In UK media and information law, 2024 was a year of seismic shifts with courts increasingly grappling with novel legal issues and government and regulators trying to keep up with evolving technologies.

Below we review some of the principal cases and other key developments from the past year which are shaping the media and entertainment sector.

George v Cannell [2024] UKSC 19

The Supreme Court has delivered a landmark judgment on the law of malicious falsehood. It is the first time that the highest court had been asked to consider the effects of s.3(1) Defamation Act 1952, here in the context of a dispute between a recruitment agency and an ex-employee. In particular, the Court addressed whether the statute requires a claimant to prove that they had probably been caused some actual pecuniary damage by the publication of the relevant statement (the so-called ‘historical approach’ applied by the High Court), or if it was sufficient to prove that financial loss was an “inherently probable consequence” of publication (the so-called ‘forward looking approach’ endorsed by the Court of Appeal).

The Supreme Court agreed with the Court of Appeal, finding that the proper approach for cases of malicious falsehood is to ask whether, viewed at the time of publication, the words complained of were likely to cause financial loss to the claimant.

However, the Court also held that, as regards claims for malicious falsehood: (1) claimants can only recover damages for losses actually suffered; and (2) given that it is an economic tort, damages for injury to feelings can only be recovered if they are a consequence of financial loss suffered as a result of the publication.

Our more detailed case note is here. The judgment in full is here.

Blake and Others v Fox [2024] EWHC 146 (KB)

Judgment was handed down in a case that grew out of a Twitter spat between the actor-turned-politician, Laurence Fox, and three other public figures, each of whom had called Fox racist. In turn, Fox called them all paedophiles.

As we commented in our previous update, the early stages of the proceedings brought to the surface interesting discussions of the line between fact and opinion, with the Court of Appeal confirming that tweets describing Fox as racist were statements of opinion, whilst his describing the others as paedophiles were statements of fact.

The judgment provides equally interesting considerations of the question of whether a statement had in fact caused serious harm to the claimant. Some have commented that it is another example of how a court – in assessing the question of causation – can be prepared to consider evidence of the claimant’s own behaviour when determining if they have suffered serious harm, as well as to examine the statements in issue against the wider context of other allegations that may have caused reputational harm (thereby effectively circumventing the effects of the rule in Dingle).

Whilst Mrs Justice Collins Rice acknowledged the “inherent gravity of the ‘racism’ allegations”, she stated that they were “tempered” by the context of Mr Fox not being shy from courting controversy in this area. Therefore, she was not persuaded that the serious harm that Mr Fox claimed to have suffered as a result of the tweets (including being dumped by his agent) was indeed caused by the tweets themselves. Instead, she explained that: “there are very many alternative explanations or sources of causative negative impact on Mr Fox’s reputation in general in the matter of racism, and on his career in particular – his own stimulation of controversy, the hostile views of the profession, the pandemic, his diversion into a political career, and the sheer number of other people who had joined in the debate he had publicly stimulated and taken public exception to his pronouncements as being racist”

The judgment in full is here.

Pacini & Another v Dow Jones & Company Inc. [2024] EWHC 1709 (KB)

The High Court has once again considered the ever-increasing blurring of lines between claims for defamation and those for data protection. The claimants brought a data protection claim just within the 6 years limitation period after an article was written about them for which they had, at the time, threatened a defamation suit. Dow Jones applied to strike out the claim on the basis that it was a statute-barred defamation claim “dressed up” as a data protection claim, and that it disclosed no real or substantial tort (citing Jameel).

The judge expressed sympathy with Dow Jones that much of the correspondence was “strongly suggestive” of the claimants’ concern about damage to their reputation, though found that he could not ignore their evidence that they wished to exercise their rights of erasure under the DPA 2018 and UK GDPR. Therefore, he refused to strike out the claim. He did, however, point to the considerable uncertainty in the existing case law about whether damages to reputation can be recovered in claims other than defamation, stating that “the state of the law on the recoverability of damages for injury to reputation in non-defamation claims is uncertain and in flux” and “requires the attention of an appellate court”.

