zoom-inMedia law news from Abbas Media Law WinterMay 2016 2016 Celebrity Big Brother Entertainment Prince Harry - Biggins’s bisexual supremo Steven steps in to protect comments were not D Wright talks to new girlfriend offensive 11 zoom-in 15 Meghan Markle 28

Donald and Melania Trump in the libel courts, as he vows to strengthen US laws n Donald Trump has succeeded in so radicalised that the police were afraid. Melania Trump has begun defamation having a defamation claim against him This was said to reflect on Muslims proceedings against the Daily Mail in struck out by the High Court in London. in a particular area of Forest Gate. both London and Maryland, US. The Muslim politician Kamran Malik and the Unsurprisingly, the comments were article in question referred to her ‘very Communities United Party were seeking found by the Court not to be capable of racy past’, and included the reporting damages over a number of comments, being the subject of a defamation claim. of allegations that Mrs Trump’s former including one that areas of London were At the same time, it is reported that continued on page 32 IN THIS ISSUE

COVER 20 QUESTIONS COPYRIGHT & IMAGE Donald Trump threatens to tighten up US Legendary entertainment RIGHTS libel laws against the media but will he be producer Steven D Wright The latest on copyright able to? ...... 1 (cont on p32) on blinkered commissioners, infringement in music, film his biggest regret – and the and online… dangers of bread ...... 15 WINNERS & LOSERS Ed Sheeran hits back against We report on recent high-profile legal Amazing copyright claim ...... 24 winners and losers… BUSINESS AFFAIRS AND RIGHTS Lucasfilm not amused by Lightsaber Academy ...... 24 Pippa Middleton obtains injunction to stop Abbas Media Law’s production legal 3 publication of hacked photos ...... schedule, setting out the five key stages Warner Bros accidentally tries to take ‘Fake Sheikh’ imprisoned ...... 4 of TV production and the legal issues down its own website ...... 24 Celebrity threesome – News Group pays producers must consider. In this issue we Playboy case reveals problems with linking up ...... 4 focus on access agreements, title to potentially copyrighted material... 24-25 searches and opinions ...... 16-18 HMRC off-record briefing was breach of confidence ...... 4 PRIVACY & DATA PROTECTION Hulk Hogan sex tape case finally ends with MEDIA HAUNTS zoom-in rounds up the latest decisions, ‘hard peace’ ...... 6 Have you tried the new, improved L’Escargot including… yet? We’re loving the discreet upstairs Kanye West successfully defends Playboy model charged over nude gym members’ club as much as the classy Made in America plagiarism suit ...... 7 photo of 70-year-old ...... 26 French restaurant ...... 19 Injunction highlights issues around police REGULATION – OFCOM, investigations and privacy ...... 26 DEFAMATION ASA & IPSO Actors can now have their ages removed New regulatory decisions of interest… News and analysis of significant recent from IMDb ...... 26 defamation decisions… Dangerous MTV ad banned ...... 8 Prince Harry slams media over treatment of Imam loses libel case against BBC ...... 20 Jeremy Kyle ‘raw sex’ Meghan Markle ...... 28-29 inappropriate for JonBenet Ramsey’s brother to sue CBS over Easter Sunday ...... 8 claims he is most likely CONTEMPT AND Boy identifiable in gang killer ...... 20 REPORTING violence news report RESTRICTIONS Kim Kardashian West was not treated unfairly ....8-9 drops lawsuit after Paris Including two cases in the TV Burp repeat in breach, robbery faking claims aftermath of Adam Johnson’s despite original broadcast retracted ...... 21 conviction… being cleared 9 ...... Telegraph receives fine for failing to Rebel Wilson sued No expectation of privacy on swingers’ protect victim’s identity ...... 30 for tweeting the wrong club website ...... 10 journalist ...... 22 Man jailed for naming Johnson’s Biggins on bisexuality was not offensive ...11 victim online ...... 30-31 Kelly Osbourne settles claim brought by Is ‘tits’ worse than ‘bugger’? Ofcom ranks Ozzy’s mistress ...... 23 Local editor fined for naming 17-year-old TV’s most offensive swear words ...... 12-13 boat crash skipper ...... 31

zoom-in Abbas Media Law Editor Nigel Abbas zoom-in is written by the Abbas Media Law team. Deputy Editor Clare Hoban We are a niche law firm advising on all aspects of Contributing Editors Felicity UK law and regulation affecting the television, film, McMahon advertising and publishing industries. Paul Hunwick Founded by Nigel Abbas, we work closely with Picture Editor Karen Harper broadcasters, independent production companies of Sub-editor Jack Seale all sizes, and other content producers. Art Director Tim Parker Abbas Media Law is experienced in advising both before publication or broadcast, working with crea- tives to minimise their legal and regulatory risk, as Contact NIGEL ABBAS ABBAS Media Law well as following publication or broadcast, defending 1st Floor, 239 Kensington High content when it – and its producers – come under attack. Street, 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 2016 WINNERS & LOSERS

Pippa Middleton obtains injunction over hacked iCloud photos

n In September, Pippa Middleton and her fiancé include photographs of Middleton’s nephew and niece, James Matthews succeeded in obtaining an injunction Prince George and Princess Charlotte. A 35-year-old to prevent the sale or publication of photographs man, Nathan Wyatt, was arrested on suspicion of an and other information from her hacked iCloud offence under the Computer Misuse Act over the hack, account. Middleton found out that photos from the and he was represented at the injunction hearing. account were being offered for sale by an unknown Middleton’s barrister told the court the hack had caused person via WhatsApp when she was informed by the her ‘considerable distress’. Hacking an iCloud account Sun newspaper. The photographs had also been offered and offering private photographs for sale is unlawful, to the Daily Mail. The hacked photographs are said to including as a misuse of private information.

zoom-in Autumn 2016 | 3 WINNERS & LOSERS

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

CRIME: ‘Fake Sheikh’ he commits a further offence). Sunday on the basis that publica- The Judge said that Mr Smith tion of this information would be a imprisoned had in part been motivated by misuse of private information and a misguided loyalty. breach of confidence. n Mazher Mahmood, known as the Following the sen- A final order has now been ‘Fake Sheikh’, has been convicted of tence, News UK an- made in the High Court that conspiracy to pervert the course of nounced that Mahmood News Group Newspapers pay justice and sentenced to 15 months had been sacked. It has a specific sum in damages in prison. Mahmood carried out un- also been reported that in full and final settlement dercover investigations for newspapers a number of individu- of PJS’s claim for damages including the now defunct News of the als will bring civil and costs. The exact figure World for over 20 years. claims against News has been kept confidential His stings included that of Pa- UK in the light of but is likely to be substan- kistani cricket players Salman Butt Mahmood’s convic- tial. News Group Newspa- and Mohammed Asif, who were later tion. News UK has pers also agreed it would not found guilty of conspiracy to cheat said it will vigorously publish any information which and conspiracy to accept corrupt defend such claims. could identify PJS, including payments in relation to ‘spot-fix- Undercover investi- identifying his partner or three ing’. They deliberately bowled no- gations form the basis of other individuals. balls at a Lord’s Test Match. Other many press stories and tel- targets included Sophie, Countess evision programmes, and can of Wessex, Sven-Göran Eriksson be a very effective way of CONFIDENCE: and Richard Bacon. Mr gathering evidence Mahmood has claimed when done Ingenious Media wins his stings resulted in properly. case against HMRC over 100 criminal Generally, over ‘off the record’ convictions. The sentencing the use of sub- briefing The case terfuge in jour- against Mahmood judge said: ‘You nalism must be n Ingenious Media and its founder was brought fol- wanted another justified by the Patrick McKenna, who is also Chair- lowing the col- public interest. man of Hat Trick Productions, have lapse of N-Dubz scalp.’ It goes without won a case against HMRC in the Su- singer Tulisa Con- saying that jour- preme Court. The Court ruled that tostavlos’s prosecution nalists must also be HMRC breached its duty of confiden- for an alleged drug of- scrupulous to ensure tiality in briefing Times journalists ‘off fence in 2014, an offence she that they do nothing that the record’ about the company and Mr denied. That prosecution had followed might improperly interfere with the McKenna’s tax affairs. The briefing one of Mahmood’s stings. Mahmood course of justice, otherwise they are at resulted in an article appearing in the and his driver, Alan Smith, were found risk of prosecution. newspaper, which included informa- to have altered a witness statement to tion and a quote from that briefing. remove the passage they realised could Ingenious Media had run a number be used to support Contostavlos’s case. PRIVACY: Celebrity of film investment schemes that had In respect of Mahmood’s motive, the threesome case – News the effect of minimising tax for its cli- sentencing judge said: ‘You wanted Group pay damages and ents, utilising tax reliefs which were another scalp.’ available at the time. The Judge said that while he ac- costs The Revenue had sought to argue cepted that Mahmood had done some n In the Summer issue of zoom-in, we that it was entitled to disclose the in- good work over the course of his ca- reported on the celebrity known only formation as it was, it said, carrying reer, a term of imprisonment was inev- as PJS, who brought a successful ap- out its functions in fostering close re- itable. Mahmood’s driver was given a peal in the Supreme Court to prevent lations with the media and publicis- 12-month suspended sentence (mean- details of his extramarital relation- ing HMRC’s view about tax avoidance ing he will not be sent to prison unless ships being made public by The Sun on schemes, in the hope that journalists

4 | zoom-in Winter 2016 Tulisa Contostavlos and the sting that brought the Fake Sheikh down n In June 2013, following an elaborate sting by to the charge and, during the trial, it emerged that ‘Fake Sheikh’ Mazher Mahmood for the News of The Mahmood might have lied about whether he had World - involving luxury hotel suites and the pros- encouraged a key witness to change his statement. pect of a £3.5m role in a (non-existent) Bollywood As a result, the case collapsed with the Judge telling film - Tulisa Contostavlos was accused of fixing a the jury that there were ‘strong grounds to believe’ cocaine deal and was later charged by police with a Mahmood had lied on oath. Mazher Mahmood was Class A drug offence. Contostavlos pleaded not guilty later prosecuted and imprisoned. See opposite.

zoom-in Winter 2016 | 5 WINNERS & LOSERS

Gawker and its founder Nick Denton into bankruptcy. The privacy claim has now been settled, with Hogan ac- cepting $31m. A jury had awarded him $140m, an award which Gawk- er had said it would appeal, but this settlement brings an end to the mat- ter without the need for further legal hearings. Mr Denton called this end to the case ‘a hard peace’.

