zoom-inMedia law news from Abbas Media Law SpringMay 2016 2017 UKIP MEP to The Nightly Show David Beckham’s pay damages after exec producer Katie High Court injunction Rotherham abuse Taylor talks to proves worthless 25 libel 4 zoom-in 13

KELLYANNE CONWAY Fake news, alternative facts … who cares? n Turn on the TV or open a newspaper: Obama had banned the Pledge of Al- a serious candidate for the Presidency, ‘fake news’ and ‘alternative facts’ are legiance from US schools, fake news reports started telling us that the only everywhere. At the start of 2016, those abounds. We now have a US President source of news for swathes of society terms would not even have been under- who refuses to answers questions from was the internet. Evidence emerged stood. What a difference a year makes. the mainstream media, and a senior that huge numbers of voters believed From #Pizzagate - an outlandish Presidential advisor, Kellyanne Con- these fake stories. In December, for ex- conspiracy theory that a paedophile way, talking with a straight face on ample, a US poll found only 54% of ring high up in the Democratic Party NBC’s Meet the Press about ‘alternative Trump supporters were willing to say was operating out of a Washington facts’. they didn’t believe #Pizzagate was real. pizza restaurant - to a story that Barack Last year, as Donald Trump became continued on page 28 IN THIS ISSUE

COVER MEDIA HAUNTS How the media landscape was Why the members club tainted by fake news ...... 1 that welcomed Dickens (cont on p28) and Churchill is once again the coolest spot in town for creatives ...... 14 WINNERS & LOSERS Jennifer Lawrence hacker gets nine months BUSINESS AFFAIRS & RIGHTS in jail ...... 3 Abbas Media Law’s production legal Melania Trump re-files against Mail ...... 4 schedule, setting out the five key stages of TV production and the legal issues UKIP MEP hit with £162,000 libel producers must consider. In this issue we damages ...... 4 focus on development agreements and Kylie Jenner cannot trademark Duran Duran appeal in copyright case ...... 4 content advice ...... 16 Kylie Jenner ...... 23 TV show format not copied, despite REGULATION – OFCOM, DEFAMATION similarities ...... 24 ASA & IPSO Mumsnet ordered to disclose details of users who slammed surgeon ...... 19 PRIVACY & DATA PROTECTION Channel 5 censured for swearing too close Prince of Morocco combines libel and data to watershed ...... 7 BBC says Cliff Richard raid footage was in protection claims ...... 19 public interest ...... 25 The X Factor takes steps after live f-bomb .. 7 No ‘serious harm’ in charity trustee case . 20 Newsagent failed to register CCTV 70s talk show repeat includes ‘highly Channel told to broadcast summary of court cameras ...... 25 unacceptable’ word ...... 8 judgment ...... 20 Employee convicted for taking client list to Ofcom’s guide to discriminatory Council to compensate after false domestic new job ...... 25 language ...... 8 abuse claim ...... 21 High Court injunction worthless after David Trigger Happy TV unsuitable for Saturday Neighbours must pay for random Facebook Beckham email hack ...... 25 morning ...... 8 diss ...... 21 ICO fines round-up ...... 26 Big fine for anti-Semitic hate speech ...... 9

Sponsorship credit contained inappropriate COPYRIGHT & IMAGE RIGHTS CONTEMPT & REPORTING message ...... 10 Star Trek fan RESTRICTIONS LBC host insulted Portuguese people ...... 10 flick agrees to Rapist’s girlfriend convicted for court newguidelines filming ...... 27 ...... 22 20 QUESTIONS Teenager who stamped on 13-year-old can Paul McCartney be named ...... 27 Nightly Show exec Katie Taylor on snobbery, sues Sony over Strictly and why a ping pong ball nearly Beatles song New Brexit claimants granted ruined her Millennium Eve ...... 13 rights ...... 22 anonymity ...... 27

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 Features Editor Paul Hunwick UK law and regulation affecting the television, film, Contributing Felicity advertising and publishing industries. Editors McMahon Founded by Nigel Abbas, we work closely with Jenny Spearing broadcasters, independent production companies of Picture Editor Karen Harper all sizes, and other content producers. Sub-editor Jack Seale Abbas Media Law is experienced in advising both Art Director Tim Parker 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 Street, content when it – and its producers – come under attack. London W8 6SN With particular expertise in television and film, we have advised on thou- D: +44 207 316 3046 sands of hours of television over the past two decades, across all genres. M: +44 7831 311 080 zoom-in editor Nigel Abbas is also the primary author of Channel 4’s E: [email protected] Producers Handbook. www.abbasmedialaw.com Subscribe to zoom-in Subscribe to zoom-in at abbasmedialaw.com for essential media www.abbasmedialaw.com law and compliance news, analysis and updates.

2 | zoom-in Spring 2017 WINNERS & LOSERS

Nine months for hacker who stole Jennifer Lawrence nude photos n A hacker who stole nude photographs of 30 unnamed celebrity victim whose photos were dis- celebrities including Jennifer Lawrence has been jailed seminated online. for nine months. Edward Majerczyk of Chicago pleaded Majerczyk was accused of operating a phishing guilty to charges of computer hacking in a Los Angeles scheme: sending emails to individuals that appeared federal court last year. His plea agreement included to come from internet service providers, which asked provision for the case to be transferred to Chicago, and for their user names and passwords. He could then ac- both sides agreed on a nine-month sentence. cess the accounts of those who responded. He admitted His lawyer said that Majerczyk was suffering accessing the iCloud and Gmail accounts of over 300 from depression and had expressed remorse. In addi- people. However, both his lawyer and the US Justice tion to the prison sentence, Majerczyk was ordered Department have said that there is no evidence linking to pay $5,700 towards counselling services for one Majerczyk to the online leaks of the material.

zoom-in Spring 2017 | 3 WINNERS & LOSERS

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

Melania Trump settles which Plaintiff is one of the most pho- and elsewhere. In April 2015, a judge tographed women in the world.’ found that the speech had a number with blogger, re-files Mrs Trump is represented by of defamatory meanings in relation against the Mail Charles Harder, the lawyer who also to the three MPs, including that they represented Hulk Hogan in his privacy knew many of the details of child n We reported in the Winter 2016 case against Gawker, which ultimately sexual exploitation that took place in edition of zoom-in that US First Lady led to Gawker’s demise. Mrs Trump Rotherham, yet deliberately chose not Melania Trump was suing both a blog- faced press criticism of the wording of to intervene, and were thereby guilty ger and the Daily Mail in Maryland the lawsuit, to which Harder replied: of misconduct. over articles that reported rumours ‘The First Lady has no intention of us- Ms Collins raised the issue of her that Mrs Trump had in the past acted ing her position for profit and will not European Parliament immunity and as an escort – allegations Mrs Trump do so.’ the case was stayed, pending an opin- says are false and damaging to her per- Mrs Trump has since re-filed her New ion from the European Parliament sonal and professional reputation. York lawsuit again, removing the refer- on whether the immunity applied. In January, the court ruled that ence to a ‘once in a lifetime opportunity’ In October, the European Parliament the case against the blogger, Webster and focusing more on the emotional dis- told the High Court that, in its view, Tarpley, could proceed. Judge Sharon tress caused by publication. It now says the immunity did not apply, as her re- Burrell denied a motion to dismiss the the article caused ‘tremendous harm’ to marks were made in the context of a case, saying: ‘There can be no more Mrs Trump’s ‘personal and professional national political debate, and did not defamatory statement than to call a reputation and prospective economic op- relate to her activities as an MEP or to woman a prostitute.’ Mrs Trump has portunities, as well as causing her signifi- the policies of the EU. This is unsur- since settled her claim against Tarp- cant humiliation and emotional distress’. prising, as the speech in question took ley, who has apologised and agreed to Damages of at least $150m are place at a domestic party conference. pay what is reported to be a ‘substan- now claimed for both defamation and Before the issue of immunity tial sum’. intentional infliction of emotional dis- arose, Ms Collins had made an ‘of- In a later ruling, the court dis- tress. The lawsuit also strongly criti- fer of amends’. This is a procedure missed the case against Mail Media cises the Daily Mail, including refer- whereby a party who is being sued Inc, which the claim says is responsi- ring to Wikipedia’s recent decision to for defamation (a defendant) can of- ble for publication of the Daily Mail, ban citations to it. Mrs Trump is sepa- fer to remedy the damage caused by on the grounds that the claim should rately reported to be suing the Daily providing a correction/apology and not be heard in Maryland. Libel laws Mail in London. damages. This has the benefit of ena- differ across states in the US, so the bling defendants who accept they state in which the case is heard can be have made a mistake to limit the important. UKIP MEP ordered to pay amount of damages and costs they The First Lady then re-filed her £162,000 in libel damages would otherwise have to pay. claim in New York, where Mail Media Ms Collins offered an unquali- has offices. Her re-filed claim at first n We reported in last year’s Summer fied offer of amends, meaning that alleged that the publication damaged edition of zoom-in that UKIP MEP if the amount of damages could not her ability to profit from the high Jane Collins had attempted to use her be agreed (and it was not) the court profile she now has. It stated she ‘had European Parliament immunity to would decide. However, subsequently the unique, one-in-a-lifetime oppor- halt a libel case brought against her Ms Collins made an application to va- tunity, as an extremely famous and by three Labour MPs from Rother- cate the offer of amends on a series of well-known person, as well as a former ham. The case related to the Rother- grounds: that she had not given in- professional model, brand spokesper- ham abuse scandal and was brought formed consent to the making of the son and successful businesswoman, by Sir Kevin Barron, John Healey and offer by her then lawyers; that there to launch a broad-based commercial Sarah Champion. had been no agreement between the brand in multiple product categories, Ms Collins gave a speech at the parties; that she had a good defence on each of which could have garnered 2014 UKIP Party Conference that the merits, including defences of truth multi-million dollar business rela- was broadcast live on BBC Parliament and/or public interest; and that she tionships for a multi-year term during and appeared on the UKIP website was in any event immune from suit.