The judge also confirmed that for data protection claims such as this, which allege that personal data is incorrect, it is appropriate to borrow from the procedure for defamation claims. Therefore, among other things, the Court will (1) determine the ‘single meaning’ of the data in issue by reference to the meaning that the hypothetical reasonable reader would take from a publication, read in its full context; (2) apply the principles for determining the natural and ordinary meaning of words distilled by Nicklin J in Koutsogiannis; and (3) apply the repetition rule (which, simply stated, is that repeating something said by others, potentially countless times, is not itself an excuse or defence).

The judgment in the strike out application is here. The subsequent judgment on the preliminary issue trial on meaning is here.

Harcombe and Kendrick v Associated Newspapers Ltd and Another [2024] EWHC 1523 (KB)

Mr Justice Nicklin delivered judgment in the first half of a split-trial of what he has described as “the most significant piece of defamation that I have seen in a very long time”. It is a case that involves the publication of a series of stories about so-called ‘statin-deniers’ who were reported to be circulating misinformation about the efficacy of the widely-used drug which is prescribed to lower cholesterol.

The judgment is noteworthy in a number of respects: first, it confirms for the first time that peer-reviewed scientific articles attract privilege under s.6(5) Defamation Act 2013; second, it considers in detail the case law on s.15 reporting privilege; and third, it demonstrates the lengths to which a court will go to interrogate the availability of a public interest defence under s.4 Defamation Act 2013.

The judgment in full is here.

Taylor v Pathé Productions Ltd & Others [2024] EWHC 1475 (KB)

The High Court has considered whether the depiction of a university administrator in the film, The Lost King, was defamatory.

The case is noteworthy because the judge was invited to consider the natural and ordinary meaning of the entire film, as it related to the claimant: a relatively novel exercise in the context of a film. In doing so, the judge invoked the notion of the “hypothetic reasonable viewer” and endorsed the approach taken in earlier cases involving television programmes as follows:

“This is not a matter of studying the transcript, which cannot tell you how the words are spoken, in what tone, or with what emphasis. It means watching and listening to … as a whole, bearing in mind that the ordinary viewer will do so only once. The court should avoid over-elaborate analysis and give weight to its own impression”.

Whilst he was referred by the claimant to detailed textual analysis of certain words used in the film by reference to the transcript, the judge made clear that the proper approach is to “focus on the impression that the Film would have left on the hypothetical reasonable viewer, rather than placing undue focus on specific words or scenes”.

Wiggin represented the Defendants. The judgment in full is here.

Harrison v Cameron & Another [2024] EWHC 1377 (KB)

The High Court has offered helpful guidance on the procedure for responding to data subject access requests, confirming that a data subject is ordinarily entitled to the identities of the recipients of the information, and not just the categories of recipients.

The case concerned a director of a company, Mr Cameron, secretly recording threatening calls made by Mr Harrison and subsequently distributing them to a number of friends and family members, as well as some employees of the company. Mr Harrison sought disclosure of all of the names of those to whom the recordings had been sent, which was resisted by Mr Cameron on the basis that (a) the recording fell outside the scope of the UK GDPR/DPA 2018 as it was “in the course of a purely personal or household activity”, (b) Mr Harrison was only entitled to categories of the recipients, not the specific identities; and (c) if their identities were revealed, they would be subjected to “aggressive, intrusive, and unwarranted” conduct by Mr Harrison.

Addressing these various points, Mrs Justice Steyn held that Mr Cameron was not a data controller in his personal capacity, but was acting in his capacity as director of the company in making the recordings. Furthermore, she referred to recent European jurisprudence (in the Austria Post case) to hold that a data subject is entitled to the actual identity of the recipients of the relevant information (rather than just the categories of recipients) unless it is impossible to identify them or the controller demonstrates that the data subject’s requests for access are manifestly unfounded or excessive. However, in this case, the judge agreed that it was reasonable for the data controller to exercise its margin of discretion and withhold the identities of the recipients to “protect family, friends and colleagues from hostile litigation going beyond the exercise of rights under the UK GDPR and the DPA 2018”.

Our more detailed case note is here. The judgment in full is here.

Mueen-Uddin v Secretary of State for the Home Department [2024] UKSC 21

The Supreme Court has handed down a judgment that provides helpful guidance on abuse of process, in addition to acting as a cautionary tale about reporting on foreign convictions where the process may not have been fair.

