DEFAMATION Court Lifts Rape Arrest Reporting Ban

Home , Jamie Theakston, Minute to Win It, Rebel Wilson

Media law news from Abbas Media Law zoom-inWinter 2017 REBEL WILSON RECEIVES RECORD LIBEL PAYOUT TRUMP DEFENDS ‘LIAR’ REMARKS

PHARRELL APPEALS BLURRED LINES RULING

WILL AND KATE WIN PRIVACY DAMAGES RAFA WINS NADAL SCORES LIBEL VICTORY EXCLUSIVE INTERVIEW: STRICTLY SUPREMO JO WALLACE IN THIS ISSUE

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 presenter agreements ...... 16

COPYRIGHT & IP RIGHTS Spinal Tap creators amend rights claim .... 18 Mitch Gunn / Shutterstock.com Mitch WINNERS & LOSERS Walking Dead team in profits lawsuit ...... 18 Three stars win hacking damages ...... 3 Muhammad Ali company sues Fox ...... 19 Rebel Wilson wins massive payout ...... 4 Minute to Win It not an infringement ...... 19 Will and Kate awarded privacy damages ....4 New claim against Uptown Funk ...... 20 Cricketer exonerated in libel victory ...... 6 Cosby Show producer sues BBC ...... 20 Drop of Light / Shutterstock.com Eminem gets damages for NZ rip-off ...... 7 US court hears Blurred Lines appeal ...... 21 20 QUESTIONS BBC entertainment commissioner Jo Wallace REGULATION – OFCOM, ASA & IPSO on Strictly and a few of her favourite things 22 Channel 4 terror report made ‘serious error’ .8 The perils of sourcing photos online ...... 8 MEDIA HAUNTS Treat your body to the ultimate in modern Channel 5 breached nurse’s privacy ...... 10 wellness at South Kensington Club, a Fox News breached impartiality rules ...... 11 luxurious club for the truly adventurous ....24 Condé Nast hit with advert ban ...... 11 PRIVACY & DATA PROTECTION DEFAMATION Court lifts rape arrest reporting ban ...... 26 Farage withdraws allegation before Use of old reprimand breached privacy ...27 hearing ...... 12 ICO issues fine and warns data brokers ....28 Judge rules on rent boy rumour in Blair bio ...12 Rafael Nadal wins French libel case ...... 13 CONTEMPT & REPORTING Trump attempts to strike out claim ...... 14 RESTRICTIONS MoJ refuses to release skeleton Court of Appeal clarifies ‘serious harm’ .... 15 arguments ...... 30 Channel 4 wins fight to protect sources ... 15 Reporting allowed on David Ginola

Claim over live TV debate settles ...... 29 Photo Agency / Shutterstock.com Featureflash divorce row ...... 31

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 Winter 2017 WINNERS & LOSERS

Steve Coogan, Sienna Miller and Jamie Theakston get phone hacking damages n Actor and comedian Steve Coogan, actor Sienna improper conduct within media organisations, but Miller and TV presenter Jamie Theakston have all this was postponed until after a number of criminal settled their phone hacking claims against Mirror investigations, including that which saw former Group Newspapers. All three accepted an undisclosed News of the World editor Andy Coulson sentenced to sum in damages and made statements in open court. 18 months imprisonment. The Mirror admitted hacking the phones of the A settlement was also reached in the case of three celebrities, and apologised for doing so. Mr Hurst v News Group Newspapers (publishers of Coogan, whose damages were reported to amount The Sun and formerly of the News of the World). to six figures, said he felt ‘vindicated’, but also Mr Hurst is a former member of British Military called for the second part of the Leveson Inquiry Intelligence who wrote a book, Stakeknife, which to go ahead. named Freddie Scappaticci, former head of the IRA The Leveson Inquiry investigated phone security division, as a British agent. Mr Hurst’s hacking (among other activities), with Lord Justice computer was hacked by an ex-employee of News Leveson’s report issued in 2012. There was to be a Group. News Group Newspapers apologised and second part of the inquiry looking at unlawful or has paid a substantial sum in damages. Kathy Hutchins / Shutterstock.com Hutchins Kathy

zoom-in Winter 2017 | 3 WINNERS & LOSERS

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

(Aus) Huge compensation Third, its conduct was an orchestrated payout in Rebel Wilson campaign designed to cast a slur on Ms Wilson to sell magazines. libel victory Ms Wilson was also awarded n Hollywood actor Rebel Wilson has A$3,917,472 in special damages, been awarded A$4,567,472 (£2.6m) which are designed to compensate for in damages following a lengthy defa- specific financial loss caused by the mation case against Bauer Media, actions of the defendant. In this case, the publisher in Australia of Woman’s they covered the loss of new screen Day and The Australian Women’s roles as a result of Bauer’s publications. Weekly magazines. Bauer is seeking to appeal the A unanimous jury verdict, deliv- damages award, calling it ‘manifestly ered on 15 June, decided the actor had excessive’. been defamed. The libel action was Wilson has previously stated that brought over eight magazine articles the compensation will be donated to that alleged she had lied about her age, charity, scholarships or the Australian the origins of her first name, and her film industry. upbringing in Sydney. Ms Wilson told the Court that the stories had resulted in her being sacked from roles in Kung REBEL: ENORMOUS PAYOUT Duke and Duchess win Fu Panda 3 and Trolls. s_bukley / Shutterstock.com payout over topless Delivering the damages and compensate for the pictures ruling from the The Judge distress caused. The Supreme Court in Judge found Bauer n Following a trial in France, the Victoria, Justice found that had aggravated Duke and Duchess of Cambridge John Dixon Bauer had failed to the damage, so have each been awarded €50,000 as said Bauer had he was able a result of French magazine Closer ‘acted in its properly investigate to dismiss printing topless pictures of Kate own corpo- the allegations made the usual cap Middleton while the couple were on rate inter- on general holiday in Provence in 2012. The ests to secure against Wilson damages of magazine, a distinct publication from improved and published them A$389,500 in the UK Closer, ran long-lens images circulation, or favour of an award of Kate sunbathing on a terrace taken increased views/ ‘knowing them to of almost twice this by a paparazzo. hits’ and that ‘unless be false’ sum. The Judge found A statement from Prince William substantial damages are that Bauer had failed to was read at the trial. The Duke said: awarded there is a real risk that properly investigate the ‘The clandestine way in the public will not be convinced of the allegations made against which these photo- seriousness of the defamation’. He also Ms Wilson and The level graphs were taken noted that the reach of the articles, published them of fines handed was particularly particularly into the US market, was ‘knowing them to shocking to us ‘unprecedented’ in Australian defama- be false’, using a down by the French as it breached tion law, because they were published paid source who Court, although our privacy.’ online at a time when there was focus ‘had an axe to The invasion of on Ms Wilson due to her role in the grind’. Second, substantial, were not privacy was ‘all recently released movie Pitch Perfect 2. Bauer repeated increased to reflect the more painful’ The total damages awarded the allegations given the experi- consisted of two parts. A$650,000 when it knew or the victims’ royal ence of his mother, was awarded in general damages to foresaw that these status Princess Diana, with vindicate Ms Wilson’s reputation slurs would be repeated. the paparazzi, he added.

4 | zoom-in Winter 2017 THE DUCHESS OF CAMBRIDGE HAS, ALONG WITH HER HUSBAND THE DUKE, BEEN AWARDED DAMAGES IN A FRENCH COURT FOLLOWING THE PUBLICATION OF TOPLESS PAPARAZZI PHOTOS. SEE OPPOSITE Isaaack / Shutterstock.com

zoom-in Winter 2017 | 5 WINNERS & LOSERS

In addition, the presiding Judge fined Closer magazine’s editor and owner €45,000 each – the maximum amount allowed – and instructed La Provence, another publication that ran pictures of Kate in her swimwear, to pay €3,000 in damages. The agency photographers, who had denied taking the photographs, were fined €10,000 each. As the prosecution of those responsible shows, privacy law is governed by different rules in France to those in England and Wales. Private and family life is protected by Article 9 of the French Civil Code, and the Crim- inal Code also provides sanctions for offences against privacy, including any wilful violation of a person’s private life, which is the basis on which the prosecution was brought. Lawyers for the Duke and Duchess had sought €1.6m in damages. This would have been a punitive or exem- plary award of damages, which might Gunn / Shutterstock.com Mitch GAYLE: DID NOT HARASS MASSEUSE have acted as a real deterrent to a publications considering doing something tion of whether or not Gayle had that the jury be discharged and a new similar in the future. The level of fines exposed himself to and indecently trial ordered,’ a spokesman for the ultimately handed down by the French propositioned Russell. It answered publisher said. ‘The Judge accepted Court, although substantial, were not no to all three. that the jury had been misled in a way increased to reflect the victims’ royal During the trial, Russell gave that prejudiced Fairfax, but declined status and instead remained in line evidence that the experience was to discharge the jury. Fairfax believes with previous French cases. ‘horrific’. that it did not get a fair trial. It is seri- ‘Chris asked me what I was looking ously considering its appeal rights.’ for,’ she said of her encounter with At a damages award hearing in (Aus) Cricketer did Gayle in the changing room. October, Gayle’s barrister not expose himself to ‘I said, “A towel.” And said this statement masseuse he said, “Are you meant that Fairfax looking for this?” A jury found was saying the n Former West Indies cricket captain I saw the top half defamatory Chris Gayle has won a defamation case of Chris’s penis that the allegation claims ‘were in in Australia, after a jury found that the and I shielded that Gayle exposed fact true’. allegation that he exposed his penis to my eyes and ‘It is a repe- a team masseuse was not true. left the room. I his penis to a team tition of the Gayle’s claim was brought against said “no” and I masseuse was not defamation… publisher Fairfax Media over a series walked out.’ continuing of articles dating from 2016 about Following true the harm to my his conduct towards masseuse Leanne the jury’s decision, client’s reputation,’ Russell, which he said were untrue and Fairfax questioned he said. damaging to his reputation. the conduct of the trial. He went on to say that The Sydney jury was asked to ‘Fairfax Media is concerned with the suggestion that the trial was consider three questions as part of its the conduct of the trial to the extent not fair was rejected and that it was deliberations, including the ques- that, on Friday, it sought an order ‘extremely disappointing’ that an

6 | zoom-in Winter 2017 organisation such as Fairfax ‘should try and go on with a fight like this’. The Judge’s decision on damages is awaited.

