Media law news from Abbas Media Law zoom-inWinter 2018

THE RETURN OF ANNABEL’S

ASHLEY JUDD PURSUES WEINSTEIN CLAIM ELTON WINS SACHA BARON OVER COHEN DOG SUED LIBEL GO ON, GWEN STEFANI WINS COPYRIGHT CASE BEFORE TRIAL EXCLUSIVE INTERVIEW: REALITY TV SUPERSTAR JUDGE RINDER IN THIS ISSUE

Geoffrey Rush gives evidence...... 14 20 QUESTIONS Labour chief whip settles libel claim..14 Rob Rinder on how he brought his legal skills to TV...... 22 Mirror fails to strike out claim ...... 15 Public interest defence wins on appeal..15

BUSINESS AFFAIRS & RIGHTS Abbas Media Law’s production legal schedule, setting out the five key stages of TV production and the legal issues producers must consider. In this issue, we focus on ‘fixer’ agreements ...... 16

COPYRIGHT & IP RIGHTS Rod Stewart sued over photo of WINNERS & LOSERS himself...... 18 No trial for Stefani and Williams...... 4 EU approves controversial directive..18 MEDIA HAUNTS Rebel Wilson damages appeal fails.... 4 It used to be THE place in London – is Netflix facing claim over Easy ...... 19 fabulous nightclub Annabel’s now back Payout for Elton John ...... 4 New trial in Stairway to Heaven case...20 on top? ...... 24 Property developer gets libel payout.... 6 Tracy Chapman sues Nicki Minaj...... 20 Setback for Kendrick Lamar in video PRIVACY & DATA PROTECTION REGULATION – OFCOM, battle ...... 21 Morrisons liable for data breach ...... 26 ASA & IPSO Good Morning Britain story was Sabrina settles with Satanists...... 21 Philip Green named in Parliament ... 27 unfair...... 8 Facebook fined by ICO...... 28 Eamonn and Ruth rapped...... 9 Car repair employee jailed ...... 28 Dispatches secret filming cleared...... 10 Fly-tipping video breached privacy . 28 Iceland Christmas ad banned ...... 10 CONTEMPT & REPORTING DEFAMATION RESTRICTIONS Sacha Baron Cohen sued...... 12 Murder scene teen can be named... 30 Harvey Weinstein faces Ashley Judd Ant McPartlin named in divorce fight.. 30 claim...... 12 Huddersfield grooming convictions De Havilland goes to Supreme Court.13 reported...... 31

zoom-in Abbas Media Law Editor Nigel Abbas Deputy Editor Clare Hoban zoom-in is written by the Abbas Media Law team. Features Editor Paul Hunwick We are a niche law firm advising on all aspects of Contributing Felicity UK law and regulation affecting the television, film, Editors McMahon advertising and publishing industries. Jenny Spearing Founded by Nigel Abbas, we work closely with Gervase de Wilde broadcasters, independent production companies of Paul Schaefer all sizes, and other content producers. Editorial Assistant Lucy Chisholm Batten Abbas Media Law is experienced in advising Sub-editor Jack Seale 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 film, 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 2018 WINNERS & LOSERS

THE SINGER GWEN STEFANI HAS,

ALONG WITH PHARRELL WILLIAMS, Shutterstock.com HAD A COPYRIGHT CLAIM AGAINST HER DISMISSED BEFORE IT

REACHED TRIAL. SEE P4 JStone /

zoom-in Winter 2018 | 3 WINNERS & LOSERS

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

(US) Court throws out The decision to dismiss the case particular defamatory publications. claim against Stefani for lack of similar elements high- Wilson’s application to further lights that carefully considered appeal to the High Court (Australia’s and Williams expert evidence still has a role to play highest court) was rejected on n A copyright case brought against in this type of disputes. the ground that it had insufficient Gwen Stefani and Pharrell Williams prospects of success. Bauer Media over their 2014 song Spark the Fire welcomed the end of the litigation. has been disposed of in their favour (AUS) Rebel Wilson fails to Wilson said: ‘For me it was by way of summary judgment, and restore highest ever libel never about the money, it was will not go to trial. The claim had about standing up to a bully and been brought by the No Doubt damages I’ve done that.’ singer’s former hairdresser Richard n Rebel Wilson’s long-running Morrill, who claimed that the chorus libel case against Bauer Media has of the song was taken from his 1996 reached an end, after Australia’s Payout for Elton John over song Who’s Got My Lightah. highest court refused her permission dog attack story Morrill said he had played his song to appeal against a decision reducing for Stefani while colouring her hair in her damages from A$4.5m (£2.6m) n Sir Elton John and David Furnish the 1990s, and that the refrain to A$600,000 (£344,000). The have settled a libel claim against The in his work – ‘Who’s got initial high award had Sun on Sunday after the newspaper my lightah? Who The judge prompted debate over alleged their dog inflicted ‘Freddy got the fire?’ – whether it would Krueger-like injuries’ on a child at became Stefani found that stifle publica play date. and Williams’s the distinctive interest jour- The story, which reported a ‘Who got the nalism. mother’s claim that her child had lighter? Let’s pronunciation of the As reported been scratched by Sir Elton’s cocker spark the fire’. words ‘light-ah’ and previously spaniel, was published on the front He pointed to in zoom-in, page of the newspaper in February. It shared rhythmic “fi-ah’ was not enough Wilson won the added that Sir Elton and Furnish had patterns and to demonstrate libel case over a failed to make any attempt to find melodies as the series of articles out how the young girl was following basis for his claim. similarity alleging that she had the incident, despite being aware of The judge, when lied about her name, what happened. dismissing Morrill’s claim, age and childhood in order to Following settlement, the couple’s found that the works weren’t objec- make it in Hollywood. The original lawyer read out a statement in open tively substantially similar. award was based on the finding that court, which provides a mechanism for The judge found that the she had lost out on film roles libel claimants to publicise their distinctive pronunciation of the because of the articles, vindication, and attempt words ‘light-ah’ and “fi-ah’ was not but the appeal court The to repair damage to enough to demonstrate similarity, slashed the figure, their reputation. relying on expert evidence that finding that she decision ‘This allega- pronouncing words that end in an had not proved underlines the tion is false,’ the ‘er’ with an ‘ah’ sound is a common a link between difficulty of proving lawyer said. ‘The practice in African-American the libellous truth is that the vernacular English, as is deleting articles and economic loss has injuries were verbs, for example turning ‘who’s the loss of resulted from particular not serious, and got’ into ‘who got’. She also said the film roles. the claimants, that a common rhyme scheme or This underlines defamatory far from ignoring structure is not enough to qualify as the difficulty of publications the incident, made original expression protectable under proving economic several inquiries copyright law. loss has resulted from about the girl’s welfare

4 | zoom-in Winter 2018 Shutterstock.com THE ACTOR REBEL WILSON HAS BEEN REFUSED PERMISSION TO APPEAL A REDUCTION IN THE LIBEL DAMAGES SHE RECEIVED FROM AN AUSTRALIAN MAGAZINE. SEE OPPOSITE Krista Kennell / Krista Kennell

zoom-in Winter 2018 | 5 WINNERS & LOSERS

to her father and nanny. Each time it was confirmed the girl was fine.’ The couple’s lawyer told the judge that the story also appeared on the Sun’s website and was republished by other media outlets including MailOnline, Metro, the Mirror and the Evening Standard. The statement added: ‘I am pleased to say that the newspaper has now accepted unequivocally that this allegation was false and seriously defamatory. As a result, it has agreed now to apologise to Sir Elton John and David Furnish, and to pay signifi- cant damages as well as to reimburse their legal costs.’ The newspaper’s lawyer said: ‘The defendant offers its apology to the claimants, and is pleased that the matter has been amicably resolved.’ Sir Elton has consistently taken action against defamatory media coverage over the years, and his appe- tite for such litigation seems to be undiminished.

Developer awarded £35,000 over attempted- fraud allegation n Property developer Stephen Doyle has been awarded £35,000 damages over allegations that he attempted to defraud members of a rugby club, that he had been arrested for blackmail and sending malicious and menacing communications, and that it was reasonable to suspect he was guilty of those offences. The allegations were made in arti- cles published on the Caddington Village News blog run by Patrick Smith, a local councillor. Mr Doyle’s company owned land adjacent to the club’s ground, and wanted to buy more from the club for development. The purchase scheme he proposed would have required the club to vacate its existing premises

until new facilities were completed / Shutterstock.com Tinseltown at a new site. Mr Smith published JOHN: ASKED ABOUT DOG ATTACK

6 | zoom-in Winter 2018 articles critical of the The judge reiterated believed it was in the public interest proposal and of Mr that the Reynolds public to misinform readers in this way, the Doyle personally. Sir interest test was defence would have failed as such a In his defence Elton has still relevant when belief would not be reasonable. Mr at trial, Mr Smith consistently taken considering the Smith failed to contact Mr Doyle to pleaded a public statutory public verify his interpretation. Nor had Mr interest defence action against interest defence, Smith put his serious allegations to under section 4 defamatory media including: the the club. There is no public interest Defamation Act reliability or credi- in misinforming the public. 2013. This is a coverage over bility of the defend- Mr Smith also claimed that publi- defence that can be the years ant’s source; steps cation had not caused serious harm attempted even if the taken to verify the truth to Mr Doyle’s reputation – a require- allegation turns out to be of the allegations; whether ment for a defamation claim to untrue or inaccurate, on the basis any comment was sought from the succeed. However, the judge found that the reporting of the story was in claimant; and whether the claim- that claiming Mr Doyle was guilty the public interest. The judge found ant’s side of the story was of blackmail and sending that, while the statements were on included. Where the malicious communica- a matter of public interest, publica- subject of the allega- Mr Smith tions was capable tion of them was not. One article tion has given an had gone further of serious harm, by Mr Smith claimed that Mr Doyle explanation but even though had known that the rugby club had the piece fails than simply not publication was published incorrect information to its to include it, it including Mr Doyle’s limited. members because he had read a docu- will be difficult explanation: he had In addition ment before it was published, and if not impossible to the £35,000 therefore knew the club had deceived for the defence falsely claimed that Mr Doyle was its members. It was also alleged that to succeed. Mr Doyle had awarded, he Mr Doyle told the club to give its Mr Smith had was also granted members incorrect information so gone further than confessed an injunction to that it could push the vote in favour of simply not including prevent Mr Smith the proposal, which would effectively Mr Doyle’s explanation: he repeating the libels. have been an admission of fraud. All had falsely claimed that Mr Doyle Another recent case featured the s4 these allegations were inaccurate. had confessed. Even if Mr Smith had public interest defence: see p15

