Media law news from Abbas Media Law zoom-inWinter 2019 BLACKS CLUB: STILL GOT IT

DEPP V HEARD LIBEL BATTLES CONTINUE

GOOGLE WINS RIGHT TO BE FORGOTTEN SEINFELD APPEAL SEES OFF COPYRIGHT CLAIM DUKE AND DUCHESS LAWYER UP HARRY AND MEGHAN TAKE ACTION

EXCLUSIVE INTERVIEW NATIONAL TREASURE CHRISTOPHER BIGGINS IN THIS ISSUE

WINNERS & LOSERS DEFAMATION Heard fi ghts for disclosure of Singer Daniel Johns sues Sydney’s documents from Depp ...... 4 Sunday Telegraph ...... 12 Seinfeld successful in Comedians in Netfl ix Panama Papers fi lm airs despite Cars claim ...... 4 legal action ...... 12 BBC agrees to pay Sir Cliff £2m ...... 4 Judge pauses arbitration order in Leaving Neverland claim ...... 12 Google wins key European de-listing case ...... 6 Woman sued for sending WhatsApp messages to family ...... 14 MEDIA HAUNTS Netfl ix defeats Narcos copyright claim ...... 7 Appeal heard in Geoff rey Rush libel Still got it: how Blacks Club is case ...... 15 recapturing its 1990s magic ...... 24

REGULATION – OFCOM, ASA & IPSO BUSINESS AFFAIRS & RIGHTS PRIVACY & DATA PROTECTION Ofcom calls for greater BBC Abbas Media Law’s production legal Meghan Markle sues Mail on transparency ...... 8 schedule, setting out the fi ve key Sunday ...... 26 stages of TV production and the Katie Price Instagram post breached legal issues producers must Ben Stokes and mother sue CAP Code ...... 9 consider. In this issue, we focus on The Sun ...... 26 presenter agreements ...... 16 BEN TV fi ned over ‘Free Miracle Spring Prince Harry phone-hacking claim .. 27 Water’ claims ...... 10 Reality show contestant awarded COPYRIGHT & IP RIGHTS 27 Duke and Duchess of Sussex win IPSO compensation ...... complaint ...... 11 Ariana Grande lookalike claim suff ers Estate of Sir Bobby Robson issues setback ...... 18 phone-hacking claim ...... 28 BBC set to dismiss Labour Panorama complaint ...... 11 Florence Foster Jenkins screenplay dispute – new trial ...... 19 CONTEMPT & REPORTING Katy Perry sued over Clinton photo ... 20 RESTRICTIONS Taylor Swi£ copyright battle BBC overturns production order continues ...... 20 relating to journalist’s note ...... 29 Fair dealing advice ...... 20 Journalist spared jail a£ er recording court hearing ...... 29 20 QUESTIONS New guidelines for family court reporting ...... 30 Jungle monarch and showbiz veteran Christopher Biggins on champagne, Youth anonymity orders to cover all

Featurefl ash Photo Agency / Shutterstock.com Featurefl panto and HM The Queen ...... 22 forms of publication ...... 30

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

2 | zoom-in Winter 2019 WINNERS & LOSERS

JOHNNY DEPP MUST PROVIDE DRUG AND ALCOHOL RECORDS IN HIS ONGOING DEFAMATION CASE WITH EX-WIFE AMBER HEARD – SEE PAGE 4 Featurefl ash Photo Agency/ Shutterstock.com ash Photo Agency/ Featurefl

zoom-in Winter 2019 | 3 WINNERS & LOSERS

Our quarterly round-up of high-profi le legal winners and losers

(US) Heard fi ghts for proceeding in London, over an article October 2011, but the working rela- disclosure of documents about Depp that was published in tionship between the two broke down The Sun. That case is due to be heard over the credit and compensation he from Depp in 2020. would receive. ■ The US Court battle between One of Heard’s attacks on Depp in Charles sought ownership and Johnny Depp and Amber Heard has Virginia is that he has not disclosed royalties, but Seinfeld wanted him become focused on arguments about documents that he is relying on in to direct episodes on a work-for-hire the disclosure of information relating the English proceedings. Aggressive basis, and the director had no further to Depp’s past. demands for disclosure are a typical involvement after the pair parted ways Depp sued Heard in Virginia, means of putting pressure on claim- in 2012. where neither of them live, in March ants in litigation. It seems likely that Charles then waited until December over an anti-domestic violence article one or both of the claims, which have 2017 to issue his claim for copyright Heard wrote for the The Washington become a key battleground in the ‘Me infringement. This delay was fatal Post in December 2018. He is seeking Too’ and ‘Time’s Up’ movements, may to his claim, explained the judge: $50 million (£38.9m) in damages. be resolved next year. ‘Because Charles was on notice that his Heard previously failed to have ownership claim had been repudiated the case moved to California. She then since at least 2012, his infringement applied to have the claim dismissed (US) Jerry Seinfeld claim is time-barred. His joint author- on the basis that Depp had failed to successful in Comedians ship claim is also time-barred for the allege a truly actionable statement. same reasons. And his request for an This was followed by a successful in Cars claim injunction fails, because it was prem- application for an order granting ■ Comedian Jerry Seinfeld has seen off ised on Charles’ assertion that he is the Heard’s legal team access to any a copyright infringement claim by an sole owner.’ information about Depp’s alleged use erstwhile collaborator over the rights Seinfeld’s attorney called the ruling of narcotics and treatment for drug to his successful Netfl ix show Come- ‘a complete vindication’, saying in a and alcohol abuse. dians in Cars Getting Coffee. statement: ‘Jerry created Comedians in To date, Depp’s team has not A judge in Manhattan has ruled Cars and this lawsuit was nothing but produced all of the document sought that the claim by Christian Charles a money-grab seeking to capitalise on by Heard, prompting a further appli- relating to his involvement in the the success of the show. We are pleased cation to the court by Heard. show, in which a different guest come- that the court saw through the noise Heard has also subpoenaed The dian joins Seinfeld in each episode, and dismissed the case.’ Mandel Group, Depp’s business is barred by the three-year statute The litigation came at a time of management fi rm from 1999 until of limitations which applies to such increasing recognition for the show, 2016, making an application in Los claims in New York. following its move to Netfl ix in 2018. Angeles for records of ‘payments on Charles had worked with the The application of strict rules Mr Depp’s behalf to conceal comedian and star of the epon- regarding limitation shows the acts of violence, payments ymous sitcom since 1994, importance of acting swiftly to resolve to witnesses who and had previously a legal dispute, rather than waiting observed Mr directed adverts until it is clear how valuable any Depp’s violence Depp is seeking featuring Seinfeld, claim might be. and/or helped $50m in damages as well as the 2002 cover it up, over an article Heard road-movie docu- and incidents mentary Comedian. BBC agrees to pay Sir Cliff of violence by wrote for The He claimed that £2m in legal costs Mr Depp’. Washington Post he had pitched the Depp has concept for Comedians ■ The BBC has settled Sir Cliff Rich- consistently denied in Cars to Seinfeld in ard’s legal costs bill in his privacy any suggestion of wrong- 2002 as Two Stupid Guys in claim against the corporation for doing. A separate defamation a Stupid Car Driving to a Stupid around £2m. case involving Heard and Depp is also Town. He then directed the pilot in The sum is in addition to the

4 | zoom-in Winter 2019 JERRY SEINFELD HAS SEEN OFF A CLAIM BROUGHT BY A FORMER COLLABORATOR OVER RIGHTS TO HIS NETFLIX SHOW COMEDIANS IN CARS GETTING COFFEE – SEE OPPOSITE Stock Photo MediaPunch Inc / Alamy

zoom-in Winter 2019 | 5 WINNERS & LOSERS

costs that he has not sought to recover tion of a €100,000 (£85,700) fine on from the parties.’ Google by the French information The BBC said it was ‘pleased’ to regulator CNIL. have reached ‘an amicable settlement’ In 2014, the ECJ made its now and that ‘the BBC’s costs are within well-known decision in the Google the scope of our legal insurance’. Spain case, which introduced the The ruling in Sir Cliff’s favour saw ‘right to be forgotten’ in relation the judge conclude that, as a matter of to the de-listing of links available principle, a suspect has a reasonable through Google to information that expectation of privacy in relation to a is inadequate, irrelevant or no longer police investigation and that was not relevant, or excessive in the light of the outweighed by the BBC’s freedom of time that has elapsed. expression rights in this case. Following Google Spain, the There has been media criticism of company had in certain circumstances the case as threatening press freedom. de-listed results relating to particular Although it refl ected the general internet domains such as .co.uk or .fr. direction of travel of the law in this In 2015, CNIL ordered the fi rm area, the judge’s decision has made the to globally remove links to pages media wary of reporting police inves- containing damaging or false informa- tigations and arrests and has shifted tion about a person. In 2016, Google the balance of reporting in favour of went a step further than its domain- suspects’ privacy. based approach, introducing a geo-

Featurefl ash Photo Agency / Shutterstock.com Featurefl The result has been that the justi- blocking feature, which prevented SIR CLIFF: AWARDED £2M IN COSTS fi cation for identifying the subject of a users in Europe from being able to see £210,000 in damages he won following police investigation will usually need de-listed links. a High Court trial in July 2018, and to be considered carefully before they However, the fi rm would not agree the £315,000 in costs the BBC paid to are named. to prevent access to search results by South Yorkshire Police. The corpora- internet users in other parts of the tion has not disclosed the extent of its world outside Europe, and challenged own legal costs. Google wins key European the fi ne that the CNIL sought to The South Yorkshire Police raided case on global de-listing impose as a result of its refusal. the singer’s Berkshire home in August The ECJ sided with Google, holding 2014 in the course of an investigation ■ The highest court in the EU has that the right to be forgotten, now into an allegation made by a man who ruled that Google does not have to enshrined in the General Data Protec- claimed he was sexually assaulted by make European decisions over the tion Regulation (GDPR), did not Sir Cliff in 1985. ‘right to be forgotten’ effective around require a search engine to carry out a The singer consistently denied the the rest of the world. request for de-listing on a global basis. claims, was never arrested or charged, This important deci- The court said that ‘the and the case was ultimately dropped. sion means that balance between the However, the broadcaster fi lmed the the internet giant right to privacy and raid and showed footage taken from will not have to The judge the protection of a helicopter, including aerial shots in take down links personal data, on which the inside of Sir Cliff’s home to search results ruled that Sir Cliff the one hand, could be seen, on news bulletins across all of the had a reasonable and the freedom throughout the day. various global of informa- The star’s representative said: ‘Sir versions of its expectation of privacy tion of internet Cliff incurred these costs over a fi ve- search engine, in relation to the users, on the year period as a direct result of the where it has other, is likely to actions of the BBC and South York- agreed or been police investigation vary signifi cantly shire Police. He is of course glad that ordered to do so around the world’ an agreement about costs has now been in Europe. and that EU law did reached. Ultimately, however, Sir Cliff The European not provide any mecha- is substantially out of pocket (a seven- Court of Justice (‘ECJ’) was nism for balancing those inter- fi gure sum), not least because there are hearing an appeal from the imposi- ests outside its territory.