The case concerned a report published by the Home Office in which Mr Mueen-Uddin, a prominent member of the Muslim community in the UK, was accused of committing war crimes and crimes against humanity during the 1971 War of Independence in what is now Bangladesh. In response to Mr Mueen-Uddin’s claim of defamation, the Home Secretary argued that (a) applying Hunter, his claim was an abuse of process as he was launching civil proceedings as a “collateral attack” on a criminal conviction, and (b) applying Jameel, the claim disclosed no real or substantial tort.

The Supreme Court overturned decisions of both the High Court and Court of Appeal by holding in favour of Mr Mueen-Uddin. Dismissing the argument that his claim was an example of Hunter abuse, the Court held that Mr Mueen-Uddin had not been given the full opportunity to contest his conviction (not least because returning to Bangladesh brought a “real risk of execution”) and that the process by which he was found guilty was not fair. As for Jameel abuse, the Court provided helpful clarification on its application before holding that Mr Mueen-Uddin had “a legitimate interest in vindicating his reputation in this country, where he resides and of which he is a citizen, against an extremely serious allegation made by the government of this country”.

Our more detailed case note is here. The judgment in full is here.

Prismall v Google UK Ltd and Deep Mind Technologies Ltd [2024] EWCA Civ 1516

The Court of Appeal has considered  group actions in the context of misuse of private information claims. In this ongoing dispute related to the handling of patient information by the Royal Free London NHS Foundation Trust, the Court dismissed the claimant’s appeal against the lower court’s finding that each member of the class did not have a realistic prospect of establishing a reasonable expectation of privacy in respect of their medical records or of crossing the de minimis threshold of seriousness in relation to that expectation, nor a realistic prospect of establishing an entitlement to damages for loss of control.

In reaching its decision, the Court of Appeal observed: “We consider that a representative class claim for misuse of private information is always going to be very difficult to bring. This is because relevant circumstances will affect whether there is a reasonable expectation of privacy for any particular claimant, which will itself affect whether all of the represented class have “the same interest””. Like Lloyd v Google before it, this is unlikely to be a death knell to group privacy/data protection actions. However it is another hurdle to claimants in their attempts to bring group claims for the loss of control of personal data.

The judgment in full is here.

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Prince Harry: the latest

It has been another busy year for the Duke of Sussex as he continues his battle on a number of fronts against a number of British media outlets.

The year began with his withdrawing his libel claim against Associated Newspapers Limited over an article that reported on his security arrangements when visiting the UK. The dropping of the case came shortly after he failed in his application to strike out ANL’s defence of honest opinion and for summary judgment and very shortly before disclosure was due to be given.

Shortly afterwards he settled his remaining phone hacking claims against Mirror Group Newspapers after the court ruled last year in his favour in relation to 15 such claims.

Meanwhile, other proceedings continue. A six to eight week-long trial against News Group Newspapers for unlawful information gathering is due to begin very shortly, with the Duke expected to take to the witness box for as long as four days. His and others’ claim against ANL for misuse of private information also continues.

Open Justice

A new ‘Transparency and Open Justice Board’ will focus on ways to modernise the courts’ approach to open justice so that “openness and transparency is at the heart” of what they do. When the Board was announced, it was said that it would pay particular attention to what can be done to increase public and media access, including (a) the possibility of a “careful expansion” of broadcasting hearings, (b) increasing facilities for remote attendance of hearings by journalists, and (c) working with journalists so that they can play their part in holding judges to account and increasing transparency (for example by challenging reporting restrictions).

Since then, the Board has invited views on its proposed ‘Key Objectives’ (see here), centred around what it says are the four fundamental components of open justice: open courts; open reporting; open decisions; and open documents.

Separately and relatedly, a consultation was launched on proposals to update the rules on access to documents by non-parties. The Civil Procedure Rule Committee proposed changes to CPR 5.4C to expand the types of documents that a non-party may obtain without permission of the court to include skeleton arguments, witness statements (excluding exhibits or annexes) and expert reports. The consultation ended in April 2024, but progress was paused as a result of the general election, so we still await a final decision on the matter.

SLAPPs: Private Member’s Bill falls victim to General Election

The ‘Strategic Litigation Against Public Participation Bill’ – intended to broaden the scope of existing anti-SLAPP provisions which currently only apply to economic crime – failed to be passed before the general election was called. The Bill had enjoyed cross-party support and the endorsement of the previous government. However, once the election was called, it was not included in the so-called ‘wash-up’ period before the dissolution of Parliament.