Jan Tomalin joins Abbas Media Law

n The former Channel 4 controller of legal and compliance, Jan Tomalin, has joined Abbas Media Law as a senior consultant. Tomalin, who since leaving C4 in 2008 has run a successful one-woman media law firm, will be working with the Abbas Media Law team to advise a wide range of clients. The move reunites Tomalin with Nigel Abbas, her former colleague at C4. This renewed collaboration marks a further expansion of Abbas Media Law, which offers a full range of legal services and unrivalled expertise across all television programme genres, advising clients on the ever-evolving range of legal and compliance risks and issues inherent in programme-making. “We are absolutely delighted that Jan has decided to join Abbas Media Law,” said Nigel Abbas. “Anyone who has ever worked with Jan knows her to be an impressive, highly skilled lawyer.” Tomalin said: “I am proud to be part of the go-to media law practice Nigel has created. As long-term friends and former colleagues, it makes complete sense for us to join forces and provide our clients with the best one- stop media law shop around.”

zoom-in Winter 2018 | 7 REGULATION – OFCOM, ASA & IPSO

There was an update on Mr Curry’s Ofcom regulates the content of all television and radio in the UK. situation the following day, in which IPSO is the main regulator for the press and magazine industry. it was reported that Mr Curry had still not received a response from the The Advertising Standards Authority regulates advertising. All Council. Morgan said: ‘They don’t the regulators adjudicate on complaints with reference to codes want to know, they don’t want to of practice, with which those they regulate have to comply. The help, they don’t want to do anything.’ Ofcom Broadcasting Code is the main code relating to broadcast The Council complained that content, while IPSO judges complaints against the Editors’ Code. in the programme broadcast on 22 January, the presenter refused to read The ASA’s main codes are the BCAP Code for broadcast advertising, out its initial statement; and that and the CAP Code for non-broadcast advertising. Compliance with the 23 January programme did not these codes is important. Regulators can impose penalties and include further statements it had sanctions for non-compliance. Regarding privacy matters, the given the programme team. regulatory codes also have wider legal significance because of The Council said that, as a result, provisions within the Human Rights Act 1998 and data protection the programmes misrepresented the facts of Mr Curry’s case, failed to legislation. The result is that the Codes have a bearing not simply make clear to viewers the ‘limits of in a regulatory context, but also on how the courts should act the Council’s capability’, provided a when making any order affecting freedom of expression and the negative view of the Council, and did publication of journalistic, literary or artistic material. ‘not allow for proper consideration of the facts’, resulting in the story being OFCOM: Good Morning Britain in breach over homeless SAS veteran story n Ofcom has upheld, in part, a complaint of unjust or unfair treat- ment by Herefordshire County Council over a story on Good Morning Britain about a homeless man called Bob Curry. The Council’s complaint related to two episodes of Good Morning Britain, broadcast on ITV on 22 and 23 January 2018, which featured Mr Curry, an SAS veteran who had been involved in the storming of the Iranian Embassy in 1980 and who had become homeless. During the first broadcast, Mr Curry claimed he had been engaged in a ‘constant battle with the Council’ for housing and the presenter, Piers Shutterstock.com Morgan, claimed Mr Curry was home- less ‘because you [the Council] have not seen fit to take care of him’. Morgan referred to, but refused to read out, a response from the Council, saying: ‘There’s a statement from the council, I was going to read it, but Photo Agency / Featureflash you know what? I can’t be bothered.’ GOOD MORNING BRITAIN: UNFAIR TO COUNCIL

8 | zoom-in Winter 2018 tions team, which fairly reflected the relevant aspects of the Coun- cil’s position. The broadcaster did not need to reflect the Council’s previous response in order to avoid unfairness to the Council and the Council was not treated unfairly in the second programme. The decision illustrates the extent to which the question of fairness and the requirement to reflect the position of a person or organisation featured in a programme is fact-sensitive, and how that requirement can change for a developing story.

OFCOM: Eamonn and Ruth rapped over dog campaign n Ofcom has found that an episode of Do The Right Thing with Eamonn and Ruth, broadcast on Channel 5 on 29 March 2018, breached Ofcom’s due impartiality rules, in particular that programmes concerning matters of public policy must be duly impartial, and the rule that the personal inter- ests of presenters must be made clear to the audience, where such interests might call into question the impar- tiality of the programme. The breach related to a discussion about electronic training collars for dogs and cats, which included various statements supporting a ban on the collars and a call to action to viewers

Featureflash Photo Agency / Shutterstock.com Featureflash to lobby for a ban, but no statements EAMONN AND RUTH: DOG PATRONS that were unsupportive of, or chal- one-sided and a breach of Rule 7.1 failed to adequately and fairly reflect lenged, the proposed ban. of the Code. the Council’s position. The programme also In respect of the 22 January In respect of the quoted the Dogs Trust, programme, Ofcom found that the 23 January 2018 The which supported Council’s view was not represented and broadcast, however, programme did the ban, but did the broadcaster could not rely on the Ofcom noted that not mention that broadcast of subsequent programmes the programme not mention that the presenters, to avoid unfairness to the Council. had made further Eamonn Holmes and Eamonn Holmes There had been a breach of the Code enquiries of the and Ruth Langs- because the broadcaster had not taken Council, and Ruth Langsford were ford, were patrons reasonable care to ensure that mate- had included an patrons of the of the Trust. rial facts had not been disregarded interview with As a result, or omitted in a way that was unfair a member of the Dogs Trust Ofcom found that to the Council, and the programme Council’s communica- the programme failed

zoom-in Winter 2018 | 9 REGULATION – OFCOM, ASA & IPSO

to preserve due impartiality on a The programme also included Lilley’s whether he had done anything wrong, matter of current public policy (Rule response, which included the state- and showing the footage would allow 5.5) and failed to make clear to the ment that he had not ‘undertaken viewers to make up their own minds. audience the personal interests of the any venture which would involve me Lilley also complained that presenters, which could have called breaking the codes of conduct refer- Channel 4 had refused to provide him into question the programme’s due enced, nor the Nolan principles.’ The with a transcript of the programme impartiality (Rule 5.8). Nolan principles are the ethical stand- before broadcast, and that he had not ards expected of public office holders. had sufficient opportunity to respond. Lilley had claimed that the simple fact Ofcom confirmed that there was no OFCOM: Dispatches secret of secret filming implied some sort of such requirement in the Code, and filming not in breach wrongdoing on his part: ‘By resorting that Channel 4 had set out the key to subterfuge, they imply there is a allegations and extracts from secret n Ofcom has rejected a complaint scandal where none exists.’ filming in correspondence with Lilley made by former cabinet minister Peter Ofcom rejected this. It considered and given him ample time and oppor- Lilley over an edition of Dispatches there was significant public interest in tunity to respond. entitled Politicians for Hire: Cashing in exploring interactions between politi- Channel 4 set out its reasoning on Brexit. The programme, broadcast cians and commercial companies, and for undertaking secret filming in the in January, included secret footage of questioning whether it was appro- programme. In doing so it referred to three politicians, including Lilley, as priate for them to exploit their posi- its own thorough internal procedures they met with representatives tions and connections for finan- for considering and authorising this of a fictitious Chinese cial reward. It also took mode of filming. company to discuss Channel the view that there UK broadcasters require any taking a role on 4 had set out was sufficient prima proposal to film secretly to be its board. Lilley facie evidence of submitted in writing and approved in complained the key allegations a public interest advance. Once the footage is obtained, that the secret in correspondence story, and programme-makers will then need filming and that Channel to be able to cite the public-interest broadcast with Lilley and given 4 had reason- reasons for broadcasting it. For were unwar- him ample time and able grounds programme-makers this can some- ranted, that to suspect that times feel like a long-winded process, the programme opportunity to surreptitious but for the broadcaster it ensures portrayed him respond filming wouldthere has been careful analysis that unfairly, and that he produce further can later be relied upon in the event had not been given an evidence. Ofcom considered of an Ofcom complaint. appropriate and timely opportu- it unlikely Channel 4 could have nity to respond to the allegations. captured Lilley speaking candidly At the point at which the footage without using secret filming. Iceland’s Christmas TV was filmed, Lilley had stepped down Overall, the surreptitious filming advert banned for being from the House of Commons and had was warranted. not yet been made a Lord. However, Showing the footage enabled too political he told the undercover reporters that the audience to come to their own n Iceland’s Christmas television he anticipated being made a Lord. conclusions as to whether a politician advertising campaign, featuring He outlined his current involvement behaving as Lilley did was appro- Rang-tan the orangutan, has been with politicians with responsibility priate, and whether the current rules banned by Clearcast, the body respon- for Brexit-related matters. and codes of conduct are appropriate. sible for vetting ads before they are The programme made it clear Given this, Ofcom considered that broadcast, because it was deemed to that no parliamentary rules had been the public interest in broadcasting breach political advertising rules. broken, but questioned whether the outweighed the potential negative As part of its festive campaign, the behaviour nonetheless fell short of effect on Lilley. supermarket struck a deal with Green- what the public would expect. Ofcom also found that the peace to rebadge an animated short The secret footage made it clear programme was not unfair to Lilley. It film featuring an orangutan and the that Lilley had said that he could did not state that he had breached any destruction of its rainforest habitat at not pass on confidential information. rules or code of conduct; it questioned the hands of palm oil producers.

