Media law news from Abbas Media Law zoom-inSummer 2018

BRITNEY FORCED MONKEYS TO GIVE CAN’T OWN TULISA COPYRIGHT, CREDIT SAYS COURT INSIDE MILEY THE ROYAL HIT WITH $300M ACADEMY CLAIM OF ARTS STORMY’S A-COMIN’ DANIELS SLAPS TRUMP WITH NEW LIBEL SUIT EXCLUSIVE INTERVIEW: WINDSORS EXEC ROBERT WULFF-COCHRANE IN THIS ISSUE

Martin Lewis takes on Facebook...... 12 Warsi wins damages payout...... 14 Telegraph pays ex-Guantanamo prisoner...... 15

BUSINESS AFFAIRS Abbas Media Law’s production legal schedule, setting out the five key stages of TV production and the legal issues producers must consider. In this issue, we focus on new data protection rules...... 16

JStone / Shutterstock.com 20 QUESTIONS COPYRIGHT & IP RIGHTS WINNERS & LOSERS Noho Film & TV’s Robert Wulff- Del Toro sued over Shape of Water... 18 Tulisa wins writing credit from Britney..4 Cochrane on his favourite places...... 22 Stranger Things accused of Madonna fails to block auction...... 4 plagiarism...... 18 MEDIA HAUNTS BBC beats Bill Cosby copyright suit ....4 Miley Cyrus faces lawsuit...... 19 Why you should join the Royal Academy Masterchef loses fight with of Arts...... 24 Uptown Funk dispute settles...... 20 Mister Chef ...... 6 No IP rights for monkeys, says court.. 20 Stars get Mirror hacking payout ...... 7 PRIVACY & DATA PROTECTION Vivienne Westwood apologises...... 21 Cliff Richard privacy trial heard...... 26 REGULATION – OFCOM, Newspaper could use Facebook pic.27 ASA & IPSO De Havilland appeals over Feud...... 28 Inside the Gang in privacy breach...... 8 Damages appeal in Can’t Pay? case.. 28 Timberlake joined to class action...... 9 First English ‘right to be forgotten’ Today in breach on climate change.....9 case...... 28 Aldi’s carrot ad ‘irresponsible...... 10 Sun in breach for approach to victim.. 11 CONTEMPT & REPORTING RESTRICTIONS DEFAMATION Galloway’s ex-aide jailed...... 30 Trump hit by new Stormy Daniels Rape trial juror’s comments claim...... 12 investigated...... 30

zoom-in Abbas Media Law Editor Nigel Abbas Deputy Editor Clare Hoban zoom-in is written by the Abbas Media Law team. Features Editor Paul Hunwick We are a niche law firm advising on all aspects of Contributing Felicity UK law and regulation affecting the television, film, Editors McMahon advertising and publishing industries. Jenny Spearing Founded by Nigel Abbas, we work closely with Gervase de Wilde broadcasters, independent production companies of Editorial Assistant Lucy Chisholm Batten all sizes, and other content producers. Sub-editor Jack Seale Abbas Media Law is experienced in advising Art Director Tim Parker both before publication or broadcast, working with Contact creatives to minimise their legal and regulatory risk, as NIGEL ABBAS ABBAS Media Law well as following publication or broadcast, defending 1st Floor, 239 Kensington High Street, content when it – and its producers – come under attack. London W8 6SN With particular expertise in television and film, we have advised on thou- D: +44 207 316 3046 sands of hours of television over the past two decades, across all genres. M: +44 7831 311 080 zoom-in editor Nigel Abbas is also the primary author of Channel 4’s E: [email protected] Producers Handbook. www.abbasmedialaw.com Subscribe to zoom-in Subscribe to zoom-in at abbasmedialaw.com for essential media www.abbasmedialaw.com law and compliance news, analysis and updates.

2 | zoom-in Summer 2018 WINNERS & LOSERS Shutterstock.com

A MAJOR COURT VICTORY FOR TULISA CONTOSTAVLOS MEANS SHE WILL NOW BE CREDITED AS CO-WRITER OF A BRITNEY SPEARS HIT: SEE P4 Featureflash Photo Agency / Featureflash

zoom-in Summer 2018 | 3 WINNERS & LOSERS

Our quarterly round-up of high-profile legal winners and losers

Tulisa wins copyright fight The dispute was resolved with until she became aware of the auction, over Britney Spears track the award of 10% of the worldwide which was organised by her former friend publishing rights and income from the and personal assistant Darlene Lutz, who n Pop star Tulisa Contostavlos has song to Ms Contostavlos. had teamed up with Gotta won a claim against will.i.am and Unlike many of the Have It! Collectibles. Britney Spears after she was left out of current rash of high- Madonna the songwriting credits for Britney’s profile copyright Madonna obtained a tempo- hit Scream and Shout. disputes, which had said she had rary restraining Sony ATV brought proceedings relate to the alleged order, alleging against BMG on behalf of the former infringement not known the items the collecti- X Factor judge, alleging that she co-wrote of copyright in were no longer in her bles had been the song, which was a UK number one existing hits by possession until she wrongfully for Ms Spears on its release in 2012. similar-sounding taken from her The song’s beat, which was the records, this claim became aware of after she moved original basis for the song, was first was brought on the the auction out of her Miami given to Ms Contostavlos, who wrote a basis of direct involve- home in 2004. She track entitled I Don’t Give A F**k over ment in the writing of a then applied for a perma- it for her solo album The Female Boss. successful song. nent injunction last August. However, the track was not ulti- The dispute over Scream and Shout The Judge rejected the application and a mately included on the album and the reflects the complexities of songwriting new auction will go ahead this July. beat was then given to Ms Spears, with in modern pop music, where hits are The singer and Ms Lutz fell out only will.i.am, producer Jef Martens often the work of multiple producers in 2003, and subsequently reached and co-writer Jean Baptiste credited and writers. a legal settlement over the owner- on the reworked version, which Spears ship of artwork. As part of the settle- released as Scream and Shout. ment, Madonna agreed to release Ms Black Eyed Peas supremo will.i.am (US) Madonna loses Lutz from ‘any and all’ future claims admitted at the time of the fallout lawsuit to block against her former friend. The Judge over the track: ‘Tulisa wrote to that found that this wording had the effect song before I did – this is the truth. memorabilia auction of precluding Madonna from suing Ms But the producers of the beat… didn’t n Madonna has failed in her bid to Lutz in an attempt to halt the auction. want her to have it, so I wrote to it and permanently halt the auction of items The Judge also declared that Madonna Britney is the only person I ever had that previously belonged to her. As had waited too long to reclaim the in mind.’ reported last year in zoom- memorabilia. Under the statute of Ms Contostavlos in, the singer had been limitations, the singer had had until claimed that will.i.am successful in obtaining 2007 to make a claim for the goods. and Britney The dispute a Manhattan court Madonna is yet to comment on Spears’ version reflects the order temporarily the decision, but Lutz’s lawyer, Judd still included stopping the Grossman, is celebrating what he’s parts she was complexities of sale of personal called a ‘complete win’ for his client. responsible for, songwriting in modern items including including the pop, where hits are often a letter from line: ‘When you her former (US) Bill Cosby copyright the work of multiple hear this in the boyfriend, the suit against the BBC club, you’d better producers and late rapper Tupac turn this s**t up.’ Shakur; photo- dismissed According to Ms writers graphs; a hairbrush n The BBC has succeeded in its motion Contostavlos’ publicist with strands of her hair; to dismiss a copyright infringement Simon Jones, a musicolo- and underwear. claim over its use of footage of Bill gist’s report found that her vocals were Madonna had said she had not known Cosby’s comedy career in a documen- mixed into the Britney track. the items were no longer in her possession tary about the star’s legal problems.

4 | zoom-in Summer 2018 MADONNA HAS FAILED IN HER BID TO STOP AN AUCTION OF HER PERSONAL ITEMS: SEE OPPOSITE JStone / Shutterstock.com

zoom-in Summer 2018 | 5 WINNERS & LOSERS

As previously reported in the liability in other jurisdictions is a Winter 2017 issue of zoom-in, the welcome one for the TV industry. complaint, filed with the US District The arguments about Fair Use of the Court of California by the Carsey- clips would have been likely to have Werner Company, said clips from The been considered if the BBC’s applica- Cosby Show incorporated in a docu- tion had failed, and the case had been mentary entitled Bill Cosby: Fall of an allowed to proceed to trial. American Icon were used without the necessary permission. The documentary, which aired in Masterchef loses the UK in June, showed the disputed trademark fight with clips in telling the story of how the US comedian, actor, musician and Mister Chef author came to face a criminal trial n The Intellectual Property Office over allegations of sexual assault. It (IPO) has rejected Shine TV’s opposi- interviewed 11 individuals, including tion to the registration of ‘Mister Chef’ those who knew Cosby professionally, as a trademark relating to baking and as well as his accusers. Commentators / Shutterstock.com Randy Miramontez cooking apparatus. in the US thought the case would turn COSBY: CLIPS USED Shine, which produces and has on arguments over Fair Use, a similar iPlayer or any other means.’ trademarked ‘MasterChef’, opposed doctrine to Fair Dealing in UK law. The Judge emphasised, in reaching the new trademark, arguing the Instead, however, the defendants his decision, that the fact that marks were conceptually similar relied on the fact that copyright is there were some viewers and would cause confu- a territorial right, and argued that in California did The sion for consumers. no actionable infringement could not mean that the IPO noted Shine argued that possibly have taken place within a defendants directed MasterChef is California court’s jurisdiction because their conduct that differences ‘heavily merchan- the documentary was only broadcast towards Cali- between trademarks dised’, with the in the UK. fornia, particu- public accus- The programme was shown on larly because this towards the beginning tomed to seeing BBC2 and then on iPlayer. The claim- viewing occurred of words were more cooking prod- ants had argued that their copyright despite the defend- ucts related to the was infringed because the documen- ants’ intentions and likely to be show. So, it argued, tary was seen by viewers in the USA, efforts to prevent it. noticed members of the public using Virtual Private Networks to The argument that seeing or purchasing avoid ‘geoblocking’ restrictions built the Bill Cosby documentary kitchen utensils sold under into the iPlayer to try to prevent access was so ‘California-centric’ as to find the ‘Mister Chef’ mark would mistak- by those outside the UK. conduct directed at the state, and enly believe they were related to the But the BBC’s motion thus jurisdiction, was also television show. relied successfully on rejected. Interviews ‘MasterChef’ is registered as a this feature. It said: and filming of loca- trademark both in relation to enter- ‘Anyone viewing The decision tion shots in Los tainment services (class 41), and for Fall outside of that the use of Angeles weren’t kitchen utensils (class 21). Shine also the UK did so sufficient forsought to rely upon MasterChef having without the geo-blocking should these purposes. a substantial reputation with the authorisation protect broadcasters The case public as a television series in the field of Defendants was dismissed of cooking and food. Sugar Films from liability in other without preju- The IPO accepted that both and BBC. At no jurisdictions is a dice, and the ‘MasterChef’ and ‘Mister Chef’ would time did Defend- decision that cover identical goods, in the form of ants authorise Fall welcome one the use of geo- kitchen utensils; that both had 10 letters, to be made available blocking should 9 of which were the same; and that they to viewers in the United protect programme- were ‘highly similar to the eye and to States, via regular broadcast, makers and broadcasters from the ear’. This was not the end of the

6 | zoom-in Summer 2018 matter, however, as ‘conceptual differ- ences’ are also important in deciding whether there would be any confusion among consumers. This must be judged through the eyes of the average consumer of the goods in question. The IPO concluded that ‘MasterChef’ and ‘Mister Chef’ had quite distinct meanings. ‘Master’ means a skilled practitioner of a particular art, whereas ‘Mister’ is the title given to an adult male. It also noted that differ- ences between trademarks towards the beginning of words, as here, were more likely to be noticed by consumers than differences in the middle or at the end of words. The differences, taken as a whole, were sufficient to avoid the like- lihood of confusion. So, unless Shine appeals, ‘Mister Chef’ can be registered as a trademark.

