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zoom-inMedia law news round-up from Abbas Media Law Spring 2016

Paul Burrell : Derren Brown wins privacy How courts are plastic bag stunt damages from interpreting lands UKTV in Max Clifford P2 ‘serious harm’ P10 hot water P6

Subscribe to Zoom-in at abbasmedialaw.com First edition Welcome to this first edition of p a r t i c u l a r l y a f f e c t i n g Zoom-in, Abbas Media Law’s broadcasters and indies. new quarterly e-magazine aimed The magazine can be found on Every a t p r o g r a m m e - m a k e r s , the Zoom-in page of our programme-managers and other website but if you’d like Zoom- quarter we’ll bring p r o f e s s i o n a l s w o r k i n g i n in emailed to you when it’s hot you a round-up of television and film production. of the press, please subscribe. interesting Every quarter we’ll bring you a Additionally, if you’ve any round-up of interesting decisions feedback e.g. topics you’d like decisions by media by media regulators and the us to cover in future, please get regulators courts, as well as the latest news in touch. in media law and compliance, abbasmedialaw.com winners and losers

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

PAUL WELLER’S CHILDREN – privacy infringements even in £500,000 Burrell wanted, he gave PRIVACY, DATA PROTECTION public places. up pursuing it as it wasn’t worth (NOV 2015) much to him. A High Court decision awarding WINS The judge didn’t favour Clifford’s Weller’s three children £10,000 PRIVACY DAMAGES FROM account and instead agreed that total damages has been upheld MAX CLIFFORD (FEB 2016) Burrell “did not at any time engage by the Court of Appeal. The Paul Burrell, the former royal or authorise Mr Clifford to market claim, against Associated butler, has won £5,000 in damages the contents of the letter, or send it Newspapers Ltd, publishers of from Max Clifford for breach to him to use for that purpose.” MailOnline, was for misuse of of confidence and misuse of private information and breach of private information. Burrell claimed JIMMY WHITE TO RECEIVE the Data Protection Act 1998, in that he hired Clifford to limit bad SUBSTANTIAL DAMAGES relation to seven photos. press coverage and that as part of – LIBEL (MARCH 2016) MailOnline published photos this process Clifford convinced Snooker player Jimmy White will showing Weller and his three Burrell to divulge in a letter his receive substantial libel damages children on a day out in Santa o v e r a 2 0 1 2 D a i l y S t a r Monica shopping and at a café. article suggesting he could have been guilty of cheating. White had The Wellers said that the photos Clifford should have been pixellated. Dylan complained about the 2012 Daily (aged 16 and wrongly identified in convinced Burrell Star article, headlined “Jimmy’s the photo’s caption as Paul Weller’s to divulge in a aide in betting probe.” The article wife Hannah) was awarded £5,000, letter his was held by the court to mean that while twins John Paul and Bowie there were reasonable grounds to (aged 10 months) were awarded ‘innermost suspect that the player had £2,500 each. secrets’ dishonestly provided inside The court found that despite information to a friend, in order the photos having been taken in a that he could place winning bets. public place, the claimants had a ‘innermost secrets’, because it F o l l o w i n g p u b l i c a t i o n , t h e reasonable expectation of privacy would enable him to be defended newspaper made an ‘offer of and that the photos should not by Clifford better. Burrell claimed amends’ and apologised to White, have been published. The Court he was then betrayed’ when publicly accepting that its story was influenced by the fact that the Clifford faxed the confidential was untrue. Damages were not claimants were under 18 and material to at the agreed however and a High Court identified by their surname. The now-defunct . hearing was set for this month to photographs did not contribute to Clifford argued that any agreement determine the issue. After the first “a debate of general interest” and between them to keep the day of the hearing, during which there was no previous publication i n f o r m a t i o n p r i v a t e w a s White, his manager and his of such photos (eg. by the parents terminated before he faxed accountant all gave evidence and themselves). The court also Brooks and that Burrell was never a were cross-examined, the case was granted an injunction to prevent PR client, coming to him purely to settled by the parties on the any re-publication. sell a "sensational" story. second day. The court was told The decision underlines that Clifford argued that because the that Express Newspapers will pay where under 18s are concerned, newspaper ended up offering a lot White “substantial” (but un- courts are more likely to find less than the £400,000 or disclosed) damages. 2 | zoom-in ......

ONE DIRECTION’S NIALL HORAN – DEFAMATION (NOV 2015) One Direction’s Niall Horan sued over an article in the Daily Star entitled “1D NEW DRUG STORM”. The article featured a photograph of him with Justin Bieber and Cody Simpson close to a “Breaking Bad-style drugs pipe”. The article also reported that Horan was “staring blankly” and that there were “rumours the singers were using hard drugs”. Horan complained that the article would be understood by readers that he had used drugs, which he denies. Express Newspapers argued that the words weren’t capable of meaning this and applied for the judge to halt the case. The judge found that the words could mean that Niall took drugs, and also that they could mean that there were grounds to suspect zoom-in | 3 he’d taken drugs. The action continues: first round to Horan. winners and losers

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FREDDIE STARR LOSES ‘GROPING’ LIBEL ACTION (JULY 2015) Comedian lost the libel action he brought against Karen Ward, who alleged that he had groped her when she was 15. Ms Ward claimed that she was groped by Starr behind the scenes of the 1970s TV show Clunk Click, hosted by Jimmy Saville. The court found that Ms Ward’s t e s t i m o n y a b o u t w h a t h a d happened was true. Mr Starr was liable to pay legal costs in the

region of £1 million. Former Tory MP Tim Yeo has lost his libel action against .