6 | zoom-in Winter 2019 The right to personal data, the court held, was ‘not an absolute right, but must be considered in relation to its function in society and be balanced against other fundamental rights, in accordance with the principle of proportionality’. Google’s senior privacy counsel, responding to the judgment, said: ‘Since 2014, we’ve worked hard to implement the right to be forgotten in Europe, and to strike a sensible balance between people’s rights of access to information and privacy. It’s good to see that the court agreed with our arguments.’ While the case is a signifi cant victory for Google, it continues to face the challenging prospect of global de-listing orders. The ECJ made clear that it does not prohibit global de-listing orders by national authorities where appropriate, and referred to the possibility of legis- lation requiring a de-listing on all / Shutterstock.com DFree versions of a search engine. STEPHANIE SIGMAN, WHO PLAYS VALERIA VELEZ IN NARCOS The enforcement of the right to The production company behind Palace in Flames’, was approached be forgotten will remain a battle- the Netfl ix show admitted for the by the court in a similar way: the ground between Google and Euro- purposes of the litigation that it had similarities between the memoir pean privacy regulators. access to Vallejo’s memoir during and the relevant scenes were not the writing and making of season protectable. one of the show and that there More generalised arguments, that (US) Netfl ix defeats was factual copying of portions of the Narcos infringed the themes of power Narcos copyright claim book. and manipulation that were present in The complaint revolved in part the memoir, and its portrayal of Escobar ■ A copyright claim brought by around the depiction of a sex scene as a man who was both good and evil, Virginia Vallejo, a Colombian journalist entitled ‘Caress of a Revolver’ in the were also rejected by the court. and former girlfriend of drug lord Pablo series. However, the court found Pablo Escobar’s brother Roberto had Escobar, over the hit show Narcos, has that this did not attract copyright previously pursued a $1 billion claim been dismissed by a Florida Court. protection: ‘The only similarities against Netfl ix that he later dropped. Vallejo was the author of a memoir, between these two scenes are the The court’s decision in Vallejo’s Amando a Pablo, Odiando a Escobar blindfold, caressing with a gun, case underlines that a person who (Loving Pablo, Hating Escobar), and Plaintiff/Velez is aroused. has created a particular account of which described her relationship with These facts are not protectable. The events will not be able to assert the notorious Escobar, as well as how idea of a sex scene involving a gun intellectual property rights over a she cooperated with the authorities to is not protectable.’ subsequent version of that account, help prosecute a Colombian politician While Vallejo had argued that if it is only the events themselves and key cartel fi gures. her description of the scene included that are reproduced. In Narcos, Valeria Velez, played detail of ‘the setting, the sounds, The law in the US is similar in this by Mexican-American actress Steph- and her thoughts and feelings at the way to the approach taken in England anie Sigman, is a journalist who has time’ she could not point to any non- and Wales, where what can be protected an affair with Escobar while docu- factual portions of her memoir that is only that part of a work which contains menting the activities of the Medellín had been copied. elements that are the expression of the Cartel he led. The second scene, entitled ‘That intellectual creation of its author.

zoom-in Winter 2019 | 7 REGULATION – OFCOM, ASA & IPSO

Widespread support for Munchetty Ofcom regulates the content of all television and radio in the UK. saw the BBC’s Executive Committee IPSO is the main regulator for the press and magazine industry. defend the ECU’s position, but within a few days Lord Hall had overturned the The Advertising Standards Authority regulates advertising. All initial decision, writing in an email to the regulators adjudicate on complaints with reference to codes staff that ‘it was only ever in a limited of practice, with which those they regulate have to comply. The way that there was found to be a breach Ofcom Broadcasting Code is the main code relating to broadcast of our guidelines. These are often fi nely content, while IPSO judges complaints against the Editors’ Code. balanced and diffi cult judgements. But, in this instance, I don’t think Naga’s The ASA’s main codes are the BCAP Code for broadcast advertising, words were suffi cient to merit a partial and the CAP Code for non-broadcast advertising. Compliance with uphold of the complaint around the these codes is important. Regulators can impose penalties and comments she made.’ sanctions for non-compliance. Regarding privacy matters, the Ofcom was drawn into the saga regulatory codes also have wider legal significance because of after 18 complainants objected to provisions within the Human Rights Act 1998 and data protection the ECU’s decision and a further two complainants objected to the inter- legislation. The result is that the Codes have a bearing not simply vention by Lord Hall. Ofcom ulti- in a regulatory context, but also on how the courts should act mately concluded that the programme when making any order affecting freedom of expression and the was duly impartial and did not raise publication of journalistic, literary or artistic material. issues warranting investigation, but it then went on to criticise the BBC’s Ofcom calls for greater in racism… Now I’m not accusing handling of the matter. anyone of anything here, but you Both Ofcom and the BBC impose transparency around know what certain phrases mean.’ similar requirements for ‘due impar- BBC complaints process Walker said: ‘It feels like a tiality’ under Section Five of the thought-out strategy to strengthen his Broadcasting Code and Section Four of after Lord Hall reverses position,’ to which Munchetty replied: the BBC’s Editorial Guidelines. Ofcom decision to uphold Naga ‘And it is not enough to do it just to found that these amounted to ‘essen- Munchetty complaint get attention. He’s in a responsible tially the same standards for news position. Anyway, I’m not here to give presenters’ and said it had decided ■ Ofcom has called for the BBC my opinion.’ to give reasons for its assessment to to improve the transparency of its A viewer complained to the BBC, provide guidance to broadcasters. internal complaints process after the claiming the programme breached the Ofcom said it reached its decision Director-General, Lord Hall, reversed rules on due impartiality in the BBC’s in light of all the contextual factors, a decision to uphold a complaint Editorial Guidelines. The complaint such as the format of the programme, against BBC Breakfast presenter Naga initially referred to both presenters the nature of the exchange and the Munchetty following a public outcry. but focused on Munchetty specifi c remarks. The episode began on 14 July at the fi nal stage of the It noted that the Broad- when US President Donald Trump complaints process. casting Code requires tweeted: ‘Why don’t they go back and The BBC’s Execu- due impartiality on help fi x the totally broken and crime tive Complaints matters of polit- infested places from which they came’ Unit (ECU) Ofcom criticised ical or industrial in an apparent reference to Democrat partially upheld the BBC’s controversy and politicians Ilhan Omar, Alexandria the complaint, matters relating Ocasio-Cortez, Ayanna Pressley and fi nding that the handling of the to current public Rashida Tlaib. Guidelines ‘do not complaint policy, but empha- When discussing the tweet with allow for journalists sised that ‘due’ is co-presenter Dan Walker on BBC to... give their opin- an important quali- Breakfast three days later, Munchetty ions about the individual fi cation to the concept said: ‘Every time I have been told, as a making the remarks or their of impartiality, meaning woman of colour, to go back to where motives for doing so – in this case adequate or appropriate to the I came from, that was embedded President Trump’. subject and nature of the programme.

8 | zoom-in Winter 2019 Ofcom considered that a news item about language widely under- stood as racist does not require a broadcaster to refl ect an alternative viewpoint defending such language. It found that in this case, alternative viewpoints on the political debate surrounding Trump’s statements, and the specifi c language he used, were suffi ciently represented. In its decision, Ofcom noted that the ECU had not published the full reasoning for its decision and there had been public concern about the lack of transparency around the process. It said this highlights the need for the BBC to provide more transparency on the reasons for its fi ndings and it would be addressing this ‘as a matter of urgency’.

Instagram posts by Katie Price and Lauren Goodger found to breach CAP Code ■ Adverts for Boombod weight loss products posted on Instagram by TV personalities Katie Price and Lauren Goodger have been banned by the Advertising Standards Authority (ASA) for breaching the CAP Code. The posts, along with other mate- rial posted by the company on the social media platform, were found Stock Photo / Alamy WENN Rights Ltd to have promoted a dieting product NAGA MUNCHETTY: THE BBC PRESENTER WAS ACCUSED OF BREAKING IMPARTIALITY RULES in an irresponsible manner, to have @boombod’s 7 Day Achiever. It works sponsible in the context of an ad for an included claims about weight loss so well to decrease bloating and get appetite suppressant because the photo that are prohibited by the Code and rid of those late night cravings. This in it appeared to have been edited to to have exaggerated the product’s difference I’ve noticed from using this make the star’s waist look artifi cially weight-loss benefi ts. stuff is amazing.’ thin and was not representative of her Goodger and Price posted the Price wrote: ‘Getting loads of ques- real body shape. adverts, along with photos of them- tions about the @boombod program The ASA found that Price’s post was selves with the products, in early 2019. and how I like it, and it’s no secret. I also irresponsible because it included The photo of Goodger showed her can’t get enough of it! Quick & Easy apparent before and after photos of her in athletic clothing holding Boombod weight loss is great, but doing it in a in which she looked particularly slim, packaging with the text ‘BOOMBOD healthy way is key. These shots have creating the impression it was neces- WEIGHT LOSS SHOT DRINK a bunch of vitamins, use a clinically sary or advisable for people who were SENSATION 7 DAY ACHIEVER’. proved natural fi bre, contain zero laxa- already slim to use appetite suppres- The words ‘7 DAY ACHIEVER’ were tives and most importantly… they sants to lose weight quickly. also visible on Boombod product give results EVERY time!’ Both posts were also found to packaging in Price’s post. The ASA investigated after four breach the Code because by using the Goodger wrote: ‘Can’t believe people complained. It ruled that phrase ‘7 Day Achiever’ among other these amazing results I’ve gotten with Goodger’s post was particularly irre- things they included a claim about a

zoom-in Winter 2019 | 9 REGULATION – OFCOM, ASA & IPSO

rate or amount of weight loss in breach of Rule 15.6.6. By including references to weight loss without making it clear such outcomes could only be expected in the context of an energy-restricted diet, the posts also failed to accu- rately refl ect the health claims that are permitted for products containing glucomannan, one of the ingredients in Boombod products. As a result of these breaches, the ASA ordered that the posts must not appear again in the same form.