Celebrities receive Mirror hacking payout n A group of celebrities, consisting of actress Jennifer Ellison, model Danielle Lloyd and footballers Dwight Yorke and Andy Cole, have received damages and apologies from MGN Ltd, the publisher of the Daily Mirror, over phone hacking. The settlements are the latest in a series reached by claimants in Photo Agency / Shutterstock.com Featureflash long-running litigation against the ELLISON: RECEIVED HACKING DAMAGES publisher of the tabloid newspaper, had adversely affected her career suffered as a result of the unlawful and follow earlier agreements with as well as having an emotional interception of voicemail messages more than 40 celebrities, including a impact; MGN’s actions had had a more than a decade ago. six-figure payout to actor Hugh ‘massive emotional impact’ Elder said: ‘We’re pleased to have Grant earlier this year. on Mr Yorke, affected resolved these claims against MGN on A solicitor repre- The his life in many behalf of our clients. Our clients may senting the celeb- settlements ways and signifi- be in the public eye, but they have a rities, Mark cantly damaged right to a private life, which should Elder of Shoo- are the latest his reputation; be respected. A settlement has been smiths, told a in a series reached they also had reached with MGN and our clients are judge at the by claimants in long- an adverse happy with the outcome.’ High Court impact on Mr Although there have recently been that Ms Lloyd running litigation Cole, including a number of high-profile settlements, was ‘distressed against the publisher leading him to including one reached earlier this year and appalled’ to distrust people on the eve of a trial of claims against learn she had been of the tabloid close to him. News Group Newspapers, publisher targeted; Ms Ellison newspaper MGN apologised of The Sun, phone-hacking litigation believed the activity for any damage or distress continues against both publishers.

zoom-in Summer 2018 | 7 REGULATION – OFCOM, ASA & IPSO

right to freedom of expression and the Ofcom regulates the content of all television and radio in the UK. audience’s right to receive informa- IPSO is the main regulator for the press and magazine industry. tion about the matters explored by the programme outweighed the intrusion The Advertising Standards Authority regulates advertising. All into Mr D’s right to privacy in this the regulators adjudicate on complaints with reference to codes case. It held that Mr D’s privacy had of practice, with which those they regulate have to comply. The been infringed. Ofcom Broadcasting Code is the main code relating to broadcast Ofcom also upheld a complaint content, while IPSO judges complaints against the Editors’ Code. made on behalf of Mr H, who was shown by the same programme being The ASA’s main codes are the BCAP Code for broadcast advertising, told to strip naked and physically and the CAP Code for non-broadcast advertising. Compliance with abused. Ofcom took into account that these codes is important. Regulators can impose penalties and the footage showed Mr H when he sanctions for non-compliance. Regarding privacy matters, the was 14, being subjected to a humili- regulatory codes also have wider legal significance because of ating and violent attack. His face and provisions within the Human Rights Act 1998 and data protection genitals were ‘heavily blurred’, but Ofcom considered privacy could still legislation. The result is that the Codes have a bearing not simply be engaged even where the person in a regulatory context, but also on how the courts should act may not be identifiable to the wider when making any order affecting freedom of expression and the public, particularly if the individual publication of journalistic, literary or artistic material. might still be identifiable to those who know them. Ofcom concluded that the footage OFCOM: C5’s Inside the Ofcom decided that although showed Mr H in a highly sensitive the steps taken by Channel 5 may situation, that he had a legitimate Gang in privacy breach have limited the extent to which Mr expectation of privacy in the D would have been identifiable to material as broadcast, and that the n Ofcom has upheld two separate members of the wider public, he may interference caused to his privacy was complaints for breach of privacy still have been recognisable to people very significant. against an episode of Inside the Gang, a who already knew him and who may, These rulings highlight Ofcom’s Channel 5 documentary series on UK or may not, have already had knowl- willingness to acknowledge that a gang culture. edge of the incident. Ofcom said that person’s privacy can still be infringed The programme looked at how the fact his voice was not disguised, by the broadcast of sensitive footage, gang members use social media to and the identity of the perpetrator even if the material is already in the share videos depicting the abuse, was not masked, meant there was a public domain and has been pixelated intimidation and humiliation of rival risk of Mr D being identified or blurred by the broadcaster. gang members. The basis of the first to third parties. They also underline the complaint was that Mr D’s privacy had Ofcom did not A risks of ‘jigsaw’ iden- been infringed because phone footage accept that the fact person’s tification where of him, while sitting semi-naked in his the footage had privacy can still the subject of the prison cell and being forced to apolo- already appeared footage is not gise to a rival gang after he had been on social media be infringed by the immediately attacked by another inmate in prison, meant Mr D no broadcast of sensitive identifiable, and was broadcast in the programme longer had a that this risk without his consent. right to privacy footage, even if the extends to those It was claimed Mr D was identifi- in relation to material is already who already able from his voice, which had not the footage. It know the subject been disguised, although his face had took account of in the public and the details of been blurred. In addition, the person the claim that Mr domain a particular incident. who had filmed Mr D had not had D’s mental health had The decisions reflect the their face obscured or voice disguised. been affected by the broadcast increasing recognition by the It was also claimed that the broadcast and that he now feared for his life. It law that privacy rights can protect the had affected Mr D’s mental health. did not consider that the broadcaster’s subject of information from the effects

8 | zoom-in Summer 2018 of its further use or disclosure, where had been found by the BBC to be the main consequence of that use is in breach of impartiality rules. On the sense of intrusion and distress felt that occasion, Lord Lawson and by the subject. Professor Sir Brian Hoskins, director of the Grantham Institute for Climate Change at Imperial College London, (US) Justin Timberlake gave their views on climate change. In joined to class action its investigation the BBC found that the item had given the impression that claim Lord Lawson’s views on the science n Singer Justin Timberlake has been of climate change stood on the same added as a defendant to a class action footing as those of Professor Hoskins, lawsuit brought against the US drinks and had failed to make sufficiently brand Bai over allegedly false and magicinfoto / Shutterstock.com clear that Lord Lawson’s views were misleading labelling. TIMBERLAKE: ‘FLAVOR OFFICER’ those of a minority. A California man, Kevin Branca, arise, because this type of complaint On the more recent programme, has made a claim against the would be dealt with by the advertising the BBC had invited Lord Lawson to company responsible for a range of regulator, the Advertising Standards talk about economic issues relating ‘antioxidant’ drinks because, he says, Authority. to renewable energy, rather than the brand’s labelling misleads with Under the CAP Code, the ASA can the science of climate change itself, its claim that the drinks only contain consider whether marketing commu- and this time chose not to have him natural ingredients, when in fact nications materially mislead by omit- debate with a scientist. However, they also feature artificial flavours ting material information, and it can he did not limit himself to that and malic acid, a synthetic chemical compel the removal or alteration of and made controversial and inac- flavouring compound. adverts that it finds are in breach. curate comments about the science Timberlake, who is currently Timberlake has not commented of climate change, including that promoting his fifth albumMan of the on the lawsuit, but his addition as a experts said there hadn’t been an Woods, is an investor in the brand and defendant shows the risks for celebri- increase in extreme weather events has the improbable role of ‘Chief Flavor ties of brand endorsements and tie-ins. in recent years, and that ‘during Officer’. He has now been joined to the this past 10 years… average world claim because, it is said, his ‘mone- temperature has slightly declined’. tary assistance, creative inputs and OFCOM: BBC in breach Ofcom found neither statement was marketing of Bai helped elevate the over Lord Lawson correct nor sufficiently challenged. better-for-you [sic] and name-recogni- However, some of the other state- tion of the brand’. interview ments the complainants considered The lawsuit also claims that n The BBC has been found to be in inaccurate could be argued to be accu- Timberlake ‘aided this scheme by breach of the Ofcom Code in relation rate depending on the statistics used. agreeing to promote the Products to an interview with former Chancellor By the time Ofcom investigated and their ingredients on a nation- of the Exchequer Lord Lawson on the the two complaints it received, the ally aired commercial advertisement Today programme. The interview BBC had already acknowledged during the 2017 Super Bowl, which was one of a series carried that there were aspects of reached millions of consumers, which out in August 2017 by the segment that did not was an essential tool to carry out the presenter Justin Webb Where a meet its own edito- fraudulent sales and marketing of the about the economics contributor rial standards, and Bai Products.’ of renewable energy. had taken action to The claim is for punitive damages Lord Lawson is well holds minority or address this. and for an order requiring Bai known as a climate fringe views, this In light of his Brands and Timberlake to disgorge change ‘sceptic’ and well-known position any money received from the result head of the Global must be clearly on the subject, the of the advertising. Warming Policy flagged previous programme, In the UK it is unlikely that any Foundation. and the previous inter- legal claim of this kind, against either A previous segment views in the programme the company or Timberlake, would featuring Lord Lawson, in 2014, that focused on the broader