4 | zoom-in Spring 2017 US First Lady Melania Trump: settles libel action against blogger in her favour, and continues her claim against The Daily Mail.

zoom-in Spring 2017 | 5 WINNERS & LOSERS

rection and/or apology that has been by Sony) in their first three albums by made under it. giving notice. A prompt and unqualified of- The English courts ruled, however, fer of amends can reduce the dam- that the contract the band made with ages awarded by up to 50%. In this the company overrode that, so the cop- case, which the Judge described as yright stays with the company rather ‘unique’, no correction or apology than the band. The Judge found that had in fact been made at all. Further, the meaning of the contract was clear: the Judge had to take into account that copyright would stay with the the conduct of Ms Collins – she was company for its full term. In the UK, found to have unreasonably caused copyright survives for 70 years after an considerable and unneces- artist’s death. The case was sary delay, and to have brought in the English unreasonably put courts as the contract forward offensive specified them as arguments that The band had the place for the have been tried agreed by contract resolution of any and failed. The disputes. Judge described not to exercise their The band ex- DURAN: SIGNED AS TEENAGERS this conduct as rights under the US pressed their dis- The issue of immunity having been ‘seriously aggra- appointment with dealt with, the judge dismissed the vating’. Act the judgment, say- application to vacate. A hearing was The Judge found ing they were ‘out- then held to determine the level of that Ms Collins had raged and saddened’. damages Ms Collins should pay to the erased some of the benefits They said that they were three MPs. Ms Collins failed to attend. the Claimants had from the of- just teenagers when they signed The Judge noted that the notional fer of amends, but not all. The offer the contract, and were concerned that ceiling for libel damages is around of amends did at least settle the is- the case set a worrying precedent. £300,000 (the ceiling for personal sue of liability. Given this, the Judge EMI issued a statement saying it has injury damages), but such an award reduced the award to each Claimant ‘nothing but the highest respect and would only be made in the gravest cas- by 10%, that is by £6,000 (£1,000 admiration for Duran Duran and their es where widespread allegations such for the slander and £5,000 for the li- great songs’, but that the case was a as terrorism or murder were made. bel). Accordingly, each Claimant was contractual issue on clarifying who On the facts of this case, the Judge awarded £54,000. had rights in the songs. found that the allegations were clearly The case shows how careful artists serious, the scale of publication and re- need to be when signing agreements publication of the speech and the gist Duran Duran appeal after relating to copyright. The purpose of of the allegations was large, and the losing copyright case the US law is to protect artists from distress caused to the claimants was the consequences of agreements that significant, with all three feeling their n In December last year, members assign copyrights for their full term. careers were at stake and their integ- of Duran Duran lost a copyright case However, where an agreement speci- rity under attack. As such, had it not in the High Court over who owns the fies English law as the governing law been for the offer of amends and the rights to a number of their songs, in- and English courts as the forum for any subsequent conduct of Ms Collins, he cluding big hits such as Girls on Film dispute, the court will interpret the would have awarded each Claimant a and Bond theme A View to a Kill. contract according to English law. In total of £60,000 (£10,000 for the slan- The musicians had sought to rely doing so in this case, the Judge found, der to the people in the hall when the on the United States Copyright Act although ‘not without hesitation’, that speech was made, and £50,000 for the 1976, which gives artists the right to the band had agreed by contract not to libels of broadcast, print and online). call for reversion of copyright in their exercise their rights under the US Act. Where an offer of amends is works after 35 years. This would mean In early February, the band were made, the amount of damages that they could terminate the grant of US granted permission to appeal the de- would have been awarded is reduced copyrights to Gloucester Place Music cision. zoom-in will report on the ap- on account of the offer and the cor- Ltd (part of EMI, ultimately owned peal case when it is heard.

6 | zoom-in Spring 2017 REGULATION – OFCOM, ASA & IPSO

and their inclusion created an abrupt Ofcom regulates the content of all television and radio in the UK, except transition to adult content. for some content broadcast on BBC channels funded by the licence Ofcom said that although warn- fee. IPSO is the main regulator for the press and magazine industry. ings could be helpful, they might not be watched by all viewers of the pro- The Advertising Standards Authority regulates advertising. All the gramme. In addition, editorial con- regulators adjudicate on complaints with reference to codes of practice, cerns were not enough to justify this with which those they regulate have to comply. The Ofcom Broadcasting type of language so close to the water- Code is the main code relating to broadcast content, while IPSO shed on a public-service channel. judges complaints against the Editors’ Code. The ASA’s main codes Ofcom has recently made two addi- tional noteworthy rulings, which have are the BCAP Code for broadcast advertising, and the CAP Code for taken direct account of its latest audi- non-broadcast advertising. Compliance with these codes is important. ence research on swearing, published Regulators can impose penalties and sanctions for non-compliance. in September 2016. Regarding privacy matters, the regulatory codes also have wider legal significance because of provisions within the Human Rights Act 1998 and the Data Protection Act 1998. The result is that the Codes have a OFCOM – STANDARDS: The bearing not simply in a regulatory context, but also on how the courts X Factor – live swearing should act when making any order affecting freedom of expression and n On The X Factor, broadcast on 23 the publication of journalistic, literary or artistic material. October 2016 at 8pm on ITV, viewers heard a contestant say ‘I fucking told you’ as the elimination results were OFCOM – STANDARDS: Can’t Ofcom considered whether the pro- announced. gramme complied with rule 1.6 of its Ofcom considered the incident un- Pay? We’ll Take It Away! Code, which states: ‘The transition to der rule 1.14, which states: ‘The most – offensive language too more adult material must not be un- offensive language must not be broad- close to watershed duly abrupt at the watershed... For tel- cast before the watershed.’ Ofcom evision, the strongest material should noted a clear breach of this rule, but n Can’t Pay? We’ll Take It Away! is appear later in the schedule.’ recorded the matter as ‘resolved’ giv- an observational documentary follow- Channel 5 defended the language en the ‘emotionally charged’ nature ing High Court enforcement agents as on the basis that it occurred after the of the show and the compliance pro- they attempt to resolve debt disputes, 9pm watershed in a familiar series and cedures ITV had in place, including: transmitted at 9pm on Channel 5. was shown at a time when audiences all participants had been briefed on Before one episode in the last series, were expecting strong adult mate- strong language before the show, and the on-air continuity announcer de- rial. Channel 5 said that it usually after the show the contestants were re- scribed the programme as containing followed a self-imposed rule where minded again; an on-air apology was ‘highly offensive language’. The pro- 9pm programmes did not include the made shortly after the incident; and gramme itself contained a warning at the strongest language before the seventh ITV had removed the sequence from start that stated: ‘Be prepared for minute but, on this occasion, it its catch-up service. scenes of intense aggression was required in order to and HIGHLY offensive demonstrate the volatil- language from the very The words’ ity of the scene. OFCOM – STANDARDS: start and throughout, Ofcom, in finding Tell Me Another – which may distress inclusion a breach of rule 1.6, discriminatory language some viewers.’ These created an abrupt reminded Channel warnings were flag- 5 that the rule was n By contrast, a talk show Tell Me ging up 14 instances transition to designed to avoid Another, originally shown in 1978 but of the word ‘fuck’ and a sudden change to repeated on Talking Pictures TV on 24 one of ‘cunt’, which adult content more adult material August 2016 at 7pm, was found to be started to occur from ap- at the 9pm watershed. in clear breach of the Code. proximately three minutes Ofcom said ‘fuck’ and ‘cunt’ An actress recounted being told her into the programme. were particularly offensive words, make-up made her look like a ‘bloody

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

chocolate-coloured coon’. Ofcom found and radio, and reproduced Ofcom’s in Tell Me Another. We reproduce be- use of the word ‘coon’ conveyed a rac- list of ‘non-discriminatory’ swear low the research’s race and ethnicity ist and discriminatory attitude and was words, which summarised the pub- discriminatory language table, cour- broadcast with no warning or other ed- lic’s attitudes towards them. tesy of Ipsos Mori and Ofcom. itorial to mitigate the offence. The research also reported on the Ofcom made no allowance for the public’s attitudes towards discrimi- age of the programme and raised con- natory language on television, noting OFCOM – STANDARDS: cerns that any children viewing would that the public appear to be becom- Trigger Happy TV – not appreciate the historical differences ing less tolerant of discriminatory in attitude. Ofcom found the language language. protecting children in breach of rule 1.14, which is that The word ‘coon’ features in that re- n Trigger Happy TV is a hidden-camera the most offensive language search and is confirmed as be- prank show first broadcast on Channel must not be broadcast be- ing highly offensive. The 4 between 2000 and 2003. On Satur- fore the watershed, and research describes the day 3 September 2016, London Live rule 2.3, that broad- The public public’s attitudes broadcast four episodes between 6am casters must ensure appear to towards the word and 8am. Ofcom received a complaint offensive material ‘coon’ as: ‘Strong- that these programmes contained ma- is justified by the be becoming est language, terial unsuitable for children. context. less tolerant of highly unaccepta- The programmes included pranks In the last is- ble without strong involving two people dressed as giant sue of zoom-in discriminatory contextualisation. rabbits simulating sex, and dressed as we reported on Of- language Seen as derogatory giant dogs hitting their victim with com’s published re- to black people.’ It a pool cue, smashing a chair over search into strong lan- is therefore unsurpris- someone’s head, and hitting someone guage, Attitudes to potentially ing that Ofcom found a clear unconscious with a truncheon before offensive language and gestures on TV breach in respect of the use of the word running off.

