zoom-inMedia law news round-up from Abbas Media Law AutumnMay 2016 2016 Loose Women – ‘Edinburgh’ 2016 BBC Trust finds Ofcom rules on Advisory Chair Fiona jokes about Queen’s strong language Campbell talks to sex life intrusive and P6 zoom-in P11 derogatory P8

Brexit – a new landscape for media law?

The ‘Edinburgh’ Edition n Welcome to this special Edinburgh edition of zoom-in - to coincide with the zoom-in Edinburgh International Television Festival - Abbas Media Law’s quarterly magazine for programme-makers, production managers, and others working in television and film pro­ your essential duction. At a moment of some uncertainty following the Brexit vote, zoom-in brings you an essential round-up of legal and compliance news, recent interesting decisions media law by media regulators and the courts, particularly affecting indies and broadcasters, as well as comment and analysis. Be informed about the important legal and compliance round-up issues affecting your business: get a free subscription to zoom-in at abbasmedialaw. com and have the magazine and regular updates sent to you throughout the year. abbasmedialaw.com IN THIS ISSUE

COVER Scientology leader wins IPSO complaint...... 9 COPYRIGHT & IMAGE RIGHTS Brexit – a new landscape for media law? In this issue, we report on a number of high profile ...... 2 (cont. on p24) copyright infringement cases in the music industry 20 QUESTIONS including ‘Edinburgh’ 2016 Advisory WINNERS & LOSERS Appeal filed following Led Zeppelin’s Stairway to Chair Fiona Campbell tells Heaven win...... 18 We report on some recent high profile legal winners zoom-in of her love for and losers including… C4’s Jon Snow and Gregg’s Ed Sheeran sued over song Photograph...... 18 sausage rolls...... 11 Defence Secretary Michael Fallon Justin Bieber facing claim over Sorry...... 19 and George Galloway both pay libel damages...... 3 BUSINESS AFFAIRS & RIGHTS PRIVACY & DATA PROTECTION Gawker files for bankruptcy after Abbas Media Law’s production legal schedule – sets zoom-in looks at some recent privacy and data losing Hogan sex tape appeal...... 3 out the 5 key stages of television production and protection decisions including Footballer Danny Simpson’s libel the legal issues that producers need to consider. In Amazing Animals – no injunction ...... 20 case – still all to play for...... 4 this issue we focus on Option Agreements and E&O insurance...... 12-13 Playboy model Dani Mathers in trouble after body Social Media Winner: Taylor Swift...... 5 shaming Snapchat ...... 20 DEFAMATION Journalist gets police harassment warning REGULATION – OFCOM & IPSO News and analysis of some recent interesting revoked...... 20 We round-up some recent regulatory decisions of defamation decisions including … Sex tape offered to Sun on Sunday of actress interest… Irish politician Phil Hogan gets defamation damages Kym Marsh...... 21 Loose Women, ITV – Ofcom rules from both a TV channel and newspaper...... 15 on Harvey Price’s use of the word “cunt” before watershed...... 6 Leonardo DiCaprio to CONTEMPT & REPORTING testify in Wolf of Wall RESTRICTIONS Reporting Scotland, BBC Scotland; Street libel case...... 16 A New Life in the Sun, Channel In this edition, we report on two recent interesting 4; and Nightmare Tenants, Slum New statutory s.4 contempt cases … Landlords, Channel 5 – three public interest defence succeeds...... 16 “Fuk the judge!” - Facebook posts Ofcom decisions on privacy... 6 - 8 end in conviction ...... 22 Actress Amber Heard Don’t Make Me Laugh – BBC Trust - jokes about the Two jurors found guilty of Queen’s sex life breached guidelines...... 8 sues comedian Doug Stanhope for contempt...... 22 Kelvin MacKenzie’s article criticising a C4 News defamation...... 17 Cliff Richard in the clear. Singer reporter for wearing a hijab leads to IPSO says he’s suing and wants the law complaints...... 9 changed...... 23