CRIME: Retired police officer convicted of historical sex offences n Gordon Anglesea, who 22 years ago won £375,000 in libel damages over allegations that he was paedophile, has been convicted of historic sex offences against two teenage boys. Anglesea had denied the allegations for 25 years but was convicted by a jury of four counts of indecent assault. Allegations about Anglesea and his connection to Bryn Estyn children’s home in Wrexham emerged in 1991, and over the next couple of years were re- ported in the press. In 1994 he sued The Independent on Sunday, The Observer, Pri- vate Eye and HTV Wales for libel, win-

SEX TAPE CLAIM SETTLED: HULK HOGAN ning £375,000. Private Eye paid £80,000 of that total. Its editor Ian Hislop wel- might subsequently inform HMRC impermissible because the HMRC comed Anglesea’s conviction with ‘grim about other such schemes. official thought his comments would satisfaction’. Talking about the libel There are specific rules on confi- not be reported. case, he said: “I can’t help thinking of dentiality and disclosure of informa- the witnesses who came forward to assist tion that apply to HMRC, set out in our case at the time, one of whom later the Commissioners for Revenue and PRIVACY (US): Hulk Hogan committed suicide, telling his wife that Customs Act 2005. However, the sex tape case finally ends he never got over ‘not being believed’.” court emphasised that the normal Hislop said Private Eye would rules of breach of confidence also ap- n We have reported Ian not be seeking to reclaim ply and the provisions in the Act are in previous issues on the £80,000 damages: based on that law. the legal actions Hislop ‘Others have paid a Material relating to their tax af- brought by former welcomed far higher price.’ fairs was clearly confidential to In- professional wres- The prosecu- genious Media and Mr McKenna. tler Hulk Ho- Anglesea’s tion of Anglesea To interpret the provisions of the gan against the followed the 2005 Act so widely as to allow the website Gawker. conviction launch of Opera- disclosure of information relating to The action re- with ‘grim tion Pallial, which an individual’s tax affairs would sig- lated to a sex tape looked into alle- nificantly undermine HMRC’s duty of Hulk Hogan with satisfaction’ gations of historical of confidentiality. The fact that the his friend’s wife, pub- abuse in North Wales in briefing was ‘off the record’ made no lished on the Gawker web- the wake of the revelations difference: the disclosure was no less site. The lawsuit ultimately forced about Jimmy Savile.

6 | zoom-in Winter 2016 Kanye - Made in America not an infringement n Kanye West, Jay-Z and Frank Ocean did not infringe copyright with their track Made in America, a US appeal court has found. Joel McDon- ald, known as Joel Mac, had claimed that the song had infringed copyright by taking its concept from his song, also called Made in America. However, a federal appeal court upheld an ear- lier decision that it did not. The court found Mr McDonald’s arguments to be ‘without merit’.

zoom-in Winter 2016 | 7 REGULATION – OFCOM, ASA & IPSO

OFCOM – FAIRNESS & Ofcom regulates the content of all television and radio in the UK, PRIVACY: Channel 4 News except for some content broadcast on BBC channels funded by the licence fee. IPSO is the main regulator for the press and magazine n Ofcom decided not to uphold a industry. The Advertising Standards Authority regulates advertising. complaint made against Channel 4 News by a ‘Ms G’ on behalf of her All the regulators adjudicate on complaints with reference to codes son. Ms G complained about a piece of practice, with which those they regulate have to comply. The Ofcom on gang violence in London, which Broadcasting Code is the main code relating to broadcast content, while included CCTV footage in which her IPSO judges complaints against the Editors’ Code. The ASA’s main codes son could be seen in the background. are the BCAP Code for broadcast advertising, and the CAP Code for Ms G’s son was 14 at the time. She complained that he had been treated non-broadcast advertising. Compliance with these codes is important. unjustly and unfairly, and that this Regulators can impose penalties and sanctions for non-compliance. was an unwarranted infringement of Regarding privacy matters, the regulatory codes also have wider legal his privacy. She said that her son had significance because of provisions within the Human Rights Act 1998 been identified and this had endan- and the Data Protection Act 1998. The result is that the Codes have a gered him. Some of the individuals bearing not simply in a regulatory context, but also on how the courts in the footage had their faces blurred, but Ms G’s son did not. should act when making any order affecting freedom of expression Channel 4 News set out the pre- and the publication of journalistic, literary or artistic material. In this cautions they had taken with the section, we report on some recent interesting regulatory decisions. footage, which had been given to them in accordance with the Crown a fellow panellist described how she Prosecution Service Media Protocol. OFCOM – STANDARDS: The sounded during orgasm. Jeremy Kyle The police had requested certain in- Jeremy Kyle Show - sexual also imitated the creaking noise of a dividuals’ faces be obscured and had content inappropriately bed and asked his on-stage security checked the footage. Individuals who scheduled guard to show his ‘orgasm face’. The were identifiable and were still fac- programme contained a high volume ing criminal proceedings were ob- n The Jeremy Kyle Show, broadcast on of swearing, which was dipped. scured to avoid contempt of court. ITV, has been found to be in breach Ofcom took the view that the Identifiable victims, youths who of Rule 1.3 of the Ofcom Broadcast- cumulative impact of the sexual ref- had been convicted (whose identities ing Code, which states that children erences, threatening and aggressive may be protected by reporting re- must be protected from material that confrontation and frequent use of strictions), and identifiable is unsuitable by scheduling it at an masked offensive language innocent bystanders appropriate time. resulted in the episode were also obscured. ITV said that the episode, which being unsuitable Ms G’s son was broadcast on Easter Sunday during for children. Of- not named, nor the day, had been ‘certified for broad- com found the During a stage was atten- cast outside of term time school hours, scheduling of discussion, the tion drawn as the main story focused on the issue this episode on a to him, and of paternity, which is a very common Sunday morning woman was described Channel 4 issue that is often dealt with by the on ITV’s most contended programme, rather than explicit sex- widely watched as smelling of ‘fish’ that he was ual matters’. public service and ‘raw sex’ not recognis- Ofcom disagreed and found several channel, shortly able due to the aspects of the programme combined before transmission brevity of the clip, to make the programme unsuitable of Willy Wonka and The the poor quality of for children. The episode centred on Chocolate Factory, would have the footage and the fact a woman who had had sex with three likely exceeded the expectations of that he was an incidental figure men in close succession and then con- viewers and particularly parents. In in the footage. Channel 4 News also ceived, leaving the paternity of her the circumstances, Ofcom found the pointed to the public interest in the is- baby uncertain. During a stage dis- material was not appropriately sched- sues of escalating gang violence and the cussion, the woman was described as uled and breached Rule 1.3 of the increasing use of large hunting knives, smelling of ‘fish’ and ‘raw sex’, and Broadcasting Code. which the footage demonstrated.

8 | zoom-in Winter 2016 Ofcom decided that Ms G’s son OFCOM – HARM AND was not identifiable to anyone save for OFFENCE: Harry Hill’s TV those few who knew him. It was not clear to Ofcom that it was the footage, Burp – repeat in breach rather than comments on social media, that led to the identification of Ms G’s n Ofcom has found an episode of son and him being attacked, taunted Harry Hill’s TV Burp, aired on the at school and labelled a gang member. channel Dave, to be in breach of the Accordingly, the broadcast was not Ofcom Broadcasting Code’s rules on unfair to him, as those who were able harm and offence. The episode had to identify him would already know previously transmitted on ITV in about the circumstances surrounding 2008 and although complaints were the incident and his presence at it. made then, they were not upheld. Ofcom also found no unwarranted The show referred to a documen- infringement of privacy. Ofcom not- tary entitled The Pregnant Man on ed that being in a public place and Channel 4 about Thomas Beatie, a being involved in or a witness to a transgender male able to conceive and crime does not automatically deprive carry a baby because he had retained an individual of a reasonable expecta- his female reproductive organs. The tion of privacy, and the circumstanc- item intercut clips of the documen- GAVE BIRTH TO A DOLL: HARRY HILL es could reasonably be considered a tary with narration from Harry Hill. sensitive situation. It was addition- The content became increasingly sur- the surreal nature of Harry Hill’s ma- ally noted that special care must be real, culminating in Harry Hill wear- terial, and that while his comments taken in relation to the privacy of ing an oxygen mask and giving birth were absurd and juvenile, they were those aged under 16. to a doll which was told to call him not intended to cause offence or be Nonetheless, Ofcom found Ms G’s ‘mummy’ instead of ‘dada’. discriminatory. However, in response son had no reasonable expectation of The complainant, a mem- to the complaint, the broad- privacy. It was material that the foot- ber of the public, con- caster accepted that at- age was obtained by Channel 4 News sidered that the item titudes had changed to highlight the increased use of knives was offensive and The content since 2008, when by London gangs, rather than to focus discriminatory the show origi- on any individual. towards the became nally aired, and In particular, as Ms G’s son was transgender increasingly surreal, said that they not readily identifiable to an ordinary community. had already viewer, he did not have a reasonable ex- Ofcom con- culminating in Hill removed the pectation of privacy in relation to the sidered the item from obtaining of the footage, nor in rela- material un- wearing an oxygen future broad- tion to its broadcast. der Rule 2.3 of mask and giving casts of the pro- This is an interesting case as, in the Broadcasting gramme. spite of Ms G’s son being under 16, Code, which re- birth to a doll Ofcom disa- and there apparently having been con- quires broadcasters to greed with the broad- sequences for him as a result of being ensure that material which caster, finding that the identified, no breach was found. Chan- may cause offence is justified by item had directly mocked Mr nel 4 News was able to demonstrate the context. Beatie. Ofcom stated that although the lengths it had gone to in order to In its defence, the broadcaster ar- there is significant room for innova- ensure the footage was obtained prop- gued that the segment mocked the tion, creativity and challenging mate- erly and that blurring techniques were sensationalist title The Pregnant Man, rial, broadcasters do not have an un- used where necessary. as opposed to Mr Beatie himself. It limited licence to be offensive. Ofcom Programme-makers should always also pointed out that they had re- also noted that the transgender com- seek advice from an experienced lawyer moved one minute of potentially of- munity has ‘protected characteristics’ on these matters to ensure they do not fensive material from the original cut under equality law and highlighted fall foul of the numerous laws at play of the programme before broadcast, references in the programme such as in this area, which include contempt, which in their view did stray towards ‘Victorian freak show’ and ‘Oh I see – reporting restrictions, privacy and data mocking Mr Beatie. It also argued it’s a woman with a beard’ as likely to protection law. that the audience would understand be highly offensive to the transgender

zoom-in Winter 2016 | 9 REGULATION – OFCOM, ASA & IPSO community and viewers in general. Ofcom found that the deroga- tory and mocking comments were not justified by the context, that at- titudes had changed since its earlier 2008 decision, and that when judged by today’s standards, the material was a clear breach of Rule 2.3. As the broadcaster had since re-edited the programme, Ofcom considered the matter ‘resolved’. This case shows that even where programmes have previously been broadcast without issue, broadcasters need to be mindful before repeating them of changes in attitudes, or in- deed intervening events, which could make previously acceptable material problematic.