BEN TV fi ned £25,000 for broadcasting ‘Free Miracle

Spring Water’ claims ash Photo Agency / Shutterstock.com Featurefl ■ Ofcom has fi ned BEN TV £25,000 KATIE PRICE: INSTAGRAM POST BREACHED CAP CODE after it broadcast an episode of Peter tive status of the presenters meant that the potential harm to viewers Popoff Ministries in which followers of viewers were less likely to question was signifi cant because vulnerable the televangelist claimed that miracle its content, creating a material risk viewers with similar conditions may spring water had cured them of cancer. that the programme could improp- have interpreted the programme to The programme, broadcast at erly exploit the susceptibilities of the mean that conventional treatment was 10pm on 28 January 2018, included audience in breach of Rule 4.6. not necessary and may therefore have footage from religious services in the In addition, Ofcom concluded abandoned such treatment. USA and an on-screen banner which that the frequent invitations to order It noted that while there was read ‘Call now for your packet of ‘free miracle spring water’ in the nothing to suggest BEN TV had miracle spring water’. programme breached the prohibition made any gain from the breach, it had One woman said she had given on promoting products and services in been paid by Peter Popoff Ministries to birth to a daughter despite being told Rule 9.4 of the Code. broadcast the programme and this was her cervical cancer would prevent her After identifying these breaches, an important revenue stream. from having further children, another Ofcom notifi ed the licensee that it It also noted the licensee had said her 9.5-centimetre tumour had was considering a statutory sanc- demonstrated an ineffective approach disappeared, and a third claimed her tion because of the serious- to compliance, had no formal struc- kidney blockage and stomach cancer ness of the breaches. tured approach to ensuring disappeared after she rubbed the water It published that The staff responsible for on her body. further decision in compliance were aware Ofcom published its ruling on the October 2019. Instagram of the relevant rules programme in late 2018. It identifi ed Ofcom posts promoted a and, despite being three breaches of the Code. It found concluded that a aware of the potential the programme failed to provide fi nancial penalty dieting product in risks, failed to insti- viewers with adequate protection from was necessary to an irresponsible tute robust compliance harmful material in breach of Rule refl ect the serious checks. 2.1 because it did not challenge the nature of the manner Ofcom acknowl- testimonials or highlight the impor- breaches and to act edged that the licensee tance of conventional medical advice, as an effective incentive took timely and effective steps which could have persuaded viewers to for the licensee and other licensees to to prevent further breaches occur- abandon conventional treatment. comply with the Code. ring, and once alerted to the issue, It also found that the programme’s In reaching this decision, Ofcom ceased broadcasting the series. religious nature and the authorita- said it took into account the fact While BEN TV claimed that it had

10 | zoom-in Winter 2019 set up a dedicated compliance team for newspaper was aware there was no The programme interviewed its remaining religious programmes basis for the claim because their repre- various Labour activists and officials Ofcom said in its ruling that it was not sentatives spoke to the journalist who said they felt that senior party convinced such a team existed or that before publication. members had undermined their the channel’s approach to religious The Sun maintained that the efforts to tackle antisemitism. programmes differed signifi cantly to article came from a trusted freelance Labour rejected the claims and its standard compliance processes. journalist and was a faithful report alleged the programme failed to Ofcom noted that BEN TV had of concerns raised by staff about the meet the broadcaster’s standards breached the Code on six occasions changes. It also noted that the article because of its ‘tendentious and in the past, one of which involved included a prominent denial. politically slanted script; the a breach of Rule 9.4, meaning this In its ruling, IPSO said bias in the selection of was the second breach of that rule by the newspaper had ‘not interviewees; and the the channel. provided any direct Followers failure to identify As a result of these fi ndings, evidence’ of the of the TV the political affili- and after considering the fi nes it couple’s involve- evangelist claimed ations or records had imposed on other licensees in ment in the deci- of interviewees in the past, Ofcom determined that a sion and noted that miracle spring water a highly contro- penalty of £25,000 was appropriate. comments from staff had cured them of versial, sensi- BEN TV was ordered not to repeat were only speculation. tive and contested Featurefl ash Photo Agency / Shutterstock.com Featurefl the programme and to broadcast a ‘In these circum- cancer subject’ meant the summary of Ofcom’s fi ndings on a date stances, and where the programme was ‘a one- to be determined by Ofcom. complainants’ position had sided polemic’. The ruling is an important been made clear to the publica- The BBC defended the reminder of the importance of imple- tion in advance of the article being programme, saying it dealt with menting a robust compliance process published, there was a failure to take a topic of ‘undoubted public and the fi nancial – and reputational care over the presentation as fact of interest’ and featured ‘powerful – risks that can result when such a the claim that they had “imposed the and disturbing testimonies from process is not put in place. ban”,’ IPSO said. party members who’d suffered anti- As a result, IPSO concluded that semitic abuse’. The Sun had breached of Clause 1 Following the broadcast, the Party Duke and Duchess (accuracy) of the Editors’ Code of complained to the BBC’s Editorial of Sussex win IPSO Practice and ruled that the newspaper Complaints Unit. It has recently been should publish a correction on page reported that the ECU has fi nished accuracy complaint two and an online clarifi cation on considering the complaint and is due ■ Prince Harry and Meghan Markle The Sun homepage. to reject it. have won an apology from The Sun The Sun published the apology in If the BBC were to reject the after the newspaper claimed the couple late September 2019. It said, ‘We now complaint, Labour could also banned staff from using a car park in accept that the parking changes were complain to Ofcom, which could Windsor because it overlooked their not requested by the Duke and Duchess. investigate the accuracy of the new home. We are happy to correct the record and programme and other potential The article, published on 12 April apologise for any distress caused.’ breaches of the Broadcasting Code. 2019 under the headline ‘Not in As reported on page 8 of this Meg back yard. Parking ban for staff edition of zoom-in, the ECU recently near home’, claimed the couple had BBC reportedly set to came under fi re after Ofcom criti- ‘infuriated Royal Household staff at dismiss Labour Panorama cised its handling of an impartiality Windsor by banning them from using anti-semitism complaint complaint about BBC Breakfast a car park’ that overlooked their home presenter Naga Munchetty. at Frogmore Cottage. ■ The BBC’s Editorial Complaints If the BBC rejects Labour’s Harry and Meghan said the article Unit is reportedly set to reject a complaint in this case and Ofcom was inaccurate because the changes complaint from the Labour party decides to investigate Panorama, it were imposed by the Windsor Castle about the Panorama documentary ‘Is will be interesting to see whether it superintendent without any involve- Labour Anti-Semitic?’, which was comes to a different view or backs ment from them personally and the broadcast earlier this yet. the Corporation.

zoom-in Winter 2019 | 11 DEFAMATION

Fonseca, lawyers from now-defunct law The law of defamation protects the reputation of individuals and fi rm Mossack Fonseca, brought legal companies. Statements are defamatory if they adversely affect a proceedings against Netfl ix in Connect- icut. They claim the fi lm is defama- person’s or company’s reputation in the eyes of reasonable people. tory of them and could prejudice any A person or company can sue over defamatory statements in England criminal investigation or case against and Wales if they cause or are likely to cause serious harm to the them. They also allege infringement of person or, in the case of companies, cause or are likely to cause serious Mossack Fonseca’s trademark. The fi lm, fi nancial loss. Journalists – indeed, all those publishing content – need they say, portrays them as ‘ruthless, uncaring lawyers who are involved in to be aware of the law, and confi dent that what they are publishing is money laundering, tax evasion, bribery either not defamatory or, if it is, that they can avail themselves of one and/or other criminal conduct’. of the defences to defamation. Mossack Fonseca was at the heart of the Panama Papers saga, after over 11 million documents from the fi rm were (Aus) Singer Daniel Johns online version of the article has now leaked online, detailing the offshore been taken down. details of a number of high-profi le, sues Sydney’s Sunday Daniel Johns shot to fame aged 15 wealthy individuals. Telegraph over brothel with Silverchair’s fi rst album Frogstomp, The Laundromat stars Gary Oldman, allegations which sold three million copies Antonio Banderas and Meryl worldwide. Although Streep, and was directed ■ Silverchair frontman and former Silverchair are in ‘indef- by Steven Soderbergh. husband of Natalie Imbruglia Daniel inite hibernation’, The article It has been made Johns is suing the Sunday Telegraph Johns continues to available on Netfl ix over allegations that he frequented a make music both alleged that Daniel following a limited Sydney brothel called The Kastle. as a solo artist Johns visited the cinema release. The story, which appeared under the and in a series of Netfl ix called headline ‘King of the Kastle’, alleged collaborations. brothel for up to 18 the lawsuit a ‘friv- that Johns visited The Kastle for up He was married to hours a day olous legal stunt’ to 18 hours a day during the previous fellow Aussie singer aimed at censoring two weeks, so much so that staff were and actress Natalie free speech. It said any becoming fed up with him. Imbruglia between 2003 damage to the lawyers’ The article said that The Kastle and 2008. reputations had been caused specialises in BDSM, ‘brown showers’ As zoom-in recently reported, the long before the release of the fi lm, and ‘adult babies’. It was accompanied Sunday Telegraph’s sister newspaper, as a result of the publication of the by a photograph of Johns, which the the Daily Telegraph, lost another high- Panama Papers. newspaper said pictured him leaving profi le defamation case earlier this A judge ruled that there was the brothel. year after it was ordered to pay Oscar- no reason for the case to proceed in Johns’ lawsuit alleges the article winning actor Geoffrey Rush AUD$2.9 Connecticut and transferred it to the meant he was a pervert who had used million (£1.5m) in damages over arti- Los Angeles-area federal district court. the brothel so frequently it had become cles alleging he behaved inappropriately Netfl ix is based in California. his second home. He claims the article towards an actress alongside whom he has caused him economic harm, as well was appearing in a play. as being humiliating and hurtful. (US) Judge pauses Daniel Johns has denied the allega- arbitration order in tions, saying he has never visited the (US) Netfl ix Panama Leaving Neverland claim brothel and had never even heard of Papers fi lm airs despite it. This was confi rmed by The Kastle’s ■ A Californian judge who ordered owner ‘Mistress Scarlett’, who posted on legal action that a dispute between Michael Jack- Twitter that Johns had never been on ■ Netfl ix has released The Laundromat, son’s estate and HBO over Leaving the premises. a fi lm about the Panama Papers, despite Neverland be sent to arbitration has Johns says the Sunday Telegraph did legal action being brought in the US. agreed to pause his order to arbitrate not contact him before publication. The Jürgen Mossack and Ramón until HBO’s appeal to America’s