(NZ) Eminem wins £315,000 in damages n Eight Mile Style, US rapper Eminem’s publishing company, has been awarded NZ$600,000 (£315,000) damages by a New Zealand court. As we reported in the zoom-in Summer 2017 edition, Eminem’s company sued when the New Zealand National Party used a song called Eminem Esque in a political advert during the 2014 election campaign. Eminem Esque is a sound-alike track, which Eight Mile Style claimed – and the Court found – closely resembles Eminem’s hit song Lose Yourself. The National Party had argued that Lose Yourself was not inherently original, having borrowed from other music and genres, and therefore could not attract copyright protection; but the Court rejected this, finding it to be a highly original and distinctive work. The Judge found that ‘Eminem Esque has substantially copied Lose Yourself’, having compared all aspects of the songs including drum beat, melodic line, tempo, electric guitar and piano parts. The two tracks were ‘strik-

ingly similar.’ The National Party had JStone / Shutterstock.com communicated the work to the public EMINEM: MADE NATIONAL PARTY TAKE RAP without permission or a licence. Eight Mile Style’s The Court also found Yourself in its campaign advertising. lawyer had told the that the use of the work Although the National Party had Court: ‘Lose Your- Although was not one that breached copyright, it had done so self is a jewel in the National Eminem or Eight after taking advice, so the breach the crown of Mile Style would was not reckless, and no additional Eminem’s cata- Party had breached have endorsed. damages were awarded. logue.’ It won the copyright, it had done The award Eminem has said he will donate any 2003 Academy of NZ$600,000 money he receives from the lawsuit to Award for Best so after taking advice, represented the hurricane relief. Original Song so the breach was hypothetical The decision is likely to have having featured in licence fee that implications for producers of sound- the film 8 Mile. It had not reckless would have been alike tracks more generally. Sailing rarely been licensed and charged to the National close to the wind in terms of copyright never for a political campaign. Party for permission to use Lose infringement always comes with a risk.

zoom-in Winter 2017 | 7 REGULATION – OFCOM, ASA & IPSO

referral up to ITN’s CEO and Channel 4 Ofcom regulates the content of all television and radio in the UK. when broadcasting potentially conten- IPSO is the main regulator for the press and magazine industry. tious information based on a single source, as was the case here. Doing so The Advertising Standards Authority regulates advertising. All the might have avoided the broadcast of regulators adjudicate on complaints with reference to codes of such a serious mistake. Ofcom directed practice, with which those they regulate have to comply. The Ofcom Channel 4 to broadcast a summary of Broadcasting Code is the main code relating to broadcast content, its decision in a form and manner to be while IPSO judges complaints against the Editors’ Code. The ASA’s decided by Ofcom. This case shows the need to take main codes are the BCAP Code for broadcast advertising, and the particular care when identifying indi- CAP Code for non-broadcast advertising. Compliance with these viduals caught up in the news. Making codes is important. Regulators can impose penalties and sanctions a mistake can lead not only to regula- for non-compliance. Regarding privacy matters, the regulatory codes tory sanction, as in this case, but may also have wider legal significance because of provisions within the also lead to legal action, for example for Human Rights Act 1998 and the Data Protection Act 1998. The result defamation. Last year, a soldier who was wrongly is that the Codes have a bearing not simply in a regulatory context, identified in a newspaper received but also on how the courts should act when making any order damages and an apology for defama- affecting freedom of expression and the publication of journalistic, tion. Lance Bombardier Kerry-Ann literary or artistic material. Morris’s mother and non-identical twin sister were convicted of child cruelty in 2015 over the death of a seven-year-old OFCOM – ACCURACY: was Abu Izzadeen. At the end of the girl. The Nottingham Post published a programme, he stated that contact photograph of Morris, taken when Channel 4 in breach over from Abu Izzadeen’s brother she attended court to give ‘serious error’ indicated that he was in evidence for the prosecu- fact still in prison. Ofcom was tion. The newspaper n Ofcom has found Channel 4 News On the next wrongly identified to be in breach of the requirement to day’s programme, particularly her as her twin report news with due accuracy, as a Channel 4 News concerned that sister. result of its incorrect identification of announced that In 2013, The the man responsible for the Westmin- the perpetrator had Channel 4 News had Independent paid an ster terror attack. been confirmed as not followed its own undisclosed sum in On 22 March, Channel 4 News Khalid Masood, and damages to Croatian reported on the attack, which had referred to the ‘serious guidelines actor Ljubomir Jurk- taken place earlier that day. The report error’ of identifying Abu ovic, whose photograph included coverage live from Westmin- Izzadeen. the newspaper had used on ster, as well as analysis from the studio Six complaints were made to its front page, wrongly identifying and discussions in various formats Ofcom about the error. Ofcom acknowl- him as alleged Nazi war criminal Samuel between journalists and contributors. edged that breaking news requires Kunz. The photograph was in fact of the The first half of the programme editorial teams to make decisions actor playing an officer in theUstaša , a focused on a man, Abu Izzadeen, whom rapidly while under intense pressure. Croatian fascist movement, in a film. Channel 4 News identified as the person However, it found that Channel 4 News’ who had carried out the terror attack rush to get this story to air resulted in and had then been shot dead by police. it broadcasting a significant error on OFCOM – PRIVACY: In fact, Abu Izzadeen was alive and well a major news story, and that it was in Complaints rejected over and in prison. breach of the requirement to report Abu Izzadeen was named during the news with due accuracy, under Rule 5.1 use of online photos introduction to the programme, and of the Broadcasting Code. n Ofcom has not upheld two again on numerous occasions. Later on, Ofcom noted that it was particularly complaints relating to the use in a correspondent said there was ‘some concerned that Channel 4 News had not programmes of photographs posted by doubt’ about whether the guilty man followed its own guidelines, requiring the complainants online.

8 | zoom-in Winter 2017 The second complaint related to an episode of The Nightmare Neighbour Next Door, shown on Channel 5, which featured a dispute between Ms Brown and her neighbour, Ms Carpenter, about Ms Carpenter’s dogs. Ms Brown was named, and photographs taken from her Facebook profile were shown, as was footage of the exterior of her house. The programme included comments from her about the dispute, voiced by an actor. Ms Brown complained that her privacy had been unwarrantably infringed in relation to both the obtaining of the material and the broadcast of the programme. Channel 5 stated that Ms Brown had voluntarily taken part in the programme: originally she was to have been interviewed. Although this did not happen, she had responded to a right to reply letter. Throughout there was no indication that her name would not be used. The neighbour dispute was to a large degree public. The photographs were taken from her public Facebook profile, which is common practice. Her house was filmed from the public road, and no details of her house number or Featureflash Photo Agency / Shutterstock.com Featureflash the road she lives on were given. MAY: INSTAGRAM HOWLER Ofcom found that Ms Brown had The first related to a BBC3 available to the public. They illustrated no reasonable expectation of privacy documentary, How Police Missed the the physical attributes of a ‘twink’ (said either in the photographs or the Grindr Killer, which told the story to have been Stephen Port’s type) and filming of her house. Obtaining the of Stephen Port, who was convicted showed how easily a predator could find photographs from a publicly accessible of raping and murdering four young young men who advertise on websites Facebook page was proportionate. As gay men in east London. of this nature. Mr G’s profile name and Ms Brown’s property had been filmed Three photographs of the contact details were not used. Mr G from the street and no details given, complainant, Mr G, were shown for had since removed his profile from the the exterior of her property could approximately three seconds as part of website, but the BBC argued this made not of itself be regarded as attracting a montage of images from gay dating no difference. a reasonable expectation of privacy. and escort websites. The photographs Ofcom found that Mr G had no There was no breach of the Code. showed Mr G in a suit, in a swimming reasonable expectation of privacy in the These cases show Ofcom taking pool, and a full-length shot of him in photographs. They were posted by him a similar line to newspaper regulator his underwear. on a publicly accessible website, for the IPSO, which, as we reported in the Mr G complained that his privacy purpose of revealing to his potential Winter 2016 edition of zoom-in, found had been unwarrantably infringed by clients – members of the public – what that a woman had no reasonable expec- the use of the photographs, and claimed he looked like. The programme did not tation of privacy in a photograph she that he had been shown as a male escort, say that his photographs appeared on had posted and which was publicly when in fact he was a masseur. an escort website, nor that he was an available on a swingers website. The BBC responded that while it escort, and they had only appeared on In other photograph-related news, regretted the distress, the photographs screen for a couple of seconds. There was Queen guitarist and astrophysicist were available to view on a website freely no breach of the Code. Brian May has criticised a photographer