zoom-in Summer 2018 | 9 REGULATION – OFCOM, ASA & IPSO

science of climate change rather than the economics of renewables, Ofcom found the BBC should have realised Lord Lawson might raise the scientific arguments. Today should have planned for this, and the presenter should have been in a position to challenge and provide context to those views. Both this programme and the previous one failed to make clear that Lord Lawson was in a minority position in his views on climate change. As a result, inaccu- racies were broadcast unchallenged and without clarification. The BBC was in breach of Rule CARROT: SAW DEAD PARSNIPS 5.1: ‘News, in whatever form, must be reported with due accuracy and computer-generated image of a carrot to The Sixth Sense, which was rated 15 presented with due impartiality.’ that, in a nod to the filmThe Sixth in the UK and not suitable for chil- It was not in breach of Rule 5.2, Sense, said: ‘I see dead parsnips.’ dren under that age. which states that significant mistakes The voice-over then said: ‘Kevin While it noted that the ad was in news should normally be acknowl- was feeling a little bit tense. He subject to a broadcast restriction edged and corrected on air quickly, thought there were spirits. He had a which meant it was not transmitted because some of the contentious sixth sense. As it turned out during or adjacent to chil- and inaccurate claims made by Lord his instincts were right. dren’s programmes, Lawson were addressed in a segment There were a few The ad featured the ASA observed on the programme the following day, spirits that cold that the BCAP and in an item on the BBC News Christmas night. a computer- Code required website. The BBC had also published Award-winning generated image of alcohol ads not its response to the initial complaints, bottles for to be likely to and included complaints in its Radio raising a toast a carrot that, in a nod appeal strongly 4 Feedback programme. and one fright- to the film The Sixth to people under The ruling shows that programme- ened carrot had 18 years of age, makers should have regard for all just seen a ghost.’ Sense, said: ‘I see especially by the information they have about a The ad ended by dead parsnips’ reflecting or being contributor, including past appear- showing Kevin the associated with youth ances, when considering what steps Carrot being frightened culture, or showing to take to ensure due impartiality by another character dressed adolescent or juvenile behav- is maintained. Where a contributor up as a ghost with a white blanket iour. It pointed to multiple aspects holds minority or fringe views, this over them. of the ad that might appeal to those must be clearly flagged. Throughout the ad there were under 18, including that Kevin the scenes showing various bottles of Carrot appeared to be childlike and spirits. had a high-pitched voice similar to ASA: Aldi’s Kevin Aldi said the target audience for that of a young child, that ‘Kevin’ was the Carrot ad was its Christmas campaign was adults, sold as a soft toy during the Christmas and that the ad was part of its 2017 period and was popular among under- ‘irresponsible’ campaign, in which Kevin played a 18s, particularly young children, and n The Advertising Standards part in a number of parodies of well- that the ad had a Christmas theme and Authority has held that an Aldi advert known films. a tone reminiscent of a children’s story. promoting alcohol, featuring ‘Kevin The majority of the ads in the The ASA considered that the ad the Carrot’, was irresponsible because campaign featured references to those was ‘irresponsible’ as it was likely to it was likely to appeal strongly to films, which were several decades old appeal strongly to people under 18. people under 18. and/or were largely adult in nature or Aldi was told that its future ads for The supermarket ad featured a appeal, and the ad in question referred alcohol must not do so.

10 | zoom-in Summer 2018 It is notable here that the ASA during which the complainant reiter- There was no breach of Clause 2 acted against the offending ad on the ated that they did not want to speak or Clause 11, and Ipso noted that basis of just one complaint, in line to the press. A third call was subse- journalists will often have access to with its own guidelines. While the ad quently made, during which the victims’ identities during proceed- was on one level a relatively sophis- complainant said the journalist this ings, and Clause 3 did not seek to ticated parody, and was intended to time encouraged the complainant’s prevent journalists from making appeal to adults, the ASA’s objective partner to convince the complainant inquiries in sensitive circumstances, judgment about its child-friendly to reconsider. but rather to protect people from features led to the finding that it was The complainant said they should repeated unwanted and unjustified irresponsible. not have been contacted at all, as approaches. they had been assured by the police Although the complaint did not that their identity and privacy would relate to any published material, IPSO: Sun in breach for be protected. the newspaper was required to approach to sex assault The complainant alleged breaches publish Ipso’s adjudication on page of Clause 2 (Privacy), Clause 2. (By way of comparison, trial complainant 3 (Harassment) and the TV regulator Ofcom n The Sun has been found in breach Clause 11 (Victims would not assess a of the Editors’ Code by Ipso after of sexual assault) of The public complaint that one of its journalists made multiple the Editors’ Code. did not relate approaches during a sexual assault Clause 3 includes interest in reporting to any material trial to a victim in the case. a provision to the case did not that had been The press regulator found that the effect that broadcast. If calling for a third time, when the journalists must justify the journalist’s it had been complainant had twice told the not persist in approaches to the broadcast, in reporter that they did not want to questioning, tele- the absence of speak, amounted to harassment. phoning, pursuing or complainant specific provisions The complainant, a victim in photographing individ- in the Ofcom Code a criminal case concerning allega- uals once asked to desist. relating to harassment tions of non-recent sex offences in Ipso found that, in respect by journalists, it would be which the defendants were ultimately of the first phone call, the parties had likely that any such complaint found guilty, said a journalist acting provided differing accounts of what would be treated under the broader on behalf of the newspaper had tele- had been said, and the newspaper category of broadcasters’ duty to phoned their partner, having obtained did not accept that the complainant avoid unwarranted infringement of the number from an occupant of their had at that time told the reporter privacy.) previous address. ‘not to bother’. Ipso considered that, Ipso emphasised the sensi- After the partner passed the if the complainant had made such a tive nature of the circumstances complainant the phone, the jour- comment, the second telephone call surrounding the journalist’s approach, nalist asked if they wished to could have represented a failure to although the fact that the trial was comment on the criminal case, and respect a request to desist. ongoing did not appear to have been the complainant said: ‘I have had Since the complainant had made a factor. This sensitivity is further enough to do with this now and don’t clear during the second call that they underlined by the potential liability want anything else to do with it. I did not wish to provide any mate- for contempt of court in making an am not interested in giving a story.’ rial for publication, and this was a improper approach to a witness (or a The reporter tried to persuade them story about the complainant that juror) during a criminal trial. to give their story, and they said was extremely personal and sensitive Obtaining the story of a complainant again that they did not wish to do so. in nature, to call a third time was or key witness is an enticing prospect The complainant claimed that unreasonably persistent and unjusti- for a journalist seeking a unique angle when the reporter then said he would fied, and represented harassment, in for their coverage of a court case. give them time to reconsider and breach of Clause 3. There is a public But this decision makes clear that would call again the following day, interest exception to Clause 3, but doing so requires extreme sensitivity, they told him not to bother and that the public interest in reporting the both to the circumstances of the indi- they were not interested. But a second case did not justify the journalist’s vidual and to the legal and regulatory call was made on the following day, approaches to the complainant. risks involved.

zoom-in Summer 2018 | 11 DEFAMATION

firmly believe there is going to be too The law of defamation protects the reputation of individuals and much evidence of wrongdoing by him companies. Statements are defamatory if they adversely affect a and those around him for him to be able to survive the balance of his term.’ person’s or company’s reputation in the eyes of reasonable people. A The reaction of Trump and those person or company can sue over defamatory statements in England and close to him only seems to have made Wales if they cause or are likely to cause serious harm to the person or, his position worse. Trump had previ- in the case of companies, cause or are likely to cause serious financial ously denied the relationship with loss. Journalists – indeed, all those publishing content – need to be Daniels and claimed that he did not know about the payment made aware of the law, and confident that what they are publishing is either by Cohen. However, following the not defamatory or, if it is, that they can avail themselves of one of the commencement of Daniels’ defamation defences to defamation. claim, Rudy Giuliani, a new member of Trump’s legal team, announced on television that the President did know Trump hit by new Stormy Cohen, was void because Trump had about the payment and had personally not signed it. reimbursed Cohen for it. Daniels claim That claim was itself stayed Trump responded by effectively n Donald Trump is being sued by recently following an FBI raid on acknowledging what Giuliani had pornographic film star Stormy Daniels, Cohen’s home and office and the said, but then saying that the erst- over a tweet in which he dismissed as launch of a criminal investigation into while mayor of New York did not have a ‘total con job’ a sketch released by his conduct. his ‘facts straight’. Daniels of a man she says approached Cohen relied on his right against Both Trump and Giuliani deny her in a Las Vegas car park and told self-incrimination, and his inability to that the $130,000 payment violated her to ‘leave Trump alone’. defend the claim properly as a result campaign finance laws, although this The suit says the tweet was ‘false of the overlap between issues in the analysis is hotly contested by expert and defamatory’, arguing that Trump lawsuit and those in the investigation. commentators. was speaking about Daniels and that Commentators in the United Daniels’ claim joins an existing he ‘knew that his false, disparaging States have described Daniels’ defamation action against Trump by statement would be read by people defamation claim as ‘splendid’, and former Apprentice contestant Summer around the world, as well as widely pointed to the prospect of her lawyer Zervos. As previously reported in reported’. Michael Avenatti being able to depose zoom-in, the claim by Zervos has been It also says Daniels has been the President and question him under allowed to proceed by a judge after ‘exposed to death threats and other oath about his relationship with Trump’s lawyers unsuccessfully tried threats of physical violence’ Daniels and his knowledge of to argue that he should benefit from following the tweet. the subsequent events. immunity because the statements The tweet was In contrast to the were made while he was campaigning published by Trump The reaction parallel investiga- to be President. in the context of of Trump and tion into Russian Trump himself has been a prolific an existing legal or other foreign libel litigant over the years. In an claim over a non- those close to him interference in ironic reversal, it now seems that the disclosure agree- only seems to have the election by same type of legal action could bring ment, which special counsel about his downfall. Daniels signed a made his position Robert Mueller, month before the worse Daniels’ claims are 2016 election in proceeding in the full Martin Lewis takes on return for a payment glare of publicity and her Facebook over fake ads of $130,000, in order to lawyer Avenatti has spoken keep the details of an alleged affair out freely about them to the media. n Consumer affairs campaigner between her and Trump quiet. ‘Ultimately, he is going to be Martin Lewis has issued libel proceed- She now claims the agreement, forced to resign,’ Avenatti told The ings against Facebook, saying his which involved a payment by the Pres- Guardian. ‘I don’t know how he will reputation has been harmed by fake ident’s then personal lawyer, Michael ultimately spin his departure, but I adverts on the site.

12 | zoom-in Summer 2018 PORN STAR STORMY DANIELS HAS LAUNCHED A NEW DEFAMATION SUIT AGAINST PRESIDENT DONALD TRUMP: SEE OPPOSITE Tinseltown / Shutterstock.com Tinseltown

zoom-in Summer 2018 | 13 DEFAMATION

understood to mean about Martin Lewis by those who see them, to what extent Facebook can be held responsible for them in law as a publisher, and to what extent a company based in California will engage with legal proceedings in this country.