12 | zoom-in Winter 2019 NETFLIX HAS RELEASED PANAMA PAPERS FILM THE LAUNDROMAT, WHICH STARS GARY OLDMAN (ABOVE), DESPITE LEGAL ACTION Kathy Hutchins / Shutterstock.com Hutchins Kathy

zoom-in Winter 2019 | 13 DEFAMATION

Ninth Circuit Court is resolved. speech in the US, the litigation over falsely without respecting the sanc- Leaving Neverland focuses on the a historic contractual provision does tity of the Quran’. experiences of two men, James Safe- seem to be a vehicle for an exercise in The second message said: ‘When chuck and Wade Robson, who say reputation management. we confi rmed the level of his audacity they were sexually abused by Jackson to lie and that he had the audacity to lie when they were children. whilst holding the Quran in his hands, The singer’s estate issued a $100 Woman sued after sending we withdrew our case from court. I ask million (£77.7m) claim against HBO WhatsApp messages to God to be the judge – I say to you, my in February 2019, before the broadcast family members brothers and beloved ones that this the of the documentary, in an apparent Palestinian who is fi ghting to smash attempt to prevent it being aired. ■ A woman who sent messages about his brother. However, God’s love for It alleges that, in making and her brother-in-law to a family What- us is a blessing, for which we always distributing the documentary, and sapp group after he sued to gain posses- praise Him.’ omitting the estate’s denial of the alle- sion of her home has failed in her bid The third message said ‘My love gations against Jackson, HBO is in to have his libel claim against her and respect for the Al Sadek family, breach of a non-disparage- struck out. which I’m proud to belong to. I ask ment clause connected Suhad Subhi Sadik God to punish this Zionist who claims to the network’s Material had lived in the prop- that he is a Palestinian …’ 1992 agreement sent to a erty in London with The group contained 34 members to air a concert her husband for of Ms Sadik’s extended family who fi lm of Jackson’s small group of over 25 years until primarily lived in the Middle East. ‘Dangerous’ tour. people can her brother-in-law After seeing the messages, HBO is said took action to gain Ms Sadik’s brother-in-law sued to have promised still create possession of it and her for defamation, claiming the that it would not defamation she and her husband messages were malicious and false. ‘do any act that may moved out in 2017. Ms Sadik then sought to have the harm or disparage or risks After agreeing to claim struck out on the basis that cause to lower in esteem settle the case, Ms Sadik the messages were not capable of the reputation of [Jackson]’. sent a photo of her brother-in-law causing serious harm and the case As part of the claim, the estate to a WhatsApp group along with was an abuse of process. She also sought to compel HBO to arbitrate, three messages in Arabic. The fi rst claimed the court did not have juris- but the network said the provisions message said: ‘A photograph of the diction to hear the case because she of the 26-year-old agreement are no Zionist, Riad [ie, Ms Sadik’s brother- no longer lived in the UK. longer applicable. in-law], whilst he was arranging The court rejected Ms Sadik’s HBO’s attorneys also attempted to with the attorney how he can rob his arguments about abuse of process and have the case dismissed under Califor- brother’s house, whilst he had sworn serious harm noting that the allega- nia’s anti-SLAPP (‘Strategic Lawsuit on the Quran and before everyone tions were of a very serious nature Against Public Participation’) statute, which is intended to counter litiga- tion that seeks to chill free speech on public interest issues. The judge ruled that the statute does not apply to requests for arbitra- tion and ordered that the matter go to arbitration. HBO appealed to the Ninth Circuit Court and the trial judge agreed to pause his arbitration order until the outcome of the appeal is known. Given that Jackson is dead and cannot bring a personal claim to protect his reputation, and in light of Joe Seer / Shutterstock.com THE DISPUTE CONTINUES OVER HBO’S LEAVING NEVERLAND DOCUMENTARY the generous protections given to free

14 | zoom-in Winter 2019 and it was relevant when considering the prospect of serious harm that the messages were targeted at family members of the brother-in-law who may have thought there was some substance to the accusations because they were made by his sister in law. The court also rejected Ms Sadik’s argument about jurisdiction, fi nding that even though she had been a resi- dent in, Kuwait since 2000, it was at least possible that she also continued to be resident in and have substantial connections with, the UK at the point her brother-in-law issued his libel claim against her. The case is a reminder that material which is only sent to a small group of people can still create potential defa- mation risks – even when the recipi- ents are family members of the sender.

(Aus) Appeal heard in Geoffrey Rush libel case ■ An appeal in the long-running defamation dispute between Oscar- winning actor Geoffrey Rush and the Daily Telegraph has taken place in Sydney. Nationwide News, the publisher of the Daily Telegraph, sought to appeal the fi nding that it defamed Rush in November 2017 in reports that he engaged in ‘inappropriate behaviour’ towards actress Eryn Jean Norvill during a 2015 production of King Lear. It also appealed the size of Rush’s AUD$2.9 million (£1.5m) damages / Shutterstock.com DFreek award, which included compensation GEOFFREY RUSH: DEFAMATION DISPUTE GOES TO APPEAL for loss of future earnings. and inference to fi nd Rush was unable He maintained that Rush testi- The Telegraph had initially indi- to work because of his state of mind fied about the devastating effects cated that one of its grounds of following the publications and had the publications had had on his appeal would be that the conduct of had fewer job offers since then. mental state while other evidence the proceedings by the trial judge Rush’s lawyer rejected the submis- supported conclusions that he was ‘gave rise to an apprehension of bias’. sion that the trial judge did not hear unable to work and had received It ultimately abandoned that claim any evidence that Rush was unable fewer job offers. before the appeal began. to work and said the judge was ‘well The two-day appeal took place in During the appeal, the publisher’s and truly justifi ed’ in concluding early November. Judgment is reserved lawyer told the court that the trial that the Oscar-winning actor was and it is unclear when the outcome judge ‘cobbled together’ speculation unable to work. will be known.

zoom-in Winter 2019 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

undertaking hazardous activities, In every issue of zoom-in we examine the commercial, legal and regulatory consider taking out personal accident hoops programme-makers have to jump through to get their programmes insurance, and including specifi c safely to air. Our production legal schedule above sets out the fi ve key clauses in the agreement. The agree- stages of production which producers need to consider and the advice and ment should normally detail the limits of any such insurance and key expertise they are likely to need at each stage. In each issue, we focus on policy terms, and include a warranty one or two particular aspects of production legal requirements. that the presenter will do nothing to invalidate the insurance. If the agreements: an assignment of all presenter has personal insurances, Presenter Agreements rights in the products of the present- the agreement should explicitly ■ Television presenters’ agreements er’s services; a moral rights waiver; advise them to check these in order can be straightforward or remark- and the right to use the presenter’s to ensure that the work doesn’t inval- ably complicated, involving a lot of name, likeness and biography for idate them, and to confi rm that the negotiation. This normally depends publicity purposes. These are terms production company has no resulting on the type of programme. Where that broadcasters and fi nanciers will liability if it does. the presenter’s role simply consists require. The usual boilerplate clauses It is a good idea to include provi- of pieces to camera and narration, also don’t change much, although sions whereby the presenter acknowl- terms are normally simple; where a they do require updates from time edges that they are providing presenter must write material, travel to time, for example changes to data services of their own volition and in extensively, interview contribu- protection, anti-bribery and Project full knowledge of the risks involved. tors and/or be an authority on a Diamond wording clauses. Providing services for publicity can particular subject, more detailed If the presenter’s role includes be contentious, as most broadcasters terms must be agreed. unusual duties, it is sensible to do not expect to pay an additional fee Generally speaking, a number of specifi cally reference them in the for this, only expenses. Accordingly, terms remain the same in all presenter agreement. Where presenters are continued on page 31

16 | zoom-in Winter 2019 The zoom-in Television Production Legal Schedule

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

zoom-in Winter 2019 | 17 COPYRIGHT & IP RIGHTS

(US) Passing off – Ariana Copyright permeates all aspects of television production, providing Grande’s lookalike copyright owners with certain exclusive rights to do specifi c acts in claim against Forever 21 connection with the copyright works that they own. Copyright protects suffers setback people’s and companies’ creative endeavours so they can benefi t and profi t from their work. A television company making a programme ■ Ariana Grande has suffered a setback for broadcast will own copyright in the fi lm it is producing. Copyright in her false affi liation claim against enables the owners to earn money by licensing rights in the programme fast-fashion retailer Forever 21 after the company fi led for bankruptcy. Grande to others who wish to exploit it. At the same time, producers need to alleged that Forever 21 used her like- ensure that rights in copyright works included within programmes – ness in its branding to claim a false so-called ‘underlying rights’, in music, archive, photographs etc – are affi liation with her and was seeking properly licensed from whoever owns them, unless they can rely on at least $10m (£8.2m) in damages for one of the statutory defences to copyright infringement, such as fair violation of her right to publicity, false endorsement, trademark infringement dealing. Infringing others’ copyright is likely to result in you being and copyright infringement. sued for damages and may mean that your programme can’t be shown. The claim alleged that after the An understanding of copyright is therefore essential for those working star refused to agree to partner with in television production. Forever 21 in December 2018, the retailer launched a campaign that used a model who was a Grande lookalike wearing a high ponytail – the star’s signature look – and imagery from the video for Grande’s single 7 Rings, released in January 2019. ‘The resemblance is uncanny and Forever 21’s intent was clear: to suggest to the viewing public that Ms Grande endorsed Forever 21, its products, and was affi liated with Forever 21,’ the claim said. ‘Rather than pay for that right as the law requires, Defendants simply stole it by launching a misleading campaign across its website and social media platforms primarily in January and February 2019. ‘The campaign capitalised on the concurrent success of Ms. Grande’s album Thank U, Next by publishing at least 30 unauthorised images and videos misappropriating Ms Grande’s name, image, likeness, and music in order to create the false perception of her endorsement.’ Forever 21 initially said in response that it did not comment on pending litigation but was hopeful it would fi nd ‘a mutually agreeable resolution’. It subsequently fi led for bank- ruptcy in October 2019, and a judge

Tinseltown / Shutterstock.com Tinseltown then ordered that as a result, Grande’s ARIANA GRANDE: SETBACK IN LOOKALIKE CLAIM claim should be put on hold. Grande