ASA - MARKETING COMMUNICATIONS: AJ Odudu warned over paid-for tweet n Former Big Brother’s Bit on the Side presenter AJ Odudu and food com- pany Alpro have been warned by the ASA over a tweet. Odudu’s tweet read: “FAVE summer snack vibes @Alpro_UK … #Alpro #GoOn”, and included a photo of an Alpro Go On yoghurt pot in her hand. Odudu had entered into a contract with Alpro that required her, among other things, to publish a number of social media posts, but this was TWEETING FOR MONEY: AJ ODUDU not clear from the tweet itself. The ASA warned that any future paid-for promotional campaign, that market- was not in breach of the Editor’s tweets should be marked with #ad or ing tweets must be clearly identified. Code of Practice. some other identifier to make matters Advertising rules apply to social me- Lynn Pearce had complained to clear to consumers. Alpro promised to dia as well as more traditional adver- IPSO about the article, which includ- make sure all future marketing com- tising platforms. ed a screenshot of a website display- munications are clearly marked. ing a comment from her on the up- This is not the first time the ASA coming party, her profile name, where has warned that paid-for tweets must IPSO – PRIVACY: No she was from and her profile photo- be clearly marked. The advice to use reasonable expectation of graph, in which her breasts could be #ad or similar was given in 2012 privacy in swingers’ club seen through a sheer top. She was in relation to tweets from England concerned that the newspaper had ac- footballers Wayne Rooney and Jack website photograph cessed a swinging website, which was Wilshere as part of a Nike advertising n IPSO found a Daily Star online for paid members only. She also said campaign. This is a reminder for both article headlined ‘Euro 2016: that she had included a disclaimer those tweeting and those paying for Swingers hosting couples sex parties on her profile that no part of it could tweets, for example as part of a viral to bonk while watching England’ be taken and published without her

10 | zoom-in Winter 2016 Biggins’s bisexuality comments not in breach n Comments made by Christopher Biggins about bisexuality, which were transmitted on Celebrity Big Brother in August, were not in breach of Ofcom’s rules. Having received 44 complaints about the remarks, Ofcom decided to investigate, but found no breach of the harm and offence provisions in the Ofcom Broadcasting Code. Ofcom said: ‘We accepted that these remarks made in Celebrity Big Brother were capable of causing offence, but they were likely to be within the audience’s expectations of this programme.’ Biggins had said: ‘The worst type though is, I’m afraid to say, the bisexuals… what it is, is people not wanting to admit they are gay.’ He also agreed with a fellow contestant who said, ‘You have to pick a team.’ Biggins was warned by Big Brother over the remarks, and later removed from the Big Brother house over further allegedly offensive remarks, which were not broadcast.

zoom-in Winter 2016 | 11 REGULATION – OFCOM, ASA & IPSO permission. The Daily Star stated that and ‘fuck’. Lower down the scale, very important in protecting chil- the website was not private and was however, there were some surprises: dren, and also for adults who want- accessible with a name and email ad- ‘tits’ was considered more offensive ed to avoid strong language. Swear dress – there was no need to pay a fee. than ‘bugger’, and ‘bastard’ more words were generally considered It also said that its journalist may not offensive than ‘arsehole’. more acceptable if used in a context have seen Ms Pearce’s full profile (and Those involved in the study in which they would be used in eve- so the disclaimer) because he had only thought the 9pm watershed to be ryday, ‘real world’ speech. taken the information that was pub- licly available. Word Acceptability IPSO found that the informa- Arse Mild language, generally of little concern. Medium language, potentially unacceptable pre-watershed. More tion on Ms Pearce’s profile was of a Arsehole aggression or specific intent to hurt heightens impact. nature which most would consider Medium language, potentially unacceptable pre-watershed. Particularly Balls highly private, but as she had dis- vulgar or sexual use heightens the impact, especially for women. closed it on a public website she had Strong language, generally unacceptable pre-watershed. More aggression or no reasonable expectation of privacy. Bastard specific intent to hurt heightens impact. Less problematic when used to refer The Daily Star article had not given indirectly to someone who is cruel or nasty. Strong language, generally unacceptable pre-watershed. Seen as vulgar and Beaver her name or given any further infor- distasteful, especially by women. mation about her beyond her profile Beef Strong language, generally unacceptable pre-watershed. Low recognition. photograph and username. curtains Seen as vulgar and distasteful, especially by women. IPSO therefore found no breach Strong language, generally unacceptable pre-watershed. Seen by some as of the Code. It did, however, wel- Bellend a childish word often said in jest. More aggression or specific intent to hurt heightens impact. come the fact that after receiving Medium language, potentially unacceptable pre-watershed. Seen as Bint Ms Pearce’s complaint, the Daily potentially derogatory by women, but men also find the word problematic. Star had removed the screenshot of Medium language, potentially unacceptable pre-watershed. More Bitch her profile from the article. This is aggression or specific intent to hurt heightens impact. a useful decision for content produc- Strong language, generally unacceptable pre-watershed. Low recognition. Bloodclaat Among those familiar, seen as vulgar and crude. Strongly disliked by women ers, affirming that even inherently when meaning discussed. private information about an indi- Mild language, generally of little concern. Frequently used in everyday Bloody vidual will not attract a reasonable language to express emotion, and not usually as a directed insult. expectation of privacy where the Medium language, potentially unacceptable pre-watershed. Not generally individual has placed, or consented Bollocks offensive but somewhat vulgar when used to refer to testicles. Less problematic when used to mean ‘nonsense’. to the placement of, that informa- Mild language, generally of little concern. Frequently used in everyday tion on a website easily accessible to Bugger language to express emotion when making a mistake. Seen as much stronger members of the public. when used in a clearly sexual context. Medium language, potentially unacceptable pre-watershed. Older Bullshit participants more likely to consider the word unacceptable. Strong language, generally unacceptable pre-watershed. Not always OFCOM – report on Clunge recognised. Seen as vulgar and distasteful, especially by women. offensive language on Strong language, generally unacceptable pre-watershed. Seen as vulgar and Cock television distasteful by many. Less problematic when used in a humorous context. Mild language, generally of little concern. Commonly viewed as a humorous Cow n Ofcom has released a report on insult. public attitudes to offensive lan- Crap Mild language, generally of little concern. guage entitled Attitudes to potential- Strongest language, problematic for some even post-watershed. Vulgar, Cunt derogatory and shocking for both men and women. Especially distasteful and ly offensive language and gestures on offensive to women and older participants. TV and radio. The report includes a Damn Mild language, generally of little concern. ranking of swearwords, from mild- Strong language, generally unacceptable pre-watershed. Seen as vulgar and er words which people generally Dick distasteful by many. Less problematic when used in a humorous context, and have little concern about, to the generally considered slightly milder than ‘cock’. Strong language, generally unacceptable pre-watershed. Seen as vulgar and Dickhead strongest words, which are highly distasteful by many. Less problematic when used in a humorous context. unacceptable before the 9pm wa- Strong language, generally unacceptable pre-watershed. Seen as crude, Fanny tershed, but generally acceptable particularly by women. post-watershed, if justified by the Feck/ Medium language, potentially unacceptable pre-watershed. Often seen as context. Effing humorous. Older participants more likely to consider the word unacceptable. Strong language, generally unacceptable pre-watershed. Seen as crude and Unsurprisingly the strongest Flaps often derogatory, particularly by women. words were ‘cunt’, ‘motherfucker’

12 | zoom-in Winter 2016 The report – which included a For example, words such as ‘spastic’ This change in attitudes is very useful quick reference guide and ‘retard’ to describe those with something to be aware of both when for programme-makers and broad- disabilities were as unacceptable as making programmes and when re- casters – was the first study of this the strongest racist insults. How- peating older programmes. As we nature since 2010. It noted that the ever, other words relating to men- report on page 9, Ofcom recently public appear to be becoming less tal health such as ‘nutter’ or ‘loony’ found a segment in an episode of tolerant of discriminatory language. were considered fairly mild. Harry Hill’s TV Burp, which had previously been found by Ofcom Word Acceptability not to be in breach of the Ofcom Strongest language, unacceptable pre-watershed. Seen as strong, Broadcasting Code, now to be of- Fuck aggressive and vulgar. Older participants more likely to consider the word unacceptable. fensive and in breach – attitudes Strong language, generally unacceptable pre-watershed. Seen as crude and to transgender issues and the sort Gash often derogatory, particularly by women. of language used by Harry Hill Mild language, generally of little concern. Typically viewed as a humorous Ginger in relation to those issues having insult, however more aggression or specific intent to hurt heightens impact. changed in the intervening years. Mild language, generally of little concern. Tyically viewed as a humorous Git insult. The study also found that the Mild language, generally of little concern when used to express emotion. A public found swearing on the radio God concern for older or more religiously sensitive participants when used as an more offensive than swearing on obscenity. Some recognition that this may offend religious people. television. Participants said that Mild language, generally of little concern when used to express emotion. radio was a more intimate medium, Goddam Seen as slightly stronger than ‘God’ because it is more aggressive. Some recognition that this might offend religious people. often on in the background at home Mild language, generally of little concern when used to express emotion. A or in other places where children Jesus concern for older or more religiously sensitive participants when used as an Christ may be listening unsupervised. obscenity. Some recognition that this may offend religious people. Older participants were more like- Strong language, generally unacceptable pre-watershed. Seen as vulgar and ly to find substitute swearwords Knob distasteful by many. Less problematic when used in a humorous context, and generally considered slightly milder than ‘cock’. such as ‘feck’ and ‘effing’ to be of- Strong language, generally unacceptable pre-watershed. Seen as crude and fensive than younger participants. Minge often derogatory, particularly by women. Overall, Ofcom ranked these words Mild language, generally of little concern. Viewed as a humorous insult. as medium, meaning they are po- Minger More unpleasant than offensive. More aggression or specific intent to hurt tentially unacceptable before the heightens impact. Strongest language, problematic for some even post-watershed. Vulgar, watershed. Motherfucker derogatory and shocking for both men and women. Seen as very aggressive Participants were more accept- when intended to hurt or offend. ing of accidental use of swear words language, potentially unacceptable pre-watershed. More aggression or Munter before the watershed in live pro- specific intent to hurt heightens impact. grammes, where they recognised Medium language, potentially unacceptable pre-watershed. Neither Pissed / meaning – drunk or angry – particularly offensive but more problematic when that it can be difficult to control pissed off used aggressively or repeatedly. the language used, but were less Strong language, generally unacceptable pre-watershed. Less problematic Prick tolerant if they thought the broad- when used in a humorous context. caster had been careless or had de- Strong language, generally unacceptable pre-watershed. Not always Punani liberately allowed the swearing. recognised. Seen as vulgar and distasteful by those familiar. Apologies, if done swiftly, do assist Strong language, generally unacceptable pre-watershed. Seen as vulgar and Pussy distasteful when used to refer to the vagina. Much milder when used to mean in mitigating offence caused. weak or ineffectual but still seen as problematic by some. The Ofcom study also warned Medium language, potentially unacceptable pre-watershed. Common that the bleeping out of swear- Shit language used in everyday life but problematic when used aggressively or words must be done effectively, repeatedly. Concerns about children learning the word. Strong language, generally unacceptable pre-watershed. Seen as vulgar and and should not be excessive, since Snatch distasteful by many. repeated bleeping may simply Sod-off Mild language, generally of little concern. draw children’s attention to the Son of a Medium language, potentially unacceptable pre-watershed.. swearing. bitch Both non-discriminatory and Medium language, potentially unacceptable pre-watershed. Vulgar or sexual Tits discriminatory language were rated use heightens the impact. in terms of potential offensiveness. Strong language, generally unacceptable pre-watershed. Seen as vulgar and Twat distasteful when used to refer to the vagina. Less problematic if describing a We reproduce the ‘Non-discrimi- rude or obnoxious person, but still potentially offensive. natory language’ table here, cour- tesy of Ipsos Mori and Ofcom.