Word Acceptability Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to Chinese people. More Chinky mixed views regarding use of the term to mean ‘Chinese takeaway’.

Strong language, generally unacceptable. Low recognition. Mostly recognised by younger people and people from ethnic Choc ice* minorities. Seen as derogatory to black people by those familiar with the term.

Debated language. Considered derogatory and racist by many, particularly younger and middle-aged participants. Some Coloured older participants unaware the word is potentially offensive.

Coon Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people.

Darky Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people.

Strong language, generally unacceptable. Low recognition. Mostly recognised by younger people and people from ethnic Dago* minorities. Seen as derogatory to people of Italian descent by those familiar with the term.

Debated language. Seen by some as derogatory and insulting, implying negative connotations with Gypsies and Travellers. Gippo Others considered it less problematic. Participants from the Traveller community found this word very offensive.

Golliwog Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people.

Strong language, generally unacceptable. Low recognition. Seen as derogatory to people from East and South East Asian Gook* backgrounds by those familiar with the term.

Jock Mild language, generally of little concern. Seen as an informal and humorous term. Scottish participants not offended.

Honky Strong language, generally unacceptable. Seen as derogatory to white people.

Mild language, generally of little concern. However, seen as less acceptable by those familiar with the history and use of the Hun term as a sectarian insult. Others unfamiliar with its use as an insult assumed it was an abbreviation of ‘honey’.

Strong language, generally unacceptable. Seen as derogatory to Japanese people when used as an insult. Some found it Jap acceptable when used as simple shorthand for ‘Japanese’.

Kraut Medium language, potentially unacceptable. Seen as derogatory to Germans when used as an insult.

8 | zoom-in Spring 2017 Ofcom investigated whether there be within audience expectations at that The killing was presented as the high- had been a breach of rule 1.3: ‘Chil- time. As a result, Ofcom found a est form of perfect religious obedi- dren must... be protected by appro- clear breach of rule 1.3. ence for a Muslim. priate scheduling from material that The Ofcom considered is unsuitable for them.’ Ofcom found the statements to be that because the characters were simu- OFCOM – humorous anti-Semitic hate lating sex, the humorous and surreal STANDARDS: and surreal tone speech and on 9 tone could not mitigate the unsuit- Channel May Ofcom found ability for the time of broadcast, and could not mitigate the channel in that the violent scenes were brutal, re- fined breach of both alistic and capable of causing distress £75,000 for the unsuitability rule 2.1: ‘Gener- to some children. anti-Semitic for the time of ally accepted stand- Ofcom considered whether the ards must be applied content was appropriately scheduled speech broadcast to the content of tel- based on a number of factors, includ- n Mohiuddin Digital evision … to provide ad- ing: the nature of the content; the Television Ltd, which holds the equate protection for members time of broadcast; and likely audience licence for Noor TV, a channel broad- of the public from …harmful and/ or expectations. casting religious programming in offensive material’; and rule 2.3: ‘In Although London Live is not aimed Urdu from an Islamic perspective, has applying generally accepted standards at children, Ofcom noted that when been ordered by Ofcom to pay a fine broadcasters must ensure that material originally broadcast on Channel 4 the of £75,000 for serious breaches of the which may cause offence is justified material was transmitted at 9pm. Of- Code. by the context.’ Ofcom highlighted com found that a Saturday morning be- On 17 November 2015, Noor that the potential for serious harm was tween 6am and 8am was a time when TV broadcast a programme in which heightened by the speech being made children could have been watching un- a Muslim scholar narrated a parable by a scholar held in high regard by supervised, and the content would not about the murder of a Jewish person. Noor TV’s viewers.

Word Acceptability Mild language, generally of little concern. Acceptable as a factual description when discussing Germany under Hitler, and also Nazi subsequent extreme right-wing groups. Potentially offensive if used in a modern context to insult German people.

Strong language, generally unacceptable. Problematic outside of a proper historical context. Seen as derogatory to black Negro people.

Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people. Some debate Nigger and confusion around the term being reclaimed in black culture.

Nig-nog Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people.

Paki Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to Pakistani people.

Medium language, potentially unacceptable. Some debate about whether its use to mean something of poor quality is Pikey acceptable or not. Participants from the Traveller community found this word very offensive.

Strong language, generally unacceptable. While some see this word as a general reference to Polish people without a negative Polack connotation, most view it as derogatory to Polish people.

Raghead Strong language, generally unacceptable. Seen as derogatory to Muslims and Arabs.

Strongest language, highly unacceptable without strong contextualisation. Low recognition. Seen as derogatory to black Sambo* people.

Strong language, generally unacceptable. Low recognition. Seen as as derogatory to Asian people by those familiar with the Slope* term.

Spade Strong language, generally unacceptable. Seen as derogatory to black people.

Strong language, generally unacceptable. Low recognition. Seen as derogatory to Central and South Americans by those Spic* familiar with the term.

Taff Medium language, potentially unacceptable. Some uncertainty outside Wales about how offensive it is to Welsh people.

Wog Strongest language, highly unacceptable without strong contextualisation. Seen as derogatory to black people.

zoom-in Spring 2017 | 9 REGULATION – OFCOM, ASA & IPSO

The central objective of imposing of rule 9.22, but said it was due to a the one actually. He comes from Por- a penalty is deterrence, and Ofcom breakdown in communication between tugal. Obviously, the further you get will consider the size and turnover of Sky Media and Channel 5 Scheduling. abroad, the dumber they become really.’ the regulated body when considering Ofcom noted the steps Channel 5 had the deterrent effect of any penalty. introduced to prevent a recurrence and and: Ofcom can impose a maximum pen- treated this aspect of the breach as ‘re- alty of £250,000 or 5% of the licen- solved’. ‘Oh, he’s a bit simple isn’t he Joel? As see’s qualifying revenue, whichever Ofcom then looked specifically at I say, he’s from Tavira in Portugal. is higher. Ofcom’s procedures for the whether the content of the The gender he can’t quite work consideration of statutory sanctions sponsorship credit fell out what it is. I suspect old for breaches of broadcast licences can foul of the rule that The woman. He’s obviously be found on its website. sponsorship credits comments a regular listener, but must not contain unfortunately you’ve advertising mes- insulted Joel’s just gone into the OFCOM – SPONSORSHIP: sages or calls to intelligence, “sin bin” so now Channel 5 – Ryanair breach action. The credit you’ve got nobody to featured a Ryanair and that of the write to any more. n Following a film on 4 October logo that included What are you going 2016, a programme sponsorship credit the phrase ‘low fares Portuguese to do? What are you for Ryanair was broadcast, which in- made simple’. Ofcom generally going to do? Never mind. cluded Ryanair and Channel 5 logos took the view that this I’m sure you’ll find somebody. and the phrase ‘Low fares made sim- phrase went beyond a means of Perhaps your local police office can ple’. This was followed immediately identifying the sponsor’s business and probably find you somebody to talk to’ by a separate advert for Ryanair, which was a claim about the sponsor’s pricing included a photograph of a Ryanair strategy, which breached the Code. Allen’s comments continued even plane overlaid with the words ‘Low when the topic of the show moved on, fares made simple’, together with their saying: logo. Advertisements for various other OFCOM: STANDARDS - businesses then followed. LBC’s Steve Allen insults ‘…I suspect they are living in Portu- There are strict rules on the amount gal. That’s about the saddest place we of advertising a broadcaster can trans- the Portuguese have found at the moment where they mit, but a programme sponsorship n Steve Allen’s LBC radio morning are really are a bit thick. I mean hon- credit is not treated as part of a broad- breakfast show breached the Ofcom estly, it’s almost too embarrassing for caster’s permitted advertising quota. Code with offensive comments about words.’ Putting a Ryanair advertisement the Portuguese. Ofcom found a breach straight after a Ryanair sponsorship of rule 2.3 – ‘In applying generally and: credit resulted in Channel 5 falling foul accepted standards broadcasters must of rule 9.22 of the Ofcom Broadcast- ensure that material which may cause ‘…imagine if I banned my brother. ing Code, which requires: ‘Sponsorship offence is justified by the context’ – a Like anybody from Portugal at the mo- credits must be distinct from advertis- rule which applies equally to television ment, you know, because this one was ing.’ In addition, rule 9.22(a) requires as it does to radio. really thick. How stupid you can be? that ‘sponsorship credits broadcast Allen was discussing a listener who Obviously very, very stupid with a sur- around sponsored programmes must had misheard the amount of a debt name like he’s got. I mean God, you do not contain advertising messages or owed on the television programme worry don’t you!? These people, perhaps calls to action’. Can’t Pay? We’ll Take It Away! The they vote. Perhaps he’s not intelligent First, Ofcom looked at whether the listener thought the debt was £3,000 enough to vote. I bet he’s not working credit was distinct from the adverts. In when it was in fact £63,000. His com- either.’ this instance, there was no separation ments included: between the sponsorship credit and LBC responded that listeners were the ads, and they featured a common ‘I can’t help thick people this morning, accustomed to Allen’s acerbic style in phrase, ‘low fares made simple’. Chan- I really can’t, honestly. You know some- discussing news topics of the day. He nel 5 accepted that the scheduling of times, I mean I’ve heard some stupid had described a dancer on Strictly Come the sponsorship credit was a breach people over the time, but Joel would be Dancing as ‘useless’ and another like