18 | zoom-in Winter 2019 may attempt to pursue the matter as a creditor of the company, but the outcome is now less clear. In a similar action earlier this year, Kim Kardashian West won $2.7m (£2.1m) in damages after accusing Missguided USA of ripping off her outfi ts, claiming the brand doesn’t just ‘replicate the looks of celebrities’ but ‘systematically uses the names and image’ of stars to promote its website. Unlike in America, there is no right in English law to control one’s image, and false endorsement claims in England and Wales are usually brought on the basis that there has been ‘passing off’ by the defendant in giving the public the false impression that the claimant is affi liated with their goods. / Shutterstock.com Anton_Ivanov The best-known recent example FLORENCE FOSTER JENKINS: NEW TRIAL IN AUTHORSHIP DISPUTE was a case brought by Rihanna against between Julia Kogan, an opera singer, minating account of the law Topshop in which the singer succeeded and screenwriter Nicholas Martin concerning joint authorship, which in her claim for passing off over the about the authorship of the screen- is defined by s 10(1) of the Copy- sale of a t-shirt featuring a photo play, which became a successful fi lm, right, Designs and Patents Act 1988, taken from a video shoot for her Talk directed by Stephen Frears, and star- and set out a clear 11-step frame- That Talk album. Passing off claims ring Meryl Streep and Hugh Grant. work for analysing the issue. are quite often threatened (and some- Kogan and Martin lived together It considered the idea that joint times brought) against broadcasters when the idea of a fi lm based on authors must collaborate in the and television producers, particularly Florence Foster Jenkins – whose creation of a work and said that it where programmes incorporate an story both parties accepted had been is ‘logical to suppose that the skill established name or trademark within introduced to Martin through Kogan which goes into devising the plot the programme’s title. While often – arose and early drafts of the screen- is properly to be regarded as part of defensible on the basis that use of the play were written. creating the work’. mark is descriptive rather than being The trial judge concluded that The court went on to say that ‘a used to denote the origin or source Kogan’s contributions never rose collaborative work may thus come of the programme, advice should be above the level of providing useful into existence if, in the context of a sought at an early stage, particularly jargon, along with helpful criticism particular joint project, one person if the owner of the mark is known to and some minor plot suggestions, and decides on the plot and the other be litigious. were not suffi cient to qualify her as a writes the words to give effect to joint author. the plot’. In an unusual move, the Court of ‘There will be a panoply of other New trial ordered in Appeal reviewed and enlarged the ways of working as well, for example Florence Foster Jenkins factual background to the dispute, the labour of writing may be shared, screenplay authorship drawing on the parties’ evidence at or the labour of working out the plot, trial to fi ll out a more detailed picture scenes and characters may be shared.’ dispute of their roles in the creation of the It reinforced this analysis with ■ The Court of Appeal has set aside a screenplay. observations on the extent to which judgment which found that the then- The court also gave a detailed authorship is related to ‘the skill and girlfriend of the writer of Hollywood procedural history of the case, which effort involved in creating, selecting comedy drama Florence Foster Jenkins was litigated in IPEC, a court with or gathering together the detailed was not its joint author and has a special jurisdiction for intellectual concepts or emotions which the words ordered a new trial in the case. property cases. have fi xed in writing’ rather than The case involves a dispute It went on to give an illu- simply ‘who pushed the pen’ and that

zoom-in Winter 2019 | 19 COPYRIGHT & IP RIGHTS a ‘contribution’ to a screenplay might Reaching agreement on these legal Paparazzi photos can be valuable relate to ‘storyline and plot’. issues at an early stage in the process commodities and recently there have The court held that the trial will now be more important than ever. been a number of cases where celebri- judge had been wrong to fi nd that ties have been sued in similar circum- the parties had not collaborated on stances, after posting photos of them- the work involved in creating the (US) Katy Perry sued over selves to social media. fi nal screenplay from the preceding Hillary Clinton photo Justin Bieber, Ariana Grande drafts. It found that the judge should and Khloé Kardashian have all faced not have refused to look at witness ■ Pop star Katy Perry is being sued similar claims. Most cases have settled evidence, leaving the Court of Appeal after posting a photograph of herself and none has yet reached trial. zoom-in without the benefi t of essential fi nd- dressed up as former US presiden- will report any further developments ings of primary fact. tial candidate and First Lady Hillary in Perry’s case. It also found that the trial judge Clinton on her Instagram. should have made a specifi c fi nding as The paparazzi photo of Perry, with to whether there was a collaboration, her fi ancé, actor Orlando Bloom (who (US) Shake It Off copyright and his summary of Kogan’s contribu- was dressed as Bill Clinton), was taken claim to return to court tion failed to take account of signifi - at Halloween in 2016. Perry posted cant matters, including her contribu- it on her Instagram, with the caption ■ Taylor Swift is to return to court in tion to the shaping of Florence Foster ‘BILL & HILL 4EVA’ shortly after. the US after two songwriters success- Jenkins’ character and the plot. Katy Perry has over 80 million Insta- fully overturned a previous decision The Appeal was allowed and a gram followers. in which a judge had dismissed their new trial before a different judge was Now Backgrid, the photo agency copyright claim over the 2014 hit ordered. which says it owns the copyright Shake It Off. This is an important judgment for in the photo is suing Perry, seeking Sean Hall and Nathan Butler, who those involved in creative collaborations. $150,000 (£116,700) in damages for wrote Players Gon’ Play for US girl In focusing on the fact that a suffi - copyright infringement. group 3LW, claim Shake It Off infringes ciently detailed idea may attract copy- Copyright in a photograph rests with their copyright because it includes the right protection, it makes clear that the photographer, not the subject of the words ‘players gonna play’ and ‘haters contributing elements of a work such photograph, so a person needs permis- gonna hate’. as plot might give rise to an intellec- sion, or a licence, to republish photo- In February 2018 a US federal tual property right. graphs of themselves taken by others. court judge ruled that Hall and Butler did not have creative ownership over the phrases because he deemed them to Fair dealing advice be commonplace. ‘By 2001, American ■ Over the last decade, fair dealing rules have been used with increasing frequency popular culture was heavily steeped by programme-makers, both in news programmes when reporting on current in the concepts of players, haters, and events, and when reviewing or critiquing copyright works that it’s diffi cult or player haters,’ he wrote. ‘The concept impossible to license. In addition, in 2014, fair dealing rules were extended: of actors acting in accordance with there is now a specifi c defence when fair dealing with quotations as well as a their essential nature is not at all crea- defence of ‘fair dealing for the purposes of caricature, parody or pastiche’. tive; it is banal.’ Abbas Media Law’s Nigel Abbas is one of the country’s most experienced Hall and Butler appealed, and lawyers advising in this area. He has advised on many hundreds of hours of the appeal court agreed that the trial programming featuring fair dealing over many years. judge should not have had the sole Nigel is the primary author of Channel 4’s Producers Handbook fi nal judgment on the originality of and one of the primary authors of Channel 4’s fair dealing guide- the song, meaning the issue will be lines. Nigel updated the guidelines for Channel 4 in 2015 to incor- decided by a jury. porate advice and practical guidance on fair dealing with quotations A spokesperson for Swift said and for caricature, parody and pastiche. See Channel 4’s guidelines at Hall and Butler ‘did not invent these www.channel4.com/producers-handbook/c4-guidelines/ fair-dealing- common phrases nor are they the fi rst guidelines. Nigel advises many of the leading content producers working to use them in a song. We are confi - in this area. dent the true writers of Shake It Off If you need any advice on fair dealing, please contact Abbas Media Law at will prevail again.’ [email protected] or visit our website, abbasmedialaw.com. zoom-in will continue to follow the case when it returns to court.

20 | zoom-in Winter 2019 KATY PERRY: SUED

OVER 2016 HALLOWEEN / Shutterstock.com Tinseltown COSTUME PHOTO

zoom-in Winter 2019 | 21 20 QUESTIONS Biggins Un-Buttons… Star of stage and screen for more than 50 years, the inimitable What do you love most about Christopher Biggins has earned his position as a national your job? treasure. Everybody’s favourite Widow Twankey reveals why The people. I love my fellow actors, the directors, the designers and, of course, he’s gone off champagne, shares an unexpected insight the audience. They are the most impor- regarding HM The Queen and offers some sage advice to tant part. If the audience like you, they anybody considering a career in show business can make you, but if they don’t, they can break you. It’s the most marvellous profession for communicating with What gets you out of bed in the Favourite shop? people. There’s no other job like it. I’ve morning? Fortnum & Mason. It’s glorious. The been in the business for over 50 years I do need something cold and lubri- ground fl oor is always packed with and I still love it. cating in the morning and coconut tourists buying the various teas and water is the best thing. I used to love biscuits, but the rest of the store What advice would you give orange juice until I was told it’s like is reasonably quiet. Each fl oor is a someone starting out in show drinking a cup of sugar. treasure trove of wonderful things. business? Don’t do it. What keeps you awake Favourite drink? at night? Champagne used to be my favourite Which show are you most My Sky box keeps me awake because drink, but I’ve gone off it in a big proud of? I’m addicted to television. When we way. As I get older, I fi nd it too acidic I’ve been a classical actor, I was at the get in at night, after having been for my tummy. I love a good vodka RSC, I’ve been in wonderful dramas to a charity function, dinner or the martini made with Grey Goose. on television, wonderful comedies, theatre, I’ll sit and watch one or two I’ve done children’s shows, I’ve done hours of recorded programmes. How many hours a week do everything. When I read my CV, even you work? I am impressed. This might surprise Favourite TV show? Let’s see. I left the house today at you but the thing I liked doing most Succession. It’s loosely based on the 12.45pm. I’m in Salisbury now, was I’m a Celebrity... Get Me Out of Murdoch family. They are billionaires fi lming for The One Show until about Here! I just loved it. I won it and I am who go around in limousines, helicop- 10pm, then I’m going to Andover to King of the Jungle. Most importantly, ters and private jets but are a family in fi lm the Christmas Special of Michael I was put there by the public. turmoil. It’s the last episode tonight McIntyre’s Big Show and I’ll probably and I can’t wait. get driven home at about 4am. So Biggest showbiz pickle you’ve that’s at least 12 hours today. And got yourself into? Guilty TV pleasure? I do that about three times a week. I was doing a pantomime in Brighton The one that gets my partner Neil When I do pantomime, I do two at the Theatre Royal and my favourite very upset is the Ellen DeGeneres Show, shows a day, six days a week. That’s a part is always doing the song sheet with which is on every day on ITV2. I love really long day. the children. I had fi ve little darlings her to death. up on the stage. One young boy looked Who gave you your fi rst rather pale and I was a little bit worried Your favourite restaurant? career break? about him. I turned away from him for If I had to choose just one, I’d Reggie Salberg, the manager of the just a moment and then heard him go say The Delaunay on Aldwych. Salisbury Repertory Company. I was ‘Blargh!’ and he threw up all over the It’s fabulous and the staff are at school there and went along to the stage. I turned back and told him not wonderful. It’s big, it’s fun and you Salisbury Playhouse and said, ‘Can I to worry and at that very moment, he can hear people talk. I’m very lucky meet Mr Salberg, please?’ He offered threw up again. We were knee-deep in in that I can ring most restaurants me a job there and then: two weeks vomit. I then had to give the children at 9.30am and get a table for that playing a servant in She Stoops to their presents, get them off the stage lunchtime or evening. Conquer. I stayed for two years. and call the comedy policeman to come

22 | zoom-in Winter 2019 Pet peeves? Cyclists.

