As well as enjoying its pre-eminent reputation for defamation, privacy, data protection, malicious falsehood, libel and contempt of court, 5RB specialises across the broader spectrum of media, communications, information, intellectual property and sports law. We also undertake judicial reviews, particularly of regulatory decisions; hearings before regulatory bodies; EU and competition; regulatory multimedia, broadcasting and telecommunications; freedom of information; the internet, including domain name disputes; trespass, protection from harassment and blackmail.
Some members of 5RB undertake public access work in media and communications law.
In particular, since the coming into force of the Human Rights Act 1998, 5RB has been involved in significant developments in the law of confidentiality, privacy, intellectual property and pre-publication injunctions, including close consideration of Articles 6 (fair hearing), 8 (privacy) and 10 (freedom of expression) of the European Convention on Human Rights.
Blackmail – making an “unwarranted demand with menaces” – is a crime under the Theft Act 1968. It is also conduct which can often be restrained by a civil injunction with penalties for contempt of court attached.
A blackmailer might operate in a very wide range of scenarios – a threat to “kiss and tell” or to release data obtained through hacking or an attempt to introduce illegitimate bargaining into a commercial dispute.
Many threats – to disclose private, confidential or personal information – will engage the 2012 Practice Guidance on Interim Non-Disclosure Orders. There may often be a need to seek anonymity for the parties, private hearings and restrictions on access to the court file. Claims may also raise issues in relation to harassment and data protection.
Recent cases demonstrating the potential breadth of the area include:
5RB is seeing a marked increase in requests for specialist assistance, advice and representation in such cases. Sometimes there will be a media aspect – reflecting chambers’ traditional practice areas – but not always. While a case involving corporate negotiations or information may have no media angle at all it is still likely to require the expertise that members of 5RB can offer in seeking short notice procedurally robust court relief.
 EWHC 931 (QB)
 EWHC 2388 (QC)
 EWHC 702 (Fam)
Data Protection and Information Law
Data protection allows individuals to assert rights over how personal data about them is processed. However, many public authorities, private organisations and individuals seeking to assert their rights under the law, are unsure about their duties, responsibilities and rights under the 1998 Act, and the changes brought in by the General Data Protection Regulation (GDPR) and Data Protection Act 2018.
Members of 5RB advise on both the position under the Data Protection Act 1998, and the law as set out in the GDPR and Data Protection 2018 which takes effect from May 2018. 5RB barristers regularly advise public authorities and private organisations in respect of their responsibilities, how to handle subject access requests and how to ensure they are compliant with the GDPR; as well as individuals wanting to obtain information held about themselves or who feel their data has not been handled appropriately. 5RB members can advise on the ‘right to be forgotten’ whether in relation to search engines or other publishers.
For media organisations, special exemptions to the Act apply in certain circumstances and 5RB barristers are well-placed to advise on when this exemption and others will apply.
Closely related to data protection is freedom of information – the right of an individual or organisation to obtain access to non-personal information held by public authorities – as provided for in the Freedom of Information Act 2000.
The Freedom of Information Act 2000 provides significant and wide-ranging rights of access to information held by public authorities, including the government. Public authorities may only withhold information if an exemption in the Act allows them to. Information included within certain exemptions still may have to be disclosed if disclosure is in the public interest. Applicants who believe information has been unjustifiably withheld can apply to the Information Commissioner, who can order disclosure. It is now clear from the Supreme Court decision in Kennedy v Charity Commission that the Freedom of Information Act is not the only route to access information held by public authorities, and that as such authorites may need to consider whether they have other common law or statutory obligations to disclose requested information.
5RB are well-placed to advise on all aspects of access to information and documents, whether through data protection, freedom of information and related sector specific rules and the common law, or other means such as obtaining access to court documents. Equally, 5RB are experts in protecting private information, whether through use of data protection law, misuse of private information and/or breach of confidence, other applicable areas of law or the relevant regulatory mechanisms.
Defamation and Malicious Falsehood
Defamation Lawyers – 5RB is an undisputed leader in the field of defamation law and has an international reputation for its expertise in libel law and slander law in England and Wales. We have consistently been recognised by Legal 500 and Chambers and Partners and can provide expertise and strength at every level of call for both claimants and defendants.