Warsi wins damages payout over Isis allegations n Prominent Conservative peer Sayeeda Warsi has secured a £20,000 damages award and a front-page apology from Jewish News over the publication of allegations concerning LEWIS: SUING FACEBOOK her attitude to the Islamic State terror The novel legal claim is the latest in check their legitimacy with me before group. a series of difficult issues faced by the publishing. This shouldn’t be difficult An article published by former ubiquitous social media giant over the – after all, it’s a leader in face and text army officer Colonel Richard Kemp past year, coming as it does in the wake recognition. Yet it simply continues in Jewish News and on its website of the Cambridge Analytica to repeatedly publish these suggested that Baroness Warsi had scandal involving the adverts and then relies sought to excuse the appalling harvesting of users’ on me to report them, conduct of Islamic State, and that she personal data, and Lewis aims to once the damage has had objected to action being taken the controversy been done.’ against British Muslims who murder over Facebook’s demonstrate that Lewis and and rape for the group. role in the Facebook is more his lawyers have The publication has now accepted circulation of emphasised the that the allegations were false and so-called ‘fake than just a platform campaigning should never have been published. news’ during the and is effectively a nature of the litiga- Baroness Warsi said: ‘The article US election. tion, saying that it was untrue and offensive. Predict- Lewis’ claim has publisher aims to demonstrate ably, it was widely shared online and been brought over that Facebook is more on social media and caused a divisive the publication of what than just a platform and is debate, and as a consequence I was he says are more than 50 fake effectively a publisher of the subjected to much abuse over a adverts on Facebook in this country. content that appears on the period of seven months. He alleges that the adverts are often for site. I am a passionate scams, and that they feature his name Lewis is also Allegations supporter of inter- and likeness alongside false promises seeking exemplary faith relations, and or endorsements. Some adverts then damages, on the of endorsement unfounded allega- link to related fake articles. basis that Face- of Islamic terrorism tions such as the In a statement, Lewis said: ‘Enough book should pay ones published is enough. I’ve been fighting for over a a sufficiently high continue to provide by Colonel year to stop Facebook letting scammers sum to prevent it fertile ground for Kemp and Jewish use my name and face to rip off vulner- simply writing off News serve only able people – yet it continues. I don’t any payout as another defamation to reinforce and do adverts. I’ve told Facebook that. cost of business. claims inflame the divisions Any ad with my picture or name in The claim is likely to between communities.’ is without my permission. I’ve asked give rise to a number of issues, Baroness Warsi is donating it not to publish them, or at least to including what the fake adverts are the damages to charities including

14 | zoom-in Summer 2018 Savayra Foundation UK, a women’s empowerment charity, Nisa-Nashim, a Jewish and Muslim Women’s network, and Wakefield Hospice. Allegations of involvement in or endorsement of Islamic terrorism continue to provide fertile ground for defamation claims.

Telegraph pays damages to former Guantanamo prisoner n The Daily Telegraph has apologised and paid damages to former Guanta- namo Bay detainee Omar Deghayes, to settle his claim over the allegation that he had encouraged his nephews to become radicalised. Mr Deghayes was held in the US prison camp following his arrest in Pakistan in 2002, and was eventually released without charge and returned to Britain in 2007. Agreements to pay compensation were reached in 2010 between lawyers acting for Deghayes and the British government for its alleged involve- ment in his rendition and unlawful imprisonment in Guantanamo. Articles published in The Daily Telegraph on 28 July 2017 and 26 September 2017 alleged that Mr Deghayes had used some of this compensation to pay for his nephews to attend a gym, where they had then been radicalised. Two of Mr Deghayes’ nephews were later killed while fighting in Syria. / Shutterstock.com Twocoms In an apology published as part of WARSI: DONATED DAMAGES the settlement, the Telegraph accepted that the Telegraph has acknowl- damages to the chairman of Finsbury that although some of the informa- edged that they published a base- Park mosque, Mohammed Kozbar, to tion it had published was drawn from less and unfounded allegation and settle his claim over an article head- a local authority Serious Case Review, have set the record straight. It is lined ‘Corbyn and the mosque leader Mr Deghayes had not paid or encour- regrettable that the writer and who blames the UK for Isil’. aged his nephews to attend the gym, publisher did not attempt to verify There has been a decline in defa- nor was he responsible for them trav- the story they were publishing. mation cases fought to trial in recent elling to Syria. The harm that has been inflicted years, but settlements such as these Along with the apology, the news- can never truly be rectified.’ are a reminder that even claims that paper agreed to pay Mr Deghayes In the week following the settle- are resolved before trial can result in damages and his legal costs. ment of the claim by Mr Deghayes, the publisher facing significant costs Mr Deghayes said: ‘I’m pleased the Telegraph also agreed to pay for any legal fees and damages.

zoom-in Summer 2018 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

Although it is an EU-wide law In every issue of zoom-in we examine the commercial, legal and regulatory that has effect across Europe, it is also hoops programme-makers have to jump through to get their programmes reflected in a new UK Data Protec- safely to air. Our production legal schedule above sets out the five key tion Bill which is currently making its passage through Parliament. The stages of production which producers need to consider and the advice and Bill updates data protection laws in expertise they are likely to need at each stage. In each issue, we focus on the UK, and supplements the GDPR one or two particular aspects of production legal requirements. and associated European law, as well as extending data protection laws to are controllers and processors of areas not covered by the GDPR. Data protection personal data. A controller determines The data protection regime that n The General Data Protection the purposes and means of processing will come into force under the GDPR Regulation (GDPR) is in force across personal data, while a processor is is not hugely different to the one Europe as of 25 May. responsible for processing personal data that already exists under the Data The GDPR applies to all ‘personal on behalf of a controller. For example, Protection Act 1998 (DPA), which data’, meaning any information a production company may be a data the new bill will replace, and which relating to an identifiable person who controller, and a post-production has involved organisations complying can be directly or indirectly identified house may be a processor working on with data protection key principles, from that information, and to both its behalf (although it almost certainly such as protecting personal data automated personal data and to data will be a data controller in respect of against loss or destruction, and having in manual filing systems. other personal data). proper bases for the processing of This broad definition provides for a The legislation has wide-ranging personal data, for example consent. range of personal identifiers to constitute implications for both individuals and The DPA has a key exemption for personal data, including names, locations organisations, and particularly for journalism at section 32, which is or online identifiers, and reflects changes those such as production companies there to prevent undue interference in technology and the way organisations and journalists, whose work inher- with journalistic activities by data collect information about people. ently involves the processing of the protection laws. It exempts journal- The GDPR applies to those who personal data of others. ists from the Act’s requirements where

16 | zoom-in Summer 2018 The zoom-in Television Production Legal Schedule

they are undertaking processing with require careful consideration and, controllers and processors will need to a view to publication, and compliance most likely, legal advice, if it is going comply. These are broadly similar to with data protection principles would to be safely relied on. those that exist under the DPA. be incompatible with the journalistic Where the exemption is not The GDPR principles include the activity in question. The importance relevant – because, for example, the need for personal data to be processed of freedom of expression is expressly personal data in question belongs to fairly, to be adequate and accurate, built in to the exemption. those whose involvement in a produc- and for it to be kept for no longer This exemption will be retained tion is voluntary eg programme than necessary and kept securely, all in the new Data Protection Act when contributors – Article 5 of the GDPR of which are broadly similar to the it becomes law but, as before, it will sets out the principles with which data continued on page 31

ABBAS MEDIA LAW are experts in business affairs and rights issues. Nigel Abbas and Jenny Spearing advise clients, both companies and individuals, on all aspects of business and commercial affairs, and chain of title and rights issues, in connection with the television, film, advertising and publishing industries. We can advise you on structuring a deal, draft and negotiate all types of agreements, and answer all your day to day queries. We regularly advise clients on agreements concerning commissioning and production, financing, distribution, co-production and all manner of underlying rights. Nigel Abbas Jenny Spearing We provide a first-class professional service offering clear practical advice and solutions. Please get in touch for more information.

zoom-in Summer 2018 | 17 COPYRIGHT & IP RIGHTS

a celebrated author’s creativity without Copyright permeates all aspects of television production, providing due recognition,’ the claimants say. copyright owners with certain exclusive rights to do specific acts in In response, Mr Del Toro has said: ‘I’d never heard of this play before connection with the copyright works that they own. Copyright protects making The Shape Of Water, and none people’s and companies’ creative endeavours so they can benefit and of my collaborators ever mentioned profit from their work. A television company making a programme the play.’ for broadcast will own copyright in the film it is producing. Copyright Fox Searchlight said it would ‘vigor- enables the owners to earn money by licensing rights in the programme ously’ defend the ‘ground-breaking and original film’. to others who wish to exploit it. At the same time, producers need to ‘These claims from Mr Zindel’s ensure that rights in copyright works included within programmes – estate are baseless, wholly without so-called ‘underlying rights’, in music, archive, photographs etc – are merit and we will be filing a motion properly licensed from whoever owns them, unless they can rely on to dismiss,’ a spokeswoman from Fox one of the statutory defences to copyright infringement, such as fair Searchlight said. dealing. Infringing others’ copyright is likely to result in you being sued for damages and may mean that your programme can’t be shown. An (US) Stranger Things understanding of copyright is therefore essential for those working in creators accused of television production. plagiarising short film n The creators of hit TV series Stranger (US) Guillermo Del Toro engage it, try to rescue the creature Things, Matt and Ross Duffer, have and Fox Searchlight sued when the lab makes plans to ‘vivisect’ been accused of taking the idea for the it, use a laundry cart in their rescue Netflix show from a 2012 short film by over Shape of Water plans, and aim to release the creature director Charlie Kessler. into the sea. The brothers have described the n The family of a Pulitzer-winning The suit also alleges that there are legal claim filed last week, which alleges playwright has filed a copyright other parallel characteristics in that that the series was based on Mr Kessler’s infringement lawsuit against director both works use a motif of a ‘romantic film Montauk and an associated feature Guillermo del Toro and Fox Search- vintage song playing on a record player film script entitledThe Montauk Project, light, alleging that the Oscar-winning inside the laboratory’, adopt a similar as ‘completely meritless’. film The Shape of Water is a ‘derivative’ ‘dreamy and ‘surreal’ mood, and rely on The claim is brought on the basis work that has ‘glaring similarities’ to ‘fantasy sequences’. of an alleged breach of an implied a 1969 play called Let Me Hear Demanding a jury trial, contract which arose when Mr Kessler You Whisper by the late the claimants assert that met the Duffer brothers at a party at Paul Zindel. The because the play was the Tribeca Film Festival in 2014 and Zindel’s family is complaint widely published, presented his ‘script, ideas, story and suing the studio, the and there are simi- film’ to them. director and others notes that both larities between the Mr Kessler says this pitch took in a California works take place film and the play, place ‘consistent with well-established court, claiming the film was made customs and practices of the entertain- there are at least during the 1960s ‘knowing that it ment industry and on the mutually- 61 similarities. The in a secret infringed Zindel’s understood condition and bilateral complaint – which original literary work’. expectation that Defendants would seeks damages – notes laboratory The 43-page docu- not disclose, use and/or exploit’ the that both works take place ment claims that Fox et al concepts behind his work. He alleges during the 1960s in a secret should have obtained a licence that the Duffer brothers ‘repackaged’ laboratory that conducts experiments from the Zindel family and given fair his concepts as their own in producing for military purposes; and that both credit to the original play. Stranger Things. protagonists are unmarried, introverted ‘Instead, the defendants did The lawsuit includes claims for cleaning women who work graveyard nothing, necessitating this action to injunctions and damages. shifts at the labs, share their lunches vindicate Zindel’s copyrights, and to Mr Kessler’s film uses found footage to with a creature, dance with a mop to prevent the defendants from exploiting describe paranormal phenomena around