Biggest achievement in life? Making people laugh. Laughter is free, it’s one of the greatest joys and one of the greatest gifts that can be given. I’ve spent 80-85 per cent of my life laughing.

Last three websites you visited? Netfl ix because I just found out that the Sky package I’m with will pay for half of the membership. Amazon because even though I hate what it’s done to the high street, it’s so incred- ibly convenient. And Twitter. I love to tweet. For some unknown reason I have 92,000 followers.

When was the last time you cried? on and clear up the mess before we could I’ve met her, she’s always had a twinkle I cry all the time. I even cry at carry on. That’s show business. in her eye and she’s very, very funny. It commercials. I cried the other day would be wonderful to sit down and when one of our athletes won the What are you reading at the have a good old natter. gold medal. I love a good cry. moment? In the Closet of the Vatican by Frédéric If you could relive one moment Describe yourself in five words: Martel. It’s all about the gay scene in of your life, what would it be? Funny, gregarious, stylish, loveable the Vatican. It’s fascinating. Appar- I would go back to when I was playing and let’s see, oh go on… sexy! ently it’s practically the norm to be Nero in I, Claudius for the BBC. It gay in the Vatican. was a fantastic experience because it If you could retire tomorrow, was such a brilliantly written part. what would you do? Favourite place to have fun? When the series fi rst went out, it was I would travel the world. Like the My godchildren’s house in Oxford- considered a fl op and then halfway true Sagittarius that I am, I would shire. I go there for Christmas every through fi lming our episodes, the take out my bow and arrow and year. They’re a really fun family. They critics turned around and said, ‘We’ve wherever the arrow landed, I would have a beautiful house with a gorgeous made a big mistake. This is brilliant go. And if I were rich enough, I swimming pool, and the eldest son is television. It’s like a Roman Corona- would fl y everywhere fi rst-class. I’m a marvellous cocktail-maker. We eat a tion Street.’ We were all as high as kites too old to travel now without a bed. lot, drink a lot and don’t stop laughing. [at that]. It was probably the best performance I have ever given and the What would you like to be First record you ever bought? reason for this is simple: I was Nero reincarnated as? You’re A Pink Toothbrush, (I’m A Blue in a previous life. This I know because After my death I want to come back Toothbrush) by Max Bygraves. everything about him, I fell into. It as a Four Seasons Hotel. was quite fantastic. Most used expression? Christopher Biggins stars as Widow ‘Darling, how lovely to see you!’ If you could change one thing Twankey in Aladdin at the Churchill about yourself, what would it be? Theatre, High Street, Bromley, BR1 Dream dinner-party guests? Well, I’m very happy with my shape 1HA from Sat 7 Dec 2019 to Sun 5 I’ve met her many times but I would and size but were I to be given a Jan 2020. Tickets are available now by love to have dinner à deux with Her wish, I would love to have David visiting churchilltheatre.co.uk Majesty The Queen. On the occasions Beckham’s body. Paul Hunwick

zoom-in Winter 2019 | 23 MEDIA HAUNTS: BLACKS CLUB BACK TO BLACK Blacks enjoyed a reputation in the Nineties for being one of the more decadent Dean Street members’ clubs, but as Soho becomes increas- ingly commercialised, Paul Hunwick asks, what does the future hold for this well- known media haunt?

enedict Cumberbatch and Keira Knightley are rumoured to be Bmembers; Tom Hiddleston read poetry there; and more recently, the acclaimed British rapper Dave shot a video in the restaurant. Blacks Club, the Georgian townhouse that was once the home of Charles Fortnum (of Fortnum & Mason) and cultivated a reputation in the 1990s based on louche behaviour, is experiencing a revival. Roger Payne, 58, the entrepreneur behind the Camden Dining Group, and Luke Thomas, 26, who made headlines as the UK’s youngest head chef when he was just 18, acquired the club in 2017 for a reported £500,000 and are investing a further £500,000 in the place. ‘We bought it because we felt it was something special and important to Soho,’ says Thomas, speaking exclu- sively to zoom-in. ‘Soho has lost its edge in recent years. Rent hikes have round, unbreakable glasses, sometimes lunch, you have people fi nishing their meant that independent operators, who causing them to fall off wooden benches. fi rst or second bottle of wine and at add the real colour to these areas, get Today, helped by a collaboration with this time of year the fi res are going, the forced out. We want to keep Blacks as Italian design house Seletti and a theme windows are open slightly and you get the heartbeat of what Soho stands for,’ of ‘Wild and Wonderful Soho’, it’s a the sounds of Soho in the background. says Thomas. ‘We’ve already spent some more enticing space. ‘We’re planning a That’s what Blacks is all about,’ says money and will continue to do so over special drinks menu with Campari – the Thomas. They will be hosting a series the coming years, but we are not plan- deep red Negroni symbolises the spirit of supper clubs here. For Chinese New ningto give the club a “makeover”. It’s of Soho,’ says Thomas. Year they’re working with Duck Duck more about enhancing the original.’ The restaurant on the fi rst fl oor Goose from Pop Brixton and they’re The club is split over four fl oors. serves modern British cuisine passion- also bringing Café Habana over from The basement, known as ‘The Den’, is ately overseen by the prodigiously New York and Pikes from Ibiza. a lounge bar. In the Nineties, this is talented Thomas. (He launched his Sandwiched in the middle of the where you’d fi nd poets drinking exces- fi rst restaurant at 18 and published a club is a space known as The Boudoir. sive amounts of wine out of small, cookbook with Penguin at 20). ‘After It’s really just a small room adjoining

24 | zoom-in Winter 2019 One of the keys to Blacks’ success in the Nineties was that if you turned up with more than the allowed number of guests, you’d probably all get in. Also, the wine was cheap. Most members drank the better stuff but the smart thing about having a cheaper wine available was that it made it afford- able for young people, who brought vitality to the place. Even today, you can get a decent house white from as little as £6 a glass. The thrill of Soho has always been its bohemian vibe and the characters it attracts. You might find yourself drinking at 1am with a famous artist, an actor or a drag queen. It’s a jamboree. Soho is a social equaliser. The impor- tant thing has always been that you’re sure to go home with a story. Even with recent changes to the area, Soho still has its risqué underbelly and remains the destination of choice for a night of

Lucy Thompson endless possibilities. the restaurant but the inclusion of a clubs. The people coming [to us] want Payne and Thomas have a great bed and curtains has made it the stuff to go back to being part of a what a love for Soho and a respect for the posi- of legend. ‘I’m far too young and would members’ club was set up to be. They tion Blacks Club has in its history. get far too embarrassed to repeat the don’t want to be part of a co-working ‘We don’t so much see ourselves as the stories I have heard about the bed but I space; they don’t want somewhere owners of Blacks,’ says Thomas, ‘but as will say that staff are trained to knock that’s all about fitness and wellbeing; custodians.’ With this attitude, Blacks before entering if the curtain is pulled they want a social club for like-minded Club looks set to remain at the heart of closed,’ says Thomas. people, with great food and drink.’ Soho for many years to come. The upper floor is a multi-use space. They host ‘drink and draw’ Blacks Club classes and music showcases organised 67 Dean St, London, W1D 4QH by the Society of the Golden Slippers Tel: 020 7287 3381 (named after the Cockney rhyming blacksclub.com History: Blacks was founded in 1764 when Samuel Johnson, David Garrick and Joshua slang for ‘tippers’ – a word used in the Reynolds decided to form a supper club. It was named Blacks Club as the antithesis to industry to represent artists about to White’s Club, London’s oldest gentlemen’s club break through). It’s where Sam Smith Annual membership fee: £525 per year + £250 joining fee. £300 per year for gave his first live performance. under-30s London has never had so many What do you get for your money? Entry for you and up to three guests. Regular members’ clubs and they’ve reached a music events, poetry nights, private views and supper clubs. Dogs are welcome point where they are competing for the Opening hours: Monday–Wednesday: 9am–1am; Thursday–Saturday: 9am–1.30am; right kind of members – hip, younger Sunday: closed ones, in particular. So what can Blacks Phones: Are not encouraged. Laptops are only allowed on one floor and have to be offer that other clubs don’t? put away a™er 6pm Coming up: The Society of the Golden Slippers presents a musical showcase from Ren ‘Competition is strong,‘ says Harvieu and Archie Faulks on 16th Dec Thomas. ‘But the people who want to Don’t miss: The legendary Christmas Party join Blacks are often people who joined Look out for: The Hogarth prints on display by the staircase. Art is curated by Runway other members’ clubs in the days when Gallery and they are now showing work by Bruce Atherton, formerly a portrait painter at they were small and the person on the the Vatican door knew your name. That personal Power table: The Boudoir. Just remember to knock if the curtain is pulled across touch has gone in some of the bigger Looking to recruit? Yes. Tell them zoom-in sent you. Apply online at blacksclub.com