10 | zoom-in Winter 2018 ICELAND AD: BANNED ‘This was a film that Greenpeace is that an ad is prohibited if it is An Iceland spokesperson said: ‘We made with a voice over by Emma ‘directed towards a political end’. have said repeatedly we are not anti- Thompson,’ said Iceland’s founder, ‘Clearcast and the broadcasters palm oil, we are anti-deforestation. Malcolm Walker. ‘We got have to date been unable We think this is a huge story that permission to use it and Iceland to clear this Iceland needs to be told. We always knew take off the Green- ad because we’re there was a risk [that the clip would peace logo and use struck a deal concerned that it not be cleared for TV] but we gave it it as the Iceland with Greenpeace to doesn’t comply our best shot.’ Christmas ad. with the polit- Despite the ban, the ad has It would have rebadge an animated ical rules of the received a huge response online. It blown the short film featuring BCAP code,’ has had more than 3.1 million views John Lewis said a spokes- on YouTube alone, with a total of ad out of the an orangutan and the woman for 30 million aggregated views across window. It was destruction of its Clearcast. social media, ‘predominantly on so emotional.’ Iceland will still Twitter and Facebook’, according to One of the stip- rainforest habitat be able to run TV stats from creative agency Mother. ulations enshrined in ads, but only 10-second On Twitter, celebrities added their the broadcast code for clips that will highlight support for the ad, including James advertising practice (BCAP) palm oil-free products. Corden, Stephen Fry and Bill Bailey.

zoom-in Winter 2018 | 11 DEFAMATION

emotional and other damage’ done to The law of defamation protects the reputation of individuals and his client. companies. Statements are defamatory if they adversely affect a Defamation claimants in the United States generally face a more person’s or company’s reputation in the eyes of reasonable people. A difficult task than those in England and person or company can sue over defamatory statements in England and Wales. Where the claimant is a ‘public Wales if they cause or are likely to cause serious harm to the person or, figure’, they cannot succeed unless in the case of companies, cause or are likely to cause serious financial they can show that the publisher acted loss. Journalists – indeed, all those publishing content – need to be with actual malice, in the sense that they knew the allegations were false, aware of the law, and confident that what they are publishing is either or recklessly disregarded the truth. not defamatory or, if it is, that they can avail themselves of one of the The First Amendment also defences to defamation. provides powerful protection for speech, and the United States Supreme Court has held that public figures (US) Sacha Baron Cohen cannot recover damages for distress where it was caused by a caricature, and CBS sued by Roy Moore parody or satire of the public figure n Comedian Sacha Baron Cohen is that a reasonable person would not being sued for defamation by failed have interpreted as factual. US Senate candidate Roy Moore, over While Moore’s claim faces some Moore’s appearance in Baron Cohen’s serious obstacles, nevertheless it show Who is America? highlights the potentially high risks The claim, which was filed in the involved for those in the business of District of Columbia, is also brought satire and parody. against CBS and its subsidiary Show- time, which was behind the show, and is for a huge $95 million in punitive (US) Harvey Weinstein and compensatory damages. to face libel claim from It says Moore ‘suffered extreme emotional distress’ as a result of ‘being Ashley Judd falsely portrayed as a sex offender and n A judge in California has allowed pedophile’ on the show. actress and political activist Ashley When Moore became a Republican Photo Agency / Shutterstock.com Featureflash Judd to proceed with a defamation candidate for the Senate in Alabama BARON COHEN: SUED claim against disgraced Hollywood in 2017, multiple women alleged that with Moore in Who Is America? in mogul Harvey Weinstein. he had made unwanted advances or his persona ‘Colonel Erran Morad’, The actress claims Weinstein made sexual assaults on them when he was and referred to military technology demands of her in a hotel room about in his 30s and they were in their teens, including a device that he claimed 20 years ago. Judd says she then lost with the youngest being 14. could detect paedophiles. the opportunity to be cast in Peter Moore denies the claims. It repeatedly beeped Jackson’s Lord of the Rings after Wein- Moore, who is as it approached stein or someone at his company, one of several US Moore, who did not Miramax, told Jackson she was a politicians to have Moore’s claim react. ‘nightmare’ to work with. She claims been duped by highlights the risks In a state- those comments were defamatory of Baron Cohen, ment, Moore’s her, and that she only learned of them believed that he involved for those in attorney Larry after Jackson referred to them in an was receiving the business of satire Klayman interview in December 2017. an award for attacked Baron Weinstein denied the allegations supporting Israel and parody Cohen as being and argued Judd’s claim was barred by when he agreed to ‘not only low class the statute of limitations, because she be interviewed. but also a fraudster’, had a duty to investigate the alleged Baron Cohen appeared and referred to the ‘great libel at the time and failed to do so.

12 | zoom-in Winter 2018 However, the judge accepted it was FX appeared in the California plausible Judd would not have been Court of Appeal to try to get the able to learn about the alleged state- ruling overturned, and the Court ments during the limitation period reversed the decision less than a week even if she had conducted a diligent later. It referred to the First Amend- investigation. ment protection accorded to those Judd’s attorney said: ‘We are very in the creative industries who ‘take pleased that today the District Court the raw materials of life - including held that Ashley Judd can proceed the stories of real individuals, ordi- with her lawsuit against Harvey Wein- nary or extraordinary - and transform stein and continue her effort to vindi- them into art, be it articles, books, cate the wrongs he committed against movies, or plays’. her among so many other women.’ Underlining the decision’s rele- The legal woes of Weinstein, who vance to the docudrama model, the Shutterstock.com has been charged with sexual assault Court said that whether a person in an in a separate criminal case in New expressive work is a world-renowned York, continue to deepen. He denies film star or someone that nobody any wrongdoing. / Hutchins Kathy knows, they do not have ‘the legal JUDD: SUING WEINSTEIN right to control, dictate, approve, in, the Oscar-winning actor and star disapprove, or veto the creator’s (US) Olivia de Havilland of Gone with the Wind had brought portrayal of actual people’. takes docudrama battle to a claim seeking damages as well The California Supreme Court as an injunction to stop the show then turned down a request to have Supreme Court being broadcast. that decision reconsidered, leaving n Dame Olivia de Havilland is to She claimed that her name and the highest court in America, the attempt to appeal to the US Supreme likeness were used to promote the United States Supreme Court, Court in her claim against FX and series without her permis- as the only route for Ryan Murphy Productions over the sion, and that it de Havilland to have depiction of her character, played by damaged her reputa- her claim proceed Catherine Zeta-Jones, in the hit docu- tion by portraying The judge to trial. drama Feud: Bette and Joan. her as a gossip accepted it was Feud creator Lawyers acting for the 102-year-old and a hypocrite. Ryan Murphy grande dame of Hollywood have filed a De Havil- plausible Judd would previously petition with the Court, asking it to land particu- not have been able to called the re-examine the California Court of larly objected to reversal on Appeal’s previous decision to dismiss parts of the show learn about the alleged appeal ‘a her claims. that showed statements during the victory for the ‘The Court of Appeal’s decision is a her making creative commu- radical departure from traditional First jokes about Frank limitation period nity, and the Amendment precedent, and benefits Sinatra’s drinking, and First Amendment’. no group other than those who seek to calling her sister and rival He went on to say that use the names and identities of others Joan Fontaine a ‘bitch’. the dismissal ‘gives all crea- in untrue and salacious “historical In August 2017, a judge turned tors the breathing room necessary to dramas” for their own profit,’ said de down an attempt by FX, the network continue to tell important historical Havilland’s attorney. that broadcast Feud, to have the case stories inspired by true events’. The further appeal, which will be thrown out under California’s anti- De Havilland’s claim, and the the end of the line for her claim if it is SLAPP rules (which protect defend- prospect of an intervention by the not granted permission by the Court, ants from so-called ‘Strategic Lawsuits Supreme Court, pose a threat to follows a decision in July by the Cali- Against Public Participation’ aimed shows that walk the line between fornian Supreme Court to deny de to prevent free speech), and decided fact and fiction, but the case faces a Havilland’s petition to that body over it should proceed because there was formidable obstacle in the form of the an earlier decision dismissing her case. a chance that de Havilland could win protection afforded to speech by the As reported previously in zoom- the claim. First Amendment. DFree / Shutterstock.com DFree

zoom-in Winter 2018 | 13 DEFAMATION

(AUS) Geoffrey Rush gives ‘right-thinking people generally’. Faber ultimately accepted that evidence in ‘inappropriate it could be defamatory to say Brown behaviour’ case had paid for sex, visited or used pros- titutes, enjoyed violent or rough sex n Oscar-winner Geoffrey Rush or asked to be subjected to violent or has given evidence in support of a rough sex - but only in the context of defama¬tion claim he is bringing in his being a Minister of the Crown. Australia over a newspaper allega- Although the judge declined to tion that he behaved inappropriately rule on the issue because of these towards a female co-star. concessions, he made it clear that he Rush is suing Sydney’s Daily did not necessarily accept that the alle- Telegraph and the journalist Jona- gation was defamatory of Brown only thon Moran. In his evidence, he said because he was a Minister, because he felt distraught over the articles, ‘equality before the law seems… to which alleged inappropriate behaviour demand that the standard is the same towards Eryn Jean Norvill, his co-star for all citizens’. in a 2015 Sydney Theatre Company The judge observed that the reso- production of King Lear. lution of the issue ‘would raise diffi-

The allegations include that Rush / Shutterstock.com Hutchins Kathy cult questions as to contemporary made groping gestures towards Ms RUSH: GIVING EVIDENCE social values’. Norvill, made comments and jokes with a series of actors and others The parties publicised the settle- involving sexual innuendo, touched from the Australian film and theatre ment of their dispute by means of a her lower back backstage, and traced industry giving evidence. Judgment is joint statement, which explained that his hand down her torso and across expected in early 2019. Bower included the reference only to the side of her breast on stage during explain how Brown came publicly a scene in which he was carrying her. to admit he was gay, and that he Rush denies the allegations. His wife MP’s libel case against defended his original report on public has also given evidence of the effect publisher settles interest grounds. on him, telling the Court that he has The statement went on to say that retreated from the world and does not n A claim by the Labour Chief Whip, Brown said the book did not make want to act again. Nick Brown MP, against writer Tom clear that the News of the World did not The trial has involved close Bower and publisher Faber and Faber in fact publish the ‘rent boy’ allega- examination of text messages Rush over a reference to Brown in a book tions, which were untrue, and that the sent to Ms Norvill, with lawyers has been resolved with the issue of a book did not record his denials. making reference to the website joint press statement. The statement said that, following Emojipedia to seek to explain the Brown brought libel proceedings the resolution of the litigation, Brown meaning of emojis used in the texts, over an allegation relating to him in accepted that the offending passage in particular the emoji with its Broken Vows, Bower’s book about Tony was published in good faith as part tongue sticking out, which the Daily Blair’s decade as Prime Minister. of a chronological political narrative Telegraph claimed was panting, but The book suggested that in 1998 and that the defendants did not seek Rush dismissed as simply zany – ‘the the News of the World had accused to adopt the allegations, which they looniest emoji I could find’. Brown of having paid rent boys for accepted were untrue. Rush is well known for films consensual rough sex, saying that he For their part, the defendants including The King’s Speech, Shakespeare had been ‘accused by a national news- said they regretted any distress in Love, Pirates of the Caribbean and paper of paying £100 to rent boys in or embarrassment the publication Shine, for which he won a best actor order to be kicked around a room, and may have caused Brown, which was Oscar. His lawyer has described him as admitted his sexuality’. never intended. ‘a national living treasure’ and said the The litigation had previously been The case illustrates two key allegations were lies. The Telegraph has the subject of a hearing to determine aspects of libel litigation. First, it is defended the allegations as true and what the words complained of meant, inherently uncertain: senior barristers Ms Norvill has given evidence for the and whether they were defamatory at on opposing sides took one view on newspaper. common law, ie whether they lowered particular allegations (that they could The trial ran for several weeks, the claimant in the estimation of be defamatory), but the judge may

