We are pleased to introduce our September 2019 media disputes newsletter. In this newsletter, we discuss a case where the media did not have to disclose notes and footage to UK authorities, the first court challenge ever in the world in relation to use of automated facial recognition technology, and the new designated specialist Media and Communications List that applies from 1 October 2019.
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Media not forced to hand over notes to UK authorities of interviews with “Isis bride”
Earlier this month, a judge at the Old Bailey in London ruled that the BBC, ITN, Sky News and the Times would not be forced to share with UK counter-terrorism investigators their notes and footage of interviews with Shamima Begum.
The Metropolitan Police are investigating Begum, the so-called “Isis bride”, who ran away from London with two other teenage girls in 2015 to join ISIS. At the moment Begum is living in a refugee camp in Syria, following the defeat of ISIS in the region.
The police had made an application for orders that would have required the media organisations to share their documents and footage. The police had argued that there was no confidentiality in this case, which it said was an important aspect of a case under Article 10 of the European Convention on Human Rights.
The application was strongly contested by the respondents, who raised an argument that the proposed orders, if made by the court, would deprive them of their neutrality and put them at risk of being de facto actors of the state.
His Honour Judge Mark Dennis QC said that there was “no pressing social need” at the moment for the police investigation to justify overriding journalists’ freedom of expression rights under Article 10.
The judge accepted that Begum knew she was speaking to journalists as well as that her comments would have been broadcast or published. He said that she may have “welcomed the publicity”.
Nevertheless, he added: “Journalists are believed to be neutral observers and it is this neutrality of the press that affords them protection… There is no doubt that the initial Times newspaper report was a commendable piece of investigative journalism and represents a significant public interest story which has opened up an important issue for public debate. Such journalistic investigation is to be encouraged. However, the work of investigative journalists in particular does rely upon trust, confidentiality, protection of journalistic material and sources, their perceived neutrality, and the co-operation of people who are prepared to place their trust in journalists.”
He also said that Begum’s UK citizenship had been removed in February, which made it unlikely that she would face prosecution in the UK in the foreseeable future. The judge found that the only factor that might justify overriding the media’s freedom of expression rights was if there was a “real risk that such material may be lost in whole or in part over the passage of time”. As such, he ordered that the material in dispute must be retained at a named solicitors’ office, with a view to there possibly being another application for production of the documents and footage if circumstances changed with regard to Begum.
Journalists’ information, documents, and sources are often sought by UK authorities, and by other entities. Confidentiality and protection of sources are key for the media so that they can build trust with those who are supplying them with information and documents.
These cases are fact sensitive and there have been instances in the past where journalists were ordered to disclose their notes after interviewing someone for a media item, such as in the well-known case of Dame Diana Rigg v Associated Newspapers Ltd  EWHC 710 (QB). In the Rigg dispute, the court made clear that the decision was specifically because of the factual circumstances of that case and should not be treated as approving, on a routine or wide-scale basis, applications for disclosure.
World’s first automated facial recognition technology data privacy court case
This month has seen the first court challenge ever in relation to the use of automated facial recognition technology (AFR), which is growing rapidly in the western world for both public and private sectors.
In an English and Welsh High Court case against South Wales Police, the court decided that the current legal regime in the UK was adequate to ensure that there is appropriate and non-arbitrary use of AFR. It ruled that a police force’s use of AFR in a pilot scheme was consistent with requirements of human rights, data protection legislation, and public-sector equality duties.
There has been much consternation and confusion about the legality of AFR, which is becoming more widespread in places such as London. AFR can identify people from digital images or from video frames. AFR does not always work in the same way, but as a general principle it functions by comparing images and selected facial features of people (usually the general public) with a database of (sometimes a large number of) faces to isolate and surveil individuals and groups.
This is causing concern for many members of the public and civil liberties groups, who argue that it will lead to mass surveillance and databasing of innocent members of the general public, so that they can be targeted by the state and direct advertisers.
After the High Court decision on the use of AFR by South Wales Police was released, the UK’s Information Commissioner’s Office, which is the UK’s independent body set up to uphold information rights, said:
“We will be reviewing the judgment carefully. We welcome the court’s finding that the police use of Live Facial Recognition (LFR) systems involves the processing of sensitive personal data of members of the public, requiring compliance with the Data Protection Act 2018. This new and intrusive technology has the potential, if used without the right privacy safeguards, to undermine rather than enhance confidence in the police.
“Our investigation into the first police pilots of this technology has recently finished. We will now consider the court’s findings in finalising our recommendations and guidance to police forces about how to plan, authorise and deploy any future LFR systems.
“In the meantime, any police forces or private organisations using these systems should be aware that existing data protection law and guidance still apply.”
AFR is new but almost certainly here to stay. The legality or otherwise of AFR will depend upon the circumstances, facts, and specific systems used. AFR is likely to lead to future disputes on cases relating to particular factual situations.
New High Court designated specialist Media and Communications List applies from 1 October 2019
The 1 October 2019 is nearly upon us. As we mentioned last month, from that date specific types of English High Court claims must be issued in the Media and Communications List (M&C List).
This will lead to a formal and strict grouping by the court of M&C cases. These include any High Court claim for:
- Misuse of private information,
- Data protection, and
- Harassment by publication.
Other relevant types of claims will also be processed by the court via the M&C List.
It is expected that M&C claims will comprise a large percentage of the number of cases in the Queen’s Bench Division (QBD) of the High Court, bearing in mind that defamation claims alone last year made up six percent of all QBD claims – a 70% increase on the previous year.
ECJ rules that the right to be forgotten does not extend globally
Yesterday the European Court of Justice ruled that search engine operators such as Google do not have to apply the EU’s “right to be forgotten” to versions of their search engine accessed outside the EU. Sophie Lalor-Harbord, a senior associate in our Media Disputes team, takes a look at the ECJ ruling here… ECJ rules that the right to be forgotten does not extend globally.
You can find further information regarding our expertise, experience and team on our Media Disputes page.
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