zoom-in Winter 2019 | 25 PRIVACY & DATA PROTECTION

overseen the phone-hacking litigation Since the Human Rights Act 1998 came into force, English law has against the Daily Mirror and The Sun. developed a legal right to privacy. The courts can and will intervene to Whatever the outcome, both the nature of the claim and the critical protect privacy rights where they are infringed without justifi cation. tone of Prince Harry’s statement This is commonly referred to as ‘misuse of private information’. suggest that the litigation will be Personal information is also protected by data protection laws, so a watershed moment in relations journalists and programme-makers need to be aware of, and comply between the Prince and his wife and with, its rules as it applies to them. In this section, we report on some the British media. recent privacy and data protection decisions of note. Ben Stokes and mother woman you’ve seen on this Africa tour. sue The Sun for breach of Meghan Markle sues The For these select media, this is a game Mail on Sunday over letter and one we have been unwilling to privacy to father play from the start.’ ■ England cricketer Ben Stokes and Lawyers instructed by the Duchess his mother Deborah have issued a ■ Meghan Markle, the Duchess of said: said: ‘We have initiated legal claim against the publisher of The Sun Sussex, has initiated legal proceedings proceedings against the Mail on for the invasion of their privacy in rela- against the Mail on Sunday over its Sunday, and its parent company Asso- tion to a front-page story that dredged publication of a letter she wrote to her ciated Newspapers, over the intrusive up details of an historic family tragedy. estranged father. and unlawful publication of a private The claim was issued in the The claim, an unusual move for the letter written by the Duchess of High Court at the end of September, Royal family, is being brought against Sussex, which is part of a campaign by less than two weeks after publica- the newspaper group in the Chancery this media group to publish false and tion of the story, which detailed Division of the High Court and will deliberately derogatory stories about events in New Zealand 31 years ago be privately funded by the couple. her, as well as her husband. surrounding the murder by Deborah Markle alleges that the publication ‘Given the refusal of Associated Stokes’ ex-husband of their two chil- of the letter was a misuse of private Newspapers to resolve this issue dren before he went on to kill himself. information, an infringement of copy- satisfactorily, we have issued proceed- Ben Stokes’ immediate response right and a breach of the Data Protec- ings to redress this breach of privacy, at the time of publication was to take tion Act 2018. infringement of copyright and the to Twitter to criticise the piece as ‘the The action was accompanied by a aforementioned media agenda.’ lowest form of journalism, focused robust statement from Prince Harry The Mail on Sunday said the only on chasing sales’, and to urge in which he said he had been a ‘silent newspaper ‘stands by the story it people to respect his family’s privacy witness’ to the ‘private suffering’ of published and will be defending this and right to home life. the Duchess and accused the tabloid case vigorously’. He wrote: ‘To use my name media of waging a ‘ruthless’ campaign ‘Specifi cally, we cate- as an excuse to shatter the that had ‘escalated over the past year, gorically deny that The privacy and private lives throughout her pregnancy and while the Duchess’s letter fact that of – in particular – raising our new-born son’. was edited in any information was my parents is utterly Prince Harry said coverage of their way that changed disgusting.’ recent tour of Africa, which has been its meaning,’ they once in the public But now Stokes largely positive, exposed ‘the double added. domain may no appears to be the standards of this specifi c press pack Because the longer be enough latest high-profi le that has vilifi ed her almost daily for claim was issued in claimant to respond the past nine months; they have been the Chancery Divi- to defeat a to unwanted tabloid able to create lie after lie at her expense sion, rather than in the claim coverage through the simply because she has not been visible Queen’s Bench Division’s courts, following action while on maternity leave’. specialist Media and Communica- taken against the publishers of the The Prince added: ‘She is the same tions List, which was formally estab- Mail on Sunday and the now-defunct woman she was a year ago on our lished on 1 October, the claim may News of the World by Meghan, Duchess wedding day, just as she is the same be heard by the same judge who has of Sussex, and Prince Harry.

26 | zoom-in Winter 2019 celebrities to bring such claims, but is one of the most high-profi le. In 2007, former News of the World Royal Editor Clive Goodman and private investigator Glenn Mulcaire were convicted in relation to hacking the phones of members of the Royal family. However, as the claims are against two major news publishers, it seems likely that the claims will be wider than simply focusing on the matter revealed in that criminal case. While it is unusual for members of the Royal family to bring legal claims, this latest development comes shortly after news that (as zoom-in reports on page 26) the Duchess of Sussex, Meghan Markle, has brought legal proceedings

Mitch Gunn/ Shutterstock.com Mitch against the Mail on Sunday in relation BEN STOKES: CRICKETER AND HIS MOTHER SUE THE SUN to the publication of a private letter The newspaper defended its privacy, including a recognition that she wrote to her estranged father. Both coverage at the time, saying: ‘The expectations of privacy may develop Prince Harry and Prince William, and Sun has the utmost sympathy for over time, mean that the mere fact their respective wives, have taken a Ben Stokes and his mother but it information was once in the public stronger stance than has previously been is only right to point out the story domain may no longer be enough to seen in terms of bringing legal action was told with the cooperation of a defeat a claim. in relation to breaches of their privacy. family member who supplied details, The Sun also referred in its state- Prince Harry has spoken out about provided photographs and posed for ment to a lack of objection to the press intrusion, in particular the treat- pictures. The tragedy is also a matter story when Stokes was contacted ment his wife has received from certain of public record and was the subject of before publication. A failure to quarters of the press, and has referred to extensive front-page publicity in New provide a denial or comment might not wanting to see history repeat itself, Zealand at the time.’ weigh against a claimant in a defama- having witnessed what happened to his Despite this stance, the story was tion claim, where a media publisher mother, the late Princess Diana. subsequently taken down from the relies on ‘responsible journalism’, Prince Harry’s phone-hacking claim newspaper’s website and tweets from its but the relevance of a failure to will take some time to reach trial. If it account referring to it were removed. comment is less clear-cut where the does, it could see the unusual spectacle The claim is likely to raise a number claim is in privacy. of a member of the Royal family giving of interesting media law issues. Before The story attracted widespread evidence in court. zoom-in will report and in the aftermath of the introduc- public criticism. If the courts take a on further developments in this case as tion of the Human Rights Act and similarly dim view of it, the case may it proceeds. the associated development of the law have a signifi cant impact on wider of misuse of private information, the journalistic activity. presence of information in the public (Aus) Landmark domain was generally thought to be compensation award to a complete answer to any claim for Prince Harry brings reality show contestant breach of confi dence or privacy. phone-hacking claim The statement by The Sun refl ects ■ A former Australian reality TV this principle and, along with its reli- ■ Prince Harry has launched a phone- show contestant has won a compensa- ance on the involvement of a family hacking claim against News Group tion claim brought against the network member who was telling their own Newspapers, publishers of The Sun and responsible for the show, for psycho- story, indicates how it might defend the now-defunct News of the World, logical injury suffered during fi lming. any claim. and Mirror Group Newspapers. Prince Nicole Prince starred in the 2017 But developments in the law of Harry is the latest in a long line of home renovation show House Rules, in

zoom-in Winter 2019 | 27 PRIVACY & DATA PROTECTION

which six couples renovate each other’s who sign up to such programmes homes and then rate one another. into the spotlight. The Jeremy Kyle Prince brought a workers’ compensa- Show was cancelled and is currently tion claim before the New South Wales the subject of an investigation by a Workers Compensation Commission Parliamentary committee. in relation to her treatment during This decision is a further indica- fi lming and its aftermath, claiming she tion that the legal and regulatory had suffered an adjustment disorder, framework within which reality shows anxiety disorder, depression and post- are made may have to be re-drawn. traumatic stress disorder as a result. The tribunal heard that Prince and her team-mate were ‘essentially told to Estate of Bobby Robson, be as negative as possible surrounding Cheryl, Sienna Miller the efforts of other contestants’ during and others issue phone- their appearance. She alleged they were subjected to harassment and hacking claims bullying during fi lming and this was ■ A number of new phone-hacking ‘not only condoned by the producer,’ claims have been issued against News

but ‘encouraged’. / Shutterstock.com ers Shaun Jeff Group Newspapers, publishers of The Prince also claimed she subse- PRINCE HARRY: PHONE-HACKING CLAIM Sun and the now-defunct News of the quently received threats of physical fi lmed’, and the network’s ability to World. Pop star Cheryl (formerly Cheryl abuse on the network’s social media veto the wearing of particular clothes, Cole), actress Sienna Miller and former channels, after the show portrayed pointed to employee status. Liberal Democrat MP Simon Hughes her as a bully. ‘I feel devastated and There was ‘little doubt’, said the are among those bringing claims. worthless about the loss of my career arbitrator, that Prince was placed in a The late Sir Bobby Robson, former and working life,’ she said. ‘After my ‘hostile and adversarial environment’ England player and manager, is the episode aired, I wanted to kill myself during the show. He also found in fi rst alleged phone-hacking victim and I started drinking more alcohol in relation to Prince and her team-mate whose claim has been brought by his an attempt to self-medicate my injury.’ that the show had been edited ‘in such estate. Robson died of lung cancer in The network’s insurer initially a selective manner as to portray them 2009, before phone hacking at the denied liability on the basis that Prince in a certain negative light’ and that News of the World came to public light. was ‘not a worker’ and Prince then it was ‘extraordinary’ that Seven had While in England and Wales the dead made an application to the Compensa- not removed ‘hateful comments’ about cannot sue in defamation, that is an tion Commission. The network argued Prince from its social media. exception to the general rule where that Prince did not have employee ‘The failure to do so represents, an estate can bring an action on the status, relying on the fact that she in my view, a factor to which the deceased’s behalf. was a contestant vying for the show’s applicant has reacted and which has Sienna Miller and Simon Hughes $200,000 (£105,300) prize, and on a contributed to her injury,’ he said. The have already brought and reached contract, which said that appearing arbitrator made an order for compen- settlement in phone-hacking claims on the programme ‘does not create sation and Prince has been referred to in relation to the News of the World. an employer/employee relationship a medical specialist to determine the Therefore, their new claims will relate between Seven and you’. level of permanent impairment arising to separate allegations. However, the arbitrator found from the injury. Mirror Group has also received new in favour of Prince, holding that Australia’s legal system is very claims, from celebrities including Paul the network ‘derived benefi t from similar to that of England and Wales, Burrell and James Hewitt. As zoom-in the applicant giving her time and and the ruling has potentially far- reports on page 27, Prince Harry is engaging in the home renovations reaching consequences for reality show also suing both Mirror Group and for the television show’ and that it franchises across the common law world. News Group Newspapers in relation would also benefi t from advertising Recent deaths related to reality to alleged phone hacking, meaning revenue. He also found that factors TV, including those of two Love Island there are a series of claims that may such as remuneration, ‘exclusive use of contestants and a participant in The explore the extent to which the Royal the applicant for every hour of every Jeremy Kyle Show, have brought the family and those associated with them day during which the show was being approach by the TV industry to those had their voicemail intercepted.

