and then expressing views based on those matters before concluding that he was to be "avoided at all costs". The words would therefore be understood by the ordinary reasonable reader as representing the author's shorthand for the perceived effect of the deficiencies listed. As to the latter, it was held to be an observation based on the refund provided rather than any factual admission by the Defendant. The other words complained of, which identified the work conducted and the alleged consequences were found the be statements of fact.
CMA takes steps to improve publishers' interests in UK search services
On 24 June, the Competition and Markets Authority (CMA) announced its proposal to designate Google with 'strategic market status' under the new Digital Markets Competition Regime later this year. The announcement follows an investigation by the regulator during which it heard various concerns including those raised by publishers on the challenges they face in obtaining fair terms and control over how their content is used by Google's search function and its generative AI overviews. If the provisional designation is confirmed, then the CMA would be able to introduce measures to address specific aspects of how Google operates within the UK. The CMA has published a roadmap of potential actions such as introducing controls for publishers to ensure transparency, attribution and choice as to how their content is used in Google's AI services. The CMA will be consulting with interested parties on the proposed designation and the accompanying roadmap over the next month ahead of a final decision to be announced before 13 October 2025.
Getty Images drops direct copyright infringement claims against Stability AI
On 25 June, Getty Images reportedly dropped its main claims of copyright infringement against Stability AI during its closing submissions in an ongoing trial. Getty had alleged that Stability AI had infringed its copyright by using its vast photography archives to train its AI model. While the claim will continue to proceed albeit on a narrower basis, Getty's decision will disappoint many media and creative companies who were hoping that any judgment would provide some much-needed clarity on the balance between the rights of publishers and content creators and the interests of AI developers.
Scottish Court considers whether alleged breach of professional standards in right-to-reply process can be investigated
On 17 June, there was an appeal hearing before the Scottish Inner House of the Court of Session in relation to a decision by the Scottish Legal Complaints Commission (SLCC) to refer a series of complaints made by The Guardian about a Scottish law firm, Levy & McRae, to the regulator, the Law Society of Scotland. The complaints relate to assertions given to The Guardian during the right of reply process of a story into Baroness Mone's connection to the company PPE Medpro which received contracts worth £200m during the Covid-19 crisis. Levy & McRae are said to have repeatedly told The Guardian, under instructions, that Mone had no connection with the business in 2020. However, Mone subsequently admitted that she had been involved and that her husband had received substantial profits as a result. The complaints allege that the firm's conduct in representing Mone had fallen short of professional standards. Levy & McRae argue that the SLCC erred in law by making the referral, as it would be manifestly unfair for the complaints to be investigated since they would have to breach legal professional privilege to mount a coherent defence. Judgment has been reserved.
Data (Use and Access) Act 2025 receives Royal Assent
On 19 June, the Data (Use and Access) Act 2025 received Royal Assent after almost 9 months of parliamentary consideration in its Bill stage. The new Act will amend the Data Protection Act 2018 (DPA), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), and the UK GDPR. Notably, the Act will exempt data controllers from conducting full 'legitimate interests assessments' where the data processing relates to preserving national security, facilitating emergency responses, and allowing safeguarding. Moreover, organisations will now incur a fine of up to £17.5 million or 4% of global annual turnover (whichever is higher) should they breach PECR which is now consistent with UK GDPR sanction levels. This is a significant increase from the previous fine threshold of £500,000. At one stage the draft bill proposed that the wording of Article 12 UK GDPR be amended so that data controllers would be entitled to refuse data subject access requests under Article 15 of the UK GDPR where they were "vexatious" or "excessive" (rather than the current wording of "manifestly unfounded" or "excessive"). Other proposed clauses which would have required the development of regulations surrounding the interrelation between copyright and AI were also removed earlier this year (previously reported here).
Ofcom launches consultation on proposed guidance for Channel 4
Part 3 of the Media Act 2024, which came into force last year, repealed the statutory restriction on the Channel 4 Corporation (C4C) producing 'in-house' content for its main channel, and imposed new duties on C4C through the Communications Act 2003 to enable and facilitate competition for commissions from C4C to make programmes. It also required C4C to publish an annual Statement of Commissioning Policy (SoCP) setting out C4C's proposals as to how it intends to discharge its duties in the year ahead and report on its performance in carrying out the proposals in the previous year's statement. On 20 June, Ofcom opened a consultation on its proposed guidance for C4C on the preparation of its SoCP. In its draft guidance, Ofcom sets out a number of factors which it considers to be relevant to the assessment of whether C4C is fulfilling its new duties. These include: (i) the operational separation between C4C and its in-house production capacity, (ii) the facilitation of fair and reasonable access to commissioners for the purpose of submitting programme ideas, (iii) the procedures built in to ensure fairness and transparency in the commissioning process and (iv) the procedures in place to enable the resolution of disputes in relation to fair competition for commissions. Ofcom is currently inviting views from stakeholders on the consultation until 5pm on 1 August 2025. The final guidance should be published by Autumn 2025.
Quote of the fortnight
"…The proposal would unjustifiably interfere with broadcasters’ editorial freedom to engage politicians in the presentation of non-news programmes…. Audiences value the insight and experience that politicians can bring to public discourse in non-news programmes."
GB News' response to proposed Ofcom changes to the Broadcasting Code.
Brought to you by RPC's Media team
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