London- the Libel Capital of the World? Plus a Landmark Consumer Rights Case and Changes to US Media Law: The Round Up

1 June 2020 by Conor Monighan

In the News:

Credit: Lorie Shaull

There have been significant protests in the USA following the death of George Floyd. Mr Floyd, a black man, died after his neck was knelt on whilst he was being detained. Mr Floyd repeatedly said he couldn’t breathe, but despite this the position was maintained for several minutes.

Derek Chauvin, the white officer who detained him, has been arrested and charged with murder. Three other officers have been sacked. The County Prosecutor has suggested it is likely they will also be charged in due course.

The case has triggered widespread protests about the treatment of black people by the police. Previous incidents, such as the fatal shooting of Michael Brown, exacerbate concerns. Thousands also protested in London, where the march moved from Trafalgar Square to the US embassy (located in South London).

In the US the largely peaceful protests have been marred by looting and arson attacks. The police station in Minneapolis was set on fire. A number of US cities have imposed curfews which have been defied. Police have used tear gas and rubber bullets to try and control crowds.

A black CNN journalist and his camera crew were arrested by police whilst reporting in a protest in Minnesota. The group was later released and the governor apologised for the arrest.

In Other News….

• It has emerged that BAME (Black, Asian and minority ethnic) people in the UK are 54% more likely to be fined than white people for breaches of the coronavirus regulations. Liberty Investigates and the Guardian analysed data released by the National Police Chiefs’ Council to reach their conclusion. The information has led some to question whether the fines have been issued fairly. The use of stop and search increased by 22% from March to April, despite there being lower numbers of people out of their homes. The proportion of BAME people being stopped also increased by 2.1%. However, the National Police Chiefs’ Council pointed out that the data is not necessarily reliable. Separately, the Joint Committee on Human Rights has asked the government to review the use of fixed-penalty notices (which range from £100 – £3,200). Around 16,000 fines have been handed out in total. Liberty has pointed out that some forces are using fines much more readily than others. North Yorkshire issued 843 fines, for example, whereas the Metropolitan Police (which has 21 times as many officers) issued 906.
• Volkswagen lost a landmark case in Germany. The claim related to the ‘dieselgate’ scandal, in which VW installed cars with a device that artificially lowered emissions of dangerous chemicals when the vehicles were being tested. The claimant, a man named Herbert Gilbert, will be partially reimbursed for the cost of his vehicle. As a result of the case, Volkswagen will have to pay around 60,000 owners a one-off payment (the size of which will vary depending on individuals’ circumstances). The result will also give hope to a similar legal challenge being run in the UK on behalf of 10,000 people. Volkswagen and Daimler have already paid around £28 billion in compensation and fines around the world. (More from the Guardian here).
• It seems likely that a major shift in US media law is forthcoming. On Wednesday, President Trump tweeted that mail ballots are “substantially fraudulent”. Twitter decided to add a ‘fact check’ to the tweet. A few days later, President Trump tweeted (in a reference to the riots, above) that “when the looting starts, the shooting starts”. Twitter then added a content warning which disappears if it is clicked on. Social media companies have traditionally enjoyed an immunity from lawsuits in the US. President Trump has already signed an executive order which is designed to remove some of this legal protection. The order says that networks lose their immunity if they edit posts, such as by adding warnings or labels. In addition, he has threatened to “shut down” and regulate the networks for stifling free speech. (More from the BBC here).

In the Courts:

• JQL v NTP: The applicant brought a claim for misuse of private information and breach of confidence. The issue arose from a Facebook post in which NTP allegedly disclosed that the applicant had received treatment for her mental health and had self-harmed. Despite the fact that only a small number of people saw the Facebook post (perhaps around 20-35), the claim was sufficiently serious to avoid being struck out. There was a reasonable expectation of privacy about the information in the post, because: it related to very sensitive, confidential medical information which the applicant had always sought to keep secret, NTP would have been aware that publishing it would have been distressing, and the disclosure appeared to have set back the applicant’s recovery. NTP’s right to freedom of speech did not outweigh this expectation of privacy because it was a disproportionate response to the argument that was taking place online. JQL’s Article 8 rights therefore outweighed any limited interference with NPT’s Article 10 rights. Damages and an injunction were awarded.
• Wright v Ver: London has been described as “the libel capital of the world”. s.9 Defamation Act 2013 sought to address this. It states that courts only have the jurisdiction to hear defamation claims against individuals who live outside the UK or the EU if England and Wales is “clearly the most appropriate place in which to bring an action”. This case concerned two Tweets and a YouTube video, in which Mr Ver allegedly claimed the applicant was fraudulently claiming to be the inventor of Bitcoin. The Court of Appeal found it had no jurisdiction to hear the defamation claim. It followed the approach in Ahuja, in which the High Court ruled courts should consider all the jurisdictions where the defamatory statement had been published to determine whether the test in s.9 is met. In the current case, a number of factors were relevant: the statements were published four times as much in the US as in the UK, the reputational damage was not likely to be greater in the UK, the Defendant’s most important business relationships were in the US, and there was no evidence the Defendant would be unable to obtain access to justice in the US. Appeal dismissed.
• Gremina v Russia: The claim arose from a civil case. In it, the applicant proved Russian police had stopped her from travelling to a protest and detained her. No record had been made of her arrest or escort, and so the civil court had found her detention to be unlawful. The ECtHR accepted this version of events and emphasised that it requires cogent evidence to depart from the findings of fact reached by the domestic courts. On this basis, the ECtHR was able to conclude that Russia had violated her rights under Article 5 of the European Convention on Human Rights (‘the right to liberty’) and Article 3 (‘freedom from torture and degrading treatment’). In response, Russia argued the applicant’s successful domestic claim prevented her from having a claim under the ECHR. The ECtHR rejected this argument. A successful civil claim didn’t necessarily mean an individual had been compensated for a breach of their Convention rights. In addition, awarding the applicant the equivalent of £115 was too low a figure for breaching Articles 5 and 3.

On the UKHRB

• Rosalind English wrote an article on Re H (A Child) (Responsibility Order: Vaccination), which raises the question of who decides whether a child in care should be vaccinated.
• Rosalind English also summarised a report by the Henry Jackson Society entitled Coronavirus Compensation? Assessing China’s Potential Culpability and Avenues of Legal Response
• Philip Havers QC of 1 Crown Office Row will be leading a challenge to the lockdown measures adopted by the government in response to the Covid-19 pandemic. Rosalind English outlines the some of the grounds here.
• And on LawPod, Professor Lilian Edwards discusses the consequences of the new contact tracing app.

Events:

• “COVID-19 – Has the EU done enough?”, 3^rd June at 4pm with the Centre of European Law.
• “The People Strike Back? Life imprisonment and other ultimate penalties in a constitutional democracy”, 4^th June at 5pm with Oxford University.
• On the 8^th June, many will be taking part in ‘10,000 Steps for Justice’ in support of access to justice. More information here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com