Brexit – a new landscape media and entertainment laws, which Abbas Media Law for media law? in turn have shaped Ofcom’s and the other regulators’ codes of practice that zoom-in is written by our media industries have to comply the Abbas Media Law n If you didn’t already know, on 23 with. A change in the UK’s relation- team. We are a niche June this year, the UK voted to leave ship with the EU therefore has the po- law firm advising on all the European Union. Whilst newly tential to affect all of us working in the aspects of UK law and installed Prime Minister Theresa May media and entertainment industries in regulation affecting the has confirmed that “Brexit means a significant way. television, film, adver- Brexit” and the UK will be leaving, Take copyright and trademark tising and publishing exactly what will and will not change law for example, two areas of IP law industries. remains unclear. at the heart of the television, film Founded by Nigel It’s perhaps not always appreciated and music industries. Presently such Abbas, we work closely by non-lawyers that the UK’s mem- laws have to comply with EU direc- with broadcasters, bership of the EU has had a significant tives and regulations. However, their NIGEL ABBAS independent production impact on the development of many of continued effect in the UK following companies of all sizes, and other content producers. our laws, including most aspects of our continued on page 24 Abbas Media Law advises both before publi- cation / broadcast, working with creatives to mini- zoom-in Contact mise legal and regulatory risk, as well as following Editor Nigel Abbas ABBAS Media Law publication and broadcast, defending content when Deputy Editor Clare Hoban 1st Floor, 239 Kensington High it, and its producers, come under attack. Street, London W8 6SN With particular expertise in television and Contributing Editors Felicity McMahon D: +44 207 316 3046 Paul Hunwick film, we have advised on thousands of hours of tel- M: +44 7831 311 080 evision over the last two decades, across all genres. Picture Editor Karen Harper E: [email protected] Nigel Abbas is also the primary author of Art Director Tim Parker www.abbasmedialaw.com Channel 4’s Producers Handbook. Subscribe to zoom-in www.abbasmedialaw.com abbasmedialaw.com

2 | zoom-in Autumn 2016 WINNERS & LOSERS

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

DEFAMATION: Defence been used as a police agent. In a state- PRIVACY (US): Gawker files for ment made in open court Ms Ali-Khan’s Secretary pays damages lawyer stated that the allegations were bankruptcy after losing Hulk to Imam untrue. Mr Galloway, through his barris- Hogan sex tape appeal ter withdrew the allegations and apolo- n Defence Secretary Michael Fallon has gised. He accepted that the allegations n As reported in the last issue of zoom- apologised and paid libel damages to an made by him and by those for whom he in, a Florida jury awarded wrestler Hulk imam who he falsely accused of support- bore responsibility were defamatory. Mr Hogan a total of $140 million in dam- ing Islamic State in an interview on Ra- Galloway paid an agreed sum - said to be ages in an invasion of privacy case against dio 4. The Prime Minister also apologised in five figures - and Ms Ali-Khan’s costs. online news site Gawker which published to the imam, Suliman Gani, for having Both parties agreed not to make further a sex tape featuring Hulk Hogan on its made the same claim in the House of statements on the matter. website. The damages were made up of Commons. The Prime Minister could not $115 million for economic damage and be sued as MPs have immunity for what emotional distress and a further $25 mil- they say in Parliament, so-called “abso- DEFAMATION: Two MPs win lion in punitive