Publication of a false statement, even though it may not cast any aspersions on the person, may still be damaging. If one dentist were to state falsely that a rival dentist had retired, when in fact he knew he had not, there would be no cause of action for libel or slander. However, the law of malicious falsehood would potentially be available to provide a remedy. 5RB are amongst the undisputed leaders in this field of law and our members are experienced in advising on and acting in malicious falsehood claims, both on behalf of claimants and defendants.
We are uniquely suited to understanding the requirements of both claimants and defendants in this complex area of law.
Although 5RB’s specialisation is media and communications law, we are also able to provide advice and representation at every level of seniority in relation to all areas of general common law, such as contractual disputes, misrepresentation, professional negligence and actions against the police. Members of 5RB have the advantage of being able to assess fully any potential general common law claims and defences, while at the same time having the expertise to consider whether the facts raise any data protection, harassment, breach of confidence, or human rights points
While the Protection from Harassment Act 1997 was introduced to provide a remedy against stalking its scope has been felt more much widely. Members of 5RB were involved in Thomas v News Group Newspapers Ltd  EMLR 78, which made clear that the legislation’s scope extended to the behaviour of a newspaper, such that harassment could be committed by publication. 5RB barristers have been involved in a number of harassment cases since the Act came into force including: Howlett v Holding, Bloom v Robinson-Miller, Trimingham v Associated Newspapers and Thompson v James.
The legislation has also been used to obtain injunctions on behalf of celebrities protecting them from being hounded by photographic agencies and paparazzi photographers, again this is in area in which 5RB barristers have acted, for example obtaining injunctions on behalf of Harry Styles and Ting Lan Hong. The Act has also been to prevent the repeated distribution of libellous material.
In the online context harassment by repeated publication of material over a period of time is a problem recognised by the courts and in which 5RB barristers are well-placed to act. Harassment via social media, including through repeated online posts, “trolling”, the use of fake online profiles and the posting of private photographs is a developing area in which 5RB barristers have the necessary expertise to advise.
5RB barristers frequently advise on harassment cases (involving celebrities and private individuals and companies seeking to protect their employees) acting for Claimants and Defendants.
 EWHC 1289 (QB)
 EWHC 931 (QB)
 EWHC 2388 (QC)
Middle Temple. November 1, 2019
Lexis Nexis. March 26, 2018
No area is more at the cutting edge of human rights jurisprudence than media law. Since the incorporation of the European Convention on Human Rights into English law through the Human Rights Act 1998 members of 5RB have been involved in almost all the major cases involving the media and the impact of articles 6, 8 and 10 on defamation, privacy and confidence and open justice. It is impossible to consider human rights issues without a proper understanding of the principles of English law of defamation and confidence. Barristers from 5RB are uniquely placed, as has been demonstrated in arguing and applying human rights jurisprudence to English law.
Some members of 5RB have experience of litigating human rights before international tribunals as well. As long ago as 1991 Desmond Browne QC appeared on behalf of The Observer and Guardian newspapers before the European Court of Human Rights in the Spycatcher case.
 EWCA Civ 611
 EWHC 689 (Admin)
 EWHC 3527 (QB)
There is no doubt that the most valuable remedy for those who fear an infringement of their privacy is an interim injunction. At the same time prior restraint is one of the most stringent forms of restriction upon freedom of expression.
5RB has unrivalled experience in obtaining and defending injunction applications in out areas of work, in particular privacy, confidence and harassment. Barristers from 5RB can be available at short notice to advise and, if necessary, make or defend applications for emergency injunctions. They regularly appear before the duty judge and our clerks are available at any time to make the necessary arrangements.
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5RB provides intellectual property expertise. We provide a structure for focussed, integrated and flexible intellectual property services to clients, drawing on the wealth of wider media and communication experience already in chambers. We also provide intellectual property services outside the media context.
The core areas of work undertaken include copyright, breach of confidence, passing off, contractual disputes, advertising, the Data Protection Act 1998, performers’ rights and moral rights. Other work undertaken includes trade mark work outside the sphere of comparative advertising, database right, design right and telecommunications/broadcasting regulation.
5RB has a wealth of experience advising on pre-publication matters, both for print media and for the television and film industries. We understand the need to minimise legal and regulatory risks before information is published, whilst helping to realise the creative ambitions of those we work with, and without unduly compromising freedom of expression. 5RB is able to provide expert, cost-effective advice on how to minimise the risk of libel, contempt, unwarranted invasion of privacy and copyright infringement, as well as other legal and regulatory issues.