10 | zoom-in Spring 2017 ‘a sack of potatoes’. Being misquoted of secret filming and the broadcast of it not filmed discussing personal mat- was a bugbear of Allen’s and he was had infringed his privacy. ters, he was filmed in areas inaccessible expressing his irritation. LBC also said He was filmed talking about the to the public, talking about sensitive that the mention of Portugal was ‘ir- difficulties with the department and work matters, so unsurprisingly Of- relevant’ and that there was no inten- its processes. Mr McCarthy claimed com found that this did attract a legiti- tion to make generalisations about the the programme gave the false impres- mate expectation of privacy. country. Allen’s response, it was said, sion that he was responsible for the Ofcom then considered whether was ‘a spontaneous overreaction’. ‘chaos and mismanagement’ of the this privacy infringement was war- Ofcom did not accept this, and wider service. ranted. ‘Warranted’ has a particular found the programme to be in breach. Ofcom considered his complaint meaning in the Code, namely that Allen had clearly linked the references under rule 7.1 of the Code, which re- where broadcasters wish to justify an to Joel being ‘stupid’ and ‘simple’ to lates to avoiding unfair or unjust treat- infringement of privacy, they should be him being from Portugal: the reference ment of individuals, and found that the able to demonstrate why it is justified was not irrelevant. Nor was it a spon- broadcaster had taken reasonable care in all the circumstances. taneous overreaction: it continued even to satisfy itself that all material facts Often where infringements of pri- when the topic had moved on. were presented fairly, so this aspect of vacy are warranted, it is because the It was, in Ofcom’s view, ‘a series of the complaint was not upheld. public interest overrides the infringe- repeated, insulting comments which What is perhaps of greater inter- ment – and indeed the Code cites ex- had the potential to cause offence to est to programme-makers is Ofcom’s amples of matters likely to be in the listeners’. The comments far exceeded assessment of whether Mr McCarthy public interest that could justify in- what was said about the Strictly danc- had a legitimate expectation of privacy fringing privacy, for example filming ers. Joel had not been given the op- in relation to the secret filming and and broadcasting material for the pur- portunity to challenge the presenter’s broadcast. Ofcom considered practice poses of protecting public health and views. The comments insulted Joel’s 8.5, which states that any infringement safety, or disclosing incompetence that intelligence, and that of the Portu- of privacy should be with the person’s affects the public. guese generally. Despite Allen’s view consent or otherwise warranted, and On the facts of this case, where that regular listeners would likely be practice 8.13, which requires that sur- children’s lives were potentially being comfortable with the offensive nature reptitious filming should only be used endangered, Ofcom considered that of the comments, Ofcom found they where it is warranted. the public interest in obtaining and exceeded audience expectations and Normally, secret filming will only using the footage of Mr McCarthy out- were not justified by the context. be warranted if there is prima facie evi- weighed his legitimate expectation of dence of a story in the public interest; privacy and therefore was warranted. there are reasonable grounds to suspect Ofcom also considered practice OFCOM – FAIRNESS & that further material evidence could 8.14 of the Code, and the extent to PRIVACY: Inside Britain’s be obtained; and it is necessary to the which Mr McCarthy had a legitimate credibility and authenticity of the pro- expectation of privacy in the broad- Children’s Services not in gramme. Ofcom also had regard to cast of the material, and whether this breach practice 8.9, which requires that the had been infringed. It noted he was means of obtaining material must be not identifiable to anyone he didn’t al- n Channel 4’s flagship current affairs proportionate in all the circumstances. ready know and that there was a genu- strand Dispatches featured a social work- Ofcom accepted that the informa- ine public interest in showing viewers er who secretly filmed at Birmingham tion gathered before the surreptitious the problems with the service and the Children and Families Services Depart- filming took place amounted to prima impact it could have on vulnerable ment to discover whether a three-year facie evidence of a story in the public children. The public interest in this plan to improve children’s services was interest, and that it was reasonable for case was therefore found to have out- being successfully implemented. Channel 4 to have authorised the film- weighed Mr McCarthy’s legitimate The complainant, Mr McCarthy, ing to go ahead. expectation of privacy. No aspect of worked as a manager and appeared in Ofcom then considered the extent Mr McCarthy’s complaint was upheld. three sections. He was not named and to which Mr McCarthy had a legiti- This is a good example of investiga- his face was obscured, but his voice was mate expectation of privacy in the cir- tive journalism being protected under heard undisguised. Mr McCarthy com- cumstances - he was surreptitiously the Code’s rules, where there is a clear plained that he was treated unfairly in filmed at work with the use of a hidden public interest in the material filmed the programme and that both the act camera. Although Mr McCarthy was and broadcast.

zoom-in Spring 2017 | 11 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.

12 | zoom-in Spring 2017 FEATURES 20 Questions Katie Taylor was the first woman to run in-house entertainment at the BBC, where her credits included Strictly Come Dancing, The Graham Norton Show and Comic Relief. Prior to that, at C4 she was responsible for shows including That Peter Kay Thing and Brass Eye. She is now exec producer on ITV’s The Nightly Show

What gets you out of Favourite drink? Well, not Biggest challenge facing the bed in the morning? apple cider vinegar. It TV industry today? Budget cuts, Apple cider vinegar. tastes awful. My lady- though not on my show. It’s loved by health petrol is Chablis or a nuts and drag Sav’ Blanc. Biggest achievement in life? I queens alike was very proud when Strictly won a for its promise Favourite Bafta. It was about blinkin’ time. to produce flat restaurant? stomachs. Temper on Most diva-ish behaviour Broadwick Street for you’ve witnessed? An American Who have you its delicious 12-hours- comedienne who had such a massive learned the most cooked goat. strop in a field that we had to stop from in your career? filming. I said: ‘You’re not that Chris Evans. He’s never satisfied Favourite shop? Chanel. famous to be allowed to behave that with your first idea. badly.’ Favourite TV show? Transparent What do you love most about on Amazon Prime. your job? I literally laugh every Last time you cried? Listening to Steve Hewlett’s cancer diaries day. I’m still interested in it and, Guilty TV pleasure? Botched, with Eddie Mair on Radio 4’s PM. hopefully, still interesting. From a plastic surgery show on the E! I worked with Steve and he was one taxi drivers to children and aunties, Channel. It keeps me away from the nicest people in TV. Cancer’s a everyone’s interested in telly. Harley Street. bitch.

Biggest TV pickle you’ve Most used expression? They Last three websites you got yourself into? Timing the never said showbiz would be easy. midnight moment of Graham visited? Facebook, talking Norton’s Millennial Eve, which to Davina McCall; Mail Dream dinner party involved a ping-pong ball being Online’s sidebar of guests? Graham shot out of a lady’s nether regions, shame (I hate myself Norton, John Bishop They never was tricky, but the most worrying for that); and and Brad Pitt. I was on Brass Eye. Chris Morris said showbiz suppose I should Google. inserted the phrase ‘Grade is a cunt’ include a woman. would be easy into a subliminal frame without me Oprah. Describe yourself knowing. I thought I was going to in five words. lose my job. Who would you least Funny, glittery, loyal, like to get stuck in a lift with? smart, klutz. Paul Hunwick What advice would you give Nigel Farage. So pompous. someone starting out in TV? The Nightly Show starts an eight- Smile, be keen and watch every First record? week run on ITV at 10pm on Mon new show. Don’t be a snob about Favourite Shirts (Boy Meets Girl) by Haircut 100. 27 February. watching TV.

zoom-in Spring 2017 | 13 14 | zoom-in Spring 2017 FEATURES Media Haunts: The Arts Club After 150 years, the luxurious and spiritually uplifting Arts Club is still one of the finest London members’ clubs. Paul Hunwick finds it’s never been more fabulous If you want to get into a name-drop- tality, excellent food and quality art. ping competition, don’t do it with Oh, the art! Its impressive histori- the Arts Club. That sort of behaviour cal collection has been respectfully is below it and, frankly, you’d lose hung downstairs, allowing the up- spectacularly. Founded in 1863 by, per floors to serve as part entertain- among other creative lumi- ment space, part contem- naries, Charles Dickens porary art gallery. Not (they have his original Celebrity a pretentious, frosty working well with food served by cheque on display), gallery either: more waiting staff who, well, enjoy being its members have titbits are mere an intellectually waiting staff. Meanwhile, Soon Li included Whistler, trinkets to the stimulating play- Ong takes Japanese cuisine to diz- Rodin, Liszt and Arts Club. It’s built ground for grown- zying heights in the separate, small, Winston Church- ups. The collec- sexy Kyubi restaurant. ill. Restaurateur on much deeper tion, sublimely ‘We’re proud that 40% of our Arjun Waney took foundations curated by Wedel membership is female,’ says direc- over in 2011 and com- Art, is everything one tor of sales and marketing Hannah missioned a breathtak- hopes for from modern Westaway. It’s easy to see why. The ing refurbishment by David art: intelligent, sexy, chal- Arts Club is the kind of place you d’Almada. With suede wallpapers and lenging at times, witty at others, could come to on your own, feel collectible furniture, it sings luxuri- always entertaining. It’s art that’s protected, hang out for the day, ous modern British. Waney appointed rewarding to be around. Brave, too: then leave and roll into the night, Gwyneth Paltrow as chair of the mem- there’s a Stephen Prina installation feeling nourished on every level. bership committee (at the relaunch that’s been allowed to drip onto the she sang three songs to the club’s pa- marble floor. That takes guts. The Arts Club tron, HRH The Duke of Edinburgh), The arts are a core value of the 40 Dover Street, London W1S 4NP and Mark Ronson as the club’s musi- club, and its programme of events 020 7499 8581 cal director. The magic worked. is one of the best in the world. Al- theartsclub.co.uk The club refuses to discuss who’s a exandra Shulman talks with Alexa Eat: Black cod, £39 member, but Victoria Beckham held Chung one week; Sir Michael Parkin- her 40th birthday party here, Prince son is interviewed the next. Stephen Drink: Lychee martini, £11.50 Harry hosted a ‘chicken and chips’ Hawking has spoken here; will.i.am Who to know: The doormen: supper, and Jay-Z and Beyoncé have has played live sets in the basement. Mossy (day shift) and Dennis (night been photographed leaving. Ronnie Superstar chef Pascal Barbot recently shift) Wood occasionally pops up on stage came over from Paris with a troupe Power table: Table 50 if you want in the basement nightclub, though of chefs for a takeover evening; a Stu- to be seen dio 54 party had the legendary New nobody seems quite sure if he has Membership: £2,000 per annum been invited to do so. It’s Ronnie York club’s former resident DJ Nicky plus £2,000 joining fee Wood. Who cares? Siano on the decks. Celebrity titbits are mere trin- Choose from two restaurants. The How to apply: Requires nomina- tion by a member, seconding and kets to the Arts Club. It’s built on Brasserie serves seasonal food over- then approval by a committee much deeper foundations: great de- seen by Jean-Luc Mongodin: packed chaired by Gwyneth Paltrow sign, high standards, superb hospi- at breakfast, the room lifts the soul,