No new Bill has been announced, to the frustration of those who wish to see stronger anti-SLAPP provisions in English law. A recent report by the House of Lords Communications and Digital Committee into the Future of News stated that “the new Government is failing to prioritise anti-SLAPP legislation. This is troubling and has serious potential consequences for press freedom and the future of the news industry. There has already been a public consultation. Viable legislative options and precedents exist. What is missing now is political will. Its absence reflects poorly on the new Government’s values and commitment to justice. We are not persuaded that the complexity of the issue, or the need for cross-government engagement, are a valid excuse for lengthy delays. The Government should publish draft legislative proposals before the 2025 summer recess and allow time for proper scrutiny. If necessary it should explore using the Victims, Courts and Public Protection Bill, announced in the recent King’s Speech, as a vehicle.”

Generative AI: Deepfakes, data protection, and the dawn of personality rights?

Lawyers and politicians continue the scramble to get to grips with the dizzying pace of the development of artificial intelligence, and particularly generative AI tools.

At the beginning of the year, the provisions in the Online Safety Act 2023 which made it an offence to send or threaten to send unsolicited images or videos of a sexual nature (including deepfakes) came into law. Shortly afterwards, a new law was proposed which sought to go further and make it a criminal offence to create a sexually explicit deepfake. However, it was not passed before the dissolution of Parliament in the run-up to the general election. We wait to see if the new Government will address this matter further.

Separately, the Information Commissioner has launched a series of extensive consultations on the relationship between generative AI and data protection, addressing questions such as: (1) What is the appropriate lawful basis for training generative AI models?; (2) How does the purpose limitation principle play out in the context of generative AI development and deployment?; (3) What are the expectations around complying with the accuracy principle? ; and (4) What are the expectations in terms of complying with data subject rights?

Finally, an end may finally be in sight for the continuing debate about how to resolve balancing the interests of developers of generative AI models with those of creators of copyright-protected works who object to developers using such works to train their models without consent. After the previous government abandoned plans for a voluntary code of practice between the creative industries and AI developers earlier this year, creators in particular have grown increasingly frustrated at the lack of an alternative solution being proposed. However, the Government has now come forward with a major consultation on copyright and artificial intelligence. It recommends, among other things, an extension of the data mining exception such that AI developers would be able to use copyright-protected works to train their models for commercial purposes so long as the rights holder has not reserved their rights in relation to the work (in effect, an ‘opt-out’ model). Furthermore, in addressing the challenges posed by deepfakes, the Government states that, whilst it is not consulting on specific proposals to introduce personality rights, it “welcomes views on whether the current legal framework remains fit for purpose”.

Media Act 2024

The Media Act 2024 became law, a landmark piece of legislation that brings significant reforms to the UK media landscape.

Among its various provisions, the Act requires on-demand services to be subject to a regulatory regime similar to that which applies to traditional broadcasters, thereby creating a “level playing field” between them. It also introduces updates to the regulation of public service broadcasting, including simplifying the public service broadcasting remit, and imposing requirements for major online TV platforms to ensure that public service content is “available, prominent, and easily accessible”.

The Act also repeals s.40 of the Crime and Courts Act 2013, a law drawn up in the wake of the Leveson Inquiry which envisaged publishers paying the costs of those who sued them – even if they were successful – unless they signed up to a state-backed regulator. The law was never implemented but remained on the statute books and as a subject of much debate and controversy. It has now officially been repealed by the passage of the Act.

Ofcom continues implementation of Online Safety Act 2023

Ofcom has published its codes of practice and guidance on tackling illegal harms, addressing everything from “terror, hate, fraud, child sexual abuse and assisting or encouraging suicide”. Tech companies that fall under the scope of the Act will now have until 16 March 2025 to complete ‘illegal content risk assessments’.

It is a significant milestone and follows a series of consultations that were launched this year by Ofcom on everything from children’s online safety to the fees regime under the Act. Ofcom also submitted its advice to government on the thresholds that will determine how services are categorised for the purposes of the Act, as well as a call for input on the additional duties that will apply to such categorised services (both of which we commented upon previously, here and here). The Register of categorised services is expected to be published in summer 2025, after which companies will have to comply with the transparency reporting requirements under the Act (which was also consulted upon this year, and we discussed here).

Ofcom has published a helpful guide on the next steps for its implementation of the Act, which can be found here.

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