Junior members of 5RB regularly attend newspaper offices and broadcasting studios to give pre-publication or broadcast advice and all members have experience ‘libel-reading’ books, magazines, newspapers and journals before they are published.
Chambers also has particular expertise advising the independent television production sector. We advise across all genres of programming, from comedy and light-entertainment to serious factual and current affairs programming, including undercover investigations both in the UK and abroad. We provide advice from the conception of creative ideas for programming through to transmission and beyond. Members of chambers regularly provide companies and distributors with ‘sign-off’ on Errors & Omissions policies for insurance purposes.
5RB also gives advice on notices and information to be released by companies and/or local authorities.
Regulatory Advice Generally
As well as advising pre-publication on media regulation as it affects publishing, broadcasting and advertising (IPSO, Ofcom, ASA, BBFC), 5RB also provides clients with expert advice on post-publication regulatory matters and complaints. Members of chambers are regularly instructed to draft detailed written submissions on behalf of clients to Regulators and on occasions to represent them at hearings.
5RB has been at the forefront of not merely acting in many of the leading privacy and confidence cases involving the media, but in shaping the law. 22 members of 5RB contributed to the first comprehensive practitioners’ text on the subject, The Law of Privacy and the Media, edited by Sir Michael Tugendhat and Iain Christie, which was published by Oxford University Press in October 2002. The third edition of the book was published in January 2016.
Resolving the conflict between respect for private life of individuals and freedom of expression remains one of the most important and pressing legal issues of our times. 5RB has unrivalled experience in this area acting for both Claimants and Defendants and has been involved in the major legal developments in this area over the years: from key cases such as Douglas v Hello!, Campbell v MGN and Mosley v UK to more recent developments both in case law (amongst others PJS v News Group Newspapers, Rhodes (previously “MLA”) v OPO and Weller v Associated Newspapers , and more widely, such as the News of the World and Mirror Group phone-hacking litigation and the Leveson Inquiry.
Members of 5RB are experienced in making and resisting applications for injunctions as well as orders for anonymity and restrictions on reporting sought in order to protect privacy interests. 5RB barristers are also experts in related areas of law which can also be deployed by those seeking protect privacy interests such as harassment, data protection and copyright.
Reporting the Courts and Contempt
Reporting the courts (Open Justice) – where privacy or anonymity is sought in court proceedings 5RB barristers may be instructed to challenge or to seek restrictions.
Unlike other areas of law, the implications of publishing a story which interferes with the administration of justice or breaches a court order can render a trial unfair and result in criminal penalties. However prohibiting publication may infringe a publisher’s freedom of expression and defeat the principle of open justice.
As leaders in the area of contempt of court in relation to the media, 5RB is well placed to assess and advise on contempt issues. Barristers from 5RB regularly advise on both pre-publication and post-publication issues and have acted in many leading cases in this area, such as McCann v Bennett  EWHC 283 (QB);  EWHC 332 (QB) in which the Defendant was found to be in contempt of court for breach of undertakings.
Professor A.T.H. Smith is the joint author of the leading text Arlidge, Eady and Smith on Contempt (3rd edition, Sweet & Maxwell).
There is a difficult balance to strike between privacy in the context of court proceedings and the principle of open justice. 5RB barristers have long been known for their expertise in applying for or resisting reporting restrictions.
This work has often been undertaken on behalf of the media in the criminal and family courts, but has also been on behalf of defendants and other individuals seeking to preserve anonymity or privacy when caught up in proceedings, and for local authorities.
5RB barristers can be instructed in relation to either obtaining or resisting all types of reporting restrictions in all courts and tribunals, including:
- In the High Court
- In Family proceedings, including in ancillary relief hearings
- In the Court of Protection
- In the Crown Court
- In the Employment Tribunal
- Before Judicial Inquiries and Tribunals
- Where individuals have been arrested for and/or charged with offences
- On applications for injunctions to remove material on the internet which may be in contempt of court
- On applications for journalists’ source materials
5RB barristers have been involved in the drafting of guidance setting out the current state of the law in relation to reporting Family Proceedings (The Family Courts: Media Access and Reporting).
They have also been involved in reporting restrictions and open justice cases which have been central to the development of the law in this area, including: