Legal News

Rayner v Seabourne- Hawkins [2020] EWHC 2895 ( QB) What are the practical implications of this case? The case revolves around alleged spoken statements, giving rise to a slander action. As with any slander claim, Mr Rayner had to establish the exact words said by the defendant, Mr Seabourne- Hawkins, and identify the individuals who heard them. What will matter most to practitioners — and what the Judge took care to emphasise — was the claimant’s omission to obtain relevant, contemporaneous witness evidence promptly after the incident. This is particularly significant in slander because, unlike libel, there is often no record of the words said. In defamation claims, the point at which witness statements are prepared can be more than a year after publication, during which period the recollections of potential witnesses may fade. It is therefore crucial for claimants to seek to obtain......

What is the relevance of UK data protection law to the creation or sharing of deepfakes? Is a deepfake likely to be personal data? Neither the General Data Protection Regulation, Regulation ( EU) 2016/976 ( EU GDPR), nor the Data Protection Act 2018 ( DPA 2018) expressly addresses deepfakes. The real question is whether deepfakes fall within the scope of data protection rules, and in particular the DPA 2018. Personal data covers any information linked to an identified or identifiable living individual, which can include a person’s image or voice. In this setting, creating deepfakes involves training an artificial intelligence ( AI) system on the target individual’s facial features and vocal characteristics, enabling those elements to be placed into material featuring another person; doing so necessarily relies on a person’s audio and/or video recordings. Consequently, even if someone were to argue that the...

On Friday 16 October 2020, the Information Commissioner’s Office ( ICO) confirmed that the airline had not implemented adequate security controls, leading to a data breach impacting more than 400,000 customers. In a 114-page penalty notice, the ICO determined that BA infringed the integrity and confidentiality requirements of the General Data Protection Regulation, Regulation ( EU) 2016/679 ( GDPR), by failing to ensure the proper protection of personal data. ‘ The attack exposed numerous shortcomings across BA’s security arrangements and network,’ the regulator noted (see here). Trinidad and Tobago The decision, for the first time, sets out details of the incident and emphasises the risks in how organisations manage remote access to their servers, particularly during the coronavirus ( COVID-19) pandemic. The breach began on 22 June 2018, when an unknown attacker gained entry to BA’s network using the credentials of a Swissport...

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others Case C‑623/17 What are the practical implications of this case? From a legal standpoint, the ruling requires the UK to re‑evaluate how and when it acquires bulk communications data from internet and telecoms providers, and to define firmer constraints on its monitoring powers. Existing approaches that involve transferring such data on a blanket and non‑targeted basis are at odds with EU law. Careful consideration must be given to the thresholds that must be satisfied before issuing notices to transfer data under the Telecommunications Act 1984 ( TA 1984), together with the material and procedural safeguards that will regulate the onward transfer and use of that information. Notably, there will probably need to be an explicit nexus between the necessity for the particular datasets sought and the protection of National...

What are the legal implications of audiovisual manipulation and deepfakes and what challenges do they pose to intellectual property rights, rights in personal information and image rights? ‘ Deepfake’ describes a face-swapping method in which AI-driven tools process images of a person to create a digital double, then overlay that likeness onto other bodies in video or stills. Creations built from a lone source image are usually easy to dismiss, but those trained on thousands of photos or clips can appear highly convincing. In contrast, audiovisual edits that do not employ AI are often labelled ‘shallow fakes’ or ‘cheap fakes’. Deepfakes present broad socio-political threats: they can skew public debate, disrupt elections and national security, and undermine confidence in journalism and public institutions. The risks to individuals and organisations are just as significant, ranging from fake endorsements and forged documentary evidence to loss of creative control over...

Collier and others v Bennett [2020] EWHC 1884 ( QB) What was the background? This ruling concerns applications for Norwich Pharmacal relief, or in the alternative pre‑action disclosure, to identify the person behind an anonymous Twitter account and to secure copies of tweets said to be libellous and harassing of the claimants. The claimants, each of whom is Jewish and publicly known for taking an active stance against anti‑semitism, are: Mr Collier – a blogger, researcher and campaigner against anti‑semitism; Ms Riley – a television presenter; Ms Oberman – an actress. They have issued proceedings in respect of a Twitter profile (the account) using the pseudonym “ Harry Tuttle”, which, they contend, has for some time been deployed as a vehicle to target a number of Jewish individuals through harassment and defamation. The defendant, Mr Bennett, is a Jewish barrister who has been described as “a pro‑ Corbyn...

Depp II v News Group Newspapers Ltd and another [2020] EWHC 1689 ( QB) What was the background? This ruling addresses an application by the defendants to the libel action, News Group Newspapers Ltd and another (collectively, NGN), to strike out Mr Depp’s claim on the basis of an alleged breach of an earlier ‘unless’ order concerning disclosure. In March 2020, the court had granted several of NGN’s disclosure requests. Among these was a direction requiring disclosure of documents already produced in a US libel hearing between Mr Depp and his former wife, Amber Heard, conditional on NGN providing Mr Depp with written confirmation from Ms Heard or her solicitors that she consented to such disclosure. For more on that decision, see News Analysis: Court partly grants disclosure application in Depp case ( Depp v News Group Newspapers Ltd). NGN...