28 | zoom-in Winter 2019 CONTEMPT & REPORTING RESTRICTIONS

ground, that the judge erred in his The law of contempt makes it a criminal offence for the media evaluation of the public interest to publish or broadcast comments or information that creates in comparing the benefit likely to accrue to the investigation against a substantial risk of serious prejudice to active UK legal the BBC’s Article 10 right to receive proceedings, in particular criminal proceedings heard before and impart information. juries. Penalties for contempt can be serious: fines, even It did, however, acknowledge that imprisonment. Many activities are capable of amounting to a it is ‘critical that the media are able contempt, including: publishing seriously prejudicial material; to speak to sources, including alleged victims of sexual abuse, without those obtaining or publishing details of jury deliberations; breaching individuals fearing that a record made reporting restrictions or a specific court order; making payments of their account by a journalist can be to witnesses; filming or recording inside court buildings without obtained by the police and made avail- permission; and publishing information obtained from confidential able to defence counsel to attack their court documents in both civil and criminal proceedings. credibility at trial’. Production order applications have increased signifi cantly in recent years, Reporting Restrictions – The BBC resisted the application, particularly in light of the scrutiny but the judge granted the order just faced by the Police and CPS over their BBC overturns production over a week before Eatock was sched- fulfi lment of disclosure obligations, order relating to uled to give evidence, and the BBC and can consume extensive time and journalist’s note decided to comply under protest while costs for media organisations. making a claim for judicial review to This decision, which the Police ■ The BBC has successfully chal- challenge the judge’s decision. accepted would assist police forces, lenged a production order which The court conducted a prosecutors and the media, required it to produce a journalist’s review of the produc- limits the type of note of an interview with a man who tion order regime material that can be became a witness in a criminal trial. and considered four The media must the subject of such The trial was of George Ormond, grounds advanced be able to speak to applications, and who was accused of sexually assaulting by the BBC to sources without fear is a positive boys and young men while he worked challenge the development as a youth football coach in Newcastle Order. that the individual’s for the media, between the 1970s and 1990s. On the account will be used making specu- One of the complainants, David third, successful, to attack their lative applica- Eatock, gave an interview to the BBC’s ground, the court tions less likely. Victoria Derbyshire, and a recording considered whether credibility at trial The ruling of that interview was available at the judge was correct to makes it clear that the trial, but there were differences hold that for the journalist’s unless a media entity between the account he gave in the note to be relevant evidence for has evidence which would be interview and the account he gave to the purposes of a production order, it did immediately admissible at trial (such police two weeks later. not need to be immediately admissible. as footage which shows offending To prepare for the live interview, The court found that the trial taking place), the relevant condition a BBC journalist conducted a mock judge had made an error: a person can under PACE will not be satisfi ed, and off-air interview with Eatock to see only be ordered to produce material any application is unlikely to succeed. what he would say, for which she which will be immediately admissible prepared a typed note of her questions in evidence without more. It is not and Eatock’s answers. enough that the material sought may Mail on Sunday journalist It was this note which was the become admissible because of some spared jail after recording subject of an application by Northum- future event, such as statements being court hearing bria Police for a production order under given at trial which are inconsistent the Police and Criminal Evidence Act with a previously given statement. ■ Mail on Sunday features writer Angella 1984 (‘PACE’), which it sent to the The court did not need to Johnson avoided jail and received a BBC just 10 days before Ormond’s trial. reach any conclusion on the fourth suspended sentence for contempt after

zoom-in Winter 2019 | 29 CONTEMPT & REPORTING RESTRICTIONS she recorded a court hearing on her Youth anonymity orders to which restrict reporting, as well as mobile phone. Ms Johnson recorded the fact that the media has long since a hearing while seated in the public cover all forms of publication moved on since restrictions only had to gallery at Southwark Crown Court in ■ The Court of Appeal has empha- deal with newspaper publications. late September. She admitted contempt sised that orders giving anonymity to Following a series of successful and apologised at a hearing at the Old juveniles involved in adult court trials applications by the media to remove the Bailey. Her barrister told the court that must cover all types of publication, and anonymity of convicted child defend- her motive for recording was to ensure any decision to lift such orders must be ants over the past decade, such appli- accuracy in her work. She was concerned formally drawn up. cations are now frequently made by that if she took notes in shorthand, she The court rejected both an appeal journalists in an informal manner at would not be able to keep up and would by Ayman Aziz against his 19-year the conclusion of a trial, but this ruling not have a complete and accurate record sentence for the murder of Viktorija makes clear that a formal order must of what happened. She had no intention Sokolova in a Wolverhampton park in nevertheless record the outcome. of ever publishing the audio recording. April 2018, and an application for judi- She was, she said, under pressure cial review of the trial judge’s decision at at work. Ms Johnson has been a jour- the sentencing hearing to lift the court New guidelines for nalist for 37 years but had not done any order which had given him anonymity. reporting family court court reporting for the past eight years. The trial judge had made an However, she admitted being aware of anonymity order prohibiting the disclo- proceedings the rule against recording in court. sure of the name, picture and other ■ The thorny topic of reporting family Ms Johnson was also said to have identifying information in any ‘news- court proceedings is the subject of new panicked when confronted by the court paper report’ of any child or young guidance issued by the President of the usher and police, refusing to hand over person in the proceedings, so Aziz, who Family Division, Sir Andrew McFar- her phone straight away. Through was under 18, could not be identifi ed, lane, which has made the process of the her barrister, she admitted this and but this was lifted at sentencing. media challenging reporting restric- acknowledged that she may have The Court of Appeal observed tions signifi cantly easier, and less risky attempted to delete one of the record- that the order prohibited reports from a fi nancial perspective. ings. She was ‘ashamed and humiliated in newspapers but not in any other A complex web of statutory and at what she has done’. form of publication. It went on to common law rules governs what may be Ms Johnson was sentenced to seven say: ‘We strongly suspect the order reported from family court proceedings, days in prison, suspended for 12 months, was based on a template created some particularly those involving children, plus a £500 fi ne. The judge said: time ago, refl ecting the old regime and these rules have been the subject of ‘The rule against recording under the 1933 Act. If so, a number of successful media challenges of legal proceedings such templates should be over the past two decades. is in place to protect A complex updated. Newspapers While the dial has shifted signifi - the integrity of those web of rules are but one medium cantly in favour of openness, the land- proceedings and to for publication. The scape remained diffi cult for journalists protect all those governs what may protection was, no and legal bloggers to navigate without who participate be reported from doubt, intended to specialist advice. in legal proceed- family court be wider. There is no Following a case in February 2019 ings, often against suggestion that other in which freelance journalist Louise their will.’ proceedings publishers took advan- Tickle successfully challenged reporting Recording court tage of the narrowness of restrictions made by a family court proceedings is prohibited the order, but in the future, judge at the end of protracted care by Section 9 Contempt of Court those concerned with applications proceedings, Sir Andrew McFarlane Act 1981. Photography in court is for directions of this kind should be vowed to make the rules clearer and also strictly prohibited under Section alert to ensure that they are framed in issued draft guidance to that end. 41 Criminal Justice Act 1925. This appropriate terms.’ Following a consultation period, that ban extends not just to courtrooms The court also referred to the failure draft guidance was fi nalised on 3 October themselves, but to the entirety of court to draw up any formal order to remove 2019. The guidance sets out the legal precincts. Any court reporting must be the defendant’s anonymity. background to the constraints on reporting done by the taking of notes and photo- The court’s observations refl ect the and explains that the time-consuming graphs should not be taken. general requirement for clarity in orders and expensive process of issuing a formal

30 | zoom-in Winter 2019 continued from page 16 presenters will want to keep this commitment to a minimum, so they do not have to turn down other, feepaying work. Broad- casters may want a fi xed number of days as a minimum contrac- tual commitment, and as trans- mission dates may not yet be scheduled, this can be tricky to negotiate. Consideration also needs to be given to the outside commer- cial interests of the presenter. Keeping references to those interests off-screen may need specifi c wording. As a minimum, the presenter should be required to warrant that they will comply with all applicable broadcasting rules and regulations, eg, the Ofcom Broadcasting Code. Exclusivity clauses are usually subject to negotiation. For obvious reasons, broadcasters need to prevent a presenter from taking part in a similar show that might transmit around the same time. The exclusivity period can vary greatly, and presenters who often make guest appearances on other shows, eg, magazine- style shows or quiz shows, will usually want ‘carve-outs’ so they can continue to do so. Terms regarding merchan-

HOT SHOTS / Alamy Stock Photo / Alamy SHOTS HOT dising and publishing often JOURNALIST LOUISE TICKLE SUCCESSFULLY CHALLENGED REPORTING RESTRICTIONS require negotiation and contrac- application may not be necessary. guidance goes on to set out a clear process tual provisions. Production It says that no formal application is and legal framework for the resolution of companies need to freely exploit required for the court to consider whether disputes over reporting. publishing and merchandising to publish its judgment, that an appli- Signifi cantly, the court clarifi es a point rights in their programmes, and cation to vary the automatic statutory that had previously not been defi nitively often an agreement to agree a reporting restrictions can be made orally, settled by the existing case law, saying further fee at a later date, should whether or not notice has been given in that on such applications, a media organi- the presenter be required to advance to the court, and that, where a sation or its lawyers should not be at risk appear in a book or on merchan- reporter wishes to apply for reporting of a costs order unless it has engaged in dising, is the best course. restrictions to be lifted after the hearing reprehensible behaviour or has taken an Abbas Media Law has many is over, this, too, may be done without a unreasonable stance. years’ experience of drafting, formal application being made. The guidance has been welcomed by negotiating and advising on The burden to assist reporters seeking campaigners on this issue and will make presenters’ agreements. For to attend a hearing, or to relax reporting a real difference to journalists seeking to advice, contact info@abbasmedi- restrictions, is placed on the court, and the report the family courts. alaw.com

zoom-in Winter 2019 | 31 ABOUT ABBAS MEDIA LAW

We are specialists on all Training for producers aspects of UK law and AML conducts training for those working in television regulation aff ecting the production. We prepare and deliver bespoke training television, fi lm, advertising programmes for clients, or producers can avail themselves of and publishing industries. AML’s regular training programme. We advise before publication and broadcast, working with This year we have conducted a variety of talks for producers creatives to minimise legal and regulatory risk, and following on legal and compliance issues, including data protection, publication and broadcast, defending content when it and copyright, true crime, blue-light shows and the many and varied its producers come under attack. We work with many of the issues that can arise in access-based programmes. country’s leading content producers. For further information about the training AML off ers, and to fi nd out more about scheduled talks and masterclasses near you, Content Advice email [email protected] Abbas Media Law boasts some of the most experienced content advisers in the country. We work on the most exciting and challenging factual programmes; news; fi lms The Team and dramas; and all kinds of entertainment and comedy Nigel Abbas Founder programmes. Nigel Abbas is the primary author of Channel Nigel is a barrister with over 20 years’ experience 4’s Producers’ Handbook, a comprehensive guide to best advising the media and entertainment industries. practice, regulation and the law as they apply to the making and broadcasting of programmes. Jenny Spearing Senior Business Aff airs Adviser Jenny is a business aff airs expert with nearly 20 years’ Business Aff airs & Rights experience in television production. We advise clients on all aspects of business aff airs, chain of title and rights issues, in connection with the television, fi lm, Paul Schaefer Lawyer advertising and publishing industries. We advise on deal- Paul is an experienced media lawyer, having worked as making, dra£ and negotiate all types of agreements, and can in-house counsel for newspapers and broadcasters. answer all your day-to-day queries. See page 16. Lucy Chisholm Batten Trainee Solicitor Legal and Regulatory Threats, and Litigation Lucy began her training contract in September 2018 having We regularly represent clients when legal and regulatory worked as a Paralegal for Abbas Media Law since 2017. threats are made against programmes and other content, both before and a£ er publication. We represent clients in Jan Tomalin Consultant most areas of litigation aff ecting the media, advising on Over the last 30 years, Jan has advised on an enormous strategy, tactics, dra£ ing of pleadings and advocacy. number of television programmes, across all genres. 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 aff ecting 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