14 | zoom-in Winter 2018 have ultimately taken a different one admitted, and which was unlawful, organisations in that it can provide (that they were not). was prompted by the… investigation a full defence to a defamation claim Second, judgments about what of the claimant, and he – as the boss, in situations where the allegations is defamatory reflect what the judge and the person with most to fear – being sued over cannot be proved called ‘contemporary social values’ was a participant,’ said the judge. to be true. and can therefore change over time. During proceedings, the news- This case was unusual in that the This is a nuanced and constantly paper had attacked the claimant claimant sued an individual rather evolving backdrop against which for making no complaint about than the commercial publisher of the to determine the issue. An allegation the reports that he was sacked for pieces. The circumstances of the case that might have lowered the claimant corruption and dishonesty and was a were also tragic, and acknowledged in right-thinking people’s estimation bully. The judge likened the Mirror’s by the Court to be difficult, requiring at the time it was first made in approach to a smear and refused to a careful balance of the rights to 1998 might well not have the same attach any importance to this argu- reputation and free speech. impact today. ment when making his ruling. The claimant, Mr Economou, He also dismissed the argument had been accused of rape by a Ms that the claimant would not be able de Freitas and was arrested but not Mirror fails to strike out to establish serious harm was caused charged. He has always denied the former police chief’s claim by the articles because Price already allegation, and sought to persuade had a bad reputation, and that this the police to prosecute Ms de Freitas n A judge has ruled that a libel would also reduce or extinguish any for perverting the course of justice. claim against the publisher of the final damages. When they declined to do so, he Daily Mirror by the former Chief The decision serves as some- launched a private prosecution, Constable of Cleveland thing of a warning for the which was eventually taken over by Police, Sean Price, will media. First, it makes the CPS. Ms de Freitas, who suffered not be struck out The decision clear the difficulty in from bipolar affective disorder, killed as an abuse of arguing that there herself four days before the hearing. process, meaning makes clear are different, Ms de Freitas’ father, the defendant the case can the difficulty in separable in the libel claim, wanted the inquest continue to trial. strands within into his daughter’s death to be Price arguing that there are a publication. expanded to include the role of the brought a libel different, separable The content CPS. He gave press statements, inter- claim over arti- will be viewed in views and wrote an article without cles alleging strands within a the round. naming Mr Economou. However, that he was party publication Second, it Mr Economou sued, with the Court to the interception emphasises that a finding that two publications identi- of the phone records of poor reputation in one fied him and caused serious harm to his a Mirror journalist who was area of a person’s life does not reputation. The Court found the mean- investigating him. prevent that person from bringing a ings of the published material to be: The Mirror did not seek to defend claim in relation to allegations made there were strong grounds to suspect the allegation as true, and instead about other areas of their life. he had raped Ms de Freitas and falsely argued that the articles did not bear prosecuted her; and that there was a the meaning complained of because real possibility he had raped her. they told separate stories: one Court of Appeal upholds At trial, Mr de Freitas success- regarding Price’s dismissal, another case where new public fully pleaded the section 4 public regarding the interception of journal- interest defence succeeded interest defence. This applies where istic phone records. the statement was or formed part of The judge rejected the sugges- n The Court of Appeal has upheld a statement on a matter of public tion that the Mirror presented these the judge’s findings in the case of interest; and the defendant reason- issues to readers as separate and Economou v de Freitas, the first case ably believed that publishing the unconnected matters. ‘The strands to fully consider the statutory public statement was in the public interest. were woven together in such a way interest defence under section 4 There was no dispute that the as to present the reader with this Defamation Act 2013. This defence publications were on a matter of picture: the access to journalistic is relatively new in English defama- public interest. The trial judge phone records which the force had tion law, and is very useful to media continued on page 29

zoom-in Winter 2018 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

Generally, a fixer agreement should In every issue of zoom-in we examine the commercial, legal and regulatory include a clear list of duties and services hoops programme-makers have to jump through to get their programmes to be rendered, as well as outcomes to safely to air. Our production legal schedule above sets out the five key be achieved by particular fixed dates. This list may be included in a schedule stages of production which producers need to consider and the advice and annexed to the agreement. expertise they are likely to need at each stage. In each issue, we focus on In addition, fixer agreements need one or two particular aspects of production legal requirements. to comprehensively cover off rights: they should contain a full assignment fixers sometimes take on responsibility of copyright and all other rights in the Fixer agreements for contracting and paying for these products of the fixer’s services world- n A ‘fixer’ agreement is the usual term items and services too. wide in perpetuity, a full moral rights applied to an agreement with an indi- A fixer with good local knowledge waiver, and explicit recognition that vidual or company that assists on a can be an invaluable asset to a produc- the fee is a full buyout of all rights, production with specific local knowl- tion company filming outside its home waivers and consents granted. edge. A fixer is therefore most often territory, because of who they know and The agreement should also engaged for overseas filming. because they can get things done on the include references to any relevant They may render a wide range of ground much more quickly than the insurance policies, health and safety services for a production, for instance production company’s own personnel. requirements, an indemnity for arranging filming locations, transport, Fixer agreements should be written breach of the agreement, and the accommodation, facilities eg make-up in clear, plain language, and not be usual warranties, including that the and wardrobe trucks, catering, office overly complicated or ‘legalese-y’, to fixer will comply with the production space, kit, security personnel, medics ensure that fixers who do not speak company’s anti-corruption/anti- or power/light/heat/internet, and English as a first language are not bribery policy, data protection sometimes sourcing local crew or other put off from signing them. They do, policy, and all other applicable laws contributors. They may also assist with however, need a certain amount of detail and regulations. A clause limiting filming permits and other filming to manage the production company’s the fixer’s remedy for breach of the permissions/access. As well as sourcing, risk effectively. agreement by the production company

16 | zoom-in Winter 2018 The zoom-in Television Production Legal Schedule

to damages (ie money), together with rights waiver worldwide in perpetuity wrong include the fixer going over a waiver of the right to seek injunctive in the products of their services; and budget, the fixer providing inad- relief, is also recommended. it is sensible to include in the fixer equate services (or non-performance), If the fixer is required to contract agreement a right for the produc- the products of the fixer’s services not and pay individuals, the agreement tion company to request replace- being fully cleared as required, or should set out clearly the require- ment personnel if it believes there is the fixer committing a breach of law ments for how those individuals are anything lacking in the services being and regulations. Consequently, a fixer to be contracted, eg such contracts provided by any individual the fixer agreement needs to be sufficiently should be required to contain a full is responsible for. detailed to manage these risks on assignment of rights and a moral Things that can potentially go continued on page 29

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

zoom-in Winter 2018 | 17 COPYRIGHT & IP RIGHTS

him to the photo-sharing service for Copyright permeates all aspects of television production, providing posting an image of him at a concert copyright owners with certain exclusive rights to do specific acts in without permission or credit. Similarly, model Gigi Hadid faced a connection with the copyright works that they own. Copyright protects copyright infringement claim after she people’s and companies’ creative endeavours so they can benefit and posted an uncredited paparazzo picture profit from their work. A television company making a programme of herself on Instagram, which the for broadcast will own copyright in the film it is producing. Copyright photographer had licensed to the media enables the owners to earn money by licensing rights in the programme but not given her permission to use. The legal complaints underline the to others who wish to exploit it. At the same time, producers need to importance of distinguishing between ensure that rights in copyright works included within programmes – the subject of a photograph, or the so-called ‘underlying rights’, in music, archive, photographs etc – are person who has published it on social properly licensed from whoever owns them, unless they can rely on media, and the copyright owner from one of the statutory defences to copyright infringement, such as fair whom permission must be obtained for its use. Content producers should dealing. Infringing others’ copyright is likely to result in you being sued not assume that material posted on for damages and may mean that your programme can’t be shown. An personal pages within social media understanding of copyright is therefore essential for those working in sites by celebrities and others is that television production. person’s copyright.

Rod Stewart sued for whom Ms McLellan claims to have EU Parliament approves using photo of himself acquired the copyright in 2004. controversial copyright She says that although Mr South- n Rod Stewart is facing a copyright wood gave Stewart a copy of the directive claim by a photographer who says he photograph as a keepsake, that did not n The European Parliament has voted used her image, of himself and an permit him to make commercial in favour of the text of the new Euro- ex-girlfriend, without her use of it. pean Copyright Directive, which aims permission. The In his defence to to bring copyright law up to date for Julia McLellan the claim, Stewart’s the internet era. has issued a claim complaints team said it should The Directive will be put to a final for £9,999.99 underline the be rejected for vote in January, at which point it will (which is the ‘an absurd level need to be implemented by individual small claims importance of of damages for EU member states in their domestic limit) against distinguishing between a totally inno- law, but the Parliament has now made the singer at cent, brief and clear its position going into negotia- Chelmsford the subject of a incidental use tions with member states for a conclu- County Court photograph and the by Sir Rod of a sive deal over its terms. over Stewart’s use copyright owner personal snapshot The new measures have proved of the picture as a as part of another, highly controversial, and it is likely backdrop at one of his more substantial, they will significantly affect the power gigs. artistic work’. dynamic between the internet giants Ms McLellan claims to have The judge encouraged the parties that host content online, and those repeatedly sought a fee for use of the to mediate, saying that the claim ‘has who create it, such as the newspaper, image in 2015, but was refused, and got tears written all over it’. music, film and television industries, brought the claim after attempts at This is the latest in a series of as well as having implications for settlement failed. claims brought against celebrities those industries themselves. The photograph in question was who have used images in which they The legislative process has seen used on a video backdrop at BBC2’s feature, but where they are not the the Parliament toughen up the areas Live in Hyde Park: A Festival in a copyright owner. of the new law that look to protect Day concert. Queen guitarist Brian May was content creators. It was taken by Stewart’s school briefly banned from Instagram last Article 11 provides for a ‘link friend, Christopher Southwood, from year after a photographer reported tax’, which will compel online

18 | zoom-in Winter 2018 contract adjustment, may introduce greater complexity into the commer- cial relationships between production companies and the creative individuals with whom they work. However, the prospect of at least part of the vast revenues internet companies generate from making others’ content available now being diverted back to those who made the content in the first place is likely to benefit the media and crea- tive industries as a whole. A key element of uncertainty is whether the UK will still be in the EU when the Directive finally becomes law and, if not, what arrangements will be in place with regard to IP rights.