damages. The video was lute privilege”. £40,000 each over claims they a secret recording of Hulk Hogan, whose David Cameron’s remark came dur- knew about Rotherham abuse real name is Terry Bollea, having sex with ing comments about then London May- and let it continue his friend’s wife. oral Candidate Sadiq Khan, who the In the last issue we reported that Prime Minister was criticising for having n Sir Kevin Barron and John Healey Gawker was appealing the verdict but shared a platform with Mr Gani. In a let- have won £40,000 each in damages from since then a Florida judge has upheld the ter to Mr Gani published on his website UKIP Councillor Caven Vines. The claim finding against Gawker, and the damages Michael Fallon said that he made the al- was over a live Sky News interview with award of $140 million, refusing to hold a legation having heard it previously on a Kay Burley in January 2015, in which Mr new trial. The judge also awarded a per- BBC programme, but was unaware that Vines claimed the MPs had known about manent injunction, preventing Gawker the BBC had subsequently apologised and the large-scale of sexual abuse in Rother- from posting the sex tape on its website. corrected the matter. ham for years, and let it go on. The judge The judge noted that a private recording of He said: “I accept that you are entirely awarded damages to vindicate the MPs’ someone, even a celebrity, naked or having opposed to Daesh/Islamic State, that you reputations and compensation for the real sex, is something which the public has “no regard it as incompatible with your reli- distress and damage the allegation had legitimate justification or right to see.” gious and moral beliefs, and that you have caused them. Mr Vines had claimed that As a result, in June, Gawker filed spoken out publicly against it.” neither MP were harmed as both were re- This case shows the importance of turned to Parliament at the last election fact-checking claims before repeating with an increased majority, but this argu- them – even where claims have been made ment only went as far as showing that their by a seemingly reliable source. political reputations were not completely destroyed. The judge also found that Mr Vines had behaved unreasonably during DEFAMATION: George the course of the litigation. Although spe- Galloway pays libel damages cial caution is required where allegations and apologises to former aide are made by one politician against another, the judge found the amount of the dam- n George Galloway has apologised and ages award struck the right balance be- paid damages to a former aide who sued tween the need to vindicate and compen- him for libel. Galloway had accused Ms sate the MPs and the need to avoid overly Ali-Khan of conspiring with a senior po- chilling political freedom of speech. The lice officer in the Metropolitan Police’s damages award follows a summary judg- counter-terrorism command to feed mis- ment finding in April 2015 in which Mr information about him to a national news- Justice Warby found that there was no paper and others. He made the claims in defence to the claim with a realistic pros- a blogpost, and the claims were later re- pect of success. peated by his spokesman to the Mail on Mr Vines was also ordered to pay Sunday. The resulting Mail on Sunday ar- £30,000 on account in relation to a costs ticle, as well as referring to the claims of bill which is estimated to be at least a dirty tricks campaign, also alleged that £70,000. He has said he intends to appeal. Ms Ali-Khan had slept with the police of- The Vines case shows the scale of dam- ficer (to whom she was married in a Sharia ages that such allegations can attract, even ceremony) in Galloway’s home, and had in the political arena. WINNER: HULK HOGAN