zoom-in Winter 2016 | 13 WHO WE ARE

About Abbas Media Law

We are specialists on all aspects of UK scripts, rough cuts, fine cuts, right through to picture lock. At law and regulation affecting the televi- other times clients seek advice on specific issues e.g. libel, sion, film, advertising and publishing copyright or other issues. We also advise many of the main- industries. We advise before publica- stream news providers. tion and broadcast, working with creatives to minimise legal Business Affairs & Rights and regulatory risk, and following publication and broadcast, We advise clients, both companies and individuals, on all defending content when it and its producers come under at- aspects of business and commercial affairs, and chain of ti- tack. We work day-to-day with many of the country’s leading tle and rights issues, in connection with the television, film, creative content producers. advertising and publishing industries. We advise on deal- Content Advice making, draft and negotiate all types of agreements, and we We are experts in all aspects of the law – defamation, privacy, can answer all your day to day queries. See page 14. contempt, copyright (including fair dealing), the criminal law – that affects the publishing and broadcasting of content in Regulatory threats and complaints the UK, as well as all relevant regulatory rules – Ofcom, ASA, We have many years’ experience dealing with high-profile BBC Editorial Guidelines, IPSO and the Editors’ Code. post-broadcast complaints to the media regulators in partic- Nigel Abbas, the firm’s founder, is the primary author of ular Ofcom and the ASA, advising on strategy, tactics, draft- Channel 4’s Producers Handbook, a comprehensive prac- ing of submissions and defences and advocacy. tical guide to best practice, regulation and the law as they Legal Threats apply to the making and broadcasting of the broadcasters’ Lawyers at Abbas Media Law have worked on some of the programmes. Equal in scale and ambition to the BBC Guide- most legally challenging programmes over many years, in- lines, it is now the benchmark for best practice training and cluding programmes made for the BBC’s Panorama and procedures in the UK independent television sector. The Channel 4’s Dispatches strands, fending off threats of attack Handbook was first published in 2008 (as a joint handbook from numerous high profile individuals and companies. We for Channel 4 and Channel 5) and is now made available on- regularly advise and represent clients when legal threats are line at http://www.channel4.com/producers-handbook/ made against programmes and other content, both before Abbas Media Law’s lawyers and advisers are some of the and after publication. most experienced content lawyers in the country. They have advised on an enormous amount of television, film and other Litigation content over many years, across all genres. Content that we We advise and represent clients in most areas of litigation work on appears on television, in cinemas, on-line or in print affecting the media, advising on strategy, tactics, drafting week-in-week-out. of pleadings and advocacy. Current and recent litigation We advise and work on some of the most exciting and in which we have been involved includes defending a li- challenging factual programming; films and dramas, includ- bel claim brought over defamatory words published on- ing the most hard-hitting factually based works; and all kinds line, acting for an indie being sued for copyright infringe- of entertainment and comedy programmes. We advise on ment and acting for a national broadcaster in respect of a content from start to finish: advising on treatments and the claim for judicial review of an Ofcom decision in respect of feasibility of projects even before commission, advising on one of the broadcaster’s most popular series. The Team

Nigel Abbas Founder Clare Hoban Senior Lawyer Jenny Spearing Consultant Felicity McMahon Consultant Nigel is a barrister with over A highly experienced media Jenny is a business affairs A highly versatile media law 20 years’ experience advising lawyer, Clare began her legal consultant with nearly 20 barrister, Felicity’s expertise the media and entertainment career advising magazine years’ experience in television includes defamation, industries. He specialises publishers, followed by 11 years production. She has worked privacy and confidence, in content advice, business as an in-house programme with and advises many leading data protection, copyright, affairs, complaints handling and lawyer at the BBC. She joined UK indies and has experience access to journalistic material, litigation. As well as Founder Abbas Media Law in January of negotiating with US contempt, harassment and of Abbas Media Law he is a 2016. broadcasters. injunctions. member of leading media barristers’ chambers, 5RB.

14 | zoom-in Winter 2016 FEATURES 20 Questions Steven D Wright is a well-known television producer, responsible for generating more than £45m of programme commissions. He was named by Variety as ‘one of the top 25 names in UK entertainment’ and has several hundred primetime shows to his credit. He formed his own TV production company, Kerfuffle TV, in spring 2016. What does the D Favourite place in First record? stand for? London to have Never Mind the Bollocks by the Sex Douglas. It’s there fun? Pistols. to differentiate Soho or What advice would you give me from the Shoreditch. someone starting out in TV? other Steve The Ivy Club Don’t. Get a job in the City. Make Wrights. is good for a a few million. Then you can watch laugh. TV and fund your own indie. What gets Best advice you’ve been given Favourite you out of by a colleague? drink? bed in the drink? If you want to have laughs, work in morning? Kir. news or current affairs. If you want My bladder. to hate your life and never laugh Favourite again, work in entertainment. restaurant? How many hours a week Biggest challenge facing the The Delauney (55 Aldwych, do you work? TV industry today? London WC2B 4BB). In TV, you never really stop. You’re Blinkered and overly risk- on all the time. It can be like junior averse commissioners. They will Favourite shop? doctor hours. ultimately make TV boring and Poundland. the audience will switch off. Good Who gave you your first ideas aren’t necessarily good ideas What are you reading at the straight away. career break? moment? Biggest work regret? Paul Ross took a risk and hired The Descent of Man by Grayson Not taking a job on a US talk me as a researcher for The Word in Perry. 1992. show in Los Angeles in 1998. They wanted me to fly out in three days, I Favourite TV show? asked for seven, they said no and What do you love/hate most Morgana Robinson’s The Agency. that was that. about your job? I love watching programmes and Guilty TV pleasure? Favourite show you’ve worked I like making programmes. I hate Hard. I watch a lot of ‘If you on? selling them. shit. Judge Rinder? want to have The Story of Light Entertainment Dream dinner Most used expression? laughs, work for the BBC felt ‘For fuck’s sake.’ party guests? like a landmark Peter Ustinov, Ronnie in news’ programme. Biggest TV legal pickle you’ve Corbett and Jane Austen. Last three websites got yourself into? you visited? I’ve been sued several times but the Who would you least like to Xtube.com, Facebook and worst time was by the Federation blindgossip.com. of Bakers over additives in bread. It get stuck in a lift with? was tough, but they lost. Be careful The last commissioner who turned Describe yourself in five what you say about factory-made down my ideas. There’s quite a few words. bread. of them. Giant pain in the arse.

zoom-in Winter 2016 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

anticipate the likely issues that will arise In this and future issues of zoom-in we examine the commercial, legal over the course of filming and put in place procedures for dealing with them. and regulatory hoops that programme-makers have to jump through There are various issues to consider to get their programmes safely to air. Our production legal schedule when negotiating access arrangements, above sets out the five key stages of production which producers need and production companies should al- to consider and the advice and expertise they are likely to need at ways seek expert advice before starting each stage. In each issue, we focus on one or two particular aspects of to negotiate access arrangements. Some important issues include: production legal requirements. In the Autumn edition of zoom-in, we Rights. Access agreements should focussed on option agreements and error & omissions insurance. In this be explicit about who owns rights in issue, we focus on access agreements and title searches and opinions. the footage. Invariably it will be the production company but this should be Access agreements permarket chain – it is vital to nail down made clear. Underlying rights may also the terms of the access agreement right be an issue. Where it is anticipated that n Invariably access agreements are at the start, and certainly before filming the programme will include copyright necessary where programme-makers begins. works belonging to the body granting want to film with companies and or- Any organisation granting access the access e.g. archive, images, logos, it ganisations, for example when making will be looking to control carefully the is sensible for the access agreement to observational documentaries. Whether terms of access being granted, and will include a licence for exploitation of such it’s filming within a hospital; an edu- be seeking certain contractual assuranc- works, rather than having to do that cational establishment; alongside the es. At the same time, production compa- separately, after filming has taken place. emergency services; with a local coun- nies need to ensure that the access being Whilst relations with the organisation cil or with organisations like the CPS, granted is sufficient to enable them to granting access will hopefully continue Trading Standards, or HMRC; or film- produce and deliver the programme or to be good up to and after transmission, ing within a commercial organisation series they are being commissioned to that cannot be guaranteed. like a department store, airport, or su- make. A good access agreement should Individual consents. In most cases,

16 | zoom-in Winter 2016 The zoom-in Television Production Legal Schedule

companies cannot agree to the filming of staff and other individuals, on their behalf, as filming an indi- vidual engages personal pri- vacy rights. Accordingly, organisations are normally concerned before any film- ing begins that programme- makers have in place suit- able procedures to obtain informed consent from indi- viduals who are filmed, and to ensure that those who do not wish to be filmed are excluded. Normally those granting access are reassured when they are informed of Ofcom’s rules in this regard, and that programme-mak- ers will follow those rules. Such procedures are nor- mally agreed before filming begins and are made a con- tractual term of the access agreement. Pre-transmission viewing

zoom-in Winter 2016 | 17 BUSINESS AFFAIRS & RIGHTS rights. These are often very important. deem would compromise undercover in hospitals and with the emergency ser- Understandably, organisations are often operations, or perhaps interfere with ac- vices - it is often useful to have a written wary about how they will be portrayed, tive legal proceedings. If in doubt, seek protocol in place setting out clearly how and offering viewing rights at the start advice. the crew will work and interact with can be a useful way of addressing con- Filming with particular types of or- those they are accompanying. This can cerns. However, it is important that ganisations, such as the police or hospi- be approved in advance and incorporat- programme-makers do not cede edito- tals, often requires specific terms to be ed into the access agreement. rial control, which must remain with included in the access agreement. For The broadcaster may also require an the broadcaster. In other words, those example, for hospitals, key concerns are exclusivity provision to ensure that the being filmed cannot be granted normally patient consents, privacy company or organisation to be featured editorial approval, as to do and safety matters. When won’t take part in a similar programme so would be a serious filming with police forc- prior to transmission and for a reason- breach of Ofcom’s Offering es, key concerns tend able period afterwards. For commercial rules. Assuming the viewing rights to be about safety, organisations in particular, this can be broadcaster agrees fairness and accu- seen as overly restrictive, but by nego- – and produc- at the start can racy - both in rela- tiating certain carve-outs from the ex- ers should always tion to the conduct clusivity requirement, for example for check with their be a useful way of officers and sus- marketing or promotional activities, it commissioning of addressing pects – and, as noted is possible to achieve a contractual obli- editor – what is nor- above, anything in gation everyone is happy with. mally agreed is that the concerns the filming which could These are just a few of the issues that programme-makers will compromise ongoing in- programme-makers need to consider arrange for a viewing of a fine vestigations or interfere with when agreeing access to film with cut of the programme(s), at a time when active legal proceedings. Again, such companies and other organisations. changes can still be made, and will concerns can normally be addressed in Abbas Media Law has many years’ agree to correct any factual inaccuracies. the access agreement. experience in drafting and advising on Occasionally, but exceptionally, produc- Where it is important that the film such agreements in a very wide range ers can agree to remove other types of crew’s conduct does not interfere with of contexts. For further information material e.g. if filming with the police the work of those they are following - or advice contact Abbas Media law at authorities, material they reasonably this is often the case when filming with- [email protected]

ABBAS MEDIA LAW are experts in all aspects of business affairs & rights Nigel Abbas issues affecting the television and other media industries. Our business Founder affairs & rights team, 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 and help you in structuring a deal, we can draft and negotiate all types of agreements, and we can answer all your day to day business affairs, production and rights queries. A small selection of the types of agreements and deals we regularly advise clients on are: • commissioning and production agreements Jenny Spearing Consultant • financing agreements • distribution agreements • co-production agreements • all manner of underlying rights agreements such as option, access, location, contributor and presenter agreements.

We provide a first-class professional service offering clear practical advice and solutions. Please get in touch for more information about the services we offer.

18 | zoom-in Winter 2016 FEATURES

that even the staff have to hide their giggles as they walk past. The art’s Media Haunts: entertaining too: not in a flashy Hirst kind of way, but more like the col- lection of an eccentric uncle. An An- drew Logan piece here, a Peter Blake there. A Matisse and a Grayson Perry. Sadly the Picasso they had went with L’Escargot the previous owner. Introducing Media Haunts: zoom-in’s spotlight on those So who comes here? ‘We embrace places where you can do business and let your hair down members from all professions and at the same time. Our essential guide to finding out where’s all walks of life,’ explains Pell. ‘Peo- hot, who you need to know to get in, and where the power ple need to understand that we are a family. Our members’ lunches on tables are once you’re there Wednesday encapsulate that – law- yer, next to florist, next to producer, ‘My stripper flatmate’s Catholic next to wine merchant. It’s a melt- mother is staying with us at the ing pot.’ Great for parties too, with moment, so we’re pretending she live music every Tuesday attract- works in the theatre and not men- ing fresh talent. The regular supper tioning that she’s sleeping with a clubs with Laurent Perrier and Sip- magician.’ I’m eavesdropping at smith are also worth checking out. L’Escargot Club – a place where The club doesn’t have the glossy anything feels possible. profile of other members’ clubs in Coco Chanel, Princess Diana, the area and that’s a large part of Mick Jagger, John Gielgud: they’ve its appeal. You need to know about all hung out here over the years. Jon- it. It feels safe: a sort of adult play- athan Ross used it to court his wife. ground where you can get up to mis- One of Mumford & Sons had his wed- chief and nobody ever need find out. ding celebrations here just last week. Let’s be frank, isn’t that the corner- L’Escargot restaurant has been on stone of Soho’s success? L’Escargot this site since 1927, serving classic Grand Siècle that has the air of a is best summed up by its co-own- French cuisine. You probably came speakeasy, and a boudoir that looks er Isaacson: ‘It is Downton Abbey in the 1980s or 90s, before it fell off like it’s witnessed such decadence meets French bordello.’ the post-millennium ‘in’ list. It was acquired by Brian Clivaz (Arts Club, Home House, Langan’s) and Lau- L’Escargot Restaurant & Club rence Isaacson (Chez Gerard) in 2014 48 Greek Street, London W1D 4EF and is quietly climbing its way back 020 7439 7474 on. Managing director George Pell explains: “L’Escargot is often referred Head chef: James Tyrrell to as the ‘Old Dame of Soho’. How- Head barman: Ozkan Sadikoglu ever, when we took over, this couldn’t Eat: Escargots, obviously. They used to farm them in the basement. Six have been further from the truth. We snails for £12, which for an extra £2 can be flambéed at the table. spent a great deal of time and money restoring the building to its former Drink: Laurent-Perrier champagne, £60 a bottle, or the ‘Ooh La La’ glory. We are a group of romantics cocktail, £7 who saw one of London’s most iconic, Membership: £450 per annum historical restaurant brands under Who to know: Managing director George Pell. He’s the key to threat from the ever-changing tide of membership and the sort of man you’d be happy to be seated next to at modern food trends in the capital.” dinner. L’Escargot Club is a series of up- Power tables: Table 30, which looks over the front room. Or table 16, stairs rooms. There’s a library, a pri- with its two grand red armchairs hidden away in the back section of the vate dining room that doubles as a dining room for private business. meeting space, the Gatsby-esque

zoom-in Winter 2016 | 19 DEFAMATION

to audiences that included young The law of defamation protects the reputation of individuals and Muslims who wanted to learn more companies. Statements are defamatory if they adversely affect a about Islam. One of the speeches person’s or company’s reputation in the eyes of reasonable people. A took place outside Belmarsh prison, person or company can sue over defamatory statements in England and where a number of those convicted of serious terrorist offences have Wales if they cause or are likely to cause serious harm to the person or, been held, including Abu Hamza. in the case of companies, cause or are likely to cause serious financial In that speech the Court found that loss. Journalists – indeed, all those publishing content – need to be Mr Begg had indicated his support aware of the law, and confident that what they are publishing is either for the Muslim prisoners held in not defamatory or, if it is, that they can avail themselves of one of the Belmarsh and their crimes. The Court found Mr Begg to be a defences to defamation. In this section, we look at some recent notable ‘Jekyll and Hyde’ character. He was defamation decisions involving those in the media and the public eye. a respected figure in the Lewisham community and had under- BBC wins libel action stantially true, which taken a large amount of brought by imam following a trial the inter-faith, community court accepted. and youth work. This n The BBC has won a libel action The Court high- The Court found contrasted sharply brought by Shakeel Begg, chief imam lighted 10 ex- with his extremist at the Lewisham Islamic Centre. Mr amples of clas- Mr Begg to be a speeches and other Begg sued over an edition of the BBC’s sic extremist publications. The Sunday Politics programme in which Islamic posi- ‘Jekyll and Hyde’ Judge found that presenter Andrew Neil made remarks tions, and then character ‘when it has suited that accused him of being an extrem- examined a num- him… he has shed ist speaker who espouses extremist Is- ber of Mr Begg’s the cloak of respect- lamic positions, and of having recently speeches, finding ability and revealed the promoted and encouraged religious that he had indeed es- horns of extremism’. Howev- violence. Neil also said Mr Begg had poused extremist Islamic po- er, this cloak of respectability made “hailed jihad as ‘the greatest of deeds’”. sitions and promoted or encouraged the effect of his extremist speeches The BBC defended the claim on religious violence. even more dangerous, as his messages the basis that the allegations were sub- Mr Begg’s speeches were made would have been all the more compel- ling and effective to his audience. The BBC accepted that there were two errors of detail in its broadcast relating to the precise timing and location of Mr Begg’s speeches, but the Court found that neither of these errors made any difference to the case: the allegations made against Mr Begg were substantially true. The Judge concluded: ‘In my judgement, taken cumulatively, the Claimant’s speeches and postings represent an overwhelming case of justification [truth] for the BBC.’

JonBenet Ramsey’s brother to sue CBS over killing claims n JonBenet Ramsey’s brother Burke is to bring defamation proceed- SPEAKING THE TRUTH: ANDREW NEIL ings against CBS. The murder of

20 | zoom-in Winter 2016 Kim Kardashian West withdraws lawsuit over Paris robbery claim n Kim Kardashian West began a lawsuit against a gos- assault and then filed a fraudulent claim with her insur- sip website for saying that she faked the Paris robbery ers. The lawsuit described these as ‘outrageous claims’ in which she lost millions of dollars’ worth of jewellery and stated that the website had ignored repeated re- and was left bound and gagged by her attackers. The quests for retractions and apologies. Kardashian West defamation suit was filed in New York against Media has now dropped the lawsuit after the website retracted Take Out and its founder Fred Mwangaguhunga. Me- the claims and issued an apology, accepting that there dia Take Out ran a series of stories claiming Kardashian was no doubt the robbery was real and apologising for West faked the robbery, lied about the violent armed any hurt caused.

zoom-in Winter 2016 | 21 DEFAMATION

JonBenet Ramsey, the child pageant star who was six when she was killed, remains one of America’s most noto- rious unsolved murders. The network recently aired a documentary in the US in which a team of experts con- cluded it was most likely that Burke Ramsey had killed his sister after a row over a midnight snack, and that the pair’s parents covered up the crime. Mr Ramsey’s lawyer said the documentary contained ‘lies, misrep- resentations, distortions, and omis- sions’. Mr Ramsey and his parents have long denied any involvement in JonBenet’s murder. JonBenet’s moth- er Patsy died of cancer in 2006.

Rebel Wilson faces defamation suit after mistaken identity n Rebel Wilson is facing a defama- tion claim in her native Australia after tweeting allegations about the wrong journalist. Wilson tweeted to and about House and Garden sen- ior features editor Elizabeth Wilson, when her comments were aimed at freelancer Lizzie Wilson. The tweets criticised the journalist for ‘harass- OOPS: REBEL WILSON ing’ her 86-year-old grandmother, called her ‘total scum’, and included pay almost ten times that in costs. cepts they got something wrong), so a photograph of (the wrong) Eliza- The claim was brought against the all that remained for the court to de- beth Wilson. Elizabeth Wilson is London Borough of Harrow over a cide was the level of damages. now suing for damages over online press release about his conviction for The Court awarded Mr Undre abuse she subsequently received and animal cruelty offences. We last re- £9,000. However, the Borough what she says is damage to her ca- ported on this case in the Autumn had made an offer to pay £10,000 reer. Rebel Wilson is defending the issue of zoom-in, when the restau- in damages in March 2016, so Mr claim, saying only a small portion rant’s claim was struck out as it had Undre was ordered to pay costs of her Twitter followers are based not proved the press release caused from that date – estimated to be in Australia and pointing out that it serious financial loss – the thresh- around £80,000. the tweets were removed after three old now set by section 1(2) Defama- This is a lesson in the impor- hours. The Lizzie Wilson who was tion Act 2013. tance of offers of settlement, known the real target of Rebel Wilson’s ire Mr Undre had been convicted of as ‘Part 36 offers’. If a claimant fails has denied acting unprofessionally. animal cruelty offences relating to to beat the offer, they will have to cows he owned. However, the press pay the legal costs from that date release issued by the London Bor- on. This can provide a strong pro- Restaurateur wins ough of Harrow incorrectly stated tection to a defendant who either damages but pays costs that the conviction related to offenc- knows they have made a mistake, is es that had caused the death of cows. concerned about losing the libel ac- n Khalid Undre, owner of a vegetar- The Defendant, London Borough, tion, or simply wants to take a com- ian restaurant, was awarded £9,000 made an offer of amends (a procedure mercial approach and mitigate the in libel damages, but faces having to where a defendant in a libel claim ac- risks of litigation.