Netflix facing claim over Easy n The founder of easyJet, Stelios Haji-Ioannou, is reportedly suing Netflix over its comedy seriesEasy . Shutterstock.com He claims the streaming of the series in the EU breaches the trademarks held by easyGroup. The group has over 1,000 trademarks, including landmarkmedia / ‘easy’ and a series of trademarks with STEWART: USED PIC WITHOUT PERMISSION ‘easy’ as the prefix. platforms to pay news organisations The internet giants’ objections focus on The show, which has recently been for the use of their content. Article the cost of these measures, which will commissioned for a third series, has a 13 provides that the onus will be on undoubtedly have an impact on their star-studded cast including Orlando web giants to ensure that agreements bottom line. A spokesperson for a group Bloom, Zazie Beetz, Emily Rata- with rights holders for the use of including Facebook and Google said: ‘It jkowski and Dave Franco. their work are in force. is a very big cost to take on board, and In order to succeed in the claim, The Directive also significantly it is not a one-off – it is something that easyGroup would need to show that strengthens the position of authors needs to be maintained.’ using Easy as the title of Netflix’s tele- and performers, providing for greater The EU’s perspective, however, is vision show amounted to trademark transparency relating to exploita- that freedom of expression will be use: in other words, that it was being tion, revenues and remu- protected by the wording of used to denote the trade origin of the neration, and also for a the new measures, and series rather than simply as a title. contract-adjustment A key that the net result It would also need to show that use mechanism that element of will be highly posi- of the word ‘easy’ by Netflix caused would apply when tive for creators confusion with easyGroup’s registered remuneration uncertainty is and journalists, trademarks, and/or took unfair advan- under the original whether the UK will providing new tage of the marks’ reputation. Simi- agreement is low opportunities to larly, any claim for passing off would compared to subse- still be in the EU when earn revenue from need to show misrepresentation: that quent revenues. the Directive finally their work. consumers would (wrongly) assume Internet compa- becomes law The new law, the series was endorsed or licensed by nies have lobbied furi- particularly relating easyGroup and caused loss. ously against the changes. to transparency and A court would look at whether

zoom-in Winter 2018 | 19 COPYRIGHT & IP RIGHTS any of easyGroup’s trademarks are in the trial judge failed to direct jurors the field of television or broadcasting. (US) New trial in Stairway that, while individual elements of While easyJet is the most well-known to Heaven case a song such as its notes or scale may of easyGroup’s brands, others include not qualify for copyright protection, a easyHotel, easyGym, easyPizza and n An American appeal court has combination of those elements may do easyProperty. It might be argued that ordered a new trial in a claim in which so if it is sufficiently original. most consumers would think of other rock band Led Zeppelin are accused of The judge also wrongly directed areas when they think of easyGroup copying part of an instrumental track jurors that copyright law does not brands but, with over 1,000 trade- and using it in their 1971 hit Stairway provide protection for chromatic marks, the group clearly covers a range to Heaven. scales, arpeggios or short sequences of goods and services. The claim against Led Zeppelin of three notes. The group must be using those was brought in 2015 by Michael The appeal court also found that marks: if the marks are over five years Skidmore, a trustee for the estate of jurors should have been allowed to old but have not been used for those late Spirit guitarist Randy Wolfe, hear the original recording of the particular services within the past five aka Randy California. Spirit and Led song by Spirit. years, the group could be challenged Zeppelin toured together in 1967 and Commentators have suggested that and at risk of losing the protection of 1968. Skidmore claims this may have the ability to make a direct compar- the registered marks in that field. been when Jimmy Page was inspired ison between the two works will Haji-Ioannou said: ‘We own the to write Stairway to Heaven. potentially be significant at the retrial. European trademark for the word A jury in 2016 decided Led Zeppe- Claims against high-profile musi- ‘easy’ and another one thousand trade- lin’s Jimmy Page and Robert Plant cians over alleged copying from earlier marks with easy as a prefix, and we did not copy the distinctive riff in works continue to proliferate in the can’t allow people to use it their record from the song wake of a jury’s finding in favour now as a brand name.’ Taurus by Spirit, but an of Marvin Gaye’s estate in a claim Netflix The ability appeal court has now against Pharrell Williams and Robin responded: ‘We’re to make a direct ruled that the trial Thicke over similarities between their looking into it but judge misdirected hit Blurred Lines and Gaye’s Got to think viewers can comparison between the jury on copy- Give It Up. tell the difference the two works will right law issues between a show that were crucial they watch and a potentially be to the case. (US) Tracy Chapman sues plane they fly.’ significant at the At the original Nicki Minaj over sample The claim will trial, both Page and be monitored very retrial Plant gave evidence, n Tracy Chapman has brought a copy- closely by television, film and the jury found right claim against Nicki Minaj over and other content producers, that the two songs were not Minaj’s unauthorised use of a sample as well as rights holders. zoom-in will substantially similar. from Chapman’s 1988 hit Baby Can I report on developments. The appeal court decided that Hold You.

Fair dealing advice n Over the last decade, fair dealing rules have been used Nigel is the primary author of Channel 4’s Producers with increasing frequency by programme-makers, both in Handbook and one of the primary authors of Channel 4’s news programmes when reporting on current events, and fair dealing guidelines. Nigel updated the guidelines for when reviewing or critiquing copyright works that it’s Channel 4 in 2015 to incorporate advice and practical difficult or impossible to license. In addition, in 2014, guidance on fair dealing with quotations and for carica- fair dealing rules were extended: there is now a specific ture, parody and pastiche. See Channel 4’s guidelines at defence when fair dealing with quotations as well as a www.channel4.com/producers-handbook/c4-guidelines/ defence of ‘fair dealing for the purposes of caricature, fair-dealing-guidelines. Nigel advises many of the leading parody or pastiche’. Abbas Media Law’s Nigel Abbas is content producers working in this area. one of the country’s most experienced lawyers advising in If you need any advice on fair dealing, please contact this area. He has advised on many hundreds of hours of Abbas Media Law at [email protected] or visit programming featuring fair dealing over many years. our website, abbasmedialaw.com.

20 | zoom-in Winter 2018 Chapman’s unprecedented agree- music video and seek the full measure ment to allow her hit Fast Car to of defendants’ profits that plaintiff be played during the series finale of is entitled to.’ Lena Dunham’s TV series Girls in The claim is notable for its focus 2017 made headlines at the time, and on the conduct of Lamar and SZA, permission was only granted following because Viktor’s work was used even a call between Dunham and Chapman. though she had refused to lend or This perhaps highlights that licensing create a piece for use in their video. samples is not always informed by straightforward commercial consider- ations, but whether the original artist (US) Satanic Temple has respect for artistic endeavours of settles lawsuit over the sampler. Netflix drama n The Satanic Temple says it has (US) Setback for Kendrick ‘amicably’ settled its lawsuit against Lamar in video battle Warner Bros over the use of a statue of the goat-headed icon Baphomet n An American judge has refused in hit Netflix seriesChilling to grant summary judgment to Adventures of Sabrina. rapper Kendrick Lamar and R’n’B The Satanic Temple said the artist SZA in a copyright dispute statue used in the series copied its with visual artist Lina Iris Viktor own statue of Baphomet. Both show Tinseltown / Shutterstock.com Tinseltown over the use of her work in their the deity between two children, MINAJ: SAMPLED CHAPMAN music video. If the application had gazing reverentially. The lawsuit also Minaj sampled the song for her been successful, a judge would have alleged the show depicted the statue track Sorry. After recording the disposed of some aspects of the case as standing for evil, with characters song, Minaj approached Chapman without a full trial. engaging in cannibalism. This, it for permission but, as a long- Viktor is claiming profits from the said, was in stark contrast to the standing opponent of her work infringement and compensation for Temple’s beliefs that Satan is not an being sampled, Chapman refused reputational damage resulting from evil being but, rather, a rebel against despite repeated requests. the inclusion of her conceptual art God’s authority; thus the depiction Minaj’s song containing the sample work in the pop video All the Stars, on TV tarnished the temple’s own was given to two New York radio a song from the movie Black Panther. Baphomet as a mark and damaged stations, which played it on air in August, Lamar’s lawyers argued that it was the Temple’s reputation. leading to copies appearing online. not possible to link Viktor’s artwork Sabrina’s production designer said Chapman’s lawsuit says her to the profits made by All the resemblance was a coincidence, lyrics and vocal melody the Stars, and that there and referred to paintings by Goya comprise approxi- Lamar’s was no proof that the and images on tarot cards. mately half of lawyers argued video damaged the The statue features prominently in Minaj’s work, that artist’s reputation the show, a reboot of Sabrina the Teenage they are easily that it was not – but the judge Witch starring Kiernan Shipka. recognisable and possible to link decided that it was No details of the proposed identifiable as too early to reject settlement have been disclosed and Chapman’s, and Viktor’s artwork to Viktor’s claims, as Warner Bros has made no public that the works are the profits made by evidence was still comment. The lawsuit had claimed ‘strikingly similar’. in the process of $50m in damages. The claim was Chapman is All the Stars being shared between brought for copyright infringement, seeking an injunc- the parties. false designation of original, false tion to prevent Minaj from Endorsing this ruling, description, trademark dilution, and further exploiting her work, as well as Viktor’s lawyer said: ‘Now we will injury to business reputation. damages for the substantial injury, loss have the opportunity to examine the The case is a reminder that and damage that she claims to have revenue to the music defendants from copyright subsists in many different sustained. the exploitation of this infringing types of work.