zoom-in Autumn 2016 | 3 WINNERS & LOSERS for bankruptcy although it said it still the defamatory meaning. The judge did and sentenced to 300 hours community planned to appeal further against the rul- so, finding that the plea was “clearly and service. He sought to have the commu- ing. Gawker founder Nick Denton has also significantly” different from the position nity service order replaced with a fine filed for personal bankruptcy. The com- as set out in the article. There was no plea in May, claiming that media attention pany said that it had come under “a co- that the couple lived together at the time prevented him from finishing his hours ordinated barrage of lawsuits intended to Mr Simpson began his relationship with of community service. A judge instead put the company out of business and deter Ms Contostavlos; nor that Ms Ward gave imposed a curfew on Mr Simpson from its writers from offering critical coverage”. up her legal career for the sake of hav- 10pm-6am for 21 days, which would It was reported that Paypal co-founder ing children with Mr Simpson or that he have prevented him joining events to cel- Peter Thiel had been helping to knew that. ebrate Leicester’s Premier League victory. fund Hulk Hogan’s case. The Mirror appealed argu- Mr Simpson then appealed that decision, Thiel and Gawker are ing that a couple may be in following which the original community not strangers. In a “To a committed relationship service order was re-imposed by Judge 2007 article Gawk- without living together Richard Mansell QC, who commented er outed Thiel as what extent all the time, particu- that in arriving for community service in gay. Referring to matters proven to larly in the case of a Lamborghini, Mr Simpson was “hardly his $10 million a professional foot- keeping a low profile”. backing of Hogan be true will … meet baller who will be in an interview frequently moving with the New York the ‘sting’ of libel around the country. Times, Thiel said It also said that the “It’s less about re- is a matter for giving up of a legal ca- venge and more about reer is something which specific deterrence”. trial” demonstrates Ms Ward’s loyalty, which can be shown in any event. DEFAMATION: All to The Court of Appeal allowed the ap- play for in footballer Danny peal, overturning the decision. In doing Simpson libel case … so it differentiated between “meaning” and “sting”. A piece may have a meaning n Premier League winner Danny Simp- which is not defamatory at all and there- son’s defamation case against Mirror Group fore there may be no defamatory “sting”. Newspapers is set to continue after the Different people may have different views Court of Appeal overturned a High Court of the gravity of a defamatory sting, just ruling which struck out the newspaper’s as they may of what constitutes immoral defence of justification (truth). The foot- conduct. The court said: “The essence of SETTLED : DAVINA MCCALL baller is suing over a 2012 article about the sting surely consists in the assertion his relationship with singer and television of a selfish disruption of that committed PRIVACY - HACKING: personality Tulisa Contostavlos. The judge family relationship with father, mother, celebs settle Mirror phone- found the article bore the meaning: child and another child to come.” To what hacking cases “By entering a romantic relationship extent any matters proven to be true will with the celebrity Tulisa Contostavlos the then be found to meet the ‘sting’ of libel is n Twenty-one high profile individuals claimant was unfaithful to his loyal part- a matter for trial. have recently settled their phone-hacking ner Stephanie Ward, with whom he was in It is understood that Mr Simpson will claims against the Mirror Group News- a long-term and committed relationship, seek to appeal the decision to the Supreme papers (MGN). The group includes TV living with their daughter as a family; he Court. presenter Davina McCall, and actors Ni- did so despite Ms Ward having sacrificed Ms Ward was joined as a defendant gel Havers, Rhys Ifans and Kym Marsh. her legal career to have his children, and in the action in January 2015. The Mirror MGN, which publishes the Daily Mirror, being, as he knew, pregnant with their argued that as the source of the story, if Sunday Mirror and The People paid damag- next child; and by doing so he callously the newspaper were found liable it would es, costs and made an apology in each case. destroyed his relationship with Ms Ward be just and equitable for her to contribute Ms McCall’s case related to a 2007 arti- and broke up an established family unit to the damages. It was said that after Ms cle headlined “Davina’s Terror Stalker”, which was soon to be joined by the child Ward’s relationship with Mr Simpson re- which MGN admitted was published as they were expecting.” sumed she became “antagonistic” towards a result of phone-hacking. In a statement The Mirror had pleaded a defence of the newspaper. the High Court was told that Mr Havers’ justification – i.e. that they could show Ms Ward and Mr Simpson are now un- case related to the period 2000-2004; he the defamatory allegation was substan- derstood to no longer be in a relationship. was subject to voicemail interception at tially true. In May 2015 Mr Simpson was convicted a time during which he was nursing his Mr Simpson asked the judge to strike of assaulting Ms Ward. Police were called late wife through the final stages of can- out that defence on the basis that even to reports of a row and Mr Simpson was cer. MGN apologised to each individual if The Mirror could prove all the matters found with his hands around the throat of and accepted that material should not pleaded it would not meet the ‘sting’ of Ms Ward. Mr Simpson was found guilty have been obtained in the way that it was.