TIM YEO LOSES LIBEL t h e y a m o u n t e d t o The court had no hesitation in finding ACTION AGAINST SUNDAY comment (opinion), that this was that the articles were on a matter of TIMES (DEC 2015) honest comment. The judge found public interest. The court also noted Former Tory MP Tim Yeo has lost that Mr Yeo’s evidence was not that the speech in question was his libel action against the Sunday credible or truthful, referring to political speech, which is given special Times. The articles alleged that some of it as “utterly implausible”. protection. Mr Yeo was prepared and had The articles dated from 2013, prior Ultimately the judge found that offered to breach of the MPs’ Code to the Defamation Act 2013, and although the investigation and of Conduct by acting as a therefore the defences in play publication could have been done in paid parliamentary advocate for a were based on case law rather than a different way, the way it was done foreign energy company. They their new statutory equivalents. was still responsible journalism. were published after undercover However, the judge’s analysis will The judgment makes it clear that reporters from the newspaper’s most likely still be useful in future the court does not require a perfect I n s i g h t Te a m , p o s i n g a s cases because the courts will, i n v e s t i g a t i o n b e f o r e a representatives for a Korean solar under section 4 of the new Act – defendant can benefit from the energy firm, had lunch with Mr the section replacing Reynold’s Reynolds defence. Yeo, which they secretly recorded. Privilege, still need to analyse This case shows that the court is Finding against Mr Yeo, the judge whether the publisher’s belief that p re p a re d n o t o n l y t o m a k e found the articles were responsible it was in the public interest to allowance for editorial judgment, publications on a matter of publish the material in question but to undertake a realistic public interest and therefore was reasonable. This is likely to assessment of the processes that covered by ‘Reynolds privilege’. include factors that under Reynolds lead up to publication. This is a defence in defamation were part of the ‘responsible It is not fatal to your defence t h a t c a n b e u s e d w h e n a journalism’ test. just because things could have publication amounts to responsible For example, the court will likely been done differently or better. journalism covering a matter of consider the steps taken by a This is undoubtedly a helpful public interest. defendant to verify information, judgment for those involved in The judge found that the articles and whether the claimant was investigative journalism. were substantially true, and where given an opportunity to respond.

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PRINCE ALBERT OF MONACO – HIS ‘LOVECHILD’ NOT A PRIVATE MATTER (NOV 2015) Prince Albert of Monaco sued Paris Match over a piece which featured an interview with Ms Coste, his former lover, in which she stated that her son was his lovechild. The French courts ordered Paris Match to pay damages and publish a s t a t e m e n t . T h e p u b l i s h e r s

the fact that the Prince… had a lovechild contributed to a debate of public Abbas Media Law founder, Nigel Abbas importance

appealed to the European Court of Abbas Media Law Human Rights, which found that the Founded by Nigel Abbas, Abbas Media Law is a earlier decision was a breach of their niche law firm advising on all aspects of UK law right to freedom of expression and regulation affecting the television, film, (Article 10). This was upheld by the Grand advertising and publishing industries. Chamber of the Court. It found that We work with many leading broadcasters, there was a public interest in independent production companies of all sizes, revealing the information, given that and other content producers. Prince Albert is a public figure. We advise both before publication / broadcast, Where there is a hereditary monarchy, the fact that the Prince, working with creatives to minimise legal and who was then unmarried and without regulatory risk, as well as following publication a legitimate heir, had a lovechild and broadcast, defending content when it, and contributed to a debate of public its producers, come under attack. With importance. Also important were the rights of Ms particular expertise in television and film, we Coste to tell her story and of her have advised on thousands of hours of television son’s right to seek public recognition over the last two decades, across all from his father. genres. Nigel Abbas is also the primary author After the Paris Match article, Prince of ’s Producers Handbook. Albert officially recognised Ms Coste’s son as his. abbasmedialaw.com

zoom-in | 5 Ofcom round-up

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Regulation: some recent decisions of interest