zoom-in Winter 2018 | 21 20 QUESTIONS Fine judgment

Rob Rinder was called to the bar in 2001 but is now known a woman the other week who was for ITV’s reality series Judge Rinder. He tells zoom-in how he suing the owner of a school city farm moved from law to TV, who he’d least like to get stuck in a lift because the goat from the farm had with, and why Aussie Ladette to Lady is as profound as Proust been brought along to a school, and the owner hadn’t put adequate protection What gets you out of bed in the am, it wouldn’t go down terribly well around the pen. The goat consequently morning? if the answer is, ‘He’s away doing the ate the entire contents of the appli- The dog needing to go to the loo and cha-cha-chá.’ I am still a member cant’s handbag. There are not many me wanting to go to the gym. of my wonderful chambers, 2 Hare cases outside of the Bible that start Court, and they’ve been nothing but with the words: ‘Jane had a goat…’ What keeps you awake at supportive. night? Most diva-ish moment you’ve I’m a serious insomniac. The only Who gave you your TV break? witnessed working in TV? similarity between me and Margaret Helen Warner at ITV. It came about I’m glad you ask. I have zero tolerance Thatcher – apart from our love of completely randomly. I was inter- for anybody who complains about Aquascutum – is that I sleep three to ested in writing a script and bringing working in front of the camera: it is four hours a night. back a version of the 70s TV show the most disproportionate privilege Crown Court. I pitched it to a woman imaginable. I’m lucky because I work What is your favourite at ITV who gave it her absolute, in Manchester and it’s run by Tom restaurant? undivided indifference. Of course, McLennan and Kate Broadhurst. The Just one? That’s so difficult… Let’s when you’re at the Bar you’re not entire culture there simply wouldn’t go with Randall & Aubin in Soho. It’s interested in any sort of hierarchy and tolerate that sort of behaviour, but I always reliable and a place that I have I didn’t know who she was, she just know it goes on. To some extent, the many happy memories of. seemed sort of fun. We chatted and reason it happens is that the set-up she was looking at me curiously [of TV] almost conspires to inter- Favourite shop? – which, of course, having fere with people’s moral chemistry. The bookstore, Foyles. my face, I’m used to. People run around getting you coffee ‘It’s She suggested I meet or whatever you want. I had to say Favourite drink? impossible for Tom McLennan, to them at the start, ‘Look, if this A good quality single who’s an ITV super- carries on, by the end of the week I’ll malt whisky. I don’t me to overstate star. He was inter- be like Kim Jong-un,’ so we don’t do care which one, I the importance ested in making a any of that stuff. can’t tell the differ- court show. From ence. of Grange Hill’ the idea to putting You came fifth on Strictly in someone on television 2016. Are you still dancing? Are you still practising – especially someone who’s I’m not, because the dances I love are law? never been on before – can take all from the 1920s. I am a bit ‘Let’s I continued for a short period [after years, but he was a maverick. He just party like it’s 1899’, but there are just Judge Rinder launched], but a lot of said, let’s make 20 shows. I assumed not that many places you can go and my work was advising governments the programme was going to be very do the foxtrot. and in those circumstances, you end small. I arrived on set in Salford to a up potentially in in the evidential big courtroom with my name on! What are you reading at the chain. In an inquiry a judge may moment? ask counsel whose advice it was, for What’s the strangest case I’m re-reading Aleksandr Solzhen- example, to draft policy or not to you’ve presided over? itsyn’s Gulag Archipelago, and also disclose a certain document and if Where do we begin? Angela the Pushkin’s Eugene Onegin because I love the answer is me and they ask where I haunted doll was unusual, but I had Russian. I’m doing my best to relearn

22 | zoom-in Winter 2018 us into decorated fuck-sticks for men, Mrs Shrager,’ which if you think about it is ten chapters of Jane Austen in one sentence.

Favourite place to have fun? Ibiza.

Dream dinner party guests? Christopher Hitchens for his brain, and Emma Thompson because if there is a god, that’s what I want her to look and sound like.

If you could change one thing about yourself, what would it be? That’s an impossible question for me. There are just too many.

Last three websites you visited? The BBC’s, something for getting a Russian visa, and Amazon to get my mum a birthday card.

Last time you cried? My uncle’s funeral.

Describe yourself in five words. Incorrigible, loyal, unpredictable, profoundly modest.

If you could retire tomorrow, what would you do? I’d do a part-time PhD in English Literature while teaching literacy to adults for half the year, and spend the other half in Ibiza.

What is the greatest invention of all time? ROB RINDER, AKA Coffee. ITV’S JUDGE RINDER

Wall to Wall Media Media to Wall Wall Who would you least like to it before going on the Trans-Siberian Guilty TV pleasure? get stuck in a lift with? Railway for Christmas with my friend I used to love reality TV shows where The list is long but the new Presi- Katie Glass from The Sunday Times. there’s any kind of transformation. I dent of Brazil, Jair Bolsonaro, would think there was as much profundity be pretty high on it. Paul Hunwick Favourite TV shows? in Aussie Ladette to Lady season two as Modern ones are Game of Thrones and in anything Proust ever wrote. There Judge Rinder is on ITV weekdays Killing Eve, but it’s impossible for me was a wonderful line from a woman and available at itv.com. Rob Rinder to overstate the importance of Grange who had previously been a miner, is currently in production on his Channel 4 Hill in my life. who said: ‘Oh, you’re trying to turn end-of-year review Good Year, Bad Year

zoom-in Winter 2018 | 23 MEDIA HAUNTS: ANNABEL’S Back in vogue It’s been a playground for the rich and famous for half a century, but in recent years doubters worried Annabel’s might lose its exclusivity. Paul Hunwick recalls what made the place special, and asks if a £55m refit has put it back on top

rank Sinatra and Elizabeth Taylor were members. Diana Ross, The FRolling Stones, Ella Fitzgerald and Lady Gaga have played here. John Wayne once rolled in so drunk that he broke three cigars trying to light them. It’s reportedly the only night- club the Queen has ever visited. (She drank a gin martini, no lemon.) Anna- bel’s reputation for being an exclusive party hotspot is legendary. Little surprise, then, that Richard Caring, the man who owns a signifi- cant share of Soho House & Co and many of the finest restaurants in London, wanted Annabel’s so much he paid £95m for it in 2007. To be fair, the deal included Harry’s Bar, Mark’s Club and their artworks. The late Mark Birley opened the original Annabel’s nightclub in 1963, naming it after his then wife, Lady that was Annabel’s: standing for the old Annabel Vane-Tempest-Stewart. Situ- world but also representing the new.’ ated in the old coal cellar beneath the The 1970s saw Annabel’s became a infamous Clermont Club, a gambling mixture of an English country house den frequented by Lord Lucan, Anna- party and Studio 54. In 1986, the bel’s was funded by 500 of Birley’s Duke of York had his stag night there, friends, each of whom paid five guineas which might have stayed under the a year to become a life member. radar had Diana, Princess of Wales and In Ridley Scott’s documentary Sarah, Duchess of York not dressed Annabel’s: A String of Naked Lightbulbs, up as policewomen and directed Anna Wintour says: ‘The sixties were traffic around Berkeley Square before an extraordinary time to be in London. crashing the party. It was Fergie’s idea. Different worlds were starting to As the excesses of the 80s passed, collide. Hairdressers were suddenly as Annabel’s elitist DNA didn’t fit well famous as duchesses and at the centre of with Cool Britannia and the place fell

24 | zoom-in Winter 2018 allowed to do.’ The Garden Room is a sumptuous restaurant with mirrored panels, a gilded ceiling and trellises of roses painted by muralist Gary Myatt. French doors open into a courtyard garden with a retractable roof, like Wimbledon’s Centre Court. The top- floor Powder Room has washbasins made of pink onyx carved in the shape of oyster shells, and gold taps in the shape of swans. Socialite journalist Plum Sykes describes it as ‘Liz Taylor meets Marie Antoinette’. The design is a triumph and, if you want confirmation of the club’s fashion 26,000 square feet of unembarrassed credentials, check out the pages of a opulence. It has four restaurants, recent British Vogue. Kate Moss is seven bars, two private dining rooms sitting in the club, crossed-legged and a cigar salon, spread across four wearing a blood-red Gucci dress and spacious floors. One bar is covered in Louboutin heels, photographed by hand-painted de Gournay wallpaper Nick Knight. It’s not the old Anna- depicting elephants and maharajas; bel’s, but why should it be? Times another has jungle scenes. Brud- have changed. And if anyone can put nizki says of the place: ‘It’s the most it back on the top spot, Caring is the maximalist project that I’ll ever be man to do it.

Annabel’s 46 Berkeley Square London W1J 5AT 020 3915 4046 annabels.co.uk largely out of fashion. Younger members Historically notable patrons: Jackie Kennedy, Frank Sinatra, Elizabeth Taylor, began avoiding the place. The running Jerry Hall, Joan Collins joke was they might ‘bump into their Who might you see there today? Kate Moss, Edward Enninful, Princess fathers with their mistresses’. Beatrice When Caring bought Birley Membership Joining fee of £250 and annual subscription of £750 for Group, high society worried his under-27s, up to £1,250 plus £2,750 a year for over-35s ownership would lead to a flashy, less exclusive version of Annabel’s and How to join New candidates require a proposer and seconder with election members would leave in their droves. by the club’s committee. [email protected] Mark Birley’s son, Robin, founded Opening hours Mon-Fri, 7.30am-3am. Sat, 12pm-3am. Sun, 12pm-1am a rival club at 5 Hertford Street and Phones Must be kept on silent while some of the old guard followed him, many stayed put. Of those that Dress code Fabulous party dressing did leave, some may now be regretting Who to know Rebecca Burdess, membership director that decision. Head chef Julien Jouhannaud is the executive head chef of the Birley Clubs Annabel’s completed a £55m refurbishment this year, overseen by Eat Crab cake with mustard and strawberry chutney in the Elephant Room, or London’s hottest interior designer, the grass-fed côte du boeuf for two in the Rose Room Martin Brudnizki Studio (The Ivy, Drink Try the club’s own whisky, aged and bottled to their exact specification Sexy Fish, 34 Mayfair). It’s bigger Look out for Picasso’s Girl with a Red Beret and Pompom, which Caring and better than ever. Based loosely controversially renamed Annabel around the theme of ‘garden’, it is