Serafin v Malkiewicz and others [2020] UKSC 23 What are the practical implications of this case? Lessons from the unfair trial aspect include guidance for judges and practitioners on engaging with a litigant in person ( LIP). Judges owe duties, and lawyers have professional duties to the court. Working with LIPs can be challenging, exasperating and take considerable time—sometimes more so than dealing with overly combative solicitors. Clients may struggle to understand why you appear to ‘assist’ an unrepresented opponent. Yet justice demands that those without representation are treated with politeness and dignity, and are given at least basic assistance and direction to find their way through the court process. Only then can justice truly be achieved for all involved in the process as a whole. On the DA 2013, s 4 defence, the Supreme Court’s judgment sets out principles which, though not strictly...

CWD v Nevitt and others [2020] EWHC 1289 ( QB) What was the background? The decision concerned allegations by the first defendant that the claimant sexually assaulted her, and by the second defendant that he raped her later the same night. The first and second defendants are sisters; the third defendant is their brother. The allegations were reported to the police, but after enquiries they took no further action against the claimant. Before proceedings were issued, the claimant applied without notice for an interim injunction to restrain alleged harassment and misuse of private information. That application was refused, partly due to concern he was “cause of action shopping”, as his real aim seemed to be to prevent information he said was untrue. However, the court granted an anonymity order, permitting him to sue as “ CWD”, with the defendants anonymised too. He then issued and served a claim for...

Wright v Ver [2020] EWCA Civ 672 What are the practical implications of this case? This judgment addresses a significant issue under DA 2013, s 9. Section 9(2) states that, where a defendant is domiciled outside the UK, the EU or a Lugano Convention state, the courts of England and Wales have jurisdiction only if it can be shown that England and Wales is ‘clearly the most appropriate place to bring an action’ concerning the impugned statement. At first instance, the court refused jurisdiction (see News Analysis: Court rules on operation of section 9 of the Defamation Act 2013 ( Wright v Ver)) and determined that a two-step approach should be used when deciding whether England and Wales was ‘clearly the most appropriate place’. That approach required evaluating the character of the publication and its reach in each relevant...

Reid v Price [2020] EWHC 594 ( QB) What are the practical implications of this case? This decision is a helpful authority on quantifying damages for claims involving disclosure of private information, breach of undertakings, breach of confidence, and the misuse of private information. It addresses how compensation should be assessed across overlapping privacy-related wrongs. The principles articulated in the judgment merit close attention by practitioners advising on likely awards in comparable situations, particularly since, in Warby J’s own phrase, ‘the authorities are not very numerous’. Warby J held that Mr Reid succeeded on four distinct causes of action: breach of contract, namely breach of express undertakings provided by Ms Price in 2011 that the relevant material would not be revealed unjustified breach of Mr Reid’s confidence misuse of private information concerning Mr Reid breach of statutory duty under section 4(4) of the Data...

Man Ching Yuen v Landy Chet Kin Wong , First-tier Tribunal ( Property Chamber), 2020 (ref 2016/1089) What are the practical implications of this case? Every day, innumerable deeds are completed across the country. By virtue of section 1(3) of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989), a deed must be signed in the presence of a witness who attests the signing. Yet what amounts to presence? Could witnessing occur via Skype, Facetime, Whats App or similar platforms? In addressing that issue, the FTT indicated, without a definitive ruling, that, under present law, whether the phrase in LP( MP) A 1989, s 1(3) ‘in the presence of a witness’ can be met via video link admits more than one arguable view. The tribunal’s indication fell short of a determination, acknowledging that the statutory wording, as it stands, could...

Gaughran v United Kingdom ( App No 45245/15) [2020] ECHR 45245/15 What are the practical implications of this case? Confirming Lord Kerr’s dissent in the Supreme Court ( Gaughran v Chief Constable of the Police Service of Northern Ireland [2015] UKSC 29), [2015] 2 WLR 1303, the ECt HR concluded that the policy amounted to an unjustified interference with Mr Gaughran’s Article 8 rights. The court did not, though, propose any new overarching principles for such policies. It remains apparent that evaluation is fact dependent; the more calibrated and precise a policy, the more likely it is to withstand examination. The ECt HR’s divergence from the Supreme Court stemmed largely from its reliance on slightly different factual foundations. Notably, in assessing proportionality under Article 8, the ECt HR placed significant weight on the lack of adequate procedural safeguards allowing an individual to apply for...