zoom-in Winter 2017 | 9 REGULATION – OFCOM, ASA & IPSO who caused him to be (temporarily) with her parents. A court judgment clarification that the body cameras worn banned from Instagram. The photog- was made against her for an unpaid by the enforcement officers belonged rapher, Barbara Kremer, reported May debt, enabling enforcement officers to the programme-makers, Ofcom to Instagram when he published one to attend her home to itemise prop- changed its mind and issued a second of her photographs of him without erty for seizure. Preliminary View, this time finding permission. ‘I’m usually very careful to The programme-makers filmed that the complainants’ privacy had been credit anyone whose photos I post, but with the enforcement agents as they unwarrantably infringed. in this case, at the end of the day, I must attended where Miss F lived. The crew Ofcom found that Miss F and her have forgotten,’ said May, who voiced filmed outside with a handheld camera; family all had a legitimate expectation his disappointment that the photogra- the enforcement officers also filmed of privacy in relation to the filming and pher went to Instagram rather than to inside the property using body cameras the broadcast of the material, and that him. Other celebrities, including Gigi supplied by the programme-makers. this had been unwarrantably infringed. Hadid and Khloé Kardashian, have The episode broadcast body-camera Because the camera crew, who were faced lawsuits after posting to Insta- footage of sensitive conversations filming with hand-held cameras, had gram photographs of themselves in between Miss F and her family (her withdrawn to the street, and because which they did not hold the copyright. uncle and her father) regarding her Miss F and her family had not been It is worth remembering that just financial situation, in which she was told that the body cameras worn by because a picture is of a particular visibly distressed; interaction with the the agents were owned and controlled person, and they have posted it online, enforcement officers; and the interior of by the programme-makers and were this does not necessarily mean they own the family home. capturing footage potentially for broad- the copyright. This needs to be borne Miss F complained that her privacy, cast, the filming on these body cameras in mind whenever content producers and the privacy of her uncle and father, amounted to secret filming. are considering featuring individuals’ who were filmed and included in the On the facts, Ofcom considered the social media sites. Some social media programme (unblurred), had been filming to be akin to the programme- sites allow for the use of mate- unwarrantably infringed. Miss F makers deliberately continuing to rial (including photos) also complained on behalf record when the party being filmed users have uploaded, Because of her mother: although thought filming had come to an end; and as long as attribu- her mother had not also that it was akin to the programme- tion is given: Miss F had not been filmed, her makers leaving an unattended camera see for example been told the body bedroom had or recording device on the property Twitter’s broad- and footage without consent. Both these practices cast guidelines. cameras were capturing of it had been are explicitly stated in the Ofcom However, if footage potentially for included within Broadcasting Code as amounting to the user is not the broadcast secret filming. the copyright broadcast, the filming programme. Channel 5 argued that even if owner, they amounted to secret Channel 5 the footage was deemed to be secret cannot license the argued, in relation to filming, the filming and the broad- use of such material filming each family member, cast of the material was justified by to others, and producers that if privacy rights were the public interest. However, Ofcom reproducing it could be liable at play at all, any expectation disagreed, finding that while the exist- for copyright infringement. of privacy was outweighed by Channel ence of a county court judgment may 5’s right to freedom of expression and be considered a matter of public record, the public’s right to receive information and therefore not information in itself OFCOM – PRIVACY: Can’t concerning matters of public interest. that Miss F might have a reasonable Pay? We’ll Take It Away! – Ofcom investigated and, in its expectation of privacy in, the infor- first Preliminary View, decided that mation captured and broadcast by the complaints upheld the complaint should not be upheld. filming of Miss F (and her family) by the n Ofcom has upheld a complaint of However, following representations body cameras in her home went beyond infringement of privacy, made by Miss from Miss F, Ofcom requested further the fact of her debt, and concerned the F on behalf of herself and members of information from Channel 5 about the impact of the debt enforcement process her family, in relation to an episode of nature of the arrangement between the on Miss F and her family. Can’t Pay? We’ll Take It Away! broad- programme-makers and the enforce- In summary, Ofcom found that Miss cast on Channel 5 on 20 April. ment agents. Following the provision F, and each of the family members on Miss F was a student nurse living of this information, which included whose behalf she complained, did have

10 | zoom-in Winter 2017 a reasonable expectation of privacy in ASA: Condé Nast advert relation to both the filming and the broadcast of the footage; that the intru- banned over ‘unhealthily sion into their private lives by both thin’ model activities had been significant; and that, balancing the competing rights, this n The Advertising Standards was not justified by rights to freedom of Authority (ASA) has banned an expression and the public interest. advert for Condé Nast Traveller maga- This is a significant decision by zine because it featured a model who Ofcom, but not one that is fatal to the looked ‘unhealthily thin’. The ASA use of body cameras. received one complaint from a reader about the advert, which appeared in Glamour – also a Condé Nast publica- OFCOM – IMPARTIALITY: tion. It featured a model on a beach Andrew F. Kazmierski / Shutterstock.com Kazmierski F. Andrew Fox News in breach HANNITY: BIASED dressed in shorts, tights and a floaty top, with her back to the camera. n Ofcom has found Fox News in restricted to brief pre-recorded videos at Condé Nast said the photograph breach of the Ofcom Code for failing the start of the programme. These were was from a shoot for a feature aimed to maintain ‘due impartiality’ in two repeatedly dismissed or ridiculed by the at an older audience of Traveller readers broadcasts: Hannity and Tucker Carlson presenter, with no opportunity for the – their average reader is aged 38. The Tonight. contributors to respond. model was naturally slim and tall, Ofcom stated that it was mindful that Tucker Carlson Tonight is an opinion was in proportion and there were no Fox News is a US channel, and therefore and commentary programme. The protruding bones. Glamour said this viewer expectations are different. Nor is edition in question was broadcast on advert was not about fashion or body it likely to be the main source of news 25 May. It discussed the reaction of image. However, it took on board what for UK viewers. However, the matters UK authorities to the terror attack the complainant had said and promised discussed were of not just international in Manchester three days earlier. It to take care with future advert choices. concern, but of particular significance to included highly critical statements The ASA found that, while the UK viewers. about British figures and institu- model did appear to be in proportion, Ofcom considered both programmes tions, including the Prime Minister the angle of the shot accentuated her under Code rules 5.9 (adequate represen- and the UK Government. The slimness, in particular that of tation of alternative views in ‘personal programme did not reflect her legs. The outline of view’ or discussion programmes), 5.11 the views of the insti- Criticisms her body could also (due impartiality on matters of major tutions or individ- of the travel be seen through political and industrial controversy and uals criticised. her top, accen- major matters relating to current public In both ban were restricted tuating the policy) and 5.12 (inclusion of an appro- cases, Ofcom to brief pre-recorded narrowness priately wide range of significant views ruled that of her waist. when dealing with matters of major although videos at the start of the Although political and industrial controversy and viewers programme. These were this was not a major matters relating to current public would have fashion advert, policy). expected critical repeatedly dismissed the model was The first broadcast took place in comment from or ridiculed by the still the focal January. Hannity is a current affairs a certain political point of the image. discussion programme, on which was perspective, these presenter The ASA concluded being discussed President Trump’s contextual factors were that the advert made the executive order restricting travel from not sufficient to remove the model look ‘unhealthily thin’ several majority-Muslim countries. This need to reflect significant alternative and that the ad was irresponsible. was plainly a major matter: the order viewpoints, and treat these with due This was a breach of rule 1.3 (respon- would affect non-US citizens, including weight. Both programmes were thus sible advertising) of the CAP Code. those in the UK. The programme had in breach of rules 5.9, 5.11 and 5.12. The advert cannot appear again in its not sufficiently reflected alternative This is a reminder that when broad- current form, and Condé Nast was viewpoints so as to preserve due impar- casting to UK viewers, even overseas told to ensure that future adverts are tiality. Criticisms of the travel ban were channels are subject to Ofcom rules. prepared responsibly.

zoom-in Winter 2017 | 11 DEFAMATION

The ongoing disagreement between The law of defamation protects the reputation of individuals and the parties reflects how it can be diffi- companies. Statements are defamatory if they adversely affect a cult to characterise the settlement of libel claims when there has been no person’s or company’s reputation in the eyes of reasonable people. A payment of damages by the defendant. person or company can sue over defamatory statements in England and Wales if they cause or are likely to cause serious harm to the person or, in the case of companies, cause or are likely to cause serious financial Judge rules on rent loss. Journalists – indeed, all those publishing content – need to be boy allegation in MP’s aware of the law, and confident that what they are publishing is either libel claim not defamatory or, if it is, that they can avail themselves of one of the n A High Court Judge has ruled on defences to defamation. the meaning of a passage in a biography of Tony Blair referring to Nick Brown MP. The book is the subject Farage withdraws Mr Cox responded, criticising Farage of a defamation claim brought by Mr for ‘blaming politicians for the actions Brown against publisher Faber & Faber allegation against charity of extremists’. and the author, Tom Bower. before hearing Farage had accused Hope Not Hate Bower wrote a book called Broken in the past of disrupting his events, Vows: Tony Blair, the Tragedy of Power, n Nigel Farage, the former leader of and said on LBC radio: ‘Yes, published in March 2016. A UKIP, has formally withdrawn a state- well of course he would passage refers to Brown as ment that anti-extremism pressure know more about follows: ‘In the ensuing group Hope Not Hate pursues ‘violent extremists than me, It can be discussion about gays and undemocratic means’. Mr Cox. He backs difficult to in politics, jour- The group launched a crowd-funded organisations like nalist Matthew libel case against Farage following a Hope Not Hate, characterise the Parris declared dispute between the politician and who masquerade settlement of libel on BBC TV that Brendan Cox, widower of Jo Cox, the as being lovely Mandelson was MP who was murdered by a far-right and peaceful, but claims when there has gay. Days later, extremist. actually pursue been no payment of Nick Brown, the Following the truck attack on a violent and undem- new minister of agri- Berlin Christmas market in 2016, ocratic means.’ damages culture, was accused Farage said on Twitter: ‘Terrible news The claim was due by the News of the World from Berlin but no surprise. Events to proceed imminently to a of paying £100 to rent boys in like these will be the Merkel legacy.’ hearing of the issue of serious harm at order to be kicked around a room, and the High Court when it was resolved admitted his sexuality.’ Brown denies by means of a statement from Farage all the claims. in which he said he was ‘happy to Brown claimed that the passage acknowledge that Hope Not Hate meant that he ‘had been paying £100 does not tolerate or pursue violent or a time to young male prostitutes to undemocratic behaviour’. subject him to violent sexual acts or Hope Not Hate said it was that there were strong grounds to so delighted with the victory. Farage crit- believe’, while the defendants said icised its response, saying he had not that it meant ‘that there are grounds paid any damages or given an apology to suspect Nick Brown may have paid or undertaking, and drawing attention young men for consensual rough sex’. to an obligation for the group to meet The Judge decided that the some of his legal costs. A spokesman meaning of the passage was that, at the for the charity then said in response date the allegation was made by the to Farage that the result meant that it News of the World, there were grounds Twocoms / Shutterstock.com Twocoms was ‘putting purveyors of fake news on to suspect that Mr Brown had paid FARAGE: NO APOLOGY notice’. young male prostitutes to subject him