zoom-in Spring 2017 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

study; filmed material, for example a In every issue of zoom-in we examine the commercial, legal and sizzle tape, casting tape; the securing of underlying rights, for example in regulatory hoops that programme-makers have to jump through to get a book, format or life story; access to their programmes safely to air. Our production legal schedule above sets the daily workings of an organisation out the five key stages of production which producers need to consider like a hospital or police force; and and the advice and expertise they are likely to need at each stage. In often a budget and schedule for the each issue, we focus on one or two particular aspects of production legal programme’s production. Moreover, the receipt and acceptance of devel- requirements. opment materials by the broadcaster or financier may be a condition of the will apply should the financier release of some or all of the develop- Development agreements subsequently agree to commission ment funding. n Programme-makers fortunate full production of the programme. Note that development funding enough to secure funded development It is therefore a useful and important is usually recoupable against the pro- for a programme from a broadcaster document to ensure both parties gramme’s production budget, should or other financier will usually be know exactly what their commitment the programme be commissioned, so expected to enter into a development to the other party is and will be. producers should include it as a line agreement. Typically, development agree- item when budgeting. A development agreement sets out ments set out in detail the ‘devel- It is customary for financiers to the terms on which the broadcaster opment materials’ a producer is re- require an assignment of all rights or financier is willing to release quired to produce and deliver, and in development materials for a development funding, and what they by what date. Development materials fixed period of time, while they expect you to deliver in return. It may include written work, for ex- decide whether to commission the will often also indicate what terms ample a script, treatment, feasibility programme or not. This is in order

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

zoom-in Spring 2017 | 17 BUSINESS AFFAIRS & RIGHTS

to secure their investment and ensure scale, and the producer not being in the programme will usually go into their exclusivity in the development breach of the development agree- ‘turnaround’ to the producer. materials and the programme. ment. It is customary for rights in the Because of the requirement to as- A development agreement may development materials not to fully sign all rights to a financier by way include reference to the terms to be revert to the producer until repay- of security, it is advisable that a pro- applied should the financier wish ment of the development funding to ducer negotiates wording into the de- to commission the programme, and the financier, which is not required velopment agreement so that this may include a slot price until the producer secures develop- no other producer may or target price for the ment funding or a programme com- be commissioned programme’s budget. mission from a third party. The de- by the financier It is customary It is a good idea velopment funding is then repaid to to produce the for a producer the original financier from the devel- programme for financiers to spend some opment or production budget for the - sometimes to require an time consider- programme. The producer is, how- referred to, ing and nego- ever, entitled to pitch the programme particularly in assignment of all tiating these to third parties after turnaround and relation to US rights in development terms, as once prior to repayment. developments, the develop- These are just a few of the issues as a ‘producer materials for a fixed ment agreement programme-makers need to consider lock’. This pro- period of time is signed with any when negotiating development agree- ducer lock may be provisions of this ments with broadcasters and financi- subject to certain con- kind in it, the producer ers. Abbas Media Law has many years’ ditions, such as satisfactory is bound. experience in drafting and advising on delivery of all the development mate- If a financier chooses not to com- such agreements in a very wide range rials, the producer being willing and mission the programme, either before of contexts. For further information available to produce the programme or on expiry of the fixed decision pe- or advice contact Abbas Media Law at within the financier’s required time- riod in the development agreement, [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 • financing agreements Consultant • 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 Spring 2017 DEFAMATION

Act might risk stifling criticism, and The law of defamation protects the reputation of individuals and so called for careful case management. companies. Statements are defamatory if they adversely affect a Those publishing or broadcasting ma- terial should take care to consider any person’s or company’s reputation in the eyes of reasonable people. A risks under data protection law along- person or company can sue over defamatory statements in England and side risks in libel and privacy. Wales if they cause or are likely to cause serious harm to the person or, There is an exemption from some of in the case of companies, cause or are likely to cause serious financial the requirements of the Act for jour- loss. Journalists – indeed, all those publishing content – need to be nalism (at section 32), but this does not cover all scenarios. Section 32 ex- aware of the law, and confident that what they are publishing is either empts publishers from all the data pro- not defamatory or, if it is, that they can avail themselves of one of the tection principles (except principle 7, defences to defamation. which requires those in possession of personal data to maintain its security) Mumsnet ordered to sent via the site between them and where material is published for jour- other users that it reasonably believes nalistic purposes, the publisher reason- disclose details of refer to Dr Sorensen or his surgery. ably believes that publication would be cosmetic surgeon’s critics However, the order also stated that in the public interest, and the publish- Mumsnet must anonymise other users er reasonably believes that, in all the n The High Court has ordered Mum- of the website. circumstances, compliance with the snet to disclose the details of users who requirement of the Act is incompatible posted criticisms of Dr Jesper Sorensen, with its journalistic purposes. a cosmetic surgeon. He sought the de- Prince of Morocco can The fourth data protection princi- tails of two users of the website, in or- bring data protection claim ple relates to accuracy: ‘Personal data der to bring legal action against them. shall be accurate and, where necessary, The order, known as a ‘Norwich alongside libel claim kept up to date.’ This means that ordi- Pharmacal order’, can be applied for n Prince Moulay Hicham of Morocco narily a publisher publishing material where someone who is not a party to a is suing Elaph Publishing over an arti- for journalistic purposes, who reasona- case knows details that will allow the cle that claimed he was plotting against bly considers that publication is in the case to fairly proceed. For example, the King of Morocco and had instruct- public interest and reasonably believes where an individual knows the email ed someone to lie. that complying with the fourth data address of a person who has posted The claim was originally brought protection principle regarding accu- defamatory or otherwise allegedly un- in defamation, but the Prince sought racy is incompatible with its journal- lawful statements online, the Claimant to add a claim under the Data Protec- ist purposes, is exempt from having to may seek a Norwich Pharmacal against tion Act 1998. Lawyers’ letters will now comply with it. the email provider, ordering it to pro- commonly refer to the Data Protection Accordingly, where a data protec- vide them with the identity of the in- Act alongside any complaints in libel or tion claim is brought against a pub- dividual. It can be an important tool privacy. The Act requires anyone pro- lisher of journalistic material, what will where statements are made online un- cessing data to do so fairly and to ensure be at issue is whether the publisher had der a pseudonym. the data is accurate and up to date. a reasonable belief that publishing the It is so called because this type of In this case, the Prince claims that information was in the public inter- order was first made in a 1974 case in- the data in question was inaccurate. est, and whether the publisher reason- volving Norwich Pharmacal Co. In a recent decision, the Court of Ap- ably believed that complying with the As is often the case in applications peal allowed the Prince to add the data fourth data protection principle would for Norwich Pharmacal orders against protection claim. This means that the have been incompatible with the pur- third parties, Mumsnet remained Prince could succeed on the data pro- poses of journalism. What is likely to neutral, allowing the court to decide tection claim, even if the court ulti- bear heavily on this question (because whether it was appropriate to make the mately finds that the article wasn’t de- of s32(3) DPA) is whether or not the order or not. famatory and caused him serious harm, publication of the material breaches The order requires the website to or if the publisher has a defence to the any relevant regulatory code, for exam- disclose the real identities of the two defamation claim. ple the Ofcom Broadcasting Code for users, and to provide to Dr Sorenson’s The Court was alive to concerns broadcasters, and the Editors’ Code for lawyers copies of private messages that a claim for inaccuracy under the the print media.