18 | zoom-in Summer 2018 (US) Miley Cyrus hit with We Can’t Stop lawsuit n Miley Cyrus is reportedly facing a $300m copyright We Can’t Stop peaked at No2 on the Billboard Hot 100. infringement lawsuit from the Jamaican artist Michael It was kept off the top spot by Pharrell Williams and May aka Flourgon, who claims Ms Cyrus’ 2013 hit We Robin Thicke’s Blurred Lines, which was itself the subject Can’t Stop resembles a song he wrote in 1988. of a multi-million-dollar lawsuit won by Marvin Gaye’s Mr May alleges that Ms Cyrus took ‘about 50%’ from estate, who claimed that the song infringed copyright in his song We Run Things, including musical elements and the legendary soul singer’s 1977 hit Got to Give It Up. the phrase: ‘We run things/Things no run we,’ which Ms In a case that has been closely watched in the music Cyrus sings in her song’s chorus as, ‘We run things/Things industry, a US appeal court upheld a jury’s verdict

don’t run we.’ against Blurred Lines, agreeing that the Gaye family Shutterstock.com In addition to seeking damages, Mr May is also seeking was entitled to the $5.3m (£3.7m) it was awarded at to halt sales and performances of Ms Cyrus’ song. Although trial. Numerous infringement claims have followed, the claim does not specify the damages sought, a press and many songwriters have settled rather than risk a release issued by Mr May’s lawyers states it is a $300m sizeable jury award. claim. The basis for such a huge claim is unclear. Ms Cyrus is yet to publicly respond to May’s claims. Kathy Hutchins / Hutchins Kathy

zoom-in Summer 2018 | 19 COPYRIGHT & IP RIGHTS a government facility. Stranger Things (US) Uptown Funk dispute Gap Band were given a credit on the also involves supernatural phenomena track, after the settlement of a claim surrounding a government lab. settles that the song resembled their 1979 hit Mr Kessler has said that he found n Bruno Mars and Mark Ronson have Oops Upside Your Head. Girl group The out about the series in 2015, when settled a copyright dispute over their Sequence say the song’s hook is from Netflix referred to it with its original hit song Uptown Funk. The singer and their track Funk You Up. Serbian singer working title: Montauk. The setting of producer were being sued over claims Viktorija has also claimed the track the show was subsequently changed to that Uptown Funk ‘is an obvious, strik- infringed her copyright. Last year Last- the fictional small town of Hawkins, ingly and substantially similar copy’ rada Entertainment Company, which Indiana, and its name was altered before of funk band Collage’s 1983 song holds the copyright in Zapp’s More its release on Netflix in 2016. Some Young Girls. The lawsuit was brought Bounce to the Ounce, claimed Uptown reviewers remarked on similarities by Yours, Mine and Ours Music, Funk copied that song. between Stranger Things and decades- surviving Collage member Larry old conspiracy theories about White, and the estates of government experi- Grady Wilkins and Lee (US) No IP rights for ments at a military The claim is Peters. The parties monkeys, says US court installation in agreed to drop the Montauk, NY brought on the matter at the US n A legal battle over a selfie taken – the alleged basis of an alleged District Court by a monkey on a wildlife photogra- scientific for the Central pher’s camera – the latest instalment programme breach of an implied District of in a series of disputes over the image taking place contract which arose California on – has been resolved by a ruling by a US there being 12 April. appeal court that a monkey cannot be a known as when Kessler met the Uptown Funk copyright owner. ‘the Montauk Duffer brothers at a was released in The case was brought over a photo- Project’. November 2014 graph taken by a crested macaque of The Duffer party and was a huge hit, its own face grinning into the lens, brothers’ lawyer, Alex topping the charts in the captured with wildlife photographer Kohner, said in a statement UK, US and a host of other David Slater’s unattended camera. to the Press Association: ‘Mr Kessler’s countries including Australia and The principal dispute over the claim is completely meritless. He had Canada. It won two Grammy awards, pictures came about when they were no connection to the creation or devel- including Record of the Year, and the licensed by Mr Slater to a news agency opment of Stranger Things. The Duffer video has been viewed 3 billion times in 2011. Brothers have neither seen Mr Kessler’s on YouTube. They were reproduced on a number short film nor discussed any project This is not the only copyright claim of news websites, and were then with him. Messrs Mars and Ronson have faced uploaded to Wikimedia, a site that ‘This is just an attempt to profit about Uptown Funk. In 2015, The only accepts media that is available from other people’s creativity and hard under a free content licence, is in the work.’ public domain, or is otherwise ineli- Following the filing of the claim and gible for copyright. related publicity, the Duffer brothers Mr Slater requested that the pictures responded by sharing emails with be removed but both the Wikimedia TMZ which they claim demonstrate Foundation and Techdirt, a blog that that they were developing Stranger covered the dispute, refused, asserting Things and referring to it as Montauk that the photograph had no human years before meeting Mr Kessler. author in whom copyright was vested. The claim highlights the difficul- In 2014, the United States Copyright ties that surround the ownership of Office ruled that the picture couldn’t be concepts and ideas in an industry where copyrighted, ruling that ‘only works these are often outlined to potential created by a human can be copyrighted collaborators in an informal way, and under United States law, which excludes where copyright protection does not photographs and artwork created by generally extend to them while at the animals or by machines without human pitch stage. MONKEY: CAN’T OWN COPYRIGHT intervention’.

20 | zoom-in Summer 2018 Legal experts suggested that Mr Although the arguments in this Slater would be likely to be able to phase of the dispute tended towards assert his rights in England and Wales the frivolous, the case remains an as the copyright owner, pointing to interesting instance of how the law European case law that indicated that grapples with the enormous variety of the selection of photographs would be issues intellectual property throws up. enough for them to attract protection In contrast to the position indi- for the photographer. cated by the United States Copyright The latest ruling came in a lawsuit Office, an approach using the frame- launched by People for the Ethical work provided by European IP law, Treatment of Animals (Peta), which which is highly evolved both at the sued Mr Slater for publishing the national and EU levels, could have / Shutterstock.com John Gomez monkey’s photograph in a book, allowed the photographer to assert his WESTWOOD: APOLOGISED ON INSTAGRAM claiming that the animal was the rights from the start of the dispute. T-shirts and read: ‘Dear @louisegray__ owner of the image. and @rottingdeanbazaar. We are sorry. A judge found against Peta in The use of your graphics on our t-shirt 2016, holding that an animal couldn’t Vivienne Westwood was only ever meant to be a celebration own copyright, since the protection apologises for using of your work. We got caught up in a last of the law had not been extended to minute frenzy and did not contact you animals. designers’ work to ask for your permission. We are truly Peta appealed. However, the appeal n Designer Vivienne Westwood has sorry about this mistake and want to was dismissed, with the Court saying: apologised on Instagram for using make it up to you.’ ‘The panel held that the animal had other designers’ work without their Public comments on the post range constitutional standing but lacked permission. from criticism and disappointment to statutory standing to claim copyright The work in question was on a more supportive reactions, with some infringement of photographs known T-shirt that was shown as part of the saying they would be honoured to have as the “Monkey Selfies”.’ Andreas Kronthaler for Vivienne West- Westwood use their work, or praising While Peta characterised the ruling wood Autumn/Winter 2018 collection the brand for at least holding its hands as discriminating against animals, its at Paris Fashion Week in March. The up to the mistake. role in the litigation was criticised by T-shirt was emblazoned with the words: Louise Gray and Rottingdean the Court: ‘Puzzlingly, while repre- ‘We do big sizes! 2XL 2XL 4XL 5XL!!!! Bazaar (made up of James Theseus Buck senting to the world that “animals are We do very small sizes!!’ and Luke Brook) have not commented. not ours to eat, wear, experiment on, Westwood subsequently posted The line between copying work and use for entertainment, or abuse in any an apology on Instagram to designers using it as inspiration can be a fuzzy other way”… Peta seems to employ Louise Gray and Rottingdean Bazaar, one, in fashion as elsewhere in the crea- Naruto as an unwitting pawn in its who had previously shown a T-shirt tive industries – for example, zoom-in ideological goals.’ Peta was ordered to with the same graphic. The post showed has reported on a number of cases in pay Mr Slater’s legal costs. a side-by-side comparison of the two the music industry in recent years.

Fair dealing advice n Over the last decade, fair dealing rules have been used Nigel is the primary author of Channel 4’s Producers with increasing frequency by programme-makers, both in Handbook and one of the primary authors of Channel 4’s news programmes when reporting on current events, and fair dealing guidelines. Nigel updated the guidelines for when reviewing or critiquing copyright works that it’s Channel 4 in 2015 to incorporate advice and practical difficult or impossible to license. In addition, in 2014, guidance on fair dealing with quotations and for carica- fair dealing rules were extended: there is now a specific ture, parody and pastiche. See Channel 4’s guidelines at defence when fair dealing with quotations as well as a www.channel4.com/producers-handbook/c4-guidelines/ defence of ‘fair dealing for the purposes of caricature, fair-dealing-guidelines. Nigel advises many of the leading parody or pastiche’. Abbas Media Law’s Nigel Abbas is content producers working in this area. one of the country’s most experienced lawyers advising in If you need any advice on fair dealing, please contact this area. He has advised on many hundreds of hours of Abbas Media Law at [email protected] or visit programming featuring fair dealing over many years. our website, abbasmedialaw.com.

zoom-in Summer 2018 | 21 20 QUESTIONS Crowning glory

Robert Wulff-Cochrane, co-MD of Noho Film Which programme that you’ve and TV and the man behind Channel 4’s cult hit been involved in are you most The Windsors, tells zoom-in what keeps him awake proud of? at night and where to find a good Manhattan Cast Offs, because it addressed disa- bility in drama in a way that had never been done before. How many hours a week do you work? Guilty TV pleasure? Oh gosh, too many. Enough to get RuPaul’s Drag Race. done what I need to get done. What advice would you give What gets you out of bed in the someone starting out in TV? morning? Don’t be afraid of the grown-ups. Panic that I’ve forgotten to do some- They’re just like you but with thing important. grey hair.