UKTV – DANGEROUS However, the decision in relation to This meant viewers would not BEHAVIOUR – DERREN dangerous behaviour is worth have expected to see content of BROWN - (BULLETIN 22 noting, as it’s a reminder that this nature. FEBRUARY 2016) Ofcom is particularly concerned This is a reminder that in spite of Derren Brown’s stage show w i t h p o t e n t i a l l y d a n g e ro u s the time of transmission, context footage was broadcast on Watch at behaviour before the watershed is k e y. W h a t m i g h t b e ten past nine in the morning. The involving household objects (in this justifiable within a footage showed a stunt where a case a plastic bag), which children particular programme may well not plastic bag was placed over Derren frequently have access to without be when presented in a trailer. Brown’s head and then sealed, he parental supervision. appeared to have stopped his own CHANNEL 5 - BLINGING pulse, and he then walked across COMEDY CENTRAL - UP BABY – PROTECTING broken glass with bare feet. Whilst OFFENSIVE POST- PEOPLE UNDER 18 – walking across the glass, and then WATERSHED TRAILERS – (BULLETIN 9 NOV 2015) l a t e r w h e n a d d re s s i n g t h e COMPLAINT UPHELD Channel 5’s Blinging Up Baby was audience, he used the words (BULLETIN 23 NOV 2015) found to have breached rule 1.28 “fuck” and “fucking”. Ofcom made two findings of a ( p r o t e c t i n g t h e p h y s i c a l , Ofcom noted that no negative breach of Rule 2.3 (harm and emotional welfare and dignity of consequences were shown from offence) in relation to trailers people under 18). the auto-asphyxiation, that for Inside Amy Schumer and South The programme filmed a child the programme was broadcast on Park, which both aired on Comedy who at times was distressed and a Sunday morning when children Central at or after 10pm. was seen to be dressed in a m a y h a v e b e e n w a t c h i n g The Inside Amy Schumer trailer Hooters costume, performing in unsupervised and that serious included graphic sexual terms beauty pageants. The child’s swearing was used. including “blast my dirt-box with mother defended her decision to U K T V a d m i t t e d t h a t t h e your thumb”; “lobster hand me in dress her daughter and involve her programme had been broadcast at the twat”; “thumb-dash that in pageants. However, Ofcom t h a t t i m e i n e r r o r a n d mudpit”; and “shit on my tits”, found that Channel 5 had an a c k n o w l e d g e d t h a t i t w a s which were found to be clearly o b l i g a t i o n t o c o n s i d e r unsuitable to be shown before the capable of causing offence. whether the child’s dignity and 9pm watershed. They did not The South Park trailer included emotional welfare was being e v e n a t t e m p t t o d e f e n d images of Kyle as part of a ‘human compromised, irrespective of the broadcast. c e n t i p e d e ’ ; B u t t e r s w i t h whether the mother thought the Ofcom found Watch in breach of prostitutes; and Santa Claus being activity was acceptable. Given the r u l e s 1 . 1 3 o f t h e O f c o m tortured, as well as the words nature of what the child was filmed Broadcasting Code, relating to “fucking” and “fuck”. doing, Channel 5 breached this rule. dangerous behaviour easily Ofcom found this material was in Th i s i s a r e m i n d e r t h a t imitable by children; and rule 1.14 breach because it was in a trailer broadcasters and programme- which prohibits the use of the most and therefore audiences might makers must take due care over offensive language before the come across it unawares; and the the physical and emotional welfare watershed. programmes during which the and dignity of under 18s involved Ofcom’s decision to uphold on trailer was shown did not contain in programmes, irrespective of both counts is unsurprising. the same kind of material. parental consent.

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ITV - GIVE PETS A HOME COMMERCIAL REFERENCES IN PROGRAMMES (BULLETIN 14 SEPTEMBER 2015) ITV’s Give Pets A Home was found to have breached Ofcom rules on commercial references in programmes. The programme followed the work of the RSPCA and their adoption and re-homing services. Under rule 9.4 of the Code, products and services must not be promoted. It was found that the way the services were described eg. as being “value for money” and a “bargain” was overly promotional. The programme was also found in breach of rule 9.5, which prohibits products and services being given undue prominence. Ofcom found that the extensive references to the adoption services of the RSPCA were not editorially justified and were therefore unduly prominent. The decision is a reminder that Ofcom’s rules about commercial references in programmes apply just as much to charitable organisations like the RSPCA as they do to purely commercial brands.