4 | zoom-in Autumn 2016 Social Media Winner: Taylor Swift n It seems that Instagram has given Taylor Swift a new tool, about allowing celebrity users to control reactions to their posts which allows her to delete negative comments en masse from in this way, in that it may misleadingly give the impression that her Instagram account. The tool has been designed to prevent there have only been positive comments. Some have pointed online “trolling” after Ms Swift was bombarded with comments to the impact on freedom of expression. However, as a private – including numerous messages containing the snake emoji - company Instagram can give its users whatever tools it sees fit. after being involved in an online row with Kim Kardashian and Instagram has said it is looking at tools for accounts with “high- Kanye West. Whilst there is no doubt that social media plat- volume” threads. Whether Instagram users will support the forms need to take steps to control trolling, the move has pro- move, which seems to put celebrities on a different footing to voked negative reaction in some quarters. Some have misgivings other users, remains to be seen.

zoom-in Autumn 2016 | 5 REGULATION – OFCOM & IPSO

count Harvey’s demeanour and emotional Ofcom regulates the content of all television and radio in the UK, except state on the day. Production staff had had the opportunity to spend several hours for some content broadcast on BBC channels funded by the licence fee. prior to the recording with Harvey, ensur- IPSO is now the main regulator for the press and magazine industry. ing that he felt at ease in the studio envi- Both regulators adjudicate on complaints with reference to codes of ronment, and ensuring that the piece was rehearsed – during rehearsal Harvey had practice which those they regulate have to comply with. The Ofcom answered a similar question with the an- Broadcasting Code is the main code relating to broadcast content whilst swer: “Harvey sad”, so ITV did not antici- IPSO judges complaints against the Editors’ Code. Compliance with these pate that he would use offensive language. The word “cunt” is amongst the most codes is important. Both regulators can impose penalties and sanctions offensive language. Even after the 9pm for non-compliance. With regard to privacy matters, these regulatory watershed it requires exceptional editorial codes also have wider legal significance because of provisions within the justification, Ofcom has ruled in the past. Consequently, it’s unusual to hear the word Human Rights Act 1998 and the Data Protection Act 1998. The result is in programmes before 10pm on mainstream that the Codes have a bearing not simply in a regulatory context, but also channels and even then programmes con- on how the courts should act when making any order affecting freedom taining the word would be preceded with warning of “this programme contains very of expression and the publication of journalistic, literary or artistic strong language”. Use before the water- material. In this section we report on some recent interesting regulatory shed as in this case is a clear and automatic decisions. breach. However, given the measures taken with Harvey and Katie Price, the fact that Loose Women is aimed at an adult audi- OFCOM – STANDARDS: ence, aired when children are at school, and Loose Women, ITV – Harvey taking into account the apologies made af- ter the event, Ofcom considered the matter Price’s use of the word to be “resolved”, rather than Ofcom finding “cunt” before watershed – a “breach” of the Code. “resolved” (August 2016) n Ofcom has decided to treat an inci- OFCOM - PRIVACY: Reporting dent on ITV’s Loose Women, in which Scotland, BBC Scotland – Katie Price’s disabled son Harvey used unwarranted infringement the word “cunt” live on air around of privacy (June 2016) lunchtime as resolved. The piece referred to an earlier inter- n Ofcom has upheld a complaint by “Mr view with Katie Price on Loose Women & Mrs F” of unwarranted infringement of when she spoke about Harvey receiving their privacy in relation to footage of Mr abuse from online trolls. She wanted Har- F receiving medical treatment and Mrs F vey to appear in the studio live in order accompanying him in an ambulance. The to allow people to see how he is. During complaint was upheld even though the cou- the interview the following exchange took ple were not named, and their faces were place: obscured in the footage. Katie: “If someone says something hor- The complaint related to an edition of rible to you, what do you think?” Reporting Scotland, aired on BBC Scotland Harvey: “Say hello”. in December 2015. It included a segment Katie: “If someone says something hor- KATIE PRICE about the impact of alcohol-related call- rible to Harvey, what does Harvey say?” outs on the ambulance service in Glasgow, Harvey: “Hello, you cunts”. The decision for Katie and Harvey and the effect these call-outs had on the ser- The presenter immediately apologised, Price to appear live on the show rather vice’s ability to respond to “genuine emer- saying, “We apologise, we apologise for than in a pre-recorded interview was taken gency” incidents. that but this is one of the reasons why we very carefully. It was unusual for the pro- The footage in question showed Mr F wanted to do this live”. gramme to pre-record such items, and after sitting on the floor outside a pub having Under rule 1.14 of the Ofcom Broadcast- careful consideration, a decision was taken fallen and hit his head, he was being at- ing Code the most offensive language­ must at a senior level within the editorial team tended to by paramedics, and his face was not be broadcast before the watershed.­ ITV to have them appear live. ITV had care- blurred. In the next shot his bloodied hand explained its protocols to ensure­ offensive fully considered its duty of care to Harvey, was visible. The footage later showed Mr F language is not aired before the watershed, and taken into account the approval of his walking to the ambulance being assessed by including briefing guests, and an instruction local education authority and the support a paramedic, and Mrs F arriving to collect to presenters to apologise­ immediately if any of his school, as well as that of his chaper- her husband. offensive language is used. one and his mother. ITV also took into ac- Mr F was described as a civil servant in