What keeps you awake at Have the Royals seen The night? Windsors? The same thing. Panic that I’ve An article in the Express claimed forgotten to do something important. Prince William had watched it and loved it. Lots of news sites picked up Favourite restaurant? on the story but then strangely and Fischer’s (50 Marylebone High St, suddenly, 24 hours later, all references W1U 5HN). I love a bit of heavy, old- on the internet disappeared. The story fashioned Euro food. has since resurfaced.

Favourite drink? Biggest TV-related legal pickle Manhattans at The Heights (St you’ve got yourself into? How George’s Hotel, 14 Langham Place, did you get yourself out? W1B 2QS). It’s not the chicest place Not legal, but we once had a meeting on earth but you can always get a with someone who we thought was a table, the drinks are good and the view playwright, but the agent had mistak- is spectacular. enly sent a famous writer with a similar name. We mentioned a specific play Who gave you your first career that we believed they’d written. When break? it transpired we had the wrong person, Debbie Mason, Stephen Garrett and they didn’t see the funny side at all. It Sally Woodward Gentle at Kudos. was bad.

What do you love most about What are you reading at the your job? moment? The funny, clever, creative people I get The Age of Decadence by Simon Heffer. to work with on a daily basis. Dream dinner party guests? Favourite TV shows? Elizabeth I, Peter Cook and Whitney Moonlighting, Call My Agent!, The Houston. I feel a bit mean leaving Handmaid’s Tale and Grand Designs. Dudley Moore out.

22 | zoom-in Summer 2018 HARRY AND MEGHAN, AS SEEN ON C4’S THE WINDSORS

Favourite place to have fun? Last time you cried? Pet peeve? Ibiza. Watching the First Dates People who pretend not Hotel episode with to remember that First record you ever bought? the fashionista who ‘I’ve you’ve met them Mary’s Boy Child by Boney M. started out as a discovered before. cynical, I’m-so- gardening late in Most-used expression? fabulous snob. Who would ‘So weird.’ I say it too much. The guy was life and I’m obsessed. you least like so honest and There’s always to get stuck in If you could change two things open, he melted a lift with? about yourself, what would her heart. It was a something to look Donald Trump they be? lesson in love. forward to’ and Nigel Farage. I’d have more patience and better hair. In truth, I should probably just say Describe yourself in If you could retire ‘have hair’. five words. tomorrow, what would Impatient, extrovert, fun-seeking, you do? What advice would you give loyal and kind. Become a gardener. I’ve discovered your 16-year-old self? gardening quite late in life and I’m Don’t be so afraid to be uncool. Any wise words? obsessed. For the first time, I’m There are lions and there are tigers. starting to really notice the seasons. Biggest achievement in life? Lions are great. Tigers are great. They There’s always something to look My relationships. are not necessarily great together. forward to. Paul Hunwick Sometimes creatives just don’t click. Last three websites you visited? The special Royal Wedding edition of The Honestly? Outlook Mail, The Guardian Greatest invention of all time? Windsors aired on C4 on 15 May and is and Collinge Antiques. The television. available on All 4

zoom-in Summer 2018 | 23 MEDIA HAUNTS: ROYAL ACADEMY OF ARTS ART, GLORIOUS ART

ARTISTIC FLAIR: THE ACADEMICIANS’ ROOM

The Royal Academy of Arts t’s a landmark year for the Royal extra gallery space and more areas to is celebrating its 250th Academy of Arts. It was founded in eat and drink. anniversary and, with a I1768 to promote the arts in Britain The heart of the Royal Academy new extension open, it’s through education and exhibition, so has always been the art school. It never had more to offer. 2018 marks its 250th birthday. Acad- is arguably Britain’s first. Students Paul Hunwick visits the emician Grayson Perry says: ‘It’s going are given a bursary, studio space and to be bigger, better, more exciting and access to some very important people. Academicians’ Room we are still here: a bunch of old artists.’ In 2011, Tracey Emin was appointed Ten years in the planning and Professor of Drawing. The Academy’s timed to coincide with the anniversary, ‘Patron, Protector and Supporter’ is a David Chipperfield extension now Her Majesty The Queen. joins the Burlington House entrance You don’t need to be an artist to with Burlington Gardens for the first appreciate the RA; just an art lover. time, creating one unified campus. It has visitors from every corner This includes a new lecture theatre, of the world – but if you want to

24 | zoom-in Summer 2018 his work at The Ivy and Annabel’s Royal Academy of Arts in London and Soho Beach House Burlington House in Miami, Brudnizki is a man who London W1J 0BD understands every aspect of interior 020 7300 5920 design. Here, he has worked respect- fully with the architectural detailing Who might you see? Peter created by Norman Shaw in 1883 Blake, David Hockney, David Adjaye, Gilbert & George, Wolf- to re-imagine an artist’s drawing gang Tillmans, Maxine Peake, Mary room. When 20mm of plasterboard Nightingale was stripped from the walls during restoration, it revealed wood panels What to wear Anything goes. with pinholes from when the room The first club rule is ‘No Dress served as the architectural hangings Code’ gallery – but deciding to keep them Head chef David Dawson for was controversial. Oliver Peyton ‘We debated the matter for Eat Beetroot ravioli, crispy sage quite a while,’ says head of Keep- and Montgomery cheddar, £15.50 er’s House Clare Taylor. ‘In fact, or fish pie with spring greens, it split the membership. Some felt £15.50 they compete with the art and the Drink Burlington Breakfast Martini: walls should be painted white like a gin, Solerno and Burlington commercial gallery. Others love it. marmalade, £12.50 They are a bit Marmite.’ Power table Power is pretty Membership of the club itself is evenly spread but if you want a ‘quite broad’, Taylor says. ‘We set degree of privacy, try table 123 in out to be a home for eminent indi- the corner, which is partially hidden viduals, experts within their fields, behind a screen. You might have to but as we’ve evolved, we now include fight Bill Nighy for it – he’s a regular the wider creative industries.’ Have and it’s his favourite spot the suited bankers arrived to spoil the Who to know Aim high: Christo- party? ‘Well, we have a few people pher Le Brun, the 26th president of from finance but these are genuine the Royal Academy art lovers and collectors. We also have Opening hours Monday politicians, diplomats, celebrities, 10am-6pm; Tuesday-Saturday broadcasters, journalists and free- 10am-11:30pm; Sunday 10am-6pm lancers working in fashion or design Membership fee £400pa, £250 who don’t have an office to go to.’ joining fee; under-35s £200pa, Taylor won’t reveal the names of £125 joining fee get in on the conversation with art members but it is reported that at a How to apply At royalacademy. heavyweights, join its private recent David Hockney launch, org.uk members club. This will Frank Gehry and Peter Benefits Exclusive access to the give you access to Blake were in attend- Academicians’ Room with up to the Academicians’ You’ll find ance. All Academicians four guests; entry to all RA exhibi- Room and a series yourself in of the RA also have tions for you and a guest; access to of other benefits. automatic access: VIP Fridays and exhibition preview The Acad- some seriously they include Antony days; an exclusive members events emicians’ Room, interesting Gormley, Thomas programme; subscription to the RA in the Keep- Heatherwick, Anish Magazine er’s House, is a company Kapoor, Jenny Saville Look out for On the Big Green stimulating space, and Gillian Wearing. Sofa with Mary Nightingale is a designed by one of Become a member and regular Q&A event. On 18 June, London’s hottest designers, you’ll find yourself in some she talks to Melvyn Bragg Martin Brudnizki. As is evident from seriously interesting company.

zoom-in Summer 2018 | 25 PRIVACY & DATA PROTECTION

well,’ Mr Johnson said. ‘I don’t believe Since the Human Rights Act 1998 came into force, English law has I was at fault. I just reported the facts developed a legal right to privacy. The courts can and will intervene to of a story. I am sure the investigation would have been distressing.’ protect privacy rights where they are infringed without justification. Mr Johnson added: ‘This was a This is commonly referred to as ‘misuse of private information’. story involving allegations of a very Personal information is also protected by the Data Protection Act, so serious nature against a figure of the journalists and programme-makers need to be aware of, and comply highest profile, against the backdrop with, its rules as it applies to them. In this section, we report on some of a number of allegations being made against other celebrities – some recent privacy and data protection decisions of note. of whom had been jailed. Some of those other celebrities were jailed Cliff Richard privacy trial heard of the allegation and seeing it after victims came forward following made me feel even worse.’ publicity about their having been heard in London When asked about his feelings arrested or charged. during the police investi- ‘I felt this was a story I n The trial of Sir Cliff Richard’s claim gation, Sir Cliff said: could not ignore and my against the BBC over its coverage of ‘I have found it very Fran responsibility was to a South Yorkshire Police raid on the disturbing because Unsworth check the facts as singer’s flat was heard over several it is obvious that best as I could and weeks at the High Court in London for moments, if told the Judge then hand the story from mid-April. not days, I was not that the BBC had a on to my editors,’ In a case with potentially signifi- seen as a human Mr Johnson told cant consequences for media coverage being. Everything responsibility to the Court. of police investigations, and for the law I had ever lived for report but also to Fran Unsworth, of privacy more generally, the singer is seemed to have come the BBC’s director seeking compensation for the ‘profound to nothing.’ be sensitive of news and current and long-lasting damage’ he says he Dan Johnson, the jour- affairs, told the Judge that suffered as a result of the BBC broad- nalist who broke the story, said he the BBC had a responsibility to casting footage of the police searching accepted that Sir Cliff had been upset report but also to be sensitive, and his Berkshire flat in August 2014. and distressed by the story, but did not emphasised that the reporting was The raid took place because a man feel this was ‘uniquely’ down to him. factually accurate and featured Sir alleged, in late 2013, that he had been ‘Obviously South Yorkshire Police Cliff’s full denial of the allegations as sexually assaulted by Sir Cliff in 1985. were part of that, and my colleagues at soon as the denial had been issued. Sir Cliff denied the allegation and, in the BBC who were part of the story as Ms Unsworth, who at the time of the wake of the raid, it was announced the report was deputy news director, that he would not face charges. said there was no ‘blanket legal or The Court heard evidence from editorial rule’ banning the naming of Sir Cliff himself, as well as from the people under police investigation. She journalists, editors and police officers said the BBC made efforts to offer a involved. The Judge was told that right of reply, adding that she regarded South Yorkshire Police has already privacy issues around the reporting of settled the claim against it by agreeing the raid as an ‘editorial matter, rather to pay the singer £400,000. than a legal one’. Sir Cliff told the Court that he Ms Unsworth told the Court: ‘I felt ‘for ever tainted’ following the certainly was aware that this would BBC’s coverage. Referring to how he cause serious damage to Sir Cliff, but saw footage from cameras that could I had to carefully weigh up on the day see ‘right into’ his apartment and what [was] the public interest in doing showed officers searching through his the story as balanced against that.’ belongings while he was on holiday She also said: ‘Allegations of sexual in Portugal, he said: ‘It wasn’t a very SueC / Shutterstock.com assault by high-profile individuals in pleasant feeling and by that time I had SIR CLIFF: FOR EVER TAINTED the public eye and the investigation of