zoom-in | 7 Ofcom round-up

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BBC - PANORAMA: Ofcom found this potentially immigration and the programme. FIGHTING TERROR WITH offensive material was justified by The crux of the complaint was TORTURE – NO BREACH the context, flagging the right to whether Mr Elmi had consented to RULES 1.3 AND 2.3 – freedom of expression as being the use of the footage in the (BULLETIN 9 NOV 2015) p a r t i c u l a r l y r e l e v a n t w h e n broadcast programme. He claimed Ofcom found this episode of c o n s i d e r i n g s u b j e c t s o f he had been told it was solely for a Panorama, broadcast at 8.30pm, ‘taster’ and not for broadcast. The not to be in breach of Rules 1.3 programme-makers said it had (scheduling appropriately for been made clear that it was for a children) and 2.3 (harm and Challenging proposed tv documentary, and offence). that he had given his consent The programme included material may be o n c a m e r a . D e s p i t e the re-enactment of three broadcast before the upholding the complaint at torture methods. A warning watershed where the preliminary stage, w a s g i v e n b e f o r e f o l l o w i n g f u r t h e r the programme that it material is properly submissions from Love/C4, contained “disturbing details contextualised and Ofcom changed its decision, finding that Mr Elmi did not of CIA methods condemned flagged up in as torture”. Ofcom found have a reasonable expectation the material was likely to cause advance of privacy in relation to the some distress to children, but material broadcast, which did not that it had been appropriately in any way touch upon his private scheduled, given that children or family life. Ofcom ruled that were unlikely to be part of the although the final focus of the audience, since the nature of b r o a d c a s t p r o g r a m m e w a s considerable public interest - even Panorama p r o g r a m m e s i s different from that anticipated if they contain potentially offensive well known. The pre-broadcast when filming (which might have material. warning, together with the material affected consent), that could not This finding by Ofcom shows that at the start, warned viewers, and turn non-private matters into challenging material of a more the most challenging material was private ones. The footage did adult nature may be broadcast broadcast later in the programme. not reveal any particularly sensitive before the watershed where Further, the simulated interrogation or private information, he gave material is properly contextualized was clearly flagged and volunteers balanced and relatively neutral and flagged up in advance to who had given their informed views on the topic, and he was audiences. consent could (and did) end it. It s p e a k i n g v o l u n t a r i l y i n was then followed by them circumstances where it was clear to speaking about their experiences CHANNEL 4: him that he was being filmed and and showing a quick recovery. The IMMIGRATION STREET - h e m i g h t r e a s o n a b l y h a v e subject matter was also of NO PRIVACY BREACH expected the footage to be significant public interest. (BULLETIN 9 NOV 2015) broadcast. Ofcom did however consider that Ofcom did not uphold a complaint Abbas Media Law advised Love the content warning was not strong of unwarranted infringement of Productions on the content of this enough and it should have privacy in relation to Channel challenging programme from the been clearer that the programme 4’s Immigration Street. start and successfully defended the would show reconstructions of Mr Elmi had given a ‘vox pop’ programme to Ofcom against Mr extreme interrogation methods. i n t e r v i e w t a l k i n g a b o u t Elmi’s complaint

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Abbas Media Law welcomes Clare Hoban to the team. COMEDY CENTRAL: (that words, images or actions IMPRACTICAL JOKERS - filmed from a public place must SUBTITLES NEGATED not be so private that prior Abbas Media Law News EFFECT OF BLEEPING IN consent is required before We are delighted that Clare Hoban PRE-WATERSHED broadcast) and rule 8.6 (that (pictured above) has joined Abbas PROGRAMME (BULLETIN consent must be obtained before Media Law aer 11 years at the 16 JANUARY 2016) broadcast when it would infringe BBC, working in Programme Legal Impractical Jokers is a hidden their privacy). Advice. Clare brings a wealth of camera practical joke series. It The complainant said she had legal and producon experience contained the words “fucking shit” been unaware that she was being from the sharp end of television. and “fucking shaking” which were filmed at the time, refused to give At the BBC Clare had a varied and bleeped. Subtitles such as “f***ing her consent subsequently and that loyal client base working on all s**t out of me” were shown she had been recognised post genres of programming, including alongside the bleeped language. broadcast causing her distress. Watchdog, Rogue Traders, 5Live Ofcom decided that because it Ofcom regarded the conversation Invesgates, Inside Out, Graham was the school holidays, pre- as an intimate exchange which Norton, Jonathan Ross, BBC News, watershed, with subtitles shown could reasonably be regarded as EastEnders, Casualty, Claimed and alongside the bleeped language, private and that despite her face Shamed, Helicopter Heroes, which made it clear what language being obscured, her hair, body Animals 24/7 and many more. was being used, the broadcast and clothing were still visible and Clare is experienced in corporate contained material inappropriate her voice was undisguised. Taken crisis management and is an f o r c h i l d r e n . O f c o m t o g e t h e r O f c o m u p h e l d found Comedy Central to be in the complaint of unwarranted accredited workplace mediator. In breach of Rule 1.3, which requires infringement of privacy in the 2013 Clare was awarded a BBC that children should be protected programme as broadcast - acting News Professional Services Award by appropriate scheduling from as a reminder that anonymisation for her ‘Outstanding Contribuon unsuitable material. needs to be thorough when a to News’. contributor legitimately asks not to CHANNEL 5: be featured. However, Ofcom did AML Business affairs. Did you 40 KIDS BY 20 WOMEN - not upheld the complaint of know that in addion to unwarranted infringement of PRIVACY (BULLETIN 7 content advice and defending MARCH 2016) privacy in connection with the against legal and regulatory Ofcom has found that anonymised actual filming of her, finding complaints, Abbas Media Law footage of a woman at a bus stop instead that in the circumstances are experts in business affairs being chatted up by a local the right to obtain the footage and rights, and provide a full lothario was an infringement of her o u t w e i g h e d h e r l e g i t i m a t e business affairs advisory service privacy. Ofcom considered rule 8.4 expectation of privacy. for clients.

zoom-in | 9 defamation

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How the courts are interpreting ‘serious harm’