zoom-in Spring 2017 | 19 DEFAMATION

On the question of ‘accuracy’, the No ‘serious harm’ in Hindu avoided in his community, but there Ofcom Broadcasting Code states that charity trustee case was no evidence to link this to the pub- material should not being ‘materially lications themselves, as opposed to oth- misleading’, while the Editors’ Code n The High Court has struck out a ers factors such as him being removed instructs publishers to be careful not to defamation claim brought by a for- as a trustee. publish ‘inaccurate, misleading or dis- mer trustee of a Hindu charity after This case is the latest in a series con- torted information or images’ and im- finding that the publication did not sidering the ‘serious harm’ threshold. See poses more stringent requirements of cause serious harm to his reputation. box, opposite. rectification for ‘significant’ inaccuracies, Doulat Daryanani, of the Holy Mis- misleading statements or distortions. sion of Guru Nanak in Cricklewood, What this is likely to mean is that complained of statements made at a Channel must broadcast in such claims, there will both be a private meeting to the charity’s trus- court summary threshold of seriousness that inaccura- tees that were then recorded in the cies must exceed – insignificant inac- minutes of that meeting. The minutes n Broadcaster ARY News has been or- curacies would not be actionable – and were published only to the trustees dered to broadcast a summary of a High an analysis by the court of what steps who were present at the meeting and Court judgment that required it to pay the publisher took to verify the facts. the Charity Commission, who had re- £185,000 in damages for libel. Perhaps the latter might even resemble quested a copy. Since the publication Mir Shakil-ur-Rahman, the chief the ‘responsible journalism’ test that of the minutes, the Claimant had been executive and editor-in-chief of Paki- formed part of the Reynolds privilege removed as a trustee. stan’s largest media group, had sued defence, which most lawyers consider Under the Defamation Act 2013, the broadcaster over programmes that now forms part of the s4 Defamation those suing for defamation must show made a number of allegations, includ- Act 2013 public interest defence, as that publication of the words com- ing that he was a traitor to his country, this will be relevant to what the pub- plained of has caused or is likely to a blasphemer and that he had threat- lisher reasonably believed. cause serious harm to their reputation ened to kill certain individuals. In any event, data protection claims in order to bring a claim. Companies The court found against the UK are becoming more common both gen- must now show serious financial loss or Urdu broadcaster and ordered it to erally and in the context of media law. that the words were likely to cause seri- pay £185,000 in damages, a sum that Those working in the industry should ous financial loss. reflected the seriousness of the allega- be aware of this trend. Mr Daryanani’s Particulars of Claim tions. The Judge said the sum ‘should The Court of Appeal also overturned – the formal legal document that is be enough to convince any fair-minded a finding of the High Court on the lodged with the Court and sets out the observer of the baselessness of these se- meaning of the article for the purposes key elements of the claim – had origi- rious charges’. of the defamation claim. The Judge had nally included no reference to serious The Judge, Sir David Eady, said that found that saying that someone was harm at all, but by the time of the hear- as vindication of Mr Rahman’s reputa- working against the interests of a ruler ing he intended to include a bare refer- tion would only be achieved if those was not capable of being defamatory, ence to publication having caused him who saw/heard the original libel knew because whether readers would think serious harm. of the court’s judgment, in addition to worse of the person depended on their The Court found that this was not the damages award, it was in this case view of the ruler. sufficient: it is necessary to set out appropriate to order ARY to broadcast The Court of Appeal decided that what serious harm has been or is likely a summary of the judgment. whether such an accusation is defama- to be caused. Publication in this case Courts in England and Wales now tory or not will depend upon the par- was to a very small number of people have the power to make such an or- ticular words used and their context. In and the Judge found it unlikely that der, under section 12 of the Defama- this case, the article focused on alleged publication would have damaged the tion Act 2013. The power is similar to ‘schemes’ used by the Prince, bearing Claimant’s reputation in the eyes of that possessed by the media regulator a meaning that he had shown himself his fellow trustees, as by the time of Ofcom – the power to order a broad- to be underhand and disloyal. This was the meeting they were aware of the al- caster to broadcast a summary of its capable of being defamatory, as such an legations against him and would have findings, for example when it upholds attack on his integrity could seriously already formed a preliminary view for a fairness and/or privacy complaint. harm his reputation in the eyes of or- themselves. This case is the first known use of the dinary, reasonable people. The Prince’s Mr Daryanani had produced some section 12 provision, which came into claim proceeds. evidence that he had been shunned and force three years ago.

20 | zoom-in Spring 2017 Council pays compensation to harassment and abuse from others, when a court awarded damages of over false abuse letter which resulted in him and his family more than €30,000 after one neigh- having to leave their home. bour posted allegations about an- n A Council has apologised and paid Mr Taylor complained to the Coun- other on social media. A court in a substantial sum to a man over a letter cil, which launched an independent Donegal awarded married couple falsely accusing him of domestic abuse, investigation. The investigator rec- Patricia Barnett and Paddy Murphy which led to his son being removed. ommended the Council apologise to the damages after their neighbour A social worker from Northamp- Mr Taylor and make financial redress. made allegations about them on tonshire County Council wrote in a let- However, negotiations stalled and legal Facebook. Anthony Downes wrote ter that Theo Taylor was a perpetrator proceedings were launched. posts accusing Mr Murphy of hav- of child abuse and/or domestic abuse Mr Taylor’s barrister told the Court ing an affair with another man’s and that the Council’s Social Services on 14 February that agreement had wife, and calling Ms Barnett over- Department had carried out assess- been reached. The Council’s solicitor weight. Mr Downes admitted mak- ments on his former wife and two of his apologised to Mr Taylor in open court ing the untrue posts and apologised children and, as a result, concluded that on the Council’s behalf, and stated that through his barrister, saying he was they were victims of Mr Taylor, or at the Council had agreed to pay him a ‘ashamed and embarrassed’ by the high risk of being victims of him. This very substantial sum in compensation. harm caused. was completely false. The Council is also taking other steps Ms Barnett said she barely knew As the Council has now accepted, to remedy the damage done, including Mr Downes and knew of no rea- Mr Taylor was not a perpetrator of child funding Mr Taylor in proceedings to son why he would have written the or domestic abuse, and the Council had seek contact with his son, whom he has posts. Judge James O’Donoghue de- not assessed his ex-wife or children. not seen for over a year. scribed the posts as ‘scurrilous and The letter was sent to solicitors acting reckless’ and awarded the couple for Mr Taylor’s ex-wife, with the inten- €20,000 and €12,500 respectively. tion of it being used to help her obtain Social media comments The Judge also gave a general legal aid. However, Mr Taylor’s ex-wife lead to €30,000 damages warning of the dangers of posting sent the letter on to others. The con- on Facebook, saying the making of sequences were severe: his son was re- n The potential perils of posting comments could be ‘a highly dan- moved from him and he was subjected online were highlighted recently gerous activity’.

Serious harm cases n Cooke v MGN No serious harm found over an article client choosing not to do business with it. The Court in the Daily Mirror after the newspaper published a cor- also drew inferences from the prominence of the publica- rection in a subsequent edition. This case appeared to set tion on Google search results. the ‘serious harm’ bar high. n Theedom v Nourish Training Ltd Again, after a n Ames v Spamhaus An allegation that the Claimants preliminary trial, serious harm was found in relation to were spammers was at least capable of causing serious 124 emails about the Claimant, alleging he had regularly harm, even if publication was relatively limited, and the supplied important commercially confidential informa- Claimants were based in California. This case appeared tion to his employer’s rivals and had been dismissed for to set the bar lower than Cooke v MGN. gross misconduct. Of the emails, 115 also said the De- n Lachaux v Independent Print Ltd After a two-day fendant was considering whether to take criminal action. preliminary trial on the issue, serious harm was found In this case, judicial concern was expressed about the costs over articles containing allegations including that the of serious harm preliminary trials of this nature. Claimant had been violent to his wife, caused her to flee, n Undre & Down to Earth Ltd v London Borough snatched their son back from her and falsely accused her of Harrow No serious financial was loss was found of kidnapping. This judgment was appealed and judg- where the evidence the company (a restaurant) pro- ment is awaited. duced was not sufficient to show loss of profits, and n Brett Wilson LLP v Persons Unknown A company in any event it had not proved that any such loss was was able to overcome the ‘serious financial loss’ thresh- caused by the publication rather than other factors, old that applies to corporate libel claimants. The firm is such as the owner’s conviction for offences relating to a boutique law firm and had evidence of one potential the welfare of his cows.

zoom-in Spring 2017 | 21 COPYRIGHT & IMAGE RIGHTS

Copyright permeates all aspects of television production, providing copyright owners with certain exclusive rights to do specific acts in connection with the copyright works that they own. Copyright protects people’s and companies’ creative endeavours so they can benefit and profit from their work. A television company making a programme for broadcast will own copyright in the film it is producing. Copyright enables the owners to earn money by licensing rights in the programme to others who wish to exploit it. At the same time, producers need to ensure that rights in copyright works included within programmes – so-called ‘underlying rights’, in music, archive, photographs etc – are properly licensed from whoever owns them, unless they can rely on one of the statutory defences to copyright infringement, such as fair 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 in television production.