Bioconstruct Gmb H v Winspear and another [2020] EWHC 7 ( QB) What are the practical implications of this case? The ruling rekindles discussion about optimal methods for completing a closing with pre-executed pages, particularly where multiple parties and signatories are involved and where amendments or corrections are made to previously circulated written contracts. The court’s analysis, relating to a deed that was both signed and acted upon by the party seeking to rely on it, yet held invalid and unenforceable, underscores the need for caution when attaching pre-signed signature pages to deeds. In this respect, the judgment draws attention to a circumstance not expressly covered by the Law Society of England & Wales’ Practice Note, ‘ Execution of documents by virtual means’ (16 February 2010). That guidance identifies Koenigsblatt v Sweet as the leading authority on ratification for written...

Wright v Granath [2020] EWHC 51 ( QB) What are the practical implications of this case? This matter concerns the operation of the lis pendens (‘related actions’) rule in Article 27 of the 2007 Lugano Convention, and, in particular, the proper criterion for assessing whether a libel claim issued in England and Wales involved the same cause of action as Norwegian proceedings seeking a declaration that the defendant to the libel claim was not liable to pay damages in respect of the publication impugned in the English suit. The court recognised that this was a novel point regarding the application of lis pendens to defamation. Most authority in this sphere deals with contractual disputes, and the claimant maintained it had no application here because of the parties’ ‘asymmetrical’ positions in a tort claim (addressed further below). Confirming that the lis pendens doctrine is not...

Brake v Guy [2019] EWHC 3332 ( Ch) What was the background? This judgment addresses two applications. The first sought an injunction preventing three respondents (the Guy Parties) from using material obtained from an email account said to have been wrongly accessed by them (the documents application). The second asked for a declaration that the opposing parties (the Brakes) could not rely on legal professional privilege over various documents within that account where they were in furtherance of an unlawful scheme (the LPP application). Both applications formed part of broader proceedings between the Guy Parties— Dr Geoffrey Guy, the Chedington Court Estate Ltd and Axnoller Events Ltd—and the Brakes, Mrs Nihal Brake and Mr Andrew Brake. The dispute concerned two properties, a farm and a cottage; the Brakes had occupied the cottage, and its title had become the subject of serious issues within...

Words in credit report held to be not defamatory at common law ( Triaster Ltd v Dun & Bradstreet Ltd) Triaster Ltd v Dun & Bradstreet Ltd [2019] EWHC 3433 ( QB), [2019] All ER ( D) 71 ( Dec) What are the practical implications of this case? This case concerned an uncommon defamation claim arising from a credit report, which Triaster said implied its creditworthiness was poor. While recalling the near 200-year-old authority Whittington v Gladwin, that imputations of present or future insolvency are defamatory—and noting that case alleged not merely a risk but an inevitability—the court concluded, unsurprisingly, that most complained-of material simply reported fact. The only statement that was not factual was an expression of opinion. What was the background? Triaster, a provider of business process solutions, brought a defamation claim against the defendant ( Bradstreet), which supplies data analytics, credit reports and other...

Al Sadik (also known as Al Sadek and Sadik) v Sadik [2019] EWHC 2717 ( QB); [2019] All ER ( D) 116 ( Oct) What are the practical implications of this case? This ruling is striking as one of the few authorities to grapple with DA 2013, s 9. It follows Wright v Ver earlier this year, only the second case to squarely address the wording and effect of that provision (see News Analysis: Court rules on operation of section 9 of the Defamation Act 2013 ( Wright v Ver)). In this dispute, the court examined how DA 2013, s 9 sits alongside CPR Pt 11—asking, in particular, whether a defendant who fails to use CPR Pt 11’s procedure to challenge jurisdiction thereby gives up the right to advance a jurisdictional objection under DA 2013, s 9. The court decided there is no such waiver. It...

What is FRT and which laws presently govern it in the UK? Are there any plans for regulation? FRT is a type of biometric identification that relies on facial characteristics, typically matching them with images in a database, to confirm someone’s identity (for example, e Passport gates at airports, spotting ‘persons of interest’ on a busy street, or identifying recipients of football banning orders at a football match). While implementations vary, the usual workflow starts by detecting and capturing a face, often from CCTV footage. A recognition algorithm then normalises the captured image—adjusting size, rotation and similar factors—so it aligns with the format of images stored on a database or ‘watchlist’ of known individuals. The normalised image is statistically compared with entries on the watchlist. If the similarity score set by the FRT operator meets the required threshold, a ‘match’ is registered between the...

Amending a claim to allege breach of confidence ( Slater & Gordon v Watchstone) Slater & Gordon ( UK) 1 Ltd v Watchstone [2019] EWHC 2371 ( Comm) What are the practical implications of this case? Two principal practical consequences follow from this decision: It serves as a caution for those involved in M& A deals or litigating about them. Although exploiting every route to gather intelligence on the other side may appear commercially astute, inviting the opponent’s corporate adviser to tacitly share confidential material is arguably unlawful and may leave participants exposed to a significant claim It also exemplifies the court’s pragmatic and constructive approach when major disclosure issues arise that warrant an amendment—if persuasive arguments emerge, the court will seek to accommodate them. The familiar disapproval of late amendments did not feature in the judgment, perhaps suggesting that......