The Defamation Act 2013 made a found that the allegation was c l a i m a n t a l r e a d y h a s a n u m b e r o f c h a n g e s t o not sufficient to cause serious harm. bad reputation but, as a rule, a defamation law in England. Some This case, the first decision on p u b l i s h e r c a n ’ t p r o v e b a d changes were cosmetic; others ‘serious harm’, suggested that the reputation simply by showing that look set to change the law more courts are going to set a high bar. those same allegations have been significantly. The judge accepted that certain made before and that the claimant A big change, designed to allegations such as being called a has chosen not to sue. prevent trivial claims, is that paedophile or a terrorist, would be Permission to appeal has been claimants must now show that so obviously harmful to reputation granted in this case. We will report the publication caused “serious that no extra evidence would be on a decision of the Court of harm” to their reputation, and needed, in other cases further proof Appeal when it appears. companies who attempt to sue of the seriousness would be necessary. for libel must now show “serious The Daily Mirror had published an financial loss” to enable their apology and (reassuringly for AMES V THE SPAMHAUS claim to get off the ground. publishers) this was deemed PROJECT LTD & ANOR Decisions using this new capable of eradicating or at least [2015] EWHC 127 (QB) legislation are just starting to minimising the harm done. This case concerned allegations on filter through. Here’s a brief a website that the claimants were round-up. s p a m m e r s . T h e w e b s i t e ’s LACHAUX V owners sought to strike out PRINT action by arguing that the COOKE V MGN LTD LTD EVENING STANDARD claimants didn’t have a reputation [2014] EWHC 2831 (QB) This case concerns a series of in the UK, and that there’d been (AUGUST 2014) allegations made in five articles such limited publication, their This case concerned an article in about Mr Lachaux, including that comments could not have caused the Daily Mirror about houses in he had been violent to his wife; serious harm. the street which featured on caused her to flee; had snatched The judge disagreed and found Channel 4’s Benefits Street: James back his son from her; and had the words were capable of causing Turner Street. Only one paragraph falsely accused her of kidnapping. serious harm. The judgment in the article concerned the There was a preliminary trial to decide also appears to be more open to claimants, who were a housing whether the words caused serious finding that an allegation is association and its Chief Executive, harm. The judge found that they did in capable of causing serious harm Ms Cooke. all but one of the articles. than Cooke v MGN. The court found the meaning of The court concluded that words the words to be that: the housing having a tendency to cause serious association was one of the well- harm will not be enough; it must BRETT WILSON LLP V off landlords on the street who let be proved that serious harm was or PERSONS UNKNOWN houses to people in receipt of was likely to be caused. Inferences [2015] EWHC 2628 (QB) housing benefit at rents of up to c a n b e e n o u g h t o p r o v e This case is the first case to consider £650 per month, thereby making serious harm, but the court will whether a publication caused m o n e y f ro m t h e m i s e r y o f look at what happened after “serious financial loss” to a residents; and that Ms Cooke was publication, in addition to an company, this being what a personally responsible for this assessment of the words and what company needs to show in conduct and had herself profited t h e y m e a n . T h e c a s e a l s o order to get their libel action and become rich from it. The judge confirmed that it’s relevant that a off the ground.

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The case concerned references to Theedom’s former employer, which offence. The meanings of the the claimant, a boutique firm of the Judge found bore the meaning emails were plainly very serious, solicitors, on the “Solicitors from that during his employment Mr and were published to a fairly H e l l ” w e b s i t e . T h e C o u r t s u b s t a n t i a l a u d i e n c e . I t considered whether the words was relevant that the Claimant was published (that the firm was a young man at the start of his corrupt, dishonest, unethical TOP TIP career and that the emails and unscrupulous etc.) Don’t let your press make a mess. h a d b e e n s e n t t o had caused or were individuals within that Your current affairs programme or doc, ‘legalled’ within likely to cause serious business from an financial loss. an inch of its life, is finally ready for broadcast and you want to apparently reliable The court found source. let the world know… But remember: press releases, news cut- that they did have There was a evidence to show downs, presenters’ Tweets, editor’s blogs and feature articles should preliminary trial to

this level of harm all be pitched at the same ‘level’ as the claims in the film - and need decide whether i n c l u d i n g o n e the emails had potential client to be legalled. It’s vitally important not to go further in satellite c a u s e d t h e not doing business publications than in the main programme, as you can be sure claimant serious with it. The court h a r m , a n d t h e that lawyers will be monitoring such publications. Subjects of also took account of judge decided that factors such as the allegations suing programme-makers over press they had. That trial p r o m i n e n c e o f t h e heard a substantial releases and social media posts is on website on a Google a m o u n t o f e v i d e n c e search, and the inference that the increase. including oral evidence and others must have read the words cross-examination. The judge even though they had not told the expressed concern that if such a claimants this. Theedom had regularly supplied procedure becomes routine it may This judgment suggests that less commercially i m p o r t a n t , in fact increase the costs of libel direct evidence as to financial loss confidential information about trials, which is the opposite of can be taken into account, and CSP’s business and its customers’ P a r l i a m e n t ’s i n t e n t i o n i n the task for companies seeking to business to CSP’s commercial rivals passing section 1 Defamation Act prove serious financial loss” may in breach of his contract of 2013. not be as onerous as many had employment and that as a result he COMMENT: At the present time, thought. The court awarded the h a d b e e n d i s m i s s e d f o r it appears that the hurdle for firm £10,000 in damages (the gross misconduct. 115 of the both individual and corporate maximum available in the trial emails also stated that the claimants is not as high as some procedure they opted for) and an Defendant was considering had at first hoped or feared, injunction prohibiting repetition of whether to take criminal action depending on which side you’re the libel. against Mr Theedom. on. However, more cases are These were found to bear the n e e d e d b e f o r e a n y f i r m SAM THEEDOM V NOURISH additional meaning that Mr conclusions can be drawn about TRAINING [2015] EWHC 3769 Theedom’s misconduct had been the sort of allegations that are (QB) (DECEMBER 2015) so serious that there were likely to cause serious harm and This case concerned 124 emails reasonable grounds to conclude what evidence of harm the courts sent by the Defendant, Mr that it also amounted to a criminal will want claimants to show.

