6 December 2023
Privacy – David Walliams reaches “amicable resolution” of Britain’s Got Talent privacy case
It was announced last week that an “amicable resolution” has been reached between David Walliams and Fremantle, the production company that makes Britain’s Got Talent, after Walliams sued it for misuse of private information and breach of data protection law.
Walliams brought the claim after remarks he made during filming breaks at the London Palladium in January 2020 were leaked and published by the Guardian newspaper in November last year.
Walliams left the show last year and apologised at the time for the “disrespectful comments”.
In High Court documents released last month, Walliams said he and the other programme judges would joke amongst themselves during filming breaks while wearing their microphones and he was unaware those comments were recorded and transcribed.
Walliams said he did not know how the Guardian received a transcript of the comments but concluded that Fremantle must have been the ultimate source, prompting him to sue it for psychiatric harm and financial loss.
In particular, Walliams claimed he suffered financial loss when Britain’s Got Talent withdrew its £1 million offer for him to return to the show and when other TV appearances, two planned stage adaptations of his books and a podcast were cancelled or abandoned.
A Fremantle spokesperson said: “We are pleased that we have achieved an amicable resolution of this dispute with David. We are sincerely sorry that his private conversations when a judge on Britain’s Got Talent were published, and the great distress this caused David. We have reviewed our production practices on the show to ensure they fully respect the expectations of our talent whilst satisfying the requirements of the show. We have enjoyed a great relationship with David over many years. We thank David for being an important part of the Britain’s Got Talent family and the enduring success of the show and hope to have opportunities to work with him in the future.”
In view of the risks identified by this case, companies producing shows where the private conversations of talent (and other contributors) may be recorded without those individuals’ knowledge or consent may be advised to expressly bring this to the attention of those involved, as well as to review their protocols surrounding the security of such recordings.
Sir James Dyson loses libel claim against MGN Ltd
Sir James Dyson, inventor, philanthropist, and owner of the eponymous technology company has lost his libel claim against Mirror Group Newspapers Ltd over two articles published in The Mirror newspaper and on its website in January 2022.
Sir James, who is a vocal proponent of Brexit, came under fire in 2017 for announcing that he was going to manufacture Dyson’s planned electric vehicle in Singapore. Then, in January 2019, he came under further scrutiny after Dyson announced its intention to move its headquarters to Singapore.
In an earlier decision, Mr Justice Nicklin determined that the words complained of meant: ‘(a) the Claimant has publicly supported the benefits of Brexit to British industry, yet following Brexit he had moved the global head office of his business to Singapore’ and ‘(b) by so doing, the Claimant was a hypocrite who had screwed the country and who set a poor moral example to young people’.
One of the key changes made to the Defamation Act when it was amended in 2013 was the introduction of a ‘serious harm’ requirement – which says that a statement will not be defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.
Sir James argued that the articles had caused his reputation serious harm since, he said, they struck at his reputation both as a successful businessman and as a philanthropist.
MGN Ltd contended that the article had not caused Sir James serious harm, relying on the significant criticism that he had faced following Dyson moving parts of its business to Singapore in 2017 and 2019. Any harm, MGN Ltd argued, would have been caused by earlier publications or Dyson’s own actions, not the articles in The Mirror. MGN Ltd also relied on the defence of honest opinion, and, in addition, argued the claim was an abuse of process.
Mr Justice Jay agreed with MGN Ltd and dismissed the claim. The defence of honest opinion succeeded as the opinion expressed in the articles was within the range of opinions that an honest commentator could hold. In addition, contrary to the argument of Sir James, the facts underpinning the opinion were substantially true. Sir James had moved parts of his business to Singapore following the Brexit referendum.
The Judge also concluded that Sir James had not proved that the articles had caused his reputation serious harm. The words weren’t at the gravest end of the scale, and by the time the articles had been published, most people would have already formed an opinion about Sir James’ actions.
The decision is likely to be seen favourably by defendants, given the Judge’s emphasis on the width of the honest opinion defence and his finding that a person may express a view that is ‘irrational, stupid or obstinate’ and yet still rely on the defence.
The case also continues a growing trend in which judges place significant emphasis on the need to demonstrate a sufficient factual basis before they will make a finding of serious harm.