zoom-in Winter 2018 | 25 PRIVACY & DATA PROTECTION

for a careless, negligent or malicious Since the Human Rights Act 1998 came into force, English law has employee’s actions. developed a legal right to privacy. The courts can and will intervene to Morrisons also sought to argue that data protection legislation had protect privacy rights where they are infringed without justification. superseded the law on breach of confi- This is commonly referred to as ‘misuse of private information’. dence and misuse of private informa- Personal information is also protected by the Data Protection Act, so tion, such that there was no longer journalists and programme-makers need to be aware of, and comply room for vicarious liability in those with, its rules as it applies to them. In this section, we report on some causes of action. recent privacy and data protection decisions of note. The Court rejected these argu- ments. The fact that there is a different standard of strict liability Morrisons liable for data data when he posted it online, Morri- where an employer is vicariously liable sons was still vicariously liable for his for their employee’s actions is the posi- breach by rogue employee actions. tion across the board, not just in data n Supermarket Morrisons faces paying Vicarious liability is the legal protection, it found. There is nothing a substantial sum in damages after mechanism whereby employers are in the Data Protection Act to suggest the Court of Appeal confirmed it was found liable for wrongs committed by Parliament intended to exclude people liable for a data breach deliberately their employees. It has been applied from bringing claims in misuse of carried out by an employee. in a wide range of circumstances, private information/breach of confi- Andrew Skelton was entrusted including where employees were dence as well as under the Act, nor with handing over the payroll data of doing things they were obviously not that it intended vicarious liability not almost 100,000 Morrisons employees supposed to, for example where the to apply, and the judge was right to to auditors. Skelton, however, had a warden of a school boarding house find that it should, the Court said. grudge against the company after it sexually abused boys in his care. It had As Skelton was entrusted with the took disciplinary action against him not, until now, been applied to data payroll data as part of his job, there for using the Morrisons mailroom to protection claims. was a sufficient connection with his post a package containing a slimming Morrisons appealed to the Court employment for vicarious liability drug – the package had split, spilling of Appeal, arguing that data protec- to apply. His motive of hurting the an unidentified white power and tion legislation only applies to data company was not relevant. Concerns causing alarm. controllers, and that in relation to about the costs to business could not Skelton copied the payroll data, security measures a data controller affect the decision, and in any event posted it online and sent it to news- only had to comply with the seventh could be mitigated by insurance. papers. The police were alerted, and data protection principle, which Morrisons has said it intends to in 2015 he was convicted requires it to take appropriate appeal to the Supreme Court. of fraud and offences technical and organisa- Both this appeal and the judge’s under the Computer This case tional measures to initial decision have caused consider- Misuse Act and prevent unlawful able concern in data protection circles, the Data Protec- suggests that access to personal given that the Information Commis- tion Act. He where there has data. Morrisons sioner had declined to take any action was sentenced been a data breach, also argued that against Morrisons, and the Court itself to eight years in compensation found that the only breach of the prison. even if carried out by a is only avail- seventh data protection principle did A group of rogue employee, the able where the not cause the damage complained of. 5,518 employees data controller However, this is simply a demon- brought proceed- company may well has failed to take stration of the difference between ings against Morri- be liable reasonable care to regulatory action and the position sons for breach of comply with the law. before a court. This case suggests the Data Protection Act, This contrasts with the that where there has been a data breach of confidence and misuse position in vicarious liability, breach, even if carried out by a rogue of private information. The judge which in effect imposes strict liability, employee, the company may well be held that although Skelton and not ie even if the employer has taken liable, and those affected may be able Morrisons was the ‘controller’ of the reasonable care it would still be liable to seek compensation.

26 | zoom-in Winter 2018 media have been subject to an injunc- tion preventing publication of the full details of a story which is clearly in the public interest.’ The information related to five cases in which allegations of discreditable conduct had been made against Green by employees, three of whom had used internal grievance procedures, and two of whom had brought proceedings in the Employment Tribunal. All five complaints were resolved by settlement agreements under which the complainants received substantial payments. The complainants received inde- pendent legal advice on this process, and both sides undertook through the NDAs to keep confidential the subject matter of the complaints them- selves and various associated matters, including the amounts paid by way of settlement, although the complainants were not prohibited from reporting criminal offences if they chose to. In its decision to grant an interim injunction to prohibit publication on a temporary basis, the Court of Appeal focused on what it called ‘the Natalia Mikhaylova / Shutterstock.com Natalia Mikhaylova important and legitimate role played GREEN: NAMED IN PARLIAMENT by non-disclosure agreements in the Philip Green named in had decided that publication of the consensual settlement of disputes, information would be in the public both generally but in particular in the Parliament as injunction interest. employment field’. businessman Lord Hain told the House of It noted that two of the complain- Lords: ‘Having been contacted by ants supported the application by the n Topshop owner Sir Philip Green has somebody intimately involved in claimants, ie they were in favour of the been named in Parliament by Peter the case of a powerful businessman injunction, and one said they wished Hain as the businessman who had using non-disclosure agreements for their privacy to be protected. obtained an injunction against The and substantial payments to The Court also referred to Daily Telegraph. conceal the truth about Two the potential for imme- The former cabinet minister and serious and repeated diate, irreversible and Labour peer identified Green in sexual harassment, of the substantial harm a speech in the House of Lords on racist abuse and complainants to be caused by 25 October. bullying which publication, and His intervention followed a deci- is compulsively were in favour of the underlined the sion by the Court of Appeal to grant continuing, I injunction, and one temporary nature an interim injunction to prevent the feel it’s my duty of its decision newspaper from publishing confiden- under parliamen- said they wished for by making an tial information that was the subject tary privilege to their privacy to be order for a speedy of various non-disclosure agreements. name Philip Green trial at which the The Court of Appeal reversed a deci- as the individual in protected parties’ full cases could sion by a judge at first instance, who question, given that the be heard.

zoom-in Winter 2018 | 27 PRIVACY & DATA PROTECTION

In this context, Lord Hain’s deci- political campaigning in the US. Kasim accessed the personal data sion effectively to breach the Court’s Even after the misuse of the of thousands of customers without order and potentially to pre-empt data was discovered in December permission by using his colleagues’ the outcome of any trial 2015, Facebook did not do log-in details on Audatex, a soft- was, unsurprisingly, enough to ensure those ware system that estimates the cost controversial. It was The fine who continued to of vehicle repairs. Kasim worked for a step he felt able hold it had taken accident repair firm Nationwide Acci- to take because was capped adequate and dent Repair Services, and continued to of the long- at £500,000, the timely remedial access the system after he moved to a standing doctrine maximum that could action, including different car repair organisation. of Parliamentary deletion, the NARS contacted the Informa- privilege, which be imposed under the ICO found. The tion Commissioner’s Office after an ensures there is old Data Protection personal informa- increase in complaints about nuisance a complete bar on tion of at least one calls, and assisted in the investigation. legal action in respect Act 1998 million UK users was This was the first prosecution of statements made among the harvested brought by the ICO under section in Parliament. data and consequently put at 1 Computer Misuse Act 1990. The risk of further misuse. ICO usually prosecutes cases under Information commissioner Eliza- the Data Protection Act, but can use Facebook fined £500,000 beth Denham said: ‘Facebook failed other legislation where it considers by ICO to sufficiently protect the privacy it appropriate, for example where of its users before, during and after tougher sentencing powers are n The Information Commissioner’s the unlawful processing of this warranted. Confiscation proceedings Office has fined Facebook £500,000 data. A company of its size and under the Proceeds of Crime Act, to for failing to protect user data, the expertise should have known recover any benefit obtained as penalty coming in the aftermath of better and it should have a result of the offending the Cambridge Analytica scandal. done better.’ This behaviour, were also The ICO is the UK’s independent The Facebook was the commenced. regulator for data protection and fine was capped Mike Shaw, information rights law. at £500,000, the first prosecution group manager of The ICO found that between 2007 maximum that brought by the ICO the ICO’s crim- and 2014, Facebook processed the could be imposed inal investiga- personal information of users unfairly by the ICO at the under section 1 tions team, said: by allowing developers access to their time of the data Computer Misuse ‘Members of the information without sufficiently breach under the old public and organisa- clear and informed consent, and Data Protection Act Act 1990 tions can be assured that allowing access even if users had not 1998. This legislation we will push the boundaries downloaded an app, but were simply has now been replaced by the and use any tool at our disposal to ‘friends’ with people who had. Data Protection Act 2018, which protect their rights.’ Facebook also failed to keep the will give the regulator the ability to personal information secure because it impose maximum fines of £17m or failed to make suitable checks on apps 4% of global turnover. Fly-tipping video and developers using its platform. breached privacy code As a result of these failings, one developer, Dr Aleksandr Kogan, and Car repair employee jailed n A newspaper article about fly his company GSR, harvested the after ICO probe tipping, published by the Thurrock Facebook data of up to 87 million Independent, breached the Editors’ people worldwide without their n A former employee of an accident- Code of Practice because it included knowledge. A subset of this data repair firm has been sentenced to six shots of a woman’s bank details, was later shared with other organi- months’ imprisonment after pleading in breach of her privacy rights, sations, including SCL Group, the guilty to a charge of securing unau- the Independent Press Standards parent company of Cambridge thorised access to personal data under Organisation has ruled. Analytica, who were involved in the Computer Misuse Act. Mustafa The article, published online on 17