12 | zoom-in Winter 2017 (FR) Rafa Nadal wins defamation case over doping claims n World tennis number 1 Rafael Nadal has been awarded The €10,000 award reflected the fact that the Judge did €10,000 in damages, after former French minister Rose- not find the allegation had adversely affected Mr Nadal’s lyne Bachelot was found to have defamed him. commercial worth. Mr Nadal has said he will donate the Ms Bachelot, the former minister for health and sport, money to a French charity. After the decision he said: ‘I had alleged on French TV that when Mr Nadal was out of intended not only to defend my integrity and my image action in 2012 it was not due to a knee injury, but rather as an athlete, but also the values I have defended all my because he had tested positive for a banned substance. career. I also wish to stop any public figure from making The tennis superstar took the case to court, where his insulting or false allegations against an athlete using the lawyer said that a doping accusation could have ‘major media, without any evidence or foundation, and to go consequences’ for Mr Nadal concerning existing or future unpunished…The motivation, as I have always said, was

sponsors. Mr Nadal has never failed a drugs test. not financial.’ / Shutterstock.com Zhukovsky Leonard

zoom-in Winter 2017 | 13 DEFAMATION to consensual rough sex. The decision raises two interesting legal issues. The first is the familiar problem for publishers of the ‘repetition rule’: a statement that repeats a rumour, for example that someone is guilty of something, is taken as adopting that rumour, and so of meaning that the person is in fact guilty, rather than that this is merely rumoured by others. The Judge held that the effect here was that the defendants took responsibility for the further dissemination of the allegation about Mr Brown, but not that the meaning of the passage about him was at the same level of guilt as the original allegation. He agreed with the defendants that when Mr Bower repeated the allegation, the context meant that what the News of the World had supposedly published was not necessarily adopted or endorsed by the writer. This is a potentially valuable clarification. The second issue is whether the allegation about Mr Brown’s conduct was defamatory at common law, ie whether it would lower him in the estimation of ‘right-thinking people generally’, or, to put it another way, whether it Drop of Light / Shutterstock.com was, viewed by the standards of society TRUMP: MOTION TO STRIKE as a whole, immoral. Unusually, the defendants in this case conceded before for sex; 2) that he had visited or used raise difficult questions about contem- the hearing that it was, and that it was the services of prostitutes; 3) that he porary social values. ‘serious’ for the purposes of the section enjoys violent or rough sex; or 4) that The difficulty surrounding whether 1 ‘serious harm’ requirement in the he had asked to be subjected to violent the allegation in this case is defama- Defamation Act 2013. or rough sex. tory, which led the Judge apparently The Judge asked whether, judged The claimant said that the answer to question the validity of the views by 2017 standards, ‘right-thinking to all of these was ‘yes’. The defendants on the issue of two experienced barris- people’ regard as defama- said the passage was defama- ters, shows how closely connected tory an allegation that tory of the claimant but legal liability in this area can be to the someone has or enjoys Ms only in the context of changing nature of the wider social ‘rough sex’ (in the Zervos claims his being a Minister landscape. sense of consen- of the Crown. The sually violent). Trump defamed her Judge, however, To understand during the presidential in light of the (US) Trump attempts to what made the parties’ agree- campaign when he strike out libel claim by meaning of the ment, declined woman he called a liar passage defam- repeatedly described her to go on and atory, the Judge decide whether n President Donald Trump has argued asked whether and other accusers’ the meaning was that he was expressing a political it was defamatory accounts as ‘lies’ defamatory. He opinion when, in 2016, he called allega- of the claimant to noted that the resolu- tions of sexual misconduct against him say: 1) that he had paid tion of this issue would false, and branded the accusers ‘liars’.

14 | zoom-in Winter 2017 Summer Zervos, who has brought a Court of Appeal rules on one of substantiality to one of seri- defamation claim against Trump, was ousness: no less, no more but equally a contestant on Trump’s The Apprentice. key aspect of ‘serious no more, no less.’ In October 2016, she accused him of harm’ The ruling will have wide- kissing her aggressively and groping her ranging implications. In many ways, breasts during a 2007 meeting at which n In its judgment in Lachaux v it is a conservative one, and suggests she sought employment from him. Independent Print Ltd, the Court of that the 2013 Act was not a radical Ms Zervos claims Trump defamed Appeal has given a definitive ruling shift, but a small development from her during the presidential campaign on the application of s1(1) of the the position in the existing cases. It when he repeatedly described her and Defamation Act 2013, holding that has been criticised as undermining other accusers’ accounts as ‘lies’ and the bar for bringing a defamation the raising of the threshold that was ‘nonsense’, and said the women either claim has been moved only slightly supposedly brought in by the 2013 were being put forward by Hillary by the legislation: from a need to Act. However, the decision will Clinton’s campaign, or were show ‘substantial’ harm to benefit all involved in libel litiga- motivated by achieving The ‘serious harm’. tion by providing greater clarity on ‘ten minutes of fame’. In 2014, four arti- difficult technical questions of law Trump says decision will cles were published and procedure. in a motion to benefit all involved in the Huffington The defendant newspapers are dismiss, strike Post, The Inde- seeking permission to appeal in the out, or stay in libel litigation by pendent, i and the Supreme Court. the proceed- providing greater clarity Evening Standard. ings that speech on difficult technical The claimant, uttered during Bruno Lachaux, (Ire) Channel 4 wins a campaign for questions of law was accused of source protection fight political office is and procedure domestic violence, entitled to the fullest child abduction, n Channel 4 has won a dispute protection under the US fabricating allegations with low-cost airline Ryanair over First Amendment and that, in and manipulating the Sharia journalistic privilege. The airline such a context, even statements of fact system against his wife. He denied has brought a defamation claim in may need to be treated as opinion. the claims and launched proceedings Ireland against the broadcaster over In the UK, common law allows against each of the publishers. a 2013 Dispatches programme. a wide latitude for comment and In July 2015 there was a two-day The programme, Ryanair: Secrets criticism in the political and public trial of a preliminary issue as to from the Cockpit, looked at fuel emer- sphere, and the European Court of the question of whether the s1(1) gencies on Ryanair planes, focusing Human Rights has also emphasised requirement, that a statement ‘is on events in July 2012 when, as a the importance of the freedom of not defamatory unless its publica- result of adverse weather condi- political debate. However, the motion tion has caused or is likely to cause tions, 12 flights bound for Madrid by Trump’s lawyers shows that the serious harm to the reputation of the were diverted to Valencia. Three of doctrine of freedom of speech under claimant’, was satisfied with respect the planes were Ryanair flights that the US First Amendment potentially to each of these articles. The Judge issued “fuel Mayday” calls to the offers even more heightened protection ruled in favour of the claimant, airport, indicating that they were to political speech. finding that the s1(1) condition was going into their fuel reserve. Trump is also arguing that the satisfied. The programme went on to State Court is barred from hearing a In a long-awaited judgment, examine safety reports into what suit against the President under the US handed down on 12 September 2017, it described as serious incidents constitution. Alternatively, Trump’s the Court of Appeal rejected all the involving Ryanair, and alleged that lawyers want the case stayed during defendants’ grounds of appeal. On pilots were subject to pressure that the period of his presidency. s1(1), the Court emphasised that the gave rise to adverse safety implica- A potentially significant issue in intention behind it was to build on tions. The programme broadcast the litigation if it continues is the fact previous cases where judges had held interviews with four pilots who gave that Zervos has attempted to subpoena that a defamation claim required a interviews anonymously and were documents from Trump’s campaign publication to substantially affect shown in silhouette. relating to the numerous women who reputation. The 2013 Act had the Ryanair applied to the High Court have accused him of sexual misconduct. effect of ‘raising the threshold from continued on page 29

zoom-in Winter 2017 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

and key policy terms, and include a In every issue of zoom-in we examine the commercial, legal and regulatory warranty that the presenter will do hoops programme-makers have to jump through to get their programmes nothing to invalidate the insurance. If safely to air. Our production legal schedule above sets out the five key the presenter has personal insurances, the agreement should explicitly advise stages of production which producers need to consider and the advice and them to check these in order to ensure expertise they are likely to need at each stage. In each issue, we focus on that the work doesn’t invalidate them, one or two particular aspects of production legal requirements. and to confirm that the production company has no resulting liability if it the right to use the presenter’s name, does. It is a good idea to include provi- Presenter agreements likeness and biography for publicity sions whereby the presenter acknowl- n Television presenters’ agreements purposes. These are terms that broad- edges that they are providing services can be straightforward, or remark- casters and financiers will require. of their own volition and in full knowl- ably complicated involving much The usual boilerplate clauses also edge of the risks involved. negotiation. This normally depends don’t change much, although they do Providing services for publicity can on the type of programme. Where require updates from time to time, for be contentious, as most broadcasters the presenter’s role simply consists of example changes to data protection, do not expect to pay an additional pieces to camera and narration, terms anti-bribery and Project Diamond fee for this, only expenses. Accord- are normally simple; where a presenter wording clauses. ingly, presenters will want to keep this must write material, travel extensively, If the presenter’s role includes commitment to a minimum, so they interview contributors and/or be an unusual duties, it is sensible to specifi- do not have to turn down other, fee- authority on a particular subject, more cally reference them in the agreement. paying work. Broadcasters may want detailed terms must be agreed. Where presenters are undertaking a fixed number of days as a minimum Generally speaking, a number of hazardous activities, consider taking contractual commitment, and as trans- terms remain the same in all presenter out personal accident insurance, and mission dates may not yet be sched- agreements: an assignment of all rights including specific clauses in the agree- uled, this can be tricky to negotiate. in the products of the presenter’s ment. The agreement should normally Consideration also needs to be given services; a moral rights waiver; and detail the limits of any such insurance to the outside commercial interests

16 | zoom-in Winter 2017 The zoom-in Television Production Legal Schedule

of the presenter. Keeping references show that might transmit around the publishing and merchandising rights in to those interests off-screen may need same time. The exclusivity period can their programmes, and often an agree- specific wording. As a minimum, the vary greatly, and presenters who often ment to agree a further fee at a later presenter should be required to warrant make guest appearances on other shows, date, should the presenter be required that they will comply with all applicable eg magazine-style shows or quiz shows, to appear in a book or on merchan- broadcasting rules and regulations eg will usually want ‘carve-outs’ so they dising, is best. the Ofcom Code. can continue to do so. Abbas Media Law has many Exclusivity clauses are usually Terms regarding merchandising and years’ experience of drafting, nego- subject to negotiation. For obvious publishing often require negotiation tiating and advising on presenters’ reasons, broadcasters need to prevent a and contractual provisions. Produc- agreements. For advice, contact presenter from taking part in a similar tion companies need to freely exploit [email protected]

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 Winter 2017 | 17 COPYRIGHT & IP RIGHTS

The claim promises to offer Copyright permeates all aspects of television production, providing insights into the accounting prac- copyright owners with certain exclusive rights to do specific acts in tices that surround successful film and TV creations. connection with the copyright works that they own. Copyright protects people’s and companies’ creative endeavours so they can benefit and profit from their work. A television company making a programme (US) Walking Dead claim for broadcast will own copyright in the film it is producing. Copyright over network deal enables the owners to earn money by licensing rights in the programme n American cable TV broadcaster to others who wish to exploit it. At the same time, producers need to AMC Networks is facing a second claim ensure that rights in copyright works included within programmes – connected to its successful series The so-called ‘underlying rights’, in music, archive, photographs etc – are Walking Dead. The show’s co-creator properly licensed from whoever owns them, unless they can rely on Robert Kirkman and producers Glen one of the statutory defences to copyright infringement, such as fair Mazzara, David Alpert and Gale Anne Hurd are suing AMC, alleging that dealing. Infringing others’ copyright is likely to result in you being sued they are not receiving a fair share of the for damages and may mean that your programme can’t be shown. An show’s profits. understanding of copyright is therefore essential for those working in The claim follows an earlier lawsuit television production. from show developer Frank Darabont, which alleged he had been deprived of profits due to him. Collectively, the (US) Spinal Tap creators The Judge decided that the claims seek up to $1bn, with Darabont’s amend rights claims companies who were claimants in claim alone being for up to $280m. the action as third-party benefi- The claims have arisen in part n A US District Judge in California ciaries did not have standing to sue because of the growing trend for ‘vertical has dealt a blow to a claim brought Vivendi. A personal claim integration’. Deregulation in by the creators of cult film This Is brought by Guest, rather the 1990s enabled US Spinal Tap against rights owners than by a company The claim shows to be produced Vivendi, by dismissing companies on his behalf, was and aired by the they owned from the lawsuit, as well however allowed promises to offer same corporate as a claim of fraud. to continue. The insights into the entity, in contrast Harry Shearer, Rob Reiner, claimants have to the scenario Michael McKean and Christopher now filed an accounting practices where a studio Guest co-created and starred in the amended claim that surround produces a show 1984 mockumentary about a fading adding the other and then negoti- British rock band. Although it had individual claim- successful film and ates with networks only limited success in cinemas, the ants as parties in TV creations over which of them film became a cult classic on video and their own names. will air it. retains a devoted following to this day. Similarly, while the The claims are based When Shearer, now best known for allegations of fraud were held on the idea that AMC effectively The Simpsons, discovered that his and not to be based on sufficient facts, negotiated with itself over The Walking his creative partners’ share of world- the claimants had the right to amend Dead, as studio and network. Previous wide merchandising income from their claim to add further information. shows such as Breaking Bad and Mad 1984 to 2006 was $81, and their total The amendments also seek a judicial Men, which aired on AMC but were income from soundtrack sales from declaration as to whether termination made by non-AMC-owned studios, 1989 to 2006 was $98, he launched notices – intended to revert the copy- negotiated higher fees. a claim against Vivendi SA, alleging right to the claimants – are effective, ‘Virtually every studio that has had that the film ‘has generated tens of and argue that This Is Spinal Tap cannot a successful show has been the target millions of dollars in revenue in the be considered a ‘work for hire’ under of litigation like this,’ AMC said in a 30 years since its original theatrical which the rights would belong to the statement, ‘and The Walking Dead has release’, and that Vivendi ‘fraudu- studio, not least because Spinal Tap been the #1 show on television for five lently underreported the revenues first appeared in a TV skit before the years in a row, so this is no surprise.’ owed’ to the creators. film agreement came into existence. Commentators have suggested that

18 | zoom-in Winter 2017 the evidence used in both claims might but his claim that Minute to Win It – ultimately lead to fairer deals for those broadcast on ITV2 in 2011 – were an who devise successful shows. infringement of his company’s copyright, were in breach of his confidence, and amounted to passing off (US) Ali company sues Fox has been struck out. over Super Bowl clip Mr Banner put information about his idea in a document that he n Muhammad Ali Enterprises (MAE) claimed to have pitched to a Swedish is suing US TV network Fox Broad- TV production company in 2005 (the casting for $30m over what it says is ‘Minute Winner Document’). He asked unauthorised use of the boxer’s identity the production company’s representa- in a clip shown during its broadcast of tives to sign non-disclosure agree- the 2017 Super Bowl. ments, but they refused. Mr Banner The claim in the US District Court claimed that they acknowledged that for the Northern District of Illinois / Shutterstock.com Woodham Photography Scott everything disclosed at the meeting alleges that Fox is liable for ‘false ALI: NOT AFFILIATED TO FOX would nonetheless be in confidence. endorsement and violation of the right The Act prevents the commercial use Shine Ltd acquired the Swedish of publicity’ because of its use of Ali’s of a person’s image and allows for the company, which then sold an idea for name, image and likeness in a promo- recovery of damages or an account of a new game show to a part of the NBC tional video, entitled The Greatest, profits. Unusually, the right persists Universal group. Minute to Win It was before its coverage of the American even after the death of the person. broadcast in the US in 2010 and in the football game. Along with damages, MAE is UK the following year. The video showed footage of Ali, seeking a permanent injunction The issue the Judge had to decide contained audio of him shouting ‘I am requiring Fox to refrain from any use was whether the format of a game the greatest!’ and highlighted major of Ali’s identity without prior authori- show or quiz show is separately events from Ali’s life. MAE, which sation, and an order requiring the capable of being protected by the law owns the intellectual property associ- broadcaster to delete all copies of the of copyright. In doing so, he assessed ated with the deceased boxer, says Fox promotional video from any website or the key cases and commentary, in ‘unjustly gained’ profits from the illicit other location. particular a case in New Zealand in use and that its video was a ‘false or which Hughie Green failed to estab- misleading representation of fact that lish copyright in the format of Oppor- falsely implies Ali’s or MAE’s endorse- Minute to Win It tunity Knocks. He decided that it is at ment of Fox’s services’. The false infringement claim least arguable that the format of such endorsement claim is brought on the a show can be the subject of copy- basis that Fox’s video is likely to cause dismissed right protection as a dramatic work. ‘confusion, mistake, or deception’ as to n A Danish citizen’s claim that This was even though the playing the affiliation or association of Fox with Endemol Shine Group infringed his and outcome of the game, and the Ali or MAE. copyright with a series questions posed and answers given in While this type of The called Minute to Win the quiz, are not known or prescribed claim has an equiva- It has been rejected in advance, and the show will contain lent in this juris- claim is by a High Court elements of spontaneity and events diction in the law brought on the basis Judge. that change from episode to episode. of ‘passing off’, Derek The Judge found that the contents the claim over that Fox’s video is likely Banner of the Minute Winner Document were the video also to cause ‘confusion, developed unclear and lacking in specifics, and has a feature a format that they did not identify or prescribe that does not mistake, or deception’ for a TV anything resembling a coherent struc- exist in English as to the affiliation or game show ture that could be relied upon to law: that of viola- called Minute reproduce a distinctive game show in tion of publicity association of Fox Winner, in recognisable form. The features were rights, which, in Illi- with Ali which contest- commonplace and indistinguishable nois, are protected by the ants were given one from those of many other game shows, state’s Right of Publicity Act. minute to win something, and there was no similarity between the

zoom-in Winter 2017 | 19 COPYRIGHT & IP RIGHTS idea outlined in the Minute Winner heard them a whole lot in our forma- Record companies and artists have Document and the Minute to Win It tive years. You can’t [hide] those things been wary of such claims going to shows, beyond the fact that they both that are your influence, but at the same trial since the jury’s verdict in the case involved games played against the time the goal is to do something new.’ between Marvin Gaye’s family and clock for one minute. Meanwhile in a Ted talk he referred to Blurred Lines songwriters Robin Thicke The claim in breach of confi- English musicians ‘copying the works and Pharrell Williams: see p21. dence failed because Mr Banner had of blues musicians’ and said that ‘if already brought an unsuccessful you... copy without making it a carbon claim on the same basis in Sweden, copy... it is original’. (US) Cosby Show producer and was barred from pursuing it in This is far from the first claim to sues over BBC film England. The passing-off claim failed arise from Uptown Funk since its 2014 because Mr Banner had never had any release. The three core members of The n The producer of The Cosby Show, the customers or clients in England, and Gap Band were added to the track as Carsey-Werner Company, has brought because there was no risk of confu- songwriters, along with Mr Ronson copyright infringement proceedings sion between the two shows. and singer Bruno Mars, and given a in California over a BBC documen- reported 17% of royalties as part of a tary, Bill Cosby: Fall of an American mutually agreed settlement after they Icon. The film, it is alleged, included Mark Ronson faces new brought a claim based on similarities eight clips and two music cues from Uptown Funk claim with their song Oops Upside Your The Cosby Show for which permission Head. The Uptown Funk writers have had not been granted. n Producer Mark Ronson is facing also faced claims from Serbian artist The film was not broadcast in another copyright infringement claim Snezana Miskovic aka Viktorija, and the US, but the claim relies on the over his hit single Uptown Funk – from Minneapolis electro-funk band Collage. fact that it was available following Lastrada Entertainment Company Ltd, its broadcast in the UK on iPlayer, owners of Zapp’s 1980 funk classic More and this was accessible in the US by Bounce to the Ounce. anyone using Virtual Private Network The claim alleges ‘substantial simi- software to mask their computer’s larity’ between the songs, pointing to location. It is an unusual feature of the shared features including the three-note claim that those viewing it in this way introductory talk-box melody ‘doubled’ would have been infringing copyright on guitar, and the talk-box vocalisation law themselves. of the word ‘doh’. Commentators have noted that The The claimants cite reviews by Bill- Cosby Show is no longer being shown board and Slate, along with a tweet by on US television, and suggested that Living Colour guitarist Vernon Reid, the case will be an opportunity for as examples of people comparing the the court in California to examine two tracks. They also rely on state- how the fair use doctrine (similar to ments by Mr Ronson. In an interview / Shutterstock.com Woodham Photography Scott what is called ‘fair dealing’ in the UK) he said: ‘Roger Troutman and Zapp, we RONSON: FACES NEW CLAIM should be applied in practice.

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 last year 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.

20 | zoom-in Winter 2017 (US) Court hears Blurred Lines appeal n An American court is considering its verdict in an the similarity between the sheet music deposited at the US appeal against the award by a jury of $7.4m and ongoing Copyright Office for his song, and the recording ofBlurred royalties to Marvin Gaye’s family, over the similarities Lines. Only the content of the sheet music was protectable between Gaye’s Got to Give It Up and Blurred Lines by Phar- by copyright law, the Blurred Lines songwriters argued, and rell Williams and Robin Thicke. the Judge failed to exclude elements of the music that were The sizeable award in 2015 was the outcome of a high- not protectable: Gaye’s musicologists went beyond what profile case, which musicians have suggested has had wide- was expressed in the sheet music, and the jury was not prop- ranging consequences for artistic expression. In the wake erly instructed on the need to disregard elements such as of the decision, a number of artists have settled claims the ‘groove’ on Got to Give It Up. for infringement, sometimes by giving co-writing credits The attorney for the Gayes said the Court had ‘never to claimants whose historical work was alleged to have overturned a verdict in a music copyright case’ and that this inspired them, rather than risk a similar result at trial. shouldn’t be the first time it did so. She also argued that On 6 October, the Court heard oral argument. Mr the jury should have been allowed to hear the recording of Thicke and Mr Williams emphasised the technical nature Marvin Gaye’s song, which was the ‘elephant in the room’ of the original claim. At the time of the recording of Got at a trial focused solely on its sheet music. to Give It Up, there was no protection in US copyright law Given the proliferation of similar claims, the appeal for sound recordings. So, Gaye’s family’s claim was based on judges’ verdict is hotly anticipated. Kathy Hutchins / Shutterstock.com Hutchins Kathy

zoom-in Winter 2017 | 21 20 QUESTIONS 20 QUESTIONS As commissioning editor of entertainment What are you reading at the at the BBC, Jo Wallace oversees a lot of big moment? TV programmes, and one huge one: Strictly The Course of Love by Alain de Botton. Come Dancing. She talks to zoom-in about Favourite shop? her favourite haunts, what she’s learned Jo Malone. I love the lime and basil about the TV industry, and the time she fired candles. Russell Grant out of a cannon Favourite TV show? The Affair on Sky. I’ve just watched What gets you out of bed in the three full series in a box set in the past morning? week. I’m bereft it’s over. The school run. Guilty TV pleasure? Favourite restaurant? Keeping Up with the Kardashians. A cheap Italian in Willesden Green called Sanzio. I don’t do posh Favourite place to have fun? restaurants. Pikes Hotel in Ibiza.

THE CELEBRITY LINE-UP FOR STRICTLY COME DANCING 2017

22 | zoom-in Winter 2017 First record ever bought? Who gave you your first career What is the secret to Strictly’s Don’t Stop ’Til You Get Enough by break? appeal? Michael Jackson. Patrick Uden at Uden Associates. I It’s just a joyous, good old-fashioned worked on Classic Cars and Equinox for entertainment show. Fun, with a bit of Most used expression? Channel 4. sex appeal. ‘Is it too early to have a drink yet?’ Favourite Strictly moment? What advice When we did Strictly live Dream dinner party guests? would you from Wembley [in 2011], Olivia Colman, Oprah Winfrey, give someone ‘Every new it was touching to see just Brendan O’Carroll and Beyoncé. starting out in how nervous Bruce was. It TV? Strictly dance was such a big crowd and Very first job? Trust your own is a creative because he’s such an old- Mr Pickwick’s Baked Potato Shop in instincts and take opportunity’ school entertainer, I don’t Ireland. risks. Don’t be think he’d ever played to an boring. arena-sized audience. We also Favourite show you’ve ever catapulted Russell Grant out of a worked on? If you could change two things cannon, which I found hilarious. Strictly, obviously. Every new dance is about yourself, what would a creative opportunity and you really they be? Biggest achievement in life? are working with the very best people I’d like to see my friends more often My two children. Corny but true. in the business. and live closer to my family. Most diva-ish moment you’ve witnessed working in TV? Probably Jessie J refusing to let BBC1 controller Danny Cohen into her dressing room.

How many times a week do you get asked for Strictly tickets, and what is your stock response? Hundreds. I just have to remind people that tickets are free and you can apply online. Good luck!

Last three websites you visited? Amazon, Habitat and travel sites looking for holidays in Mexico.

Last time you cried? Last week at the filming of my new show called The Button. The director and I both cried when our favourite family won £10,000.

Describe yourself in five words Irish, loyal, creative and VERY LOUD.

Any wise words? I was thinking ‘dress for the job you want, not the job you have’ but let’s end it with… keep dancing! Paul Hunwick

zoom-in Winter 2017 | 23 MEDIA HAUNTS: SOUTH KENSINGTON CLUB

riginally built as the Queen’s Gate Music Hall in the late O19th Century, and later home to Ronnie Wood’s infamous Harrington Club, 38-42 Harrington Road is now the South Kensington Club. The winner of Best Private Members’ Club at the 2017 London Lifestyle Awards, it is a warren of exquisitely designed rooms that form a luxurious wellness centre. Luca Del Bono, owner and co-founder of the Quintessentially concierge service, got the idea while living in New York, where he’d often go to the Russian & Turkish Baths in the East Village. ‘At the time, Londoners were too prudish,’ Del Bono says. ‘Fifteen years ago, an Englishman would not even admit they would have a massage.’ He describes the place as a ‘members club with a gym, a bathhouse and a saltwater Watsu pool.’ Watsu, ‘water shiatsu’, eclipses other styles of massage. You lie back, Calling cradled in the practitioner’s arms, and are pulled and stretched under- water until your body and mind are base camp given new energy. It not only relieves muscle tension, but can also heal Met anybody interesting at the gym this week? Paul Hunwick emotional pain. Maybe it triggers explores the South Kensington Club, SW7’s luxury wellness subconscious memories of being in the centre for the truly adventurous womb – or perhaps in a cold digital age, and at a time when intimacy

24 | zoom-in Winter 2017 is fraught with anxiety, we’re just If it’s classes you’re after, hang strangers to the power of touch. with the power pilates crowd in the The club’s USP, however, is the mornings. Jenny, who used to train Voyager Club, a club within a club Princess Diana, has a popular one. led by adventurer Christina Franco. There’s hot yoga and high-energy Don’t be fooled by her soft features classes too, but consider stepping and stylish jewellery: this is a woman things up a notch with hot barre. who has driven a 90kg sled across the Think hardcore ballet stretches in a Arctic at -50C for 12 hours a day. ‘I heated room. organise unforgettable voyages Best of all is the bath- and help members prepare house and in particular, for bucket-list expedi- Banya the banya. Banya is uania. It’s designed to boost circula- tions,’ she says. ‘Desti- involves being a form of Russian tion. You’re then plunged into cold nations are inspired sauna where they water, which releases adrenalin and by monthly themes gently beaten heat you up and stress-busting hormones. Devotees presented through with birch leaves practise parenie, claim it can be a spiritual experience. regular dinner the ‘Russian dance Russian men sometimes go together parties, salon-style imported from a of leaves’. This to conduct business. It’s not hard speaker events and monastery in involves being to see why: wouldn’t you be more practical workshops gently beaten with open to agreeing a deal after you’d with experts: explorers, Lithuania birch leaves imported been steamed, beaten, scrubbed with pioneers and inspirational from a monastery in Lith- honey and dipped in cold water? speakers.’ These have included presen- South Kensington Club tations by endurance swimmer 38-42 Harrington Road Lewis Pugh and the 2012 National London SW7 3ND Geographic Adventurer of the Year, 020 3006 6868 Alastair Humphreys. The Voyager southkensingtonclub.com Club Room is peppered with inspi- Founder: Luca Del Bono rational books and art, and tables Head chef: Simone Serafini large enough to spread out maps. It Eat: Black Truffle, Fior di Latte Mozzarella Sourdough Pizza, £16 could reasonably be described as the world’s most luxurious base camp. Drink: Aged Negroni Who comes here? ‘We have a Who to know: Christina Franco, director of the Voyager Club. This is a woman lot of entrepreneurs,’ says Franco. who’s visited the North Pole solo. She can pretty much make anything happen ‘People who work for themselves or for you in media, film or theatre. The way Power tables: The oval one in the restaurant, or the sofa in the Voyager Club we live now is much more fluid. Of Room, which is large enough to spread out maps and still leave space for lunch course, people want to work and have to be served meetings but they also want to exer- Look out for: The Hiroshi Sugimoto photograph, of Salvador Dali as a magi- cise, eat well and relax in between.’ cian, which hangs in the Club Lounge If you’re reading this in a busy open- Coming up: The second Annual Explorers’ Dinner on 5 December with Ben plan office, or working alone from Fogle, in aid of Tommy’s Charity (tommys.org) home, you’ll appreciate the appeal. Club facilities include a skylit gym, Membership: £365/month (or £3,500/year if paid upfront) plus £1,000 fitness studios, relaxation areas, a Tea joining fee. Under 30s: £228/month, £500 joining fee Library, Mediterranean Club Restau- How to join: Apply via [email protected] or call 020 3006 rant, sitting rooms, a cocktail bar, a 6868 juice bar, a terrace and the saltwater Opening hours: Mon-Fri 6.45am–midnight; Sat 8am–midnight; Sun pool. When the pool was first installed, 11am–11pm it was filled with 25 tonnes of Medi- Reciprocal clubs: Le Saint James, Paris; Club Matador, Madrid; Duddell’s, terranean sea water, driven 1,500 miles Hong Kong from Sicily to London by truck.

zoom-in Winter 2017 | 25 PRIVACY & DATA PROTECTION

longer applied because the injunc- Since the Human Rights Act 1998 came into force, English law has tion had been lifted by consent. They developed a legal right to privacy. The courts can and will intervene to also complained about reporting of a purported police report from City of protect privacy rights where they are infringed without justification. London Police of the events leading This is commonly referred to as ‘misuse of private information’. to the arrest, which it had later Personal information is also protected by the Data Protection Act, so emerged was fabricated. journalists and programme-makers need to be aware of, and comply The episode raises two legal issues with, its rules as it applies to them. In this section, we report on some which have recently come into focus. First is the question of how Courts recent privacy and data protection decisions of note. should approach the effect of orders restraining publication in the internet Court lifts rape arrest firm spread a series of smears about age, when news and information are him, including that he is a friend published across different jurisdictions reporting ban of Vladimir Putin and a Russian where such orders may have no agent. The alleged smears legal effect. At one point n The High Court in London has also include allegations Pishevar before the injunction discharged an injunction preventing of sexual miscon- was lifted, Pishevar UK media from reporting the duct, including had been had been identi- London arrest of billionaire US tech the suggestion identified in fied in reporting investor Shervin Pishevar on suspi- that Pishevar in the US, but cion of rape. had paid off the reporting in the US, media outlets On 27 May, Pishevar, who is a complainant but media outlets in in this country prominent Silicon Valley venture following his were still capitalist and Democratic Party London arrest. this country were still subject to the supporter, was arrested at The Ned, For its part, the subject to the injunction and a luxury hotel in the City of London, firm has, through could not name on suspicion of rape. a partner, dismissed injunction him. He denied any wrongdoing and Pishevar’s claims about its This disparity has was never charged. The police said activities as ‘delusional’. provoked protests from UK that they had ‘insufficient evidence to Pishevar also issued a statement media in the past, for example in provide a realistic prospect of convic- about the arrest through his Amer- the well-known case of PJS v News tion, therefore no further action was ican attorney, saying that he was Group Newspapers in 2016, where taken against the suspect’. innocent of all allegations and had the claimant had been widely identi- Pishevar sought an injunction been released by the police without fied online, but the Supreme Court in England and Wales to stop The charge. The reporting of his claim decided to continue an injunction Sun from reporting the arrest. The and statement prompted an urgent which would protect him and his chil- Sun then provided him with application by News Group, dren from newspaper coverage in hard undertakings not to publishers of The Sun, copy that would invade their privacy. report the story until The Sun to lift the injunction, Here, Pishevar’s consent to the lifting trial. appears to have to which Pishevar of the injunction appears to have been In early consented. at least in part a recognition of the fact November of recognised that Reporting that it was unrealistic to attempt to this year, infor- information about by The Sun, The maintain restrictions on reporting in mation about Times and other one country when readers could easily the case was Pishevar’s arrest may newspapers and identify him by reading online reports reported in well have been seen media outlets published in another. the US, when in this jurisdic- The second issue is the privacy Pishevar began a by the courts as tion followed the which is accorded to reports of arrests. legal claim against private lifting of the injunc- In 2016, in ERY v Associated News- a Republican research tion. Pishevar’s London papers, the claimant obtained an firm, Definers Public solicitors, Schillings, noted injunction that prevented his iden- Affairs. The claim alleges that the that the reporting restrictions no tification as someone who had been

26 | zoom-in Winter 2017 interviewed under caution and was suspected of involvement in financial crime. The newspaper defendant conceded that the publication of this information would engage his privacy rights. Similarly, The Sun appears to have recognised that information about Pishevar’s arrest, which led to him being escorted out of the hotel by the police, but through a private elevator and apparently largely unseen by the public, may well have been seen by the courts as private. This is not a rigid rule, however, since there are obviously examples of arrests that take place in public and where it would be far more difficult ID1974 / Shutterstock.com ID1974 for the person arrested to argue for a PISHEVAR: CAN BE NAMED right to privacy. These are developing areas of the decision and the piece of secondary would pose any risk to public confi- law, which the courts will continue legislation that underpinned the dence in the police. The Court said to grapple with in future. policy. it could ‘see no sensible or rational The woman disclosed the repri- basis upon which the reprimand voluntarily, but would mand could be rele- Not employing woman have been required to The vant to the claim- because of a reprimand disclose it in future offending ant’s preferred when applying employment. at age 13 was breach for certain jobs, was at a very Yet the police of privacy including that of low level. Requiring still used that a police officer, reprimand n A woman has won a court battle which was her disclosure of reprimands peremp- against South Wales Police after it ultimate aim. The relating to more serious torily to refused her a job as a support worker woman otherwise refuse the because of a reprimand she received has ‘an unblem- offences might not be claimant’s job for stealing a £20 sarong from ished record and is of in breach of application.’ Primark when she was 13. good character’. There The Court The Court found the police’s deci- was no suggestion that Article 8 considered that it sion was a breach of Article 8 of the the woman would be unable would be relatively easy Human Rights Act 1998, the right to do this job, or that of a police to create a carve-out from the to respect for private and family life. officer. Nor was there any suggestion obligation to disclose such matters Not only was the decision unlawful, that employing someone with such for historic reprimands relating to but so was the policy underlying the a low-level and historic reprimand low-level categories of offending.

Data Protection & the ICO

n Data protection law protects ‘personal data’, which is any There is a specific statutory journalistic exemption, but data relating to an identifiable living person. In addition to media companies and individuals can still be fined for data individuals being able to sue under the Data Protection Act security lapses. Accordingly, it is important that media where their personal data has been misused, the Information companies have a corporate data protection policy in place Commissioner’s Office (ICO) operates a regulatory system of and that staff abide by it. Abbas Media Law advise clients compliance with data protection laws. The ICO has strong on all aspects of policy and procedure in order to minimise powers at its disposal, including the power to fine up to risk in connection with breaches of the Data Protection Act £500,000 for serious breaches of the Data Protection Act. and the ICO’s regulatory regime.

zoom-in Winter 2017 | 27 PRIVACY & DATA PROTECTION

The decision not to employ the woman breached Article 8, as did the police policy used to decide on her application for employment. Using the reprimand against her also harmed the principle of rehabilita- tion. The policy involved a substantial presumption against employing someone with a reprimand unless there were ‘exceptionally compel- ling circumstances’. This involved no meaningful consideration and assessment of the factors relevant to Article 8. The legislative scheme requiring disclosure of such matters for particular roles was also in breach of Article 8 in so far as it relates to / Shutterstock.com ID1974 POLICE: EMPLOYMENT PRACTICES INFRINGED PRIVACY the type of reprimand that was the subject matter of this case. However, the police force has discre- The personal data had been This decision applies a common- tion over whether to keep a record supplied to other companies that sense approach to historic repri- of the name of the child in question. had been fined for making unso- mands. In this case, the offending Once again, the long-term privacy licited marketing calls, including was at a very low level. Requiring implications of records held by the Prodial Ltd, which received a record disclosure of more recent repri- police, about matters that took place £350,000 fine in 2016 for making mands, or reprimands relating to when an individual was a child, will 46 million nuisance calls. more serious offences, might not be feature before the Court. The ICO also issued a warning in breach of Article 8. The case also to data brokers that it showed the devastating effect that is looking into the a policy such as this can have. The ICO issues industry gener- The ICO also woman was, in effect, shut out from £80,000 ally, including her chosen career and had suffered issued a warning to credit refer- from depression. fine and ence agen- Cases about what information the warns data data brokers that it is cies, which police can retain and/or disclose have brokers looking into the industry the ICO come before the courts frequently in described as recent years, and often centre on the n The Informa- generally, including ‘key players privacy implications of what is being tion Commis- credit reference due to the done. sioner’s Office (ICO) volume of Separately, a mother is asking a has issued an £80,000 agencies personal data court to review Greater Manchester fine to a company called they gather’. Direct Police’s decision not to delete her Verso Group (UK) Ltd, marketing is subject son’s name from its records. which describes itself as ‘the UK’s to specific rules under the The case relates to an incident in Premier Lead Generation Provider’. Privacy and Electronic Commu- which the boy, aged 14 at the time, The company obtained and sold large nications Regulations 2003, as sent a naked photograph of himself volumes of personal data for use in well as the general rules under to a girl. He was not arrested or direct marketing. The ICO found it the Data Protection Act. Anyone prosecuted, but the police has kept a was not clear with individuals about sending direct marketing eg via record of the incident, together with what it was doing with their personal email, online message or telephone his name. His mother is concerned data – this was a breach of the first should follow these rules, which that the information will surface data protection principle. Customers will generally require consent from when he applies for jobs. Home could not have known what was the individuals concerned, as well as Office policy is to record such inci- being done with their personal data, informing them what will be done dents, even if no action is taken. the ICO said. with their personal data.

28 | zoom-in Winter 2017 DEFAMATION

continued from page 15 the scope of journalistic privilege is Dr Wallis Simons alleged in his for an order for greater disclosure of extensive, ie it protects not only the Particulars of Claim that Mr Murray documents, challenging Channel 4 identity of sources but also informa- accused him of wilfully lying, and and production company Blakeway’s tion that may lead to the identifica- of being engaged in a witch-hunt of claims of privilege in relation to the tion of sources,’ he said. critics of Israel by making accusa- litigation, and of journalistic privi- Although the Judge acknowl- tions of anti-Semitism that he knew lege to protect sources. edged that clearly identifying to be false. The broadcaster was, earlier in the Channel 4’s sources, particularly the Mr Murray asserted in his defence litigation, ordered to provide disclo- pilots, would help Ryanair at trial, that he was protected by qualified sure of a wide range of documents. he said that it was not established privilege and defended the claim Ryanair objected to the way in which that such identification was essential. on the basis that, when he denied Channel 4 described the documents While the decision is a signifi- saying the words on his blog, he it was obliged to produce, and chal- cant victory for Channel 4, and for was responding to what amounted lenged claims to legal advice, litiga- the principle of protecting journal- to an attack on him by Wallis tion and journalistic privilege. istic sources more generally, the liti- Simons, made to the effect that he The Judge recognised the partic- gation continues. was involved in anti-Semitism and ular difficulty in describing a docu- publishing anti-Semitic material on ment where a party is asserting the internet. He relied on the fact journalistic privilege to protect a Claim over live TV debate that Wallis Simons explicitly called source, and held that Channel 4’s settles on day one upon him immediately to respond. descriptions were adequate. He When the trial began, the parties did, however, hold that, where only n A libel claim brought by one agreed an immediate adjournment legal advice or litigation privilege participant in a live TV interview and settled, issuing a joint state- was being claimed, a more detailed against another has been settled on ment: ‘Mr Murray accepts that Dr narrative should be provided. the first morning of the trial via a Wallis Simons is not a liar, and The Judge, in rejecting the airline’s joint statement. Dr Wallis Simons accepts that Mr attempt to make Channel 4 disclose The claimant was Jake Wallis Murray is not an anti-Semite. They its sources and reveal the identities Simons, a novelist, journalist and are both pleased to have resolved this of the four anonymous pilots, agreed broadcaster. The defendant was dispute amicably.’ with the broadcaster that ‘such jour- political blogger Craig Murray. Broadcasters are usually protected nalistic privilege is a “cornerstone” of On 29 April 2016, Dr Wallis from libel claims over allegations a free press’. Simons and Mr Murray made in live programmes by s1 of Ryanair, said the participated in a live the Defamation Act 1996, which Judge, had argued The debate on Sky provides that a broadcaster is not that Channel 4 defence for News on the ques- the author, editor or publisher of a was not entitled tion ‘Is Britain statement in a live programme in to rely on jour- so-called ‘innocent Anti-Semitic?’, which the broadcaster has no effec- nalistic privi- dissemination’ is following the tive control over the maker of the lege ‘without suspension of statement. swearing to the not available to several members However, this defence for so-called full details of participants in a of the Labour ‘innocent dissemination’ is not avail- the assurances of live programme Party that week. Dr able to participants, who take the risk confidentiality each Wallis Simons read of being sued in person for what they source had received’. But out a quote saying that say in a debate. It is inherent in live he decided that it was not Israel ‘claims tribal superi- TV that statements are published to necessary for a court to establish what ority over the rest of the world’ and large numbers of people, making any assurances had been given, and that said that, since Mr Murray was its libel potentially serious. This claim this could, in a few cases, lead to the author, he should comment. shows that the risk of being sued identity of the source being revealed. Mr Murray’s response was to say over such a statement can still exist The Judge did not accept that that the attribution of the quote to even in the unusual circumstances the broadcaster had taken a ‘heavy- him was a lie, that he did not write here, where the person bringing the handed’ approach to redactions made it on his blog, and that the UK was claim was himself also involved in to protect sources: ‘It is clear that in the middle of a witch hunt. the broadcast.

zoom-in Winter 2017 | 29 CONTEMPT & REPORTING RESTRICTIONS

objections to an application for the The law of contempt makes it a criminal offence for the media documents, the court will balance the to publish or broadcast comments or information that creates potential of the material in the documents to advance the open justice a substantial risk of serious prejudice to active UK legal principle against any risk of harm that proceedings, in particular criminal proceedings heard before access to the documents may cause juries. Penalties for contempt can be serious: fines, even to the legitimate interests of others. imprisonment. Many activities are capable of amounting to a Where a case involves a child or a contempt, including: publishing seriously prejudicial material; vulnerable adult, there may be strong reasons for not allowing access. obtaining or publishing details of jury deliberations; breaching The position is similar in the reporting restrictions or a specific court order; making payments criminal courts, where rules relating to witnesses; filming or recording inside court buildings without to access to information held by the permission; and publishing information obtained from confidential courts are set out in Part 5B of the court documents in both civil and criminal proceedings. Criminal Practice Directions. These refer to the Guardian case and say: ‘Opening notes and skeleton arguments to introduce and outline their ments or written submissions, once MoJ lawyers refuse clients’ cases, including what the rele- they have been placed before the reporters access to vant case law is and how it applies, and court, should usually be provided skeleton argument frequently refer to them during their to the media.’ The rules say that a oral submissions to the Judge. request for access to documents used n Journalists seeking a copy of a In the civil courts, the right of in a criminal case should first be skeleton argument from lawyers journalistic access on the basis of ‘open addressed to the party who presented representing the Ministry of Justice justice’ was clearly established in the them to the court. If that party will in a claim brought by the man who case of Guardian v City of Westmin- not provide them, then an applica- murdered soldier Lee Rigby were told ster Magistrates’ Court. The Court of tion to the court can be made. They that they would not be provided with Appeal explained that where docu- emphasise that if the application is it. ments have been placed before a judge made by or on behalf of the media, Michael Adebolajo, who was and referred to in the course of proceed- then there is a greater presumption sentenced to life in prison after being ings, the default position should be in favour of providing the requested convicted of the murder, has brought that the media should be permitted material, in recognition of the press’ a claim against the MoJ arising from to have access to those documents on role as ‘public watchdog’ in a demo- an injury that he says was caused by the open justice principle. If there are cratic society. prison officers during an incident in his cell. There was a preliminary hearing at the High Court in late October, at which lawyers representing the MoJ told reporters covering the hearing to ask the press office for copies of a skeleton argument. The MoJ press office said it did not have copies available. Reporters unsuc- cessfully applied to the Judge at the hearing itself, arguing that there was no reason why a copy of the skeleton argument should not be provided. When covering a court hearing for news purposes, the opportunity to see the parties’ skeleton arguments can often be vital in understanding what is taking place. Lawyers use the docu- MINISTRY: REFUSED ACCESS

30 | zoom-in Winter 2017 David Ginola ‘surprised’ press can attend Family Court hearing n Former France and Spurs footballer David Ginola has whether the proceedings are to do with children – and expressed surprise that the media were allowed to attend whether the judge has made any type of reporting restric- a hearing held in the Family Court. Mr Ginola was in tion. a dispute with his ex-wife Coraline Delpin over money. Most Family Court proceedings are held in private. Ginola said: ‘I am French. We are not used to this.’ However, judges can decide to hold certain proceedings in The Judge refused to exclude the press from the public instead. Some judges take the view that there is a hearing. She also decided that Mr Ginola and Ms Delpin pressing need for more openness, and generally hold hear- could be named, and it could be reported that the case ings such as Mr Ginola’s case, relating to money in divorce concerned a dispute about money, but that no details of proceedings – known as ancillary relief proceedings – in the issues dealt with could be published. public. With this comes the ability of the media to report Rule 27.11 of the Family Procedure Rules permits what went on in open court. Other judges will hear such accredited journalists to attend family proceedings even matters in private, but may decide to allow reporting of when they are held in private. However, what may be certain matters. reported from those proceedings is limited, unless the Legal advice should be sought as to what can be judge makes an order allowing additional reporting. There reported on hearings that take place in private, and are a series of rules dealing with what can reported, which whether any application needs to be made to the judge to depends both upon the type of hearing – for example allow particular matters to be published.

zoom-in Winter 2017 | 31 ABOUT ABBAS MEDIA LAW

We are specialists on all AML News aspects of UK law and AML welcomes content lawyer Paul Schaefer to the regulation affecting the team. Originally from Australia, Paul worked in television, film, advertising Melbourne as an in-house lawyer at The Herald and and publishing industries. We advise before publication Weekly Times, before coming to the UK where he worked within and broadcast, working with creatives to minimise legal and the BBC’s Programme Legal Advice department for four years. regulatory risk, and following publication and broadcast, While at the BBC, Paul advised on a broad range of content defending content when it and its producers come under attack. including news and current affairs, consumer, factual, drama and We work with many of the country’s leading content producers. entertainment programmes, including BBC News, Inside Out, Crimewatch Roadshow, Rip Off Britain, Mock the Week and Content Advice Abbas Media Law boasts some of the most experienced content The Graham Norton Show. 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, Jenny Spearing Senior Business Affairs Adviser advertising and publishing industries. We advise on deal- Jenny is a business affairs expert with nearly 20 years’ making, draft and negotiate all types of agreements, and can experience in television production. answer all your day-to-day queries. See page 16. Paul Schaefer Lawyer Legal and Regulatory Threats, and Litigation Paul is an experienced media lawyer, having worked as We regularly represent clients when legal and regulatory threats in-house counsel for newspapers and broadcasters. are made against programmes and other content, both before and after publication. We represent clients in most areas of Lucy Chisholm Batten Paralegal litigation affecting the media, advising on strategy, tactics, Lucy is a law graduate with over 12 years’ experience of drafting of pleadings and advocacy. 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