US: Star trek infringement These include the stipulation that all fan films must be non-commercial, MCCARTNEY: FILING IN NEW YORK claim settles and that they last no more than 15 minutes, or two parts totalling no have assigned to others (for example n A copyright dispute between the more than 30 minutes. record labels) by serving a termination maker of a Star Trek fan film and the Peters and Axanar Productions notice. The Act provides that ‘[t]er- holders of the Star Trek copyright, CBS have reportedly agreed to make mination of the grant may be effected and Paramount, has settled shortly be- substantial changes to Axanar. The notwithstanding any agreement to the fore trial in the US. film will be much shorter than contrary’, meaning any contractual The elements of the film which it originally envisaged. agreement is overridden by the notice. was argued were subject to copyright When Duran Duran sought to included the Vulcan pointed ears, the rely on termination notices, EMI Klingon language and certain charac- US: McCartney sues Sony (also ultimately owned by Sony) took ters. Alec Peters had crowdfunded the over Beatles songs action in the English High Court, as making of a film, entitledAxanar , as Duran Duran had signed a contract well as a short filmPrelude to Axanar. n Sir Paul McCartney has begun a governed by English law. That court Unlike numerous amateur fan-fic films lawsuit in a New York federal court found that under English law the which have not attracted copyright against Sony/ATV, seeking to ensure contract took precedence and EMI suits, the film, which at- he regains the legal rights retained the rights. tracted over $1million to a number of The Bea- By filing in New York, Sir Paul is in crowdfunding, The tles’ songs, including seeking to have the case tried under was being made companies Ticket to Ride and US law. The rights in the Beatles back to a professional Let It Be. The legal catalogue were assigned by Lennon standard. published action appears to and McCartney to companies, and After fans guidelines setting out be an attempt to later a large share of the rights were expressed con- avoid what hap- famously bought by the late singer cerns, the com- what would be legal pened to Duran and entertainer, Michael Jackson. panies pub- Duran (see p6). Since his death, Jackson’s share has lished guidelines in fan-fiction The US Copy- been sold to Sony/ATV (who already setting out what productions right Act 1976 al- held some rights). would be legal in lows artists to regain McCartney began serving termina- amateur productions. control of copyright they tion notices in 2008, so the first will

22 | zoom-in Spring 2017 Kylie Jenner fails to trademark Kylie Jenner n Kylie Jenner has faced some hur- However, in January Ms Minogue’s cation, but it is clear that separate reg- dles in her attempts to register cer- team withdrew their opposition. It has istrations are being sought. A number tain trademarks related to her name been reported that a settlement was of Kylie trademarks exist at the US Pat- in the US. reached between the parties, although ent and Trademark Office. Some relate Ms Jenner initially applied to no details have been released. to Ms Minogue – including ‘KYLIE trademark “KYLIE” in relation to ad- Kylie Jenner has also applied to MINOGUE’ and ‘KYLIE MINOGUE vertising and endorsement services. register her full name “KYLIE JEN- DARLING’; others to Ms Jenner – in- This was opposed by Kylie Minogue’s NER” as a trademark for goods in- cluding ‘KENDALL & KYLIE’. Others management, who claimed that reg- cluding belts, bottoms, coats, dresses, have been registered by other individu- istering the trademark might cause footwear, gloves, headbands, head- als and/or entities entirely. confusion and dilute Ms Minogue’s wear, jackets, loungewear, scarves, Ms Jenner’s application in relation brand. They referred to Ms Minogue sleepwear, socks, swimwear, tops and to ‘KYLIE JENNER’ was refused be- long having been known worldwide undergarments. However, the US Pat- cause of the likelihood of confusion as Kylie, and already owning a num- ent and Trademark Office has rejected with existing trademarks, in particu- ber of Kylie-related trademarks; they the application. lar a registration relating to the same referred to Ms Jenner as ‘a secondary Many news outlets reported this re- product types for ‘KYLEE’. Ms Jenner reality television personality’. jection in relation to the ‘KYLIE’ appli- has lodged an appeal.

zoom-in Spring 2017 | 23 COPYRIGHT & IMAGE RIGHTS

take effect in 2018. In the period after songwriters, with the public able to Both courts said it was not 2008, according to the lawsuit, Sony/ by songs by digital download. The entirely clear how a case should ATV gave no indication that they op- show was pitched to Sky, but not be analysed where it is not alleged posed his rights – but after the Duran commissioned. Later the same year that the format was copied in its Duran decision, they indicated they Sky TV broadcast a show called Must entirety, but rather that a series might seek to use it against McCart- Be the Music. This show went of elements were copied, ney. The singer’s lawyers sought con- through a number of it- which overall is alleged firmation that Sony/ATV would not erations from pitch to amount to format take legal action against him over the (when it was called copying in breach termination notices, but they refused Got to Sing) to fi- Copying could of confidence. to provide this: hence the legal action. nal format. The However, neither Sony/ATV have accepted that the claimants alleged happen by virtue the trial judge termination notices are valid, so Mc- that there were a of subconscious nor the Court Cartney seeks a declaratory judgment number of similar- of Appeal felt it that exercise of his termination rights ities between Must memories necessary to set is not a breach of contract, and that the Be the Music and The out what the proper contracts are unlawful or unenforce- Real Deal, such that approach should be, able to the extent that they conflict Sky must have been con- so there remains some with his termination rights. sciously or subconsciously in- uncertainty in this area of Sony/ATV have expressed their fluenced by the confidential pitch for law. In this case, the Judge looked respect for McCartney, but said the The Real Deal. at each individual element before filing of the lawsuit is unnecessary and The Judge found that although looking at combinations of them. premature. there were similarities, and the for- Cases such as this can be tricky mat for The Real Deal was confiden- for both sides. The claimants clearly tial information, Sky had shown that felt the similarities were too great to TV show format copying the elements of Must Be the Music be a coincidence. Indeed, one person case fails had been created independently. The to whom they had pitched the idea Court of Appeal declined to interfere at another company congratulated n At the end of last year, the co-cre- with the findings of the Judge, based them when Must Be The Music was ators and producers of a proposed TV as they were on evidence from a num- broadcast, as he assumed it was the show failed in a claim against Sky TV ber of witnesses, and his overall as- same show. Broadcasters will want that alleged format copying. The claim sessment of all the aspects of the case. to bear in mind that such copying was brought as a breach of confidence The case is a reminder that breach can be subconscious. However, claim over an idea for a music talent of confidence in terms of copying in this case, Sky was able to show show. An appeal has now also failed. does not need to be deliberate – it enough evidence of the independent The claimants in the case came could happen by virtue of subcon- development of Must Be the Music to up with the idea of a show called scious memories of seeing confiden- persuade the Judge to decide in its The Real Deal, featuring singer- tial information. favour.

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.

24 | zoom-in Spring 2017 PRIVACY & DATA PROTECTION

cludes media and production companies, Since the Human Rights Act 1998 came into force, English law has should ensure they have the necessary developed a legal right to privacy. The courts can and will intervene to registrations in place and up to date. protect privacy rights where they are infringed without justification. This is commonly referred to as ‘misuse of private information’. Taking customer lists Personal information is also protected by the Data Protection Act, so to new job results in journalists and programme-makers need to be aware of, and comply conviction with, its rules as it applies to them. In this section, we report on some n The ICO has warned that people recent privacy and data protection decisions of note. should think before taking customer and client lists with them when BBC defends Sir Cliff changing jobs. Doing so is likely to be a breach of the Data Protection Richard case Act 1998 and could result in a n The BBC is defending the claim criminal conviction. brought against it for invasion of pri- On 18 January, Rebecca Gray vacy and breach of data protection ob- pleaded guilty to an offence of unlaw- ligations by Sir Cliff Richard. fully obtaining personal data under Sir Cliff is suing both the BBC and section 55 of the Act. Ms Gray had South Yorkshire Police over a police emailed the contact details of over search of his home which was televised 100 clients to her personal email ad- by the BBC in August 2014, includ- dress and then used them in her new ing using footage from a helicopter job. She pleaded guilty and was fined CLIFF: SUING THE BEEB over the property. The police action £200, and ordered to pay £214 pros- related to historical sexual assault al- under section 17 Data Protection Act ecution costs plus a £30 victim sur- legations that Sir Cliff always denied; 1998, which prohibits the processing charge. The court heard she had sub- the investigation has since been dis- of personal data without registration sequently lost her job. continued and the Crown Prosecution with the ICO. She pleaded guilty at It must be remembered that cus- Service confirmed in June that Sir Cliff Coventry Magistrates Court and was tomer lists, which are likely to in- will face no further action. fined £200. She was also or- clude names, phone numbers, The BBC has apologised for the dered to pay £439.28 pros- email address and/or oth- distress that it accepted had been ecution costs and a £20 All er contact details, con- caused to Sir Cliff, but stood by its victim surcharge. those stitute personal data coverage, saying there was a strong Ms Karthikesu processing under the Act. Tak- public interest in reporting criminal had failed to re- ing them with you investigations into prominent figures. spond to repeated personal data when you change The BBC also stated that it reported warning letters should ensure they jobs may not just Sir Cliff’s denials throughout. The from the ICO. be a breach of con- BBC’s defence denies that Sir Cliff is She said she had have the necessary tract and/or breach entitled to any damages or compensa- thought they were registrations in of confidence but tion. zoom-in will report further on spam and had not re- place also a criminal offence. this case as it continues. alised she was obliged to The case of Ms Gray is a register. Head of ICO enforce- reminder of how serious the ment Steve Eckersley said: ‘The mes- consequences can be. Business owner sage here is simple, if you are a busi- prosecuted over CCTV ness operating CCTV cameras you must be registered with the ICO… David Beckham emails n A newsagent has been prosecuted Being ignorant of the law and the reg- hacked – High Court for failing to register with the Infor- ulator is no excuse.’ mation Commissioner’s Office (ICO) The registration fee for most busi- injunction worthless when using in-store CCTV. nesses, payable annually, is £35. All n It seems the whole world got to know Kavitha Karthikesu was prosecuted those processing personal data, which in- about David Beckham’s hacked emails,

