29 Apr 29 April 2022
In this issue of zoom in brief: Teen Mom defamation battle dismissed; Samantha Markle commences defamation claims over Oprah interview; Cher battles with Sonny’s estate over copyright royalties; the ICO closes its investigation into Matt Hancock CCTV.
A US court has dismissed a defamation claim brought by Kailyn Lowry of Teen Mom 2 against co-star Briana DeJesus. The women have both appeared on the hit MTV reality show which follows “moms work[ing] to balance their careers, family life and everyday adventures as they grow from teenage mothers into full-fledged adults ready to face the world”. Lowry is one of the original cast-members of the show, with DeJesus later joining in 2017.
Lowry commenced the defamation proceedings in 2021, claiming DeJesus shared comments on social media which suggested “Lowry physically beat Christopher Lopez, the father of two of Lowry’s sons, and broke into and entered the home of Mr. Lopez’s mother”. Lowry claimed the comments were untrue, and argued that they were made “for the purpose of causing [her] harm” and “threatened” her livelihood.
In response, DeJesus’s attorney reportedly argued that the comments were not “false” as Lowry had been arrested for assaulting Lopez (the charges were later dropped, and Lowry was not prosecuted) and Lowry’s claim was “meritless and directed exclusively at protected speech on a matter of public concern brought for the purpose of harassing and trying to silence a critic”.
A judge has reportedly now dismissed Lowry’s claim, finding that the social media post was not defamatory because it contained “protected speech regarding opinion or was factually accurate”.
In a short statement following the outcome, DeJesus simply said “I won”.
Although some aspects of defamation law vary amongst the US states, it is widely accepted that ‘truth’ is a complete defence. However, unlike in England and Wales, public figures who sue for defamation must show actual malice – that is, that the defendant published the statement either knowing it was false or with reckless disregard for its truth or falsity.
In March, Samantha Markle brought defamation proceedings in Florida against her half-sister Meghan Markle, the Duchess of Sussex, in relation to comments she made during her 2021 Oprah interview with husband Prince Harry.
The lawsuit claims the Duchess made several “false and malicious” comments during the interview, which were calculated to discredit Samantha Markle and her published autobiography, The Diary of Princess Pushy’s Sister Part 1. It alleges the Duchess falsely stated that she “grew up as an only child”, had not seen her half-sister for 18 or 19 years, and that Samantha changed her surname to ‘Markle’ in her early fifties after Meghan started dating Harry.
The claim also alleges the Duchess made false comments in a public letter to Nancy Pelosi and during interviews with Oprah and Ellen DeGeneres to preserve and promote a “rags-to-royalty” narrative.
Prince Harry has now reportedly been listed as an “Interested Person” in the case and Samantha Markle’s attorney has apparently applied for permission to withdraw as her representative, with the related court filing citing “irreconcilable differences and fundamental disagreements regarding various aspects of this case and the strategy moving forward”.
Samantha Markle is seeking both compensatory and punitive damages, alleging that she suffered actual damages in the form of lost employment and income from sales of her autobiography. To obtain these remedies, she will need to prove that the Duchess, who is a public figure, published the statements with malicious intent.
Responding to the claim, the Duchess’ attorney, described it as “baseless and absurd” calling it a “continuation of a pattern of disturbing behaviour”. He said that “we will give it the minimum attention necessary, which is all it deserves”.
The dispute between Cher and Sonny Bono’s estate over copyright royalties continued this week in California. As previously reported in zoom-in, Cher commenced proceedings last October against Sonny’s fourth wife and widow Mary Bono, both individually and in her capacity as trustee of the Bono Collection Trust.
Sonny and Cher began performing together in 1964 and recorded hit songs like I Got You Babe, The Beat Goes On, Baby Don’t Go, Little Man and Bang Bang. The pair married in 1967 but divorced a decade later – signing a settlement agreement in which Sonny irrevocably assigned Cher fifty percent of their rights in musical composition royalties, record royalties and other assets. Sonny died in a skiing accident in 1998.
Cher says that the settlement agreement had been honoured since 1978, but that legal action became necessary “more than forty years later” when the Bono Collection Trust advised it would stop paying her fifty percent of the royalties. Cher is seeking a declaration from the court that she remains entitled to this share, as well as $USD1 million damages for breach of contract.
Section 304(c) of the US Copyright Act 1976 allows the widow, widower or children of a deceased author to terminate the deceased author’s grant of copyright. Pursuant to this, in 2016, a group of Sonny’s heirs (through the Bono Collection Trust) issued a notice of termination to various music publishers and other companies to whom Sonny had granted a transfer or license of copyright. The Trust contends that this also ended Cher’s right to those royalties.
Cher is arguing that the notice could not have terminated the divorce settlement agreement, including its assignment to her of fifty percent of the royalties because the Copyright Act states that termination of a grant only affects rights covered by the grant, and not rights arising under any other Federal, State or foreign laws.
In December, Mary Bono and the Trust moved to dismiss Cher’s claim, arguing that their right to terminate grants pursuant to the Federal Copyright Act trumped Cher’s rights under State law. The motion was heard this week and the parties are due to make further submissions in two weeks.
The Information Commissioner’s Office has closed its criminal investigation into the disclosure of CCTV footage that led to the resignation of Matt Hancock MP as Secretary of State for Health and Social Care.
In June last year, The Sun newspaper published CCTV images depicting Hancock kissing Gina Coladangelo – a friend and non-executive director at the Department of Health and Social Care – inside his ministerial office. The images were reportedly taken on 6 May 2021 – prior to the Government lifting the social distancing guidelines which prohibited intimate contact with anyone outside a person’s household. Hancock resigned the day after the images were published.
‘EMCOR’, who operated the CCTV systems for the Department of Health and Social Care, reported a personal data breach to the Information Commissioner – who then launched a criminal investigation. In July, data protection officers searched two homes in the South of England, where they seized computer equipment and electronic devices.
The Information Commissioner’s investigation was criticised by The Sun editor Victoria Newton, who argued that the story “was clearly in the public interest” and that the investigation would “in the future, stop whistleblowers coming forward to papers”.
In its statement following the conclusion of the investigation, the Information Commissioner’s Office noted that it had a “legal duty to carry out an impartial assessment of the evidence”, given the “seriousness of the report” and “the implications it potentially had for the security of information across government”. However, it was found that there was insufficient evidence to prosecute two people suspected of unlawfully obtaining and disclosing the CCTV footage. The statement indicates that the leaked images were most likely obtained by someone recording the CCTV footage screens with a mobile phone, but that six phones retrieved during the execution of search warrants did not contain the relevant CCTV footage.
The criminal offence being investigated was the “unlawful obtaining of personal data” under section 170 of the Data Protection Act 2018, which makes it illegal to obtain, disclose or retain personal data without the consent of the controller. However, it is a defence to prove that this was “necessary for the purposes of preventing or detecting crime” or “justified as being in the public interest”. According to the Crown Prosecution Service, the precursor to this provision from the Data Protection Act 1998 was most typically or commonly used to prosecute those who access healthcare or financial records without a legitimate reason.
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