zoom-in | 11 privacy and data protection

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‘SUCCESSFUL million or 4% of a company’s Some recent fines for breaches of worldwide tur nover for the the Data Protection Act 1998 are PROFESSIONAL ACTOR’ previous year; summarised below. These fines OBTAINS ‘REVENGE - Wider scope – many companies come in the wake of a series of PORN’ INJUNCTION - outside Europe will be covered if h i g h p ro f i l e p e r s o n a l d a t a they are processing personal incidents, including Talk Talk and JPH V XYZ [2015] data relating to Europeans; the partner-cheating site Ashley (OCTOBER 2015) - Many companies will need to Madison, both of which involved An unnamed man, described only appoint a Data Protection Officer. c y b e r a t t a c k s o n c u s t o m e r as “a successful professional actor” d a t a b a s e s , a l l h i g h l i g h t i n g h a s b e e n g r a n t e d a n the importance of data security and injunction against an individual to c o m p l i a n c e w i t h t h e D a t a prevent intimate images of him Protection Act. being posted on social media. It companies and was found the claimant had a reasonable expectation of privacy individuals who deal CPS FINED FOR in images of him engaged in sexual with data will have INADEQUATE SECURITY activity, and there was no public The CPS was fined £200,000 after interest in their publication. until Spring 2018 to footage of police interviews stored The court also noted that prepare for the on laptops was stolen from a publication would probably private film studio during a amount to a crime, as ‘revenge changes. burglary. porn’ has been criminalised by the The interviews were mostly with Crime and Courts Act 2015. In victims and witnesses of sexual or granting an interim violent crimes. The studio had injunction at short notice no alarm and insufficient security, the court demonstrated how fast it the laptops were left on a desk can act in such circumstances, as it and, although password protected, did when Tulisa Contostavlos were not encrypted. applied for an injunction in relation - An obligation to report breaches The responsibility rested with the to similarly intimate material in 2012. to the ICO without undue delay, CPS to ensure that the highly and where feasible within 72 hours; sensitive data was properly - As regards the uncertain scope of protected e.g. encrypted. DATA PROTECTION the new journalism exemption – The big recent data protection this will be dealt with by national news is that political agreement legislation which is not yet in place. SELLING DATA has been reached on a new EU- WITHOUT CONSENT wide data protection law – the ICO An online pharmacy was fined General Data Protection Regulation £130,000 for selling details of over (GDPR). Once it has been formally REGULATORY FINES 20,000 customers. The company approved the GDPR has a two-year T h e I C O ( I n f o r m a t i o n had not told customers that it implementation period, meaning Commissioner’s Office) operates a intended to sell the details and companies and individuals who regulatory system of compliance they had not given consent. deal with data will have until Spring with Data Protection laws. This is a 2018 to prepare for the changes. r e g u l a t o r w i t h r e a l t e e t h Key changes include: who currently can impose fines of LOSING - A wider definition of “personal up to £500,000 for serious CUSTOMER DETAILS data”, for example, IP addresses breaches. While most journalistic The Money Shop was fined are considered personal data and activities fall outside this regime £180,000 for losing IT servers o n l i n e p r o f i l i n g c o u n t s a s b e c a u s e o f a s p e c i f i c containing customer details. The processing personal data; statutory journalistic exemption, servers were not sufficiently - Larger fines – the maximum fine companies and individuals can still encrypted and not always stored in the ICO can impose will be €20 be fined for data security lapses. separate locked rooms.

12 | zoom-in MIRROR PHONE -HACKING DAMAGES: A NEW HIGH WATER MARK FOR PRIVACY DAMAGES? (DEC 2015) In May 2015, Mr Justice Mann awarded damages to a number of victims of the phone-hacking carried out by Mirror Group Newspapers. Awards ranged from £72,500 for Lauren Alcorn all the way up to £260,250 for Sadie Frost. This is significantly higher than any previous damages awards in privacy cases, the previous high being the £60,000 awarded to Max Mosley in relation to photographs of his sado- masochistic sexual activity. Mirror Group appealed the awards in October 2015. The court gave judgment in December, upholding the awards and dismissing the appeal.