22 | zoom-in Winter 2016 Kelly Osbourne settles defamation claim brought by Ozzy’s mistress n Kelly Osbourne has reportedly settled a lawsuit brought against her by her father Ozzy Osbourne’s former mistress Michelle Pugh. When news of their affair broke, Kelly Osbourne published a series of tweets, one of which included Ms Pugh’s telephone number and one of which accused her of ‘elder abuse’, on account of her father’s age. Ms Pugh sued for defamation, intentional infliction of emo- tional distress and public disclosure of private facts. Osbourne has since deleted the tweets and settled the matter on undisclosed terms.

zoom-in Winter 2016 | 23 COPYRIGHT & IMAGE RIGHTS

films, including training in using a Copyright permeates all aspects of television production, providing lightsaber. Lucasfilm says Brown’s busi- copyright owners with certain exclusive rights to do specific acts in nesses have used a series of their trade- connection with the copyright works that they own. Copyright protects marks without permission, including a people’s and companies’ creative endeavours so they can benefit and logo that is said to be nearly identical to the Jedi Order logo. ‘Jedi’ and ‘light- profit from their work. A television company making a programme saber’ are themselves trademarks of the for broadcast will own copyright in the film it is producing. Copyright company. The lawsuit states that Brown enables the owners to earn money by licensing rights in the programme also sells products using elements of to others who wish to exploit it. At the same time, producers need to their logos without authorisation. Lu- ensure that rights in copyright works included within programmes – casfilm says it has served a number of notices asking Brown to stop using so-called ‘underlying rights’, in music, archive, photographs etc – are their trademarks, and that Brown has properly licensed from whoever owns them, unless they can rely on recently filed an application to trade- one of the statutory defences to copyright infringement, such as fair mark ‘Lightsaber Academy, Inc’. dealing. Infringing others’ copyright is likely to result in you being sued for damages and may mean that your programme can’t be shown. An understanding of copyright is therefore essential for those working Warner Bros attacks itself in television production. In this section of zoom-in we round up some n In an embarrassing error, Warner recent copyright news in the world of media and entertainment. Brothers reported some of its own web- sites for copyright infringement. Vobile, Ed Sheeran hits back in litigation should set out its case to the a company which submits a large num- court), as it is excessively long and pro- ber of take-down requests on behalf of copyright claim lix, including paragraphs which last for Warner Brothers each month, made the n Lawyers for the singer Ed Sheeran several pages, and which do not make request to Google. The requests related have filed two motions to dismiss a clear which allegations are being made to links to official websites, including copyright case brought against him by against which of the 11 defendants be- for the filmsThe Matrix and The Dark the writers of X Factor winner Matt ing sued. Responding in any meaning- Knight, and legitimate websites such as Cardle’s song Amazing. We reported on ful way to such a claim is impossible, Amazon, Sky and IMDb. It is under- the lawsuit in the Autumn edition of according to the motion. stood that none of the links in question zoom-in. Now Sheeran’s lawyers have Second, Sheeran, his co-writer John- were removed by Google. hit back, asking the US court to dis- ny McDaid of Snow Patrol, and the miss the claim on two grounds. First, other UK-based defendants are seeking they say that the claim breaches ‘plead- to have the case against them dismissed Playboy – copyright in the ing rules’ (rules about how a party to on the grounds that the California court digital age has no jurisdiction over them. They say they did not write the song in Califor- n In the Summer issue of zoom-in, nia and have never exploited the song we reported on an ongoing copyright in California; rather, third-party US case involving the publisher of Dutch companies have done so. A California Playboy. Playboy took action against a court will now decide whether the case website called GeenStijl, which had should continue. posted links to a website where free Playboy images of Dutch TV presenter Britt Dekker could be found. Lucasfilm sues Lightsaber The Dutch courts referred the case academy to the Court of Justice of the Europe- an Union. This summer the Advocate n Disney subsidiary Lucasfilm is su- General (a legal advisor to the court) ing the owner of a series of Jedi schools, published his opinion on the matter, including the Lightsaber Academy, as we reported. However, the Court is for trademark infringement. Michael not bound to follow his opinion, and Brown, also known as Flynn Michael, in a judgment in September it took a runs classes in New York and Florida different approach. HITTING BACK: ED SHEERAN teaching techniques from the Star Wars The Court acknowledged that it

24 | zoom-in Winter 2016 may be difficult for individuals who those running commercial websites on a website, which when clicked post links to know whether or not deliberately linking to copyright-in- plays the video without taking the the material they link to was origi- fringing material will be caught. But viewer to a separate website. It is of- nally published with the consent of those running business websites, or ten used to embed YouTube videos the copyright holder. However, it said websites that make money from ad- onto a web page. that if the hyperlinker ‘knew or ought vertising revenue, may be covered – In this case, the Court decided that to have known’ that the copyright even though it is not the links them- framing did not infringe copyright, holder had not consented to the origi- selves that generate any income. even where the copyright holder did nal publication of the work online, As ‘necessary checks’ are not de- not consent to the material appear- then it would amount to a ‘communi- fined, it is not clear exactly what hy- ing on the page on which it has been cation to the public’ and therefore an perlinkers should do and how they framed. This applies as long as the infringement of copyright. might rebut the presumption that material has previously been made Where a hyperlink is posted ‘for they knew the material was posted freely and lawfully available to the profit’, the hyperlinker is expected to without consent. In some cases, it will public. This is because there will not have carried out the ‘necessary checks’ be reasonably clear whether some- be communication to a ‘new public’, as to whether or not the copyright thing has been posted by, or with the ie one which the copyright holder did holder has consented. So where a cop- permission of, the copyright owner. not envisage having access to the ma- yright holder did not consent, there In practice, ‘necessary checks’ seem terial when it was originally posted is a presumption that the for-profit likely to be those checks required to online with his or her consent. hyperlinker knew that. The court get to the bottom of the question of The position therefore appears to did not specify what these ‘necessary whether the copyright holder con- be this: it would not be an infringe- checks’ consist of. sented, and those posting hyperlinks ment to frame a video which had been In this particular case it is clear for profit should be wary of linking to uploaded to YouTube by or with the that by the time legal action was initi- material where the position is unclear. consent of the copyright holder; but ated, the Defendant knew that Playboy This judgement seems unlikely to it would be an infringement if the had not consented to the photographs provide a defence for those who have YouTube video was itself infring- being posted on the internet. How- not done what is ‘necessary’ to estab- ing copyright, having been uploaded ever, there will be many situations lish the position. Readers of zoom-in without consent. Similarly, framing where the position is not so clear-cut. may well find themselves in a position material that has been made available For copyright owners, the case where they both benefit from the deci- only behind a paywall in a way that boosts protection where a website is sion in this case, in terms of their own avoids that paywall will likely be an linking to material which has leaked, created material, and at the same time infringement. or which otherwise has been made need to exercise more care in relation The law is attempting to keep up available to the public without con- to links to third-party material posted with new technology and ways of deal- sent. However, it presents difficulties on their websites. ing with copyright material. How the for those posting hyperlinks, particu- In a separate case, the CJEU re- laws of copyright apply to the digital larly those who might be considered cently considered ‘framing’ of mate- world is not always straightforward. to be doing so for profit. ‘For profit’ rial on websites. This is where, for As with hyperlinks, if in doubt seek was not defined by the court. Clearly, example, a link to a video is placed legal advice.

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, par- fair-dealing-guidelines. Nigel advises many of the lead- ody or pastiche’. Abbas Media Law’s Nigel Abbas is one ing content producers working in this area. of the country’s most experienced lawyers advising in this If you need any advice on fair dealing, please contact area. He has advised on many hundreds of hours of pro- Abbas Media Law at [email protected] or visit gramming featuring fair dealing over many years. our website, abbasmedialaw.com.

zoom-in Winter 2016 | 25 PRIVACY & DATA PROTECTION

of confidence. Since the Human Rights Act 1998 came into force, English law has The law in the US remains very dif- developed a legal right to privacy. The courts can and will intervene to ferent from that here in the UK, and protect privacy rights where they are infringed without justification. local legal advice should always be This is commonly referred to as ‘misuse of private information’. taken when acting across jurisdictions, or broadcasting material made or pre- Personal information is also protected by the Data Protection Act, so viously broadcast elsewhere. However, journalists and programme-makers need to be aware of, and comply these changes show there are some areas with, its rules as it applies to them. In this section, we report on where the law on both sides of the At- some recent privacy and data protection decisions of note. See also lantic is moving in the same direction. Regulatory decisions from page 8. Court grants privacy PRIVACY (US): LA police and are concerned about the precedent injunction over police charge Playboy model for set by forcing the removal of informa- investigation invasion of privacy tion which is true. The Screen Actors Guild-American Federation of Televi- n The High Court has granted an n In the last issue of zoom-in, we sion and Radio Artists supported the interim injunction to a wealthy busi- reported that Playboy model Dani change, which was signed into law in nessman to prevent reporting of a Mathers was being investigated for September and will come into force on police investigation into him. The uploading a photograph to Snapchat of 1 January 2017. businessman was interviewed under a 70-year-old naked woman in a gym While free speech is generally con- caution, but has not been arrested. In changing room with the words: ‘If I sidered of paramount value in the US, the course of the investigation, which can’t unsee this then you can’t either.’ and protected by the First Amendment relates to allegations of financial Since then, Ms Mathers has formally to the US Constitution, this is not the crime, both the businessman’s com- been charged with invasion of privacy. first inroad made by Californian law. pany and another company’s premises Los Angeles City Attorney Mike In 2013 the law took aim at the be- were searched. Feuer said: ‘While body shaming, in haviour of paparazzi photographing The court was asked to consider itself, is not a crime, there are cir- children, with a law substantially in- whether the businessman had a cumstances in which invading one’s creasing the penalties for ‘intentional reasonable expectation of privacy: privacy to accomplish it can be.’ Ms harassment’ of a child arising out of first, in the fact of the interview Mathers’ lawyer expressed his disap- their parent’s job. The potential fine under caution; and second, in the fact pointment, saying she never intended increased from $1,000 to $10,000, and of the investigation. to invade anyone’s privacy or to break the potential period of imprisonment Associated Newspapers, publishers the law. Ms Mathers’ first scheduled from six months to a year. Again, some of the Daily Mail, accepted that the court appearance is on 28 November. opposed the change, saying it would businessman’s privacy rights under If convicted, she could face up to six have a detrimental effect on photogra- Article 8 of the European Convention months in jail and a $1,000 fine. phers and reporters and their ability to on Human Rights were engaged, and earn a living. However, as the law ap- that as things stood the newspaper’s plies only to deliberate harassment, it right to freedom of speech would not PRIVACY (US): Actors can arguably does not in fact inhibit free give it a right to publish the fact of the have their ages removed speech. interview under caution. The newspa- from IMDb Both these legal changes show a per had stated that if it intended to move in the US towards better pro- publish a story, it would give the busi- n From 2017, actors will be able to tecting the privacy and family life of nessman 24 hours’ notice. As such, the force IMDb (the online film, television celebrities and those in the entertain- Court found that no injunction about and video game database) to remove ment business. In the UK such rights the fact of the interview was needed. their ages, under a new California law. are currently protected by the right to The businessman was wealthy and The change to the law is aimed at pre- privacy under Article 8 of the Europe- had ready access to lawyers - 24 hours venting age discrimination, in particu- an Convention on Human Rights, and would be enough to go back to court lar in casting, although it will apply to given effect by UK laws including two if necessary. all in the entertainment industry. The statutes – the Protection from Harass- The Judge found that if the busi- law will apply to subscription websites, ment Act 1997 and the Data Protection nessman had a reasonable expectation including IMDb’s Pro service. Critics Act 1998 – and the ability to sue for of privacy in the fact of the interview have said the law inhibits free speech, misuse of private information or breach under caution, he also had a reasonable