26 | zoom-in Summer 2018 such allegations are, in my view, public in the High Court in Belfast against conclusion that he would not grant interest matters for news reporting. The Irish News. It sought an order an injunction: the image was used in Media reporting can lead to witnesses preventing the newspaper from using reporting an offence by Mrs McKee, no coming forward, sometimes to disprove the image, damages for copyright objection was taken to that reporting the allegations, or sometimes other infringement and breach of the Data itself, and the offence was not a private complainants may come forward.’ Protection Act 1998, and anonymity. matter. In reference to footage obtained The photograph of Helen McKee The offence was also one in which by filming from a helicopter, Ms featured in an article under the headline the public would have an interest in Unsworth recalled that she ‘did query’ ‘Boxer’s mother accused of bringing being informed, since the subject of it and set out strict rules about how drugs into jail’, which reported a bail drugs in prison was a matter of great any footage obtained from it should be hearing relating to an allegation that public concern. used – including that it should not be she had sought to supply drugs to her The Judge also refused to make an broadcast live. son, well-known boxer Brendan McKee, order giving Mrs McKee anonymity, The decision-making process had who was in HMP Maghaberry. saying that doing so ‘would seriously taken into account what might happen The picture, which showed undermine’ his order refusing if the BBC did not name Sir Cliff, Ms Mrs McKee socialising interim relief where she had Unsworth said: ‘If the BBC had taken in someone’s home, It is failed to have the image a decision not to report on the activi- was taken by the questionable removed, reflecting ties of South Yorkshire Police and its newspaper from the freedom of search of Sir Cliff’s apartment, the her Facebook how much wider expression of the BBC would have been open to accu- account. value the judgment has, defendant in sations of sitting on a public-interest The Court publishing it. news item because the subject of the considered the since it fails to consider The deci- investigation was a well-known figure question of the copyright issue sion contains in the UK who was admired by many.’ Facebook’s terms some interesting In closing submissions to the of use, holding in a structured or observations on the Judge, the BBC argued that, while that since its users coherent way common media prac- Sir Cliff might have hoped not to be granted the company a tice of taking photo- identified, he could not really have non-exclusive licence, there graphs of those who feature expected to be anonymised, and that was no need to seek its consent for in the news from their social media he had to accept ‘some reduction in his the use of the image. profiles. It is, however, questionable private life’ because of his fame. There was a dispute about Mrs how much wider value it has, since the Sir Cliff’s lawyers said that the McKee’s Facebook privacy settings, but judgment fails to consider the copyright singer might have suffered permanent the Judge observed that, at the time of issue in a structured or coherent way. damage to his self-esteem as a result of publication, it was possible to access While it is possible in theory that the BBC coverage. the image, and there was no evidence a publisher’s general right to freedom The Judge has reserved his deci- that there had been any restriction of expression might provide a justi- sion. zoom-in will report in depth on placed on it. The Judge observed that fication for infringing copyright in a the judgment and its ramifications privacy settings would need to be taken photograph, the starting point would when it is given. into account when deciding to publish usually be that copyright is a property any picture obtained from Facebook: if right that is not subject to the same someone has photographs and a profile qualifications or exceptions as the right Application to prevent that anyone can view, it is likely to to privacy. use of Facebook picture be more acceptable to publish those The failure to explain how Mrs photographs than if privacy settings McKee’s copyright was taken into refused limit photographs to a closed circle of account in refusing her application n A woman who pleaded guilty to contacts. leaves open the question of why copy- bringing drugs to her son in a Northern The Judge considered whether the right should not prohibit the newspaper Ireland prison has failed in her attempt use of the image by the newspaper from using the photograph. to prevent a newspaper using a picture amounted to an invasion of privacy, a The use without consent of images taken from her Facebook page in its breach of the Data Protection Act 1998, from social media by publishers coverage of the story. or a breach of copyright. continues to be a developing and The injunction application was A number of factors informed his sometimes difficult area of the law.

zoom-in Summer 2018 | 27 PRIVACY & DATA PROTECTION

case will continue to struggle in the (US) De Havilland appeals face of the strong First Amendment as court sides with FX protections offered by US law. over Feud claim n Actor Olivia de Havilland has Damages appeal in Can’t appealed to the Californian Supreme Pay? case Court, following a decision that would bring an end to her claim against n The Can’t Pay? We’ll Take It Away! TV network FX and Ryan Murphy privacy case is heading to the Court Productions over the depiction of her of Appeal on the issue of damages. in Feud: Bette and Joan. As previously reported by zoom- zoom-in previously reported that in, the claimants, Mr Ali and his the Oscar-winning actor and star wife Mrs Aslam, were awarded of Gone with the Wind was seeking £10,000 each in damages for misuse damages as well as an injunction to stop of private information in relation the show being broadcast. Ms de Havil- to the broadcast by Channel 5 of an land claimed that her name and likeness Collection / Shutterstock.com Everett episode of the programme showing were used to promote the docudrama DE HAVILLAND: FEUD WITH FEUD them being evicted from their home. without her permission, and that it work is a world-renowned film star or The programme was shown 36 times, damaged her reputation by portraying someone nobody knows, they do not as well as being made available on her as a gossip and a hypocrite. have ‘the legal right to control, dictate, demand, and in total was viewed 9.65 In August 2017, a judge turned approve, disapprove, or veto the crea- million times. down FX’s attempt to have the case tor’s portrayal of actual people’. The Judge granted permission to thrown out under California’s anti- Feud creator Ryan Murphy called appeal on three grounds, saying that SLAPP rules (which protect defend- the reversal ‘a victory for the creative they raised points of principle that ants from so-called ‘Strategic Lawsuits community, and the First Amend- were fit to be considered by the Court Against Public Participation’, ie suits ment’. He went on to say that the of Appeal. These were: 1) whether that inhibit free speech) and decided dismissal ‘gives all creators the the damages awards were within the it should proceed because there was a breathing room necessary to continue reasonable scope of the awards a court minimal chance that Ms de Havilland to tell important historical stories could properly make, given the scale could win the claim. inspired by true events’. and nature of the publication and the FX appeared in the California While privacy law is less restrictive distress caused; 2) whether the damages Court of Appeals to try to get the in California than in this country, ought to have been – as the Judge in ruling overturned, and the the home of Hollywood is his judgment said they were – reduced appeal court reversed De unsurprisingly more because of other publications, namely the decision less Havilland’s protective than the social media posts by the claimants’ than a week later. UK of the rights of landlords; 3) whether the damages The appeal court case will continue celebrities – who awards ought to take into account referred to the to struggle in the can, as Ms de distress caused to the claimants by First Amend- Havilland did, the adverse consequences of broadcast ment protec- face of the strong bring proceed- on their children. zoom-in will report tion accorded First Amendment ings over their further as the case progresses. to those in the image rights. creative indus- protections offered Ms de Havil- tries who ‘take the by US law land’s lawyer said First English ‘right to be raw materials of life – of her appeal to the forgotten’ case including the stories of real Supreme Court that the individuals, ordinary or extraordi- decision under challenge ‘puts n In a legal first, an English court nary – and transform them into art, be everyone at the mercy of the media has ordered Google to ‘de-list’ links it articles, books, movies, or plays.’ and entertainment industry, which relating to an individual, under data Underlining the decision’s relevance may find that false statements and fake protection law – the so-called ‘right to the docudrama model, the court said news sell better than the truth’, but to be forgotten’. This means that that, whether a person in an expressive it seems likely that Ms de Havilland’s although the web pages containing

28 | zoom-in Summer 2018 sensitive information will themselves NT2’s suitability to engage in busi- taken in defamation cases, including remain online, they will no longer ness activity. that one single meaning applied to the appear as results in Google searches for By contrast, NT1 had been inaccuracy. the person’s name. convicted of a serious offence and This means that claimants can Two businessmen brought a claim sentenced to four years’ imprison- bring claims in both defamation and against Google, seeking to de-list search ment. At the time of his conviction data protection on similar terms. They results pertaining to business-related it was envisaged that his conviction may well do so in future. However, criminal offences they were convicted would never become spent, but a where the material has been dissemi- of many years ago. They brought the change in the law meant that it had nated via a television programme, claims in relation to both data protec- become spent. NT1 had not film, newspaper, book or tion and misuse of private information. fully accepted responsi- It is news website, it is The convictions are spent under the bility for his crime. likely that the jour- Rehabilitation of Offenders Act 1974. The Judge found unlikely that nalism exemption The Judge gave a public judg- him to have been broadcasters or will be available. ment, so that his decision could be evasive and Whether it will understood, but anonymised the dishonest in the publishers will be in fact protect businessmen, who were referred to witness box, and required to remove the publisher throughout as NT1 and NT2. made a number will depend on The Judge ordered that the search of adverse find- articles or programmes the facts of the results relating to NT2 be removed. ings against him under the right to individual case. However, NT1 did not succeed, and in the judgment. It is unlikely articles relating to his criminal convic- Post-conviction, be forgotten that broadcasters tions will remain accessible via Google his business had had or publishers will be search. No damages were awarded to involvement with both legal required to remove articles NT2, as the Judge found Google had and regulatory authorities. He had or programmes under the right to taken reasonable care. also published material online seeking be forgotten. However, links to their The Judge did not decide that to portray himself as a man of unblem- material could be required to be personal data relating to criminal ished integrity, something that de-listed by Google. The interaction convictions becomes out of date and concerned the Judge. The continued between defamation and data protec- irrelevant at the time the conviction processing of NT1’s personal data via tion when it comes to inaccurate data becomes spent under the Rehabilita- Google search results was justified in will also be of interest. tion of Offenders Act. He said this the public interest. For broadcasters/publishers them- would be a ‘blunt instrument’, not Google had argued that its search selves, generally there will be a public compatible with freedom of expres- function was protected by the jour- interest in contemporaneous reporting sion. A conviction being spent will nalism exemption to parts of data of, for example, convictions. The jour- normally be a weighty factor in favour protection law, but the Judge decided nalism exemption is likely to apply, of de-listing, but not conclusive. that it was not. Nor was the search but it is not a blanket exemption. It The data relating to NT2’s convic- function ‘necessary for the purposes of requires editorial staff to consider and tion was out of date, irrelevant and exercising legal rights’, nor was it the decide that: 1) publication is in the not of sufficient legitimate interest to processing of information ‘disclosed public interest, having regard to the users of Google to justify its continued by an anti-fraud organisation’. special importance of the public interest appearance in search results. NT2 Google also argued that the claims in freedom of expression; and 2) in all had been convicted of an offence that that the data was inaccurate were an the circumstances, compliance with the he had not committed for financial abuse of process by which the claim- particular provision of data protection gain, and which was not an offence of ants were seeking to circumvent the law is incompatible with the special dishonesty. He had pleaded guilty and requirements of the law of defamation. purposes of journalism. The position is had expressed remorse. The convic- This was rejected by the Judge: just likely to remain similar when GDPR tion became spent some years ago. because two separate causes of action comes into force, as a similar exemption The Judge accepted the offence was a arise out of the same set of facts does is included in the Data Protection Bill one-off. NT2’s current business activi- not mean that suing in one is an abuse currently before Parliament. It is always ties are in a quite different field, so of process. When considering whether sensible to record this decision-making, the past offending is of little if any the material was indeed inaccurate, the in case the need arises to defend a relevance to anybody’s assessment of approach to be taken is similar to that programme or article.