zoom-in Spring 2017 | 25 PRIVACY & DATA PROTECTION

which included alleged criticisms Beck- in Europe, and other newspapers in the ham had made of singer Katherine Jen- UK subsequently published stories. kins, and his apparent reaction to not The injunction was then varied to al- being given a knighthood - it is alleged low the Times to publish material that he referred to the Honours Committee was already in the public domain. as a ‘bunch of cunts’. Beckham would have a legal claim The emails were also reported to against the hackers and might also contain information about Beckham’s have a claim against those publish- tax affairs, which it was said were con- ing the material – possibly in breach sidered relevant when the Honours of confidence, misuse of private infor- Committee was deciding whether mation and under the Data Protection Beckham should be given a knight- Act. If an action were brought against hood. Representatives of Beckham said a publisher, they might seek to defend the emails were private and some were it on the basis that the material was al- ‘doctored’, while others were ‘heat of BECKHAM: NOT A KNIGHT ready in the public domain, and/or that the moment’ exchanges. emails is a criminal offence under sec- publication was in the public interest. The emails were leaked to the tion 55 of the Data Protection Act, and As some of the emails are alleged Football Leaks website. Beckham’s PR of course any blackmail attempt would to have been altered, a defamation company said it was the subject of a also be a criminal offence. In fact, claim might also be available in re- blackmail attempt, with the hackers Beckham had originally sought and spect of statements about Beckham said to have asked for €1 million not to obtained an injunction against Times based on the doctored parts of the publish the emails. Portuguese police Newspapers Ltd to prevent publication emails, which caused others to think are understood to be investigating. of material from the emails. However, worse of him and caused serious harm In the UK, illegally accessing the material was published elsewhere to his reputation. Data Protection & the ICO

n Data protection law protects ‘personal data’, which is credit card numbers (although they did not hold expiry any data relating to an identifiable living person. In addi- dates or CVV numbers). The company was fined because tion to individuals being able to sue under the Data Pro- it was found it did not have in place appropriate technical tection Act where their personal data has been misused, and organisational measures for ensuring, so far as possi- the Information Commissioner’s Office (ICO) operates a ble, that such an incident would not occur. Among other regulatory system of compliance with data protection laws. issues, the company had not encrypted the datasets prior The ICO has strong powers at its disposal, including the to loading them on the device. power to fine up to £500,000 for serious breaches of the • The British Heart Foundation has been fined £18,000 Data Protection Act. and the RSPCA £25,000 for secretly screening millions There is a specific statutory journalistic exemption, but of donors so they could target them for more money. media companies and individuals can still be fined for data • In November last year, the ICO fined a historical society security lapses. Accordingly, it is important that media £500 after a laptop containing sensitive personal data was companies have a corporate data protection policy in place stolen while a member of staff was working away from and that staff abide by it. Abbas Media Law advise clients the office. The laptop, which wasn’t encrypted, contained on all aspects of policy and procedure in order to minimise the details of people who had donated artefacts to the risk in connection with breaches of the Data Protection Act society. An ICO investigation found the organisation had and the ICO’s regulatory regime. no policies or procedures around homeworking, encryp- tion and mobile devices, which resulted in a breach of Other data breach news: data protection law. The lesson to be learned: have a data • The ICO has fined Royal & Sun Alliance Insurance PLC protection policy; apply it; and encrypt company laptops. (RSA) £150,000 for breach of the Data Protection Act, following the loss of the personal information of nearly • Credit broker Digitonomy Ltd has been fined £120,000 60,000 customers. A member of staff was permitted ac- by the ICO for being responsible for millions of market- cess to the data server room and stole a portable network ing texts sent without proper consent, in what was found storage device containing nearly 60,000 names, address, to be a serious breach of the Privacy and Electronic Com- bank account and sort code numbers; as well as 20,000 munications (EC Directive) Regulations 2003 (PECR).

26 | zoom-in Spring 2017 CONTEMPT & REPORTING RESTRICTIONS

was aged just 15. The incident started The law of contempt makes it a criminal offence for the media in a fight over a rugby ball. Gaze was to publish or broadcast comments or information that creates a convicted of causing grievous bodily harm with intent at Gloucester Crown substantial risk of serious prejudice to active UK legal proceedings, Court last year. in particular criminal proceedings heard before juries. Penalties After an application from local news for contempt can be serious: fines, even imprisonment. Many website Gloucester Live, the court lifted activities are capable of amounting to a contempt, including: a reporting restriction, allowing Gaze’s publishing seriously prejudicial material; obtaining or publishing identity to be revealed. The court accepted Gloucester Live’s details of jury deliberations; breaching reporting restrictions or submissions that it would be in the pub- a specific court order; making payments to witnesses; filming or lic interest for Gaze to be named, and recording inside court buildings without permission; and publishing that reporting would act as a deterrent. information obtained from confidential court documents in both A court, including the Court of Appeal, civil and criminal proceedings. has the power to lift a reporting restric- tion made under section 45 of the Youth Justice and Criminal Evidence Act 1999 Rapist’s girlfriend criminals are given lifelong anonym- if it is satisfied that it is an unreasonable ity. At present, children on trial for or restriction on the reporting of proceed- convicted for court filming convicted of a criminal offence generally ings and it is in the interests of justice cannot be identified: automatic report- to do so. n The girlfriend of a convicted rapist ing restrictions apply to children who has been convicted of contempt of court appear in Youth Courts, while for those for filming on her mobile phone. appearing in the Crown Court, a judge New Brexit claimants The woman, Patrice Brown, used may and generally will make an order granted anonymity her iPhone to film the police in- for anonymity under section 45 terview of one of her boy- Youth Justice and Crimi- n Four applicants hoping to challenge friend’s victims as foot- She nal Evidence Act 1999. the Government’s decision to leave the age of it was played claimed her However, this protec- European Economic Area have been to the court. She tion automatically granted anonymity in their judicial re- claimed her mobile mobile phone ends when the child view case. phone had malfunc- had malfunctioned reaches the age of The individuals, known as W, L, T tioned after being 18, and can be lifted and B, joined Adrian Yalland and Peter dropped in water, after being earlier by a judge. Wilding in bringing the case before the but the Judge found dropped in The report said High Court. The individuals’ request for there were ‘too many that being able to be anonymity was based on fears for their coincidences’ in the way water named at 18 risks under- safety. It comes in the wake of the abuse the recording of the 12-minute mining the child’s rehabilita- suffered by Gina Miller – the individual clip had been created. tion. The Ministry of Justice is said to who led the Brexit challenge that re- She was sentenced to three months’ be considering the recommendation. cently went to the Supreme Court. imprisonment, with the Judge stating The Judge said the four had put for- that ‘a message needed to go out to the ward a ‘very strong case’ for anonymity. public. Separately, a man was sentenced Teenager who stamped on The High Court has inherent jurisdic- to 28 days in prison for contempt of 13-year-old’s head can be tion to grant an order protecting indi- court at Cardiff Crown Court. David vidual rights. The High Court has since Davies had live-streamed to Facebook as named refused the four permission to proceed a witness gave evidence. It is a contempt n A teenager who stamped on a with the case – judicial review claims of court to take photographs of, or film 13-year-old boy’s head can be named have a permission stage before a full court proceedings. It would also be a after the Court of Appeal lifted a report- hearing. Although reasons have been re- contempt of court to identify the victim ing restriction. served, it is understood that the Court or alleged victim of a sexual offence. Calen Gaze, now 17, stamped ‘re- suggested the challenge was premature In other court anonymity news, a peatedly and viciously’ on the head of as the Government had not yet made the report has recommended that child the 13-year-old boy when he himself relevant decisions yet.

zoom-in Spring 2017 | 27 continued from page 1 ing an editorial code. utilising both users and outside fact- Add to this allegations that Rus- As well as regulation, of course, checkers; in January it was announced sia sought to sway the US election by there’s the law. Publish something that Germany, with its forthcoming flooding the internet with pro-Trump/ inaccurate that causes an individual general election, will be the first coun- anti-Clinton fake news, and rather or company serious harm, and you’re try outside the US to benefit. quickly a sense of paranoia spread likely to face a defamation claim, po- In the UK, various investigations across Western democracies. The sense tentially leading to reputational dam- are under way, notably a parliamenta- now, particularly in some European age or financial ruin. ry inquiry by the Culture, Media and capitals, is that governments need to Most of the UK’s mainstream me- Sport Committee. Its chair, Damian catch up, understand the problem, and dia have opted to apply the same edi- Collins MP, described fake news as a do something about it. torial standards online as they do their ‘threat to democracy’ that ‘undermines This paranoia stems in part from principal methods of dissemination. confidence in the media in general’. the fact that the checks and balances But the mainstream media are not the A more formal system of self-regu- that apply to traditional media simply problem. Virtually anyone, in Britain, lation appears the most likely outcome do not exist for much of what is pub- Russia, Macedonia or wherever, can - no doubt this would be the preferred lished online. The mainstream media, publish material that can be shared model of the internet companies. But be it print or broadcast, is constrained around the world instantly. The fake will this satisfy increasingly loud calls by a whole array of rules. news story that Pope Francis had en- for decisive action? Some in Germany, In the UK, for example, broadcast- dorsed Donald Trump for President, for example, are mooting large fines ing is licensed, and with a licence come for example, had almost 1 million Fa- for internet companies that distribute strict conditions. Numerous codes of cebook engagements, according to re- fake news; European commissioner practice ensure that what is broadcast search by Buzzfeed. How do you even Andrus Ansip recently warned that is accurate, impartial and fair. Make trace a blogger in a remote Balkan vil- internet media companies must take a mistake, breach the codes, and you lage? If you manage it, what do you a stronger stance or face action from will be called out for it. Ofcom will do then? Brussels, telling the Financial Times investigate, publish its findings to The answer would seem to lie with that this could be a ‘turning point’ for the world at large, and if it is a seri- the internet monoliths that control online platforms. ous breach, impose a large fine. The the flow of information across the web. Whatever happens, one thing is mainstream print media also works to After a somewhat recalcitrant start, in sure: fake news is set to remain as one stringent editorial standards, with the recent months they have started mak- of the big media stories of the year. vast majority in the UK signing up to ing moves. Facebook has announced zoom-in will continue to report on de- a system of self-regulation and apply- measures to flag ‘disputed’ stories, velopments. 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