06 Aug 7 August 2020
In this issue of zoom-in brief, Meghan Markle obtains orders protecting the identity of five friends in her claim against the Mail on Sunday; Rachel Riley and Tracy-Ann Oberman withdraw their libel claim against barrister; Google is fined €600,000 over right to be forgotten complaint; and the Times apologises and pays damages over a pre-paywall preview of an article.
In the latest round of her claim against the publisher of the Mail on Sunday,Associated Newspapers, Meghan Markle has obtained orders protecting the identity of five friends who were anonymous sources for a favourable article about her in People magazine.
The Duchess of Sussex is suing Associated Newspapers over its publication of parts of a letter she wrote to her father, Thomas Markle, in August 2018. As part of its defense, Associated claims that personal information about the Duchess entered the public domain because of the People article and argues this was “sought and intended” by the Duchess, which she disputes.
Associated had asked the Duchess for information about the identity of the friends and she subsequently gave the names to Associated, but asked the Court to anonymise the five friends. Associated resisted on the basis that their identities were not private or confidential information.
The judge ruled that the five friends should be granted anonymity, because this upheld the agreement they had with People magazine and supported the proper administration of justice by shielding them from the “glare of publicity” in the pre-trial stage.
Having reviewed some of the media coverage, the judge commented on the “peculiarly febrile atmosphere surrounding this case, and some of the coverage”, which, he observed, “could act as a deterrent and undermine fairness and due process” by leading to witnesses facing undesirable pressure.
The judge made it clear that the anonymity of the five friends should be kept under review as the case progresses and emphasised that directions to trial must be given promptly after it had been slowed down by case management issues.
The decision makes interesting points about source protection, witness anonymity and open justice, but the case is highly unusual, and unlikely to be repeated.
Countdown presenter Rachel Riley and actress Tracy-Ann Oberman have withdrawn their libel claim against barrister Jane Heybroek for retweeting a blog post that was critical of them.
The two women, who have brought a number of other defamation claims over responses to their efforts to speak out against anti-Semitism, had sued Heybroek for retweeting an article by Shaun Lawson.
The article was headlined “Beneath Contempt: How Tracy-Ann Oberman and Rachel Riley harassed, dog piled and slandered a 16-year-old child and her father”.
The article made allegations about Oberman and Riley’s behaviour towards a young Labour activist who had made comments about anti-Semitism within the party.
In a preliminary ruling on meaning handed down in May, Mr Justice Jay concluded the words in the article were ‘sufficiently serious’ that the reputations of Oberman and Riley ‘will have been lowered in the eyes of the likely readership’.
In a statement posted online, Ms Heybroek, who the judge had described as “broadly supportive of Jeremy Corbyn”, thanked her supporters and said that due to her spending £30,000 “at a very early stage” and a fundraiser she was able to “retain leading defamation lawyers, and properly contest the case.” Ms Heybroek had not penned the original blog and insisted she could not be held liable for the contents of the article and would have defended the claim in various ways had it proceeded.
Riley and Oberman’s solicitor said in a statement that his clients “chose not to proceed further after the judge had determined that the opinion expressed was capable of being defamatory, in circumstances where Jane Heybroek claimed that she had promptly deleted her tweet”.
Both Riley and Oberman have now made a contribution towards Heybroek’s costs.
The case is the latest in a series of media law claims over posts on social media, and in particular Twitter.
The Belgian Data Protection Authority has imposed its largest ever fine on the Belgian arm of tech giant Google for failing to respect a Belgian executive’s right to be forgotten.
The unnamed man asked Google to ‘de-list’ twelve URLs from its search results that related to his alleged links with a particular political party and an old, unfounded harassment claim. Google refused to de-list several of the URLs and while the Belgian Data Protection Authority declined to uphold the complaint about the political party URLs –it found in the man’s favour in relation to the harassment URLs, noting that they were no longer up to date or relevant and did not mention that the complaint was declared unfounded in 2010. The Authority also took into account that the events were unproven and likely to be prejudicial to the executive’s private and professional life.
The Authority ordered Google to de-list the URLs within the European Economic Area, and imposed a€600,000 fine, based on the annual turnover of Google’s parent company Alphabet over the past three years.
The Belgian Authority declared itself competent to deal with the complaint because the complainant was based in Belgium and Google processed his personal data and had an establishment there. This was the same reasoning as applied in the Google Spain case, in the which the Court of Justice of the European Union first set out the parameters of the right to be forgotten.
This case shows that individual European Data Protection Authorities can fine Google based on the turnover of its parent company.
The right to be forgotten allows people to ask for out of date and/or irrelevant personal data about them to be deleted and generally applies to search engines such as Google, rather than newspapers or broadcasters. In this case whilst the URLs will no longer appear in Google search results against a search of the executive’s name, the underlying articles will still be there, and do not have to be removed.
The Times has apologised to the former CEO of Al Rayan Bank, Sultan Choudhury OBE, after it published a photo of him online next to a pre-paywall preview of an article that had the headline: ‘Female Circumcision is like clipping a nail, claimed speaker’.
The quote was not actually from Mr Choudhury, but from a former speaker at an institute of which Choudhury had been an unpaid director. This was explained in the full article, but that was behind a paywall and only available to subscribers of the Times.
Mr Choudhury brought a defamation claim against the Times, alleging that the preview was ‘misleading and libelous’ because the headline and the photograph meant he held the views espoused in the headline, which he said he found ‘abhorrent’. He said he was ‘utterly shocked’ by the preview, which had caused him huge distress and had resulted in him being sent hateful comments online and argued that the Times could not rely upon the whole article in its defense because the ordinary internet reader could not see it because it was behind the paywall.
The Times published an apology, explaining that any impression that the headline conveyed Mr Choudhury’s views was not intended, and making clear that Mr Choudhury did not say those words. The Times also apologised for any distress caused to Mr Choudhury and agreed to pay damages and his legal costs.
The case is a helpful reminder that care must always be taken when showing part of an article alongside photos without the full article for context.
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