zoom-in Summer 2018 | 29 CONTEMPT & REPORTING RESTRICTIONS

In November 2017, she was given a The law of contempt makes it a criminal offence for the media suspended sentence for publishing on to publish or broadcast comments or information that creates social media remarks made by a judge in a criminal case in the absence of the a substantial risk of serious prejudice to active UK legal jury. It can be contempt of court to proceedings, in particular criminal proceedings heard before publish statements made by a judge in juries. Penalties for contempt can be serious: fines, even the absence of the jury, at least until the imprisonment. Many activities are capable of amounting to a end of the trial. This current suspended contempt, including: publishing seriously prejudicial material; sentence was considered an aggravating factor by the Judge. obtaining or publishing details of jury deliberations; breaching The case shows that courts take reporting restrictions or a specific court order; making payments breaches of orders, and promises made to witnesses; filming or recording inside court buildings without in the form of undertakings, very seri- permission; and publishing information obtained from confidential ously. Breach can, and in cases such as court documents in both civil and criminal proceedings. this does, lead to a prison sentence.

George Galloway’s former Juror’s comments aide jailed for contempt investigated following rape trial n George Galloway’s former parlia- n A juror in a high-profile rape trial in mentary assistant, Aisha Ali-Khan, has Belfast has been referred to Northern been given a 12-week prison sentence Ireland’s Attorney General, after for contempt of court. comments they made in an internet Ms Ali-Khan had previously sued forum following the verdict were Galloway for libel, an action that was discovered by The Irish Times. settled by both giving undertakings to The trial of rugby players Paddy the Court not to make any public state- Jackson, Stuart Olding, Blane McIlroy ment about that litigation or defame and Rory Harrison for rape saw them or disparage each other. After she was cleared of all charges. accused of breaching those undertak- In the aftermath of the unanimous ings, Ms Ali-Khan gave further under- verdict, remarks were posted in the Martin Hoscik / Shutterstock.com takings to the Court, which included comments section of an online article an undertaking not to refer to Mr GALLOWAY: EX-ASSISTANT JAILED about its outcome. Galloway on social media. a litigant to behave like that and escape The remarks reportedly described However, between 14 October lightly.’ the trial, and the person posting set out 2017 and 31 January 2018, Ms Ali- This is not the first time Ms Ali- the reasons the jury came to its decision Khan breached those undertakings 26 Khan has committed contempt of and defended the amount of time it times. The 26 breaches were admitted court. The Judge referred to took to reach a verdict. by Ms Ali-Khan at a hearing, which two previous occasions. An Irish Times was then adjourned to allow her to In 2014, Ms Ali-Khan The case journalist, Conor obtain legal representation in advance was given a three- Gallagher, spoke of sentencing. In sentencing, the Judge month prison shows that courts to the BBC’s Good said that a prison sentence was inevi- sentence for take breaches of Morning Ulster table, not because the harm caused was failing to comply about the news- particularly serious but because it was with a court order orders, and promises paper’s discovery ‘a deliberate, flagrant, persistent and requiring her made in the form of of the comments, inexcusable breach of promises you to confirm that saying: ‘They had made to the Court, in the full she had destroyed undertakings, very seemed to be fairly understanding of what it was you were certain photographs seriously accurate, they seemed doing… You carried on despite warn- of her former lover to know a lot about ings and the Court cannot easily allow and his estranged wife. the case; at first read, they

30 | zoom-in Summer 2018 BUSINESS AFFAIRS & RIGHTS

seemed to be authentic, so we got in continued from page 17 Organisations are required to be touch with the Public Prosecution relevant principles under the DPA. proactive about data protection, and Service and asked them about it and The new regime also requires for to evidence the steps they take to meet they got back to us and said they’d there to be a lawful basis to process their obligations and protect individ- referred the matter on to the office of the personal data. Consent was a key uals’ rights. Lord Chief Justice in Northern Ireland. basis for processing under the DPA, The ICO makes clear that what this ‘The Lord Chief Justice’s office then and the definition and role of this means in practice is that organisations told us they’d referred the matter on basic concept are retained. Under the should review how they comply with to the Attorney General’s office and to GDPR, as before, consent should be existing data protection obligations, other relevant authorities.’ freely given, specific and informed. update them for the GDPR if neces- Gallagher said the Attorney Gener- However, importantly, the sary, and be prepared to demon- al’s office got in touch with the juror GDPR builds on the DPA strate their compliance and told them to take the comments standard of consent, under the GDPR. down, which was then done. requiring clearer Organisations This should The juror themselves then spoke to opt-in methods, should review involve actively The Irish Times, saying that they had not good records of engaging with commented on anything to do with the consent, and how they comply with the ques- jury’s deliberations, but adding: ‘I’m simple, easy-to- existing data protection tion of data in big trouble… I’m sitting here in the access ways for obligations, update protection and kitchen waiting for the cops to arrive, people to with- having a clear two PSNI constables to arrive and draw consent. them if necessary, and up-to-date I’m going to be handcuffed away and The guidance and be prepared to policy on it, and all I’ve done is just, I made a posting on this question demonstrate their most likely will about, this is why there was a return of issued by the Infor- mean reviewing not guilty.’ mation Commissioner’s compliance what personal data is Subject to the content of the Office (ICO) says that the held electronically or in comments made by the juror, it is changes reflect a more dynamic documents, and taking decisions possible that they will be prosecuted idea of consent: consent as an organic, about whether or not it should be for contempt of court and sentenced to ongoing and actively managed choice, retained in light of the introduction of imprisonment. and not simply a one-off compliance the GDPR. Jurors in England have recently box to tick and file away. The GDPR regime will have received prison sentences for contempt The GDPR also requires greater more teeth than the current system, of court, for contacting defend- transparency from organisations, since since the ICO will have the ability to ants to tell them about deliberations it makes clear that there is a right to impose large fines for breaches, up to following the conclusion of a trial, and be informed about the collection and a maximum of €20m or 4% of global for carrying out internet research into use of their personal data. annual turnover, whichever is higher. defendants and discussing it with other This entails being open with Although the ICO has made clear members of the jury during a trial. people and providing them with clear that such fines will be a last resort, The confidentiality of a jury’s delib- and concise information about what is and will have to be proportionate to erations is one of the key principles of being done with their data. The ICO the breach in question and to the size the jury trial system. emphasises that this is a fundamental of the organisation, it seems likely that There is also a contempt risk in aspect of the GDPR and a key obli- a stricter approach will be taken to approaching a juror, or identifying a juror gation for all organisations collecting compliance, and to sanctions for failure. against their wishes, even after a trial has and using personal data. All organisations processing taken place, since this could discourage One of the most significant and personal data need to review their data people from serving as jurors. overriding changes introduced by the protection policies, privacy notices and Although there are circumstances GDPR, which makes explicit what contracts, both for staff and for third in which a juror might be asked for was only implicit under the DPA, is parties they interact with, if they have their general impressions of jury around accountability: there is a new not done so already. Abbas Media Law service, or how the evidence in the case data protection principle that says has expertise in all areas of data protec- was presented, it is always safest to organisations are responsible for, and tion law, and in the changes introduced seek legal advice before any interaction must be able to demonstrate, compli- by the GDPR, and its team is always with a juror from a criminal trial. ance with the other principles. available to advise on these issues.

zoom-in Summer 2018 | 31 ABOUT ABBAS MEDIA LAW

We are specialists on all Training for producers aspects of UK law and AML conducts training for those working in television regulation affecting the production. We prepare and deliver bespoke training television, film, advertising programmes for clients, or producers can avail themselves of and publishing industries. We advise before publication AML’s regular training programme. and broadcast, working with creatives to minimise legal and This year we are conducting a series of talks for producers on regulatory risk, and following publication and broadcast, legal and compliance issues, the first of which will cover the defending content when it and its producers come under attack. many issues that can arise in access-based programmes. We work with many of the country’s leading content producers. For further information about the training AML offers, and to find Content Advice out more about scheduled talks and masterclasses near you, Abbas Media Law boasts some of the most experienced content email [email protected] advisers in the country. We work on the most exciting and challenging factual programmes; news; films and dramas; and all The Team kinds of entertainment and comedy programmes. Nigel Abbas Nigel Abbas Founder is the primary author of Channel 4’s Producers’ Handbook, a Nigel is a barrister with over 20 years’ experience comprehensive guide to best practice, regulation and the law as advising the media and entertainment industries. they apply to the making and broadcasting of programmes. Clare Hoban Senior Lawyer Business Affairs & Rights A highly experienced media lawyer, Clare joined AML We advise clients on all aspects of business affairs, chain of in January 2016 after 11 years at the BBC. title and rights issues, in connection with the television, film, advertising and publishing industries. We advise on deal- Jenny Spearing Senior Business Affairs Adviser making, draft and negotiate all types of agreements, and can Jenny is a business affairs expert with nearly 20 years’ answer all your day-to-day queries. See page 16. experience in television production.

Legal and Regulatory Threats, and Litigation Paul Schaefer Lawyer We regularly represent clients when legal and regulatory threats Paul is an experienced media lawyer, having worked as are made against programmes and other content, both before in-house counsel for newspapers and broadcasters. and after publication. We represent clients in most areas of litigation affecting the media, advising on strategy, tactics, Lucy Chisholm Batten Paralegal drafting of pleadings and advocacy. Lucy is a law graduate with over 12 years’ experience of working in the media and entertainment industries. SUBSCRIBE zoom-in – media law and compliance news, updates and analysis for those working in the media and entertainment industries. Be informed about the important legal and compliance issues affecting your business or profession. Visit abbasmedialaw.com to get free magazine issues delivered straight to your inbox. To receive a printed copy email [email protected] abbasmedialaw.com