Defamation – High Court rules on meaning in defamation case brought by former trust chairman against the Observer article about Serial podcast
Mr Justice Griffiths has delivered a judgment on meaning in a defamation claim being brought by a former academy trust chairman against the Observer newspaper over an article it published about the Serial podcast The Trojan Horse Affair.
Serial became a household name in 2014 with its true-crime podcast about the murder of Baltimore schoolgirl Hae Min Lee. In 2022 it released a new podcast about the 2014 Birmingham schools controversy in which Birmingham city council received an anonymous letter alleging a plot to take over and run local state schools according to strict Islamist principles.
The Observer published an article about the podcast in February 2022 in which it criticised it for presenting a “one-sided account that minimises child protection concerns, misogyny and homophobia in order to exonerate the podcast's hero, a man called Tahir Alam.”
Alam, the former chairman of a trust that ran three schools in Birmingham, claimed that the Observer’s article was defamatory of him and commenced defamation proceedings over it.
A hearing in the case took place in early November 2023 to consider a number of preliminary issues ahead of trial, including the meaning of the article.
Alam argued that the article bore the meaning that he abused his powerful position to maliciously utilise accusations of racism/Islamophobia to obstruct exposure of child sexual abuse in his school community. The Observer argued for a lower meaning, which the Judge accepted with some modifications.
The Judge held that the article bore two meanings.
First, that Alam allowed an ultra-conservative Islamic viewpoint to influence the provision of education to students and enabled a culture in which the schools (i) suffered from poor governance, including a lack of child protection safeguards, (ii) employed people in leadership positions who espoused or failed to challenge extremist views, (iii) allowed homophobia and misogyny, including from teachers, to flourish, and (iv) encouraged young people to become intolerant of diversity.
Second, that when challenged by various bodies about these matters, Alam alleged that their findings were exaggerated and driven by Islamophobia. That was unfounded, and rightly dismissed as conspiracy thinking by the courts.
The Judge concluded that the statements complained of were statements of fact not opinion, rejecting arguments that words like “poor governance”, “homophobia” and “misogyny” were being used in a subjective and evaluative way.
The Judge also held it was “clear” the meaning found was defamatory of Alam, and noted that the Observer had “rightly” conceded this at the hearing.
A full trial in the case, in which the court will consider whether the Observer can rely on any of the defences to defamation, will be heard at a later date.
A spokesperson for the Observer said they “welcomed” the judgment, as “the claimant had advanced an utterly unrealistic meaning for the article and this judgment is a wholesale rejection of that.” They added that they “will continue to defend our journalism robustly.”
zoom-in will report on developments in the case as it unfolds.
Press freedom: Journalist succeeds in row over police seizure of journalistic material
A journalist has successfully overturned a court order that would have allowed the Metropolitan Police to examine material seized under the Official Secrets Act.
In 2022 the police seized electronic devices and documents from the journalist, which the police claimed contained material that had been stolen by two crown servants. According to the judgment, the information related to “national security and intelligence, and information relating to defence”.
The journalist argued that some of this material was journalistic and could not lawfully be seized and examined so the police applied under section 79(5) of the Criminal Justice and Police Act for a direction from the Court that they could proceed to examine the devices on the basis that the journalist was not a journalist. By the time of the hearing in February 2023, the police conceded the journalist was a journalist, but submitted that they should nevertheless be permitted to examine the seized materials.
Following a private hearing, HHJ Mark Lucraft KC granted the police’s application, directing that the material on the seized devices could be downloaded and that the police could examine the devices for material “belonging to His Majesty’s Government which has been unlawfully disclosed”. The Judge held there was a “clear distinction made between true journalistic material and material that has been stolen.”
The journalist sought a judicial review of the decision and the High Court has now quashed that order. In a judgment that has been dubbed a significant victory for press freedom, Macur LJ held that the Judge’s distinction between “true” and “stolen” journalistic material was a “bold finding” which “flies in the face of a line of binding authorities”. These authorities explain that there is no unequivocal bright line test, and that there are cases where the law will protect stolen journalistic material.
The Court ruled that the seized devices should be examined by an independent barrister instead of the police, with the journalist able to identify material he considers to be journalistic material. The police will need to go back to court to argue for permission to inspect that material if they want to inspect it.
The journalist has been anonymised until the final order is made.
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