zoom-in | 13 copyright and fair dealing

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TATTOO ‘DUES’ A games company is being sued in the US for copyright infringement after incorporating a number of tattoo designs in a videogame. Solid Oak Sketches is claiming copyright in eight tattoo designs o n t h e b o d i e s o f N a t i o n a l Basketball Association players LeBron James, DeAndre Jordan, Eric Bledsoe, Kenyon Martin and Kobe Bryant, who are depicted in the video game ‘NBA2K16’. Solid Oak claims that the tattoos are copyright-protected artistic works and their unauthorised inclusion in t h e g a m e a m o u n t s t o infringement. S o l i d O a k had offered the game’s producers a perpetual licence in the works in return for $1,144,000 (£860,000) but when negotiations broke down, the company decided to sue in New York. This case follows a number of others brought by tattoo artists, including one brought by S. Victor Whitmill in connection with a facial tattoo featured on the face of the character ‘Stu’ in the movie, The Hangover II. Whitmill claimed that Solid Oak Sketches is claiming copyright in eight tattoo designs copyright in the tattoo, which on the bodies of National Basketball Association players. duplicated one on boxer Mike Tyson’s face, belonged to him and s o n g H a p p y B i r t h d a y f o r the c o u r t t o a p p r o v e t h e that use in The Hangover II movie years. However, following a legal settlement. Until then, the was unauthorised. The copyright challenge in the US, that all looks settlement is not final. claim was eventually settled for set to end. Following a claim an undisclosed amount by brought by documentary-maker Warner Bros. Jennifer Nelson (and others), a US MEIN KAMPF At present, we don’t know what court last September ruled that In Germany, like the UK, the rights defences will be raised. In the UK, Warner Chappell did not own of an author in a literary work last one might expect a defence based c o p y r i g h t i n t h e s o n g ’ s for 70 years from the end of on s.31 CDPA 1988, ‘incidental lyrics. Rather, their copyright was the calendar year in which the inclusion’. In the US, a ‘nominative o n l y i n s p e c i f i c m u s i c a l author (or last of the co-authors) fair use’ defence seems likely if the arrangements of the song, not in died. Hitler shot himself on 30 matter progresses. Whatever the lyrics or melody. April 1945 so copyright ended last defence is raised, it’s a headache On 8 February, it was reported year, and Mein Kampf entered the for the game’s producers. There’s that Warner Chappell had agreed public domain on 1 January c e r t a i n l y p l e n t y t o a r g u e to pay a settlement of $14 million 2016. Essentially Hitler’s about. We’ll keep you informed of to cover legal costs and re- manifesto, it reportedly sold over developments. payments to those who had paid 12 million copies between 1933 for use of the song, and that they’d and 1945. HAPPY BIRTHDAY agree to a final judgment declaring Now in the public domain, the Publishers Warner Chappell have the song to be in the public work can be re-printed without been happily licensing rights in the domain. A hearing date of late permission. Whether or not any world’s reputedly most popular March 2016 has been set for does, is another matter.

14 | zoom-in contempt

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The law of contempt prevents the media from publishing material which creates a substantial risk of prejudicing trials in the UK. It is a serious criminal offence.

GQ article on phone hacking trial found to be in contempt. A GQ article published during a major phone hacking trial Star Trek fan. resulted in Conde Nast being found guilty of contempt. The article commented on both Rebekah Brooks and Andy Coulson, PARAMOUNT as well as linking Rupert Murdoch to the issues on trial and PICTURES AND CBS commenting on matters such as his funding of defence costs. The judges found that it created a substantial risk of causing SUE OVER CROWD- serious prejudice or impediment to the trial, and therefore was in FUNDED ‘STAR TREK’ contempt. Conde Nast were fined £10,000. This amount is at the FAN FILM lower end of the scale but most likely reflects the fact the trial wasn’t halted or aborted. Ananxar Productions, which Conde Nast had also apologised and agreed to pay the raised over a million dollars to Attorney General’s costs in full. The fine can be compared to the produce a fan-based Star Trek £50,000 paid by the Daily Mirror for their prejudicial coverage of movie prequel, is being sued the arrest of Christopher Jeffries in connection with Joanne for copyright infringement in Yeates’s murder in 2011. the US by the franchise’s The judges said that the court should assume that jurors haven’t o w n e r s . T h e a c t i o n i s read articles that are available online during the trial. The judges reportedly based on the stated that if jurors did their own research during the trial it would claim that the film illegally be a direct breach of the judge’s direction not to. borrows from the popular This judgment may provide reassurance to media publishers franchise, including using the who are concerned about the continued availability of online Klingon language, depicting archives during active criminal proceedings. Vulcans with pointy ears, and using other characters, terms and creative inventions from Star Trek. The copyright claim, which stopped filming of the FAIR DEALING ADVICE movie going ahead in January, Over the last 10 years, fair dealing rules have been used with has led to criticisms not just increasing frequency by content producers, both in news from fans but from some film programmes when reporting on current events, and when industry professionals, who see reviewing or critiquing copyright works that would be hard if not this crowd-funded movie as impossible to license. simply following in a long Last year fair dealing rules changed thanks to the Copyright and tradition of fan-produced film Rights in Performances (Quotation and Parody) Regulations 2104, tributes, which pose no real which extend the defence not only to using “quotations” but also threat to the works they seek to for caricature, parody and pastiche. pay homage to. The case is Nigel Abbas is one of the country’s most experienced media interesting not just because of lawyers advising in this area. He has advised on many hundreds of the wider implications it might hours of programming featuring fair dealing over many have for fan-made tributes, but years. Nigel is also one of the primary authors of C4’s Producers also, if the case doesn’t end up Handbook and C4’s fair dealing guidelines. settling, because any judgment Nigel updated the guidelines for Channel 4 last year to is likely to give a good incorporate advice and practical guidance on fair dealing with indication of what the courts quotations and for caricature, parody and pastiche. See C4 (the US courts) consider to be, guidelines at http://www.channel4.com/producers-handbook/c4- or not to be, copying of a guidelines/fair-dealing-guidelines. Nigel advises many of the substantial part of an original leading content producers working in this area. If you need advice w o r k , i n t h e s e s o r t s o f on fair dealing, please contact Nigel directly. cases. We’ll be keeping a close abbasmedialaw.com eye on what happens. zoom-in | 15 in other news…