26 | zoom-in Winter 2016 expectation of privacy in relation to question of to what extent police email account, and used what he found him being investigated by the police. investigations are private matters – to threaten to tell TRK’s wife. The The newspaper argued that the mat- and also constitute sensitive personal Judge said that a person who finds out ter was one of public interest, but the data – has not as yet been resolved by someone is having an affair may have Judge did not consider that the news- the courts. Media outlets may be fa- every right to tell their spouse, but ‘it paper’s freedom of expression was like- miliar with reporting investigations, is improbable that the court would ly to prevail over the businessman’s interviews and arrests as soon as they consider it legitimate to disclose the privacy rights, and an injunction was are certain they have the identity details of the unfaithful spouse’s cor- therefore necessary. of the individual correct, and so are respondence. Still less if access to that The injunction did not cover re- not at risk of a libel claim. This case correspondence was only gained sur- porting of the fact that the company shows that privacy rights must also reptitiously, without consent.’ was under investigation, but it was be considered. In the circumstances of threatened noted that, given that the business- publication, it was legitimate not to man was closely associated with the inform ICM of the application for an business, care would need to be taken Injunction granted by injunction in advance, in case he made in any such reporting. court over extramarital the disclosure before the court could The Judge accepted that, as the in- affair – but may not hear the case. The Court was also sat- vestigation was ongoing, matters may isfied that there remained a threat to change and therefore the order provid- always be publish the private information, such ed for the newspaper to apply on 24 n A married man (‘TRK’) and his that an injunction was required. hours’ notice to discharge or vary the lover have obtained an injunction to The Judge balanced the privacy injunction, for example if the busi- prevent the lover’s ex-boyfriend from rights of TRK and his lover against nessman were arrested or charged. revealing their affair. The ex-boyfriend the rights of ICM and TRK’s wife. This is an interesting case, as the (‘ICM’) ‘hacked into’ his ex-girlfriend’s In all the circumstances an interim

Data Protection & the ICO n Data protection law protects ‘personal data’, which is more to safeguard its customer information. It did not and any data relating to an identifiable living person. In addi- we have taken action.’ The fine is one of the largest issued tion to individuals being able to sue under the Data Pro- by the ICO, and shows its power to act where companies tection Act where their personal data has been misused, fail to comply with the Data Protection Act. the Information Commissioner’s Office (ICO) operates a regulatory system of compliance with data protection • A former employee at Solent NHS Trust was convicted laws. The ICO has strong powers at its disposal, includ- of breaching the Data Protection Act 1998 by accessing ing the power to fine up to £500,000 for serious breaches the medical records of her partner’s ex-girlfriend without of the Data Protection Act. the consent of her employer. The defendant Kayleigh Ev- There is a specific statutory journalistic exemption, ans pleaded guilty and was fined £400 and ordered to pay but media companies and individuals can still be fined £683.60 in prosecution costs. for data security lapses. Accordingly, it is important that • Omega Marketing Services Ltd, a company that made 1.6 media companies have a corporate data protection policy million nuisance calls to try to sell solar panels and green in place and that staff abide by it. Abbas Media Law ad- energy equipment, was fined £60,000 by the ICO. vise clients on all aspects of policy and procedure in order to minimise risk in connection with breaches of the Data • Bizcall Communications Ltd was prosecuted at Protection Act and the ICO’s regulatory regime. Birmingham Magistrates Court for the offence of processing personal data without having an entry in the Other data breach news: ICO register. The telecommunications company was • The ICO has fined Talk Talk £400,000 for failing to pre- found guilty under section 17 of the Data Protection vent a cyber-attack that resulted in over 15,000 customers Act 1998. It was fined £650 and ordered to pay costs having their details accessed. The Information Commis- of £299.63 and a victim surcharge of £65. The Data sioner said: ‘Talk Talk’s failure to implement the most ba- Protection Act 1998 requires every data controller, eg sic cyber-security measures allowed hackers to penetrate an organisation that is processing personal information, TalkTalk’s systems with ease. Yes hacking is wrong, but to register with the ICO, unless they are exempt. More that is not an excuse for companies to abdicate their se- than 400,000 organisations are currently registered. curity obligations. TalkTalk should and could have done Data controllers can register via the ICO’s website.

zoom-in Winter 2016 | 27 PRIVACY & DATA PROTECTION injunction was appropriate, but the Prince Harry criticises is both a criminal offence and a civil Judge warned TRK that if the case media ‘harassment’ wrong, meaning an individual can sue came back before him, and involved for damages and, importantly, get an further argument about whether it n Prince Harry earlier this month injunction to stop the offending behav- was proper to disclose information of took the unusual step of issuing a state- iour. The Protection from Harassment the affair to his wife, he would expect ment about the media’s treatment of his Act 1997 has been used to protect in- further and better evidence as to why girlfriend Meghan Markle. The state- dividuals from intrusion, in particular the injunction should continue. The ment, put out by Kensington Palace, physical harassment by, for example, judgment makes clear that individuals was also the first official confirmation paparazzi photographers. Seeking to having an affair cannot always expect of the pair’s relationship. The statement gain entry into someone’s house is, of the court to grant an injunction to said she had been subjected to a ‘wave course, a criminal offence in itself. prevent their spouse from being told. of abuse and harassment’. While Prince Where private material is published Harry is quite used to media interest in without consent, individuals may be his life and has rarely taken action even able to make a regulatory complaint Police to pay £9,000 to over false stories, the latest coverage had and may be able to sue for misuse of former officer for accessing ‘seen a line crossed’. Markle had been private information or breach of con- travel information subjected, among other things, to pieces fidence. Breach of confidence is more with racial undertones; racist and sexist likely to be relevant where information n The Metropolitan and Manchester social media comment; attempts by re- has ‘leaked’ from someone who was in a police forces have been ordered to pay a porters and photographers to get into position of trust, such as an employee. total of £9,000 in damages to a former her home, leading to the police being The Data Protection Act 1998 may also officer whose personal data the forces ac- called; her ex-boyfriend being offered provide a remedy. However, whether cessed while she was on sick leave. An- bribes to sell stories about her; and all action is brought under misuse of pri- drea Brown travelled to Barbados while her loved ones being bombarded. Prince vate information, breach of confidence on sick leave without notifying her line Harry called for the press to pause and or under the Data Protection Act, or all manager – a breach of procedures. The reflect on their actions. The statement three, if there is an overriding public Metropolitan Police sought and received said: ‘He knows commentators will say interest in the publication of the infor- information from an agency managed by this is “the price she has to pay” mation, for example because it ex- Manchester Police, and from an airline. and that “this is all part of poses wrongdoing or hypoc- This included information about her the game”. He strongly risy, the media is likely trip, her date of birth, passport number disagrees. This is not to have a good defence. and details, details of flights taken by a game - it is her life The same would be her over six years, and information about and his.’ ‘This is not a true of any regula- her 14-year-old daughter who was trav- “Publishing a tory complaint: an elling with her. This was then used in statement of this game – it is her overriding pub- police disciplinary proceedings against nature is an unusual life and his’ lic interest would Ms Brown. The police forces admitted move, but it perhaps trump privacy rights. a breach of the Data Protection Act and reflects the options An individual may wrongful interference with her privacy open to Prince Harry sue for defamation where rights under Article 8 of the European and his girlfriend. Although stories tarnish a person’s Convention on Human Rights. The legal remedies exist where the reputation and cause that individ- Judge also found misuse of private in- media’s actions are unlawful, there is no ual serious harm. However, where the formation. The Judge found the breach- legal way of stopping press interest in media can prove such stories are sub- es caused Ms Brown shock and distress. such a high-profile relationship of this stantially true, they are likely to have a Taking into account the fact that police nature. Individuals do sometimes issue good defence, so in most cases the law forces should be expected to obey the notices to the press, for example asking of defamation is only likely to provide law, but in this case had pursued the not to be contacted, or warning that an effective remedy where stories are requests in a cavalier fashion and had they believe they are being harassed. untrue (and cause serious harm). provided the information almost casu- The main press regulator IPSO will Given the potential difficulties of ally, but also that the information had circulate such requests to media falling pursuing legal actions and the cost, not been widely spread or sought for under its jurisdiction, but the notices Prince Harry’s public appeal for a more financial gain, he awarded Ms Brown have no formal legal status. restrained approach to coverage of his £9,000, of which £6,000 will be paid by Where the media’s actions are un- relationship may well be sensible. Pub- the Metropolitan Police and £3,000 by lawful, individuals may have number of lic sympathy for the couple may in itself Manchester Police. legal remedies. Harassment in the UK influence the media’s behaviour.