28 | zoom-in Winter 2018 July under the headline, ‘Flytip reveals continued from page 15 continued from page 17 origin of rubbish dumped in Chadwell found that Mr de Freitas did believe behalf of the production company, and that angers residents’, included a video that what he wrote was in the public to allow the production company to of rubbish in which the complain- interest, although he was incorrect on terminate the fixer agreement and cut ant’s name, recent address and bank some of what he thought – for example, off payment if necessary. This is why account details were visible. The that the police investigated the allega- it may be advisable for the fee to be woman complained to the newspaper tion of perverting the course of justice paid in instalments throughout the about the publication of her name and against his daughter and decided not services period. personal information and denied fly to proceed. In fact, the police had not Since the UK Bribery Act 2010 tipping, explaining that she had given investigated it at all and declined to do came into force, UK broadcasters pay the material to a waste disposal person so when asked. more attention to the use of fixers by in good faith. The newspaper agreed Accordingly, the main issue was production companies, as broadcasters not to publish the woman’s bank whether Mr de Freitas’ belief was ‘reason- can be held corporately liable for the details in further articles but continued able’. The trial judge found that it was, actions of production companies. to cover the matter. in all the circumstances and given Mr Broadcasters place the onus on Ipso ruled that the publication of de Freitas’ role, in effect as a contributor. the production company to police the the woman’s bank details breached the The Court of Appeal agreed. practices undertaken by their fixers to Code because the information was sensi- The Court took into account that ensure compliance with this Act, with tive and confidential, had come from Mr de Freitas was taking aim at the most broadcasters requiring production private correspondence, and the news- CPS in the articles, not Mr Economou, companies to have anti-bribery and paper had not provided specific justi- and did not name him. It would have anti-corruption policies in place and fication for including it in the article. been difficult for Mr de Freitas to to enforce them in any country where Ipso went on to note that publication make his criticisms of the CPS without a production is filmed and edited, and was not justified merely because the implying something defamatory about to require that sub-contractors woman had used a contractor to remove Mr Economou. (including fixers) contractually comply the waste and the documents had ended It was not fatal to the defence that with those policies too. up on public land. Mr de Freitas had not included Mr Finally, note that the term ‘fixer’ The woman also claimed that Economou’s side of the story. First, to is sometimes frowned upon by broad- subsequent articles about the matter do so would have made little sense in an casters: some will accept ‘facilitator’, infringed her privacy because they article not about Mr Economou. Second, while others have an issue with that named her. Ipso rejected that aspect of Mr de Freitas was entitled to rely on term too. Any terminology that implies the woman’s complaint, finding that the media organisations publishing the or has connotations of a party that ‘gets being identified as someone who had material to get comment from other things done regardless of the means’ used an unauthorised waste disposal parties if necessary. This was so even in is probably best avoided. Instead, service was not something about which relation to the Guardian article that Mr ‘production services provider’ is some- the woman could have a reasonable de Freitas himself wrote and which was times used, although it doesn’t trip off expectation of privacy and was infor- apparently published unedited. the tongue very easily, and ‘fixer’ is still mation that formed part of the news- As the first Court of Appeal case on the term used in common parlance. paper’s coverage of a story of legitimate the statutory public interest defence, When contracting a fixer, language public interest. this will be of interest to anyone and legal practice in the applicable Ipso required the newspaper to producing public interest material. overseas country must be considered, publish its adjudication on its website, However, given that Mr de Freitas is so fixer agreements have a fine line to with a link to appear on the top half of an individual and not a media organi- walk between covering what’s required the homepage for 24 hours. sation, it should not be taken to mean to protect the production companies’ The ruling is a reminder that any that, for media publishers, the burden interests while at the same time being story containing information or other to verify and seek comment from the in a form that a fixer is willing to material which engages individ- subjects of allegations has necessarily sign. They can therefore sometimes uals’ privacy rights should be care- been lowered. Each case will depend be tricky to get right. Abbas Media fully assessed before publication. In on its facts. It will generally be for the Law’s advisors have many years’ expe- the absence of consent, publishers media publisher, not the contributor, to rience advising on ‘fixer’ and other should identify the relevant public carry out these steps and to ensure that production services agreements. interest justification for publication the publication as a whole is defensible For advice, please get in touch at before proceeding. in the public interest. [email protected]

zoom-in Winter 2018 | 29 CONTEMPT & REPORTING RESTRICTIONS

18. As in this case, if that is not far The law of contempt makes it a criminal offence for the media off, this may also be a persuasive factor to publish or broadcast comments or information that creates for a judge. a substantial risk of serious prejudice to active UK legal proceedings, in particular criminal proceedings heard before Ant McPartlin named in juries. Penalties for contempt can be serious: fines, even divorce cash fight imprisonment. Many activities are capable of amounting to a contempt, including: publishing seriously prejudicial material; n Ant McPartlin of TV duo Ant and Dec can be named in reports of a High obtaining or publishing details of jury deliberations; breaching Court divorce case brought by his wife reporting restrictions or a specific court order; making payments Lisa Armstrong, a judge has ruled. to witnesses; filming or recording inside court buildings without The couple were granted a decree permission; and publishing information obtained from confidential nisi in October. The latest proceed- court documents in both civil and criminal proceedings. ings will determine the nature of the financial settlement that follows their divorce. Murder scene teen can be locally. Lifting the order, the judge Financial hearings in divorce cases cited the public interest in reporting usually take place in private, and while named the case, particularly given reporters are allowed access to the fact that Simms listen to the case, there n A teenager who went to a murder would turn 18 only McPartlin are normally restric- scene to hide evidence can be named two months later, did not attend, tions on what can after an Oxford Mail journalist chal- so the restriction then be reported to lenged a reporting restriction. would lapse then which resulted the public. Seventeen-year-old Alfie Simms was in any event. in the judge telling In these convicted, together with a 26-year-old This case is proceedings, the man, of conspiring to pervert the course one of a number journalists that they judge has ruled of justice. Minutes after an attack that that show journal- could report he had that the couple can killed 27-year-old Chris Lemonius, ists can and should be identified, but he they went to the scene seeking to hide challenge reporting been ‘told off’ has limited the level of weapons and other evidence. Four other restrictions if they feel detail that can be reported men were convicted of Mr Lemonius’ there is a public interest in and has prevented the publica- murder and a fifth man was convicted reporting names or other details. In tion of confidential financial informa- of manslaughter after the attack, which criminal cases such as this one, even tion and McPartlin’s address. was carried out with golf clubs if an order has been granted The judge said he had balanced and machetes. during trial to protect a free speech against the couple’s right A reporting young person, a judge to a private and family life before restriction under Journalists may be persuaded reaching his decision. section 45 of the can and should to lift it if the Armstrong was at the hearing in Youth Justice defendant is the Family Division of the High Court and Criminal challenge reporting convicted of a on 5 November, but McPartlin did not Evidence Act restrictions if they serious offence, attend, which resulted in the judge 1999 had been given the telling journalists that they could made, but feel there is a public public interest report he had been ‘told off’. He said: Oxford Mail jour- interest in reporting in knowing ‘There isn’t one law for the famous and nalist William who the offender one for the rest of the community.’ Walker challenged names or other is once the case Although rulings on reporting it after Simms was details has been proven. high-profile divorce cases are case- convicted. The judge Journalists should specific, reporting is often restricted. was persuaded to lift the also always remember that However, the judiciary operating in order, so Simms can now be named. orders under section 45 lapse automat- these courts are fairly divided about The case had attracted huge interest ically when the young person reaches whether, as a general principle,

30 | zoom-in Winter 2018 troubled home lives and learning disabilities. One man was sentenced to life with a minimum of 18 years, and others jailed for between five and 18 years. Further trials for similar offences will take place in the future. The original restriction postponed reporting ‘until the conclusion of all related trials’, meaning reporting could have been postponed until 2020. It was argued that the public interest was such that reporting should be permitted now, particularly in the light of the judge’s sentencing remarks, which included that the lengthy sentences were intended to act as a deterrent to others. The judge took the view that fair and accurate reporting of the trials would not create a substantial risk of prejudice in ongoing or future trials, saying: ‘In this case, at this stage of the sequence of trials, I am satisfied that the balance lies in favour of the strong public interest in open justice.’ Restrictions remain in relation to individuals who had been mentioned in the cases and who are to be defend- ants in forthcoming trials: they cannot be named, and evidence relating to them that was given during these cases cannot be reported. This case shows the difficult balance that must be struck where there are Featureflash Photo Agency / Shutterstock.com Featureflash a series of linked cases. Reporting of MCPARTLIN: ‘TOLD OFF’ BY JUDGE the earlier cases may risk prejudice to marriage breakdown should be dealt restriction that banned reporting of future cases, but a ban on reporting with in private or reported on publicly. the evidence and their outcomes. The may result in the public questioning There are numerous rules on prosecution supported the lifting of why no information is being released, reporting proceedings in the UK’s the restriction and pointed out that ill- leading to increasing distrust of the courts. For advice, contact Abbas informed commentary was more likely criminal justice system. Media Law. to prejudice any future linked cases The trials are those to which than the fair and accurate reporting of English Defence League leader the trials that had concluded. Tommy Robinson (real name Stephen Huddersfield grooming The defendants were convicted of Yaxley-Lennon) referred in a video convictions reported grooming girls as young as 11. The that is alleged to constitute contempt girls were raped, sexually abused and of court. As we reported previously n A series of trials for members of a beaten. The gang also committed in zoom-in, Robinson was origi- Huddersfield grooming gang have offences of child trafficking, inciting nally convicted of contempt of court been reported after a blanket restric- child prosecution and supplying the and jailed in May this year, but that tion was lifted by a judge. The trials girls with drugs. The gang targeted conviction was quashed on appeal, and had been subject to a reporting vulnerable girls, many of whom had will be re-heard.

zoom-in Winter 2018 | 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 affecting the production. We prepare and deliver bespoke training television, film, 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 offers, and to find 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 The Team exciting and challenging factual programmes; news; films Nigel Abbas Founder and dramas; and all kinds of entertainment and comedy Nigel is a barrister with over 20 years’ experience programmes. Nigel Abbas is the primary author of Channel advising the media and entertainment industries. 4’s Producers’ Handbook, a comprehensive guide to best Clare Hoban Senior Lawyer practice, regulation and the law as they apply to the making A highly experienced media lawyer, Clare joined AML and broadcasting of programmes. in January 2016 after 11 years at the BBC. Business Affairs & Rights Jenny Spearing Senior Business Affairs Adviser We advise clients on all aspects of business affairs, chain of Jenny is a business affairs expert with nearly 20 years’ title and rights issues, in connection with the television, film, experience in television production. advertising and publishing industries. We advise on deal- Paul Schaefer Lawyer making, draft and negotiate all types of agreements, and can Paul is an experienced media lawyer, having worked as answer all your day-to-day queries. See page 16. in-house counsel for newspapers and broadcasters. Legal and Regulatory Threats, and Litigation Lucy Chisholm Batten Trainee Solicitor We regularly represent clients when legal and regulatory Lucy began her training contract in September 2018 having threats are made against programmes and other content, worked as a Paralegal for Abbas Media Law since 2017. both before and after publication. We represent clients in Jan Tomalin Consultant most areas of litigation affecting the media, advising on Over the last 30 years, Jan has advised on an enormous strategy, tactics, drafting 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 affecting your business or profession. Visit abbasmedialaw.com to get free magazine issues delivered straight to your inbox. To receive a printed copy email [email protected] abbasmedialaw.com