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JOURNALIST TO BRING the old ‘section 39’ orders used advertising reflected as Section JUDICIAL REVIEW to restrict what can be reported 7 of the BCAP Code. The OVER HARASSMENT about juveniles (under 18) tried elections and referendums rules in adult courts. The court can in Section Six apply when the WARNING now grant lifelong anonymity to “election period” commences; Gareth Davies, a journalist at victims and witnesses who each election has a different the Croydon Advertiser is w e r e u n d e r 1 8 w h e n date and these are listed on the bringing a judicial review proceedings began. The new Ofcom website. If you need against the IPCC after they provision applies to all types of advice, please contact Abbas refused to quash a prevention publication, including online. Media Law. from harassment warning abbasmedialaw.com issued to him by the police after he contacted a convicted OFCOM - ELECTIONS fraudster (via one phone call REMINDER ANONYMITY FOR a n d t w o e m a i l s t o t h e On 5 May 2016, various individual, and one email to her elections will be taking place HUMAN TRAFFICKING solicitors) in order to put and the UK’s EU referendum VICTIMS allegations to her in relation to will be taking place on 23 June Last summer a new provision a story he was preparing. Mr 2016. Ofcom has issued a came into effect as part of the Davies and Local World (who r e m i n d e r t o a l l Modern Slavery Act 2015 publish the Croydon Advertiser) broadcasters that great care meaning victims (and alleged have been granted permission needs to be taken when victims) of human trafficking t o b r i n g j u d i c i a l r e - broadcasting election or now have the same automatic view proceedings in this matter. r e f e r e n d u m r e l a t e d anonymity as victims of programming, and that any sexual offences. This means REPORTING ON breach of the rules could result that after an allegation of in regulatory sanctions such as human trafficking is made it is CHILDREN IN THE a fine or removal of a licence to illegal to publish anything CRIMINAL b ro a d c a s t . I n p a r t i c u l a r, d u r i n g t h e v i c t i m ’ s COURTS. WHAT HAS broadcasters need to comply lifetime which is likely to CHANGED? w i t h S e c t i o n F i v e ( D u e lead members of the public Sections 45 and 45A Youth Impartiality) and Section Six of to identify them. This Justice and Criminal Evidence the Code (Elections and anonymity can be waived if Act 1999 have recently been Referendums), as well as the the victim gives their brought into force to replace p r o h i b i t i o n o f p o l i t i c a l written consent. 16| zoom-in ......

A new, third edition of Tugendhat and Christie: The Law of Privacy and the Media, the leading reference book on the law of privacy in England and Wales, was published on 21 TRAINING: LEGAL & COMPLIANCE January 2016. Written by a specialist team UP & COMING… ’BLUE LIGHT’ INSIGHTS of academics, judges and COPYRIGHT SEMINARS Abbas Media Law has years of practising lawyers, including TO THE PMA experience advising on ‘blue Abbas Media Law’s Nigel Abbas Media Law is a proud light’ programming. Whether Abbas, and under the y o u w a n t t o f i l m w i t h sponsor of the Programme editorial direction of High Managers’ Association (PMA) the emergency services, in Court Judge, Sir Mark Warby and is running a series of three hospitals or fire stations, or join seminars for PMA members ‘tag-along’ raids with the and Dr Nicole Moreham, the throughout Spring / Summer authorities, we can advise and book “offers detailed, 2016 focussing on copyright help you navigate your way practical and authoritative through what can be a legal law in TV and film production. guidance for practitioners The first talk on 22 Feb at St and regulatory minefield. We and academics working on James’s Church in Piccadilly will be conducting a series of was well-attended and well- talks for programme-makers cases relating to media r e c e i v e d , w i t h p o s i t i v e (open to all) on ‘blue light’ privacy law”. feedback from PMA members. programming in London later The book’s launch was this summer. We will keep you There are two further seminars, marked by a glamorous on 28 April and 27 June posted on dates and venue! drinks party at the Royal 2016, focussing on the various B e s p o k e , t a r g e t e d copyright defences, including training from current affairs and Courts of Justice on the the fair dealing defences, which docs, to comedy and drama, if Strand on 25 Feb 2016. have become so crucial for your team would benefit from For other publications legal and compliance training, c o n t e n t p r o d u c e r s ( s e e written and contributed to by Copyright – page 15). Please get in touch. Whatever the lawyers at Abbas Media Law, contact the PMA if you’d like to subject matter, we have join us. Light food, wine and the expertise and experience to visit our wesbite. soft drinks provided. tailor a session to your needs. abbasmedialaw.com zoom-in | 17 iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii 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