28 | zoom-in Winter 2016 Meghan Markle – Prince Harry slams the media n Prince Harry has taken the unusual step of issuing a statement about the media’s treatment of his girlfriend Meghan Mar- kle. The statement from Kensington Pal- ace was the first official confirmation of the pair’s relationship and stated that she has been subjected to a ‘wave of abuse and harassment’. Prince Harry called for the press to pause and reflect on their actions. The statement said, “He knows commen- tators will say this is ‘the price she has to pay’ and that ‘this is all part of the game’. He strongly disagrees. This is not a game - it is her life and his.” See opposite.

zoom-in Winter 2016 | 29 CONTEMPT AND REPORTING RESTRICTIONS

The law of contempt makes it a criminal offence for the media to publish or broadcast comments or information that creates a substantial risk of serious prejudice to active UK legal proceedings, in particular criminal proceedings heard before juries. Penalties for contempt can be serious: fines, even imprisonment. Many activities are capable of amounting to a contempt, including: publishing seriously prejudicial material; obtaining or publishing details of jury deliberations; breaching reporting restrictions or a specific court order; making payments to witnesses; filming or recording inside court buildings without permission; and publishing information obtained from confidential court documents in both civil and criminal proceedings. In this issue of zoom-in we report on three recent prosecutions, including a substantial fine forThe Daily Telegraph, who wrongly identified the sex offence victim of Adam Johnson.

Telegraph fined £80,000 ing, a victim of a sexual offence (al- the penalty can be considerable, the leged or proven) is a criminal offence power to fine having recently been for failing to protect under the Sexual Offences (Amend- increased from a £5,000 maximum 15-year-old’s identity ment) Act 1992, unless the victim to an unlimited amount. has expressly consented, in writing, n The Daily Telegraph has been fined to being identified. £80,000 for publishing a pixellated Anyone publishing or broadcast- Man jailed for identifying photograph of the 15-year-old vic- ing pieces involving sexual offences footballer’s sex abuse tim of sex offences committed by should be aware of the automatic victim online footballer Adam Johnson. Despite restrictions on any information – the pixellation, the individual was words, photographs or other mate- n Steve Knox, the former partner identifiable. Publishing an identifi- rial – that would identify the vic- of convicted footballer Adam John- able image of, or otherwise identify- tim. As can be seen from this case, son’s sister, has been jailed for 16

Children and anonymity in court proceedings – a summary

n Programme-makers often wish cases), there is no automatic restric- ed under section 45 for defendants, to make references to various types tion on identifying the child, but the these orders grant lifelong anonym- of court proceedings, in differing court may grant an anonymity order ity to the victim or witness. contexts. Wherever children are con- under section 45 of the Youth Justice Where a child is a person con- nected with legal proceedings, jour- and Criminal Evidence Act 1999. In cerned in proceedings specifically nalists and programme-makers need most cases the court will grant an or- in a Youth Court (except for those to exercise caution. In most cases, der for at least the duration of the tri- relating to Criminal Behaviour Or- under-18s involved in legal proceed- al. At or after the verdict, if the child ders, the successors to ASBOs – see ings, whether as a victim, witness or is found guilty, the media may wish below), automatic reporting restric- accused, are unlikely to be able to be to apply to lift the order. A reporting tions continue to apply under section identified because of various statuto- restriction under section 45 expires 49 of the Children and Young Per- ry reporting restrictions, some which on the child’s 18th birthday. With sons Act 1933. These apply equally come into force automatically, others respect to criminal proceedings, sec- to defendants, victims and witnesses, at the instigation of the court. tion 45 recently replaced section 39 and cease on the child’s 18th birth- Given that this is a complex area, of the Children and Young Persons day. However, in the case of victims we set out below a summary of the Act 1933, which was in very similar and witnesses (but not defendants), law as it stands regarding reporting terms. the court can grant lifelong anonym- restrictions and children. Note that Where a child is a victim or a wit- ity under section 45A of the Youth in this summary we use the word ness in an adult criminal court case, Justice and Criminal Evidence Act. “child” to describe any person aged there is no automatic restriction on Where a child is given a Crimi- under 18. identification, but the court may nal Behaviour Order or prosecuted Where a child is a defendant (an grant an order under section 45A of for breaching one, there are no auto- accused) in an adult criminal court (as the Youth Justice and Criminal Evi- matic reporting restrictions, but the happens for some of the most serious dence Act 1999. Unlike those grant- court may make an order under sec-

30 | zoom-in Winter 2016 weeks for harassing Johnson’s victim He was then found guilty of a fur- Youth Court. As the press release using social media. Knox repeatedly ther offence of sexual touching and identified the name of the vessel, posted the identity of the child on was sentenced to six years in prison. the youth was easily identifiable Facebook to his 3,000 followers, en- to people in the area. Mr Sinclair couraging them to share her image. admitted that the name had been His posts included the words ‘don’t Local newspaper published in error but maintained care if get locked up stand by my fined £500 for naming there was a public interest in him beliefs does this look like a girl who 17-year-old boat skipper being named, that the youth had scared leave house who that young no objection being named and in- didn’t no what was happening who n The editor of the Pembrokesh- deed that he had been widely iden- bragged and lied who pursued and ire Herald has been fined £500 for tified. Mr Sinclair was in breach prolonged couldn’t give a slightest publishing the name of a teenager of section 49 of the Children and care in world’. in breach of reporting restrictions. Young Persons Act 1933, which Harassment is an offence under The 17-year-old appeared in the automatically prohibits the identi- section 5 of the Public Order Act Youth Court after his boat ran onto fication of those under 18 involved 1986, which criminalises the use rocks after a fishing trip. He was in Youth Court proceedings. As of threatening or abusive words convicted of a number of offences the restriction expired on the or writing that could cause a per- under local bylaws and fined. The youth’s 18th birthday, he can now son alarm or distress. Knox’s ac- newspaper reported on the convic- be named as Jake Bowman-Davies. tions were also a clear breach of the tion and used the youth’s name. The case shows the importance of Sexual Offences (Amendment) Act The editor, Tom Sinclair, said the being aware of the automatic re- 1992, although he was not prose- report was based on a press re- porting restrictions that apply to cuted under this legislation. John- lease from Milford Haven Port under-18s involved in court cases. son pleaded guilty in February to Authority, which stated that the The Spring issue of zoom-in pro- one count of sexual activity with a case was heard at the Magistrates’ vided a summary of the laws that child and one count of grooming. Court but did not say it was at the apply, which we reproduce here. tion 39 of the Children and Young Children Act 1989 or the Adoption section 39 of the Children and Young Persons Act 1933 (when the Order and Children Act 2002, or relate to Persons Act 1933, which still applies is given, as this is a civil matter), or the bringing up of a child – for ex- to civil proceedings. Note that the section 45 of the Youth Justice and ample, care proceedings or a dispute court also has an inherent jurisdiction Criminal Evidence Act 1999 (when over contact or the residence of a to grant an order restricting report- there are criminal proceedings for the child – hearings are generally held in ing of certain matters (an injunction), alleged breach of an Order). private, and so section 12 of the Ad- having balanced the rights and inter- Where a child is the victim of ministration of Justice Act 1960 ap- ests involved. an alleged sexual offence (section 1, plies and prevents the publication of Finally, where an inquest is being Sexual Offences (Amendment) Act information relating to proceedings. held, the coroner has inherent powers 1992), modern slavery (section 2, The court may relax the restrictions, to grant an order for the anonymity Modern Slavery Act 2015) or female balancing the private interests of the of a child, again having balanced the genital mutilation (section 4, Fe- parties and public interest in favour rights and interests in play. male Genital Mutilation Act 2003), of disclosure. Specifically, in relation Breaching such reporting restric- they have lifelong anonymity. This to children, restrictions automati- tions is invariably a criminal offence protection applies to all victims of cally apply under section 97(2) of the and in many cases is treated as a con- these offences, not just children, al- Children Act 1989. They last for the tempt – a serious criminal offence. though victims may choose to waive duration of proceedings or until the For this reason, programme-makers their anonymity once they are 16 – court lifts them. The court also has are advised to seek expert advice this should be done in writing. The inherent jurisdiction to extend the when making programmes about or restriction applies from the time the restrictions after the end of proceed- referring to legal proceedings, partic- allegation is made, which may be ings. ularly those involving children. Law- long before there are court proceed- Where children are involved in yers at Abbas Media Law have many ings afoot. general civil proceedings, there are no years’ experience advising on some In family proceedings, children automatic reporting restrictions, but of the most challenging programmes can generally not be identified. If the the court may make an order to pro- in this area. For advice, please get in proceedings are brought under the vide for anonymity for a child under touch via abbasmedialaw.com.

zoom-in Winter 2016 | 31 continued from page 1 New York Times over an article alleg- the federal law that applies across the modelling agency had acted as an es- ing he inappropriately touched two US. The President has no power to cort agency. The Daily Mail has unilat- women, allegations he insists are false. change state laws. erally published a retraction both on- Trump’s lawyers have asked for a re- The First Amendment protection is line and in its print edition. Although traction and apology. The New York strong, particularly for political speech. it reported the allegations, the newspa- Times is standing by the article. The US Supreme Court has been clear per said it had not intended to suggest Interestingly, during the about the importance of public debate, they were true. The article had also presidential campaign, Donald and that it is protected by the Consti- included strong denials from a spokes- Trump pledged to ‘open up’ US libel tution, in key cases such as New York person for Mrs Trump. The lawyer laws to make it easier to sue the Times v Sullivan. representing Mrs Trump is reported to media. It appears he would like to The Supreme Court can be asked to have said that the defamation actions see US laws more closely resemble decide whether a particular principle will go ahead in spite of the retraction. those in England and Wales, which or finding violates the First Amend- Details of the London claim have not are deemed less media-friendly. If ment – and as President, Trump will, yet been made public. he is serious, he is one of very few with the approval of the Senate, be able The Maryland case is brought people in America to feel this way. to appoint individuals to the Supreme against both MailOnline and a politi- US criticisms of English defamation Court. However, the Supreme Court, cal blogger, Webster Tarpley, who the laws for being too harsh on the made up over the years of judges of lawsuit says accused Mrs Trump of hav- media, and inconsistent with the US all political leanings, has consistently ing been a high-end escort, and having Constitution’s First Amendment, upheld First Amendment rights. So al- suffered a mental breakdown. Tarpley which protects free speech, have been though a change in the political com- has posted a retraction and apology on widespread for years – so much so position of the Supreme Court could his blog and has filed a motion stating that in 2010 President Obama signed result in changes in the interpretation that he was reporting rumours rather into law The SPEECH Act, which of the law, it seems unlikely to change than stating facts. The claim seeks rendered libel judgements from how libel laws are applied. It is simply $75,000 from each defendant, but also countries whose laws provide less not an issue on which judges, or poli- seeks punitive damages. It is reported protection than the First Amendment ticians for that matter, tend to divide that Mrs Trump’s lawyers have said the unenforceable in US courts. along conservative v liberal, or Repub- libels are so egregious that damages While Trump may not like US lican v Democrat, lines. could be as much as $150 million. libel laws, it may be difficult for him President-elect Trump will be inau- Like his wife, Donald Trump could to change them, even as President. gurated in January, and it will only be also soon be involved in a US libel ac- For a start, libel laws in the US are afterwards that we will know whether tion. He has threatened to sue The found in individual state laws, not in he intends to deliver on his pledge. 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