6 | zoom-in Autumn 2016 his 50s, and footage included Mrs F call- In considering whether the infringe- to a complaint from a Mr Hutchinson, ing him by his first name. Mr F appeared ment of privacy involved in the filming who was filmed for Channel 4’s A New for approximately 20 seconds, Mrs F for 3 was nonetheless warranted, Ofcom found Life in the Sun. seconds. that there was a genuine public interest The programme followed Brits as they Mr and Mrs F claimed that Mr F had in making the programme and that the pursued a new business in Spain or France. been identified by a number of people filming was done in furtherance of this The footage included Mr Hutchinson, who from the broadcast, that Mrs F had ex- purpose. However, Ofcom took account of was shown telling a couple, who were plan- pressed clearly that she did not want the Mr F’s heightened legitimate expectation ning to open a bar in southern Spain, that footage to be used, and that they did not of privacy, the fact that the entirety of his he had heard rumours that there would be know how the information about Mr F’s medical treatment was filmed, his confu- “a bit of bother” at the bar’s opening. Mr age and occupation was known to the sion and his agitation and repeated Hutchinson was not named in the pro- BBC, something which added to indications that he was not gramme and his face was blurred but his the distress suffered. happy being filmed. On voice was undisguised. The BBC stated that “programme balance, looking at the Mr Hutchinson complained that this they did not think Mr matter in terms of was a private conversation and that he F was identifiable. makers need to give proportionality, in was not aware he was being filmed. He Clothing was not connection with complained that both the filming and the blurred as it was careful thought to the the actual film- broadcast of the footage amounted to an un- thought to be unre- privacy rights of those ing of the footage, warranted infringement of his privacy. markable. The refer- Mr F’s privacy Channel 4 said that it was well known ence by Mrs F to Mr they are filming, even rights outweighed in the local ex-pat community that the cou- F’s first name had not the broadcaster’ ple were being filmed for the programme. been cut out as it was when filming in right to freedom of Further the camera operator believed Mr not thought to be prop- public places” expression and the Hutchinson could see both her and her erly audible (a reference by public interest, and camera, and noted that the couple were a paramedic to Mr F’s name the infringement of Mr F’s wearing microphones. As the couple drove was cut as it was thought to be au- privacy was accordingly unwar- off immediately after the filming there was dible). It argued that there was a strong ranted in the circumstances. no opportunity to speak to Mr Hutchin- public interest in filming of this nature i.e. As regards Mr F’s privacy and the son about his inclusion in the programme, alcohol-related incidents and the time and broadcast of the footage: similar matters and because the camera operator believed resources they take up being a matter of were taken into account. Although steps he knew he was being filmed, no later ap- great concern to ambulance crews. had been taken to disguise Mr & Mrs Fs’s proach was made. Channel 4 accepted that Mr F’s age was mentioned to show that identities, Ofcom took the view that with in hindsight this was a mistake, but one due the problem was not just confined to young all the information given about them taken to human error. people. Mr F had stated his age and occupa- together, they were identifiable. As such, After viewing the first cut of the pro- tion whilst the film crew were filming. Giv- taken with the factors set out above, the gramme the production manager asked en the anti-social nature of Mr F’s behaviour broadcast of the footage had also unwar- about Mr Hutchinson, but understood that and the consequences for both ambulance rantably infringed their privacy. he was aware filming was taking place and crews and other patients it felt filming and This judgment is a reminder that not identified. As there was no consent form broadcast was justified in the public inter- programme-makers need to give careful for him, his face was pixelated. After receiv- est in this instance. thought to the privacy rights of those they ing Mr Hutchinson’s complaint, as a ges- In assessing the filming, Ofcom found are filming, even when filming in pub- ture of goodwill, his voice was disguised for that Mr F was intoxicated and at times lic places, particularly where those being repeats of the programme. seemed confused about what was happen- filmed are in sensitive situations and may In its determination, Ofcom found that ing. He had on a couple of occasions indi- have a heighted expectation of privacy. It is Mr Hutchinson had no legitimate expecta- cated that he did not want to be filmed or also a reminder that, even where contribu- tion of privacy. He was filmed standing by wanted the footage to be “expunged”. Mrs F tors’ faces have been blurred, Ofcom may a public road and speaking to the couple had clearly indicated that she did not want find that privacy rights have been unwar- who had been driving down the road. Mr the footage to be used, and was told by a rantably infringed if other information is Hutchinson was not in shot for most of the paramedic that Mr F would be telephoned included which could lead to the person’s shot. Ofcom found that Mr Hutchinson did before broadcast and could at that point say identification, even amongst a relatively not have a reasonable expectation of privacy ‘no’ to its use. small portion of the public. either in relation to the recording or broad- In the unused footage Mr F had given casting of the footage. It found that whilst sensitive details about himself such as his Mr Hutchinson may not have realised he medical history. As such he had a heightened OFCOM – PRIVACY: A New Life was being filmed, there was no intention to legitimate expectation of privacy despite be- in the Sun, Channel 4 – no deceive him. ing in a public place. Similarly, Mrs F had a reasonable expectation of In general, Ofcom said, conversations legitimate expectation of privacy - she was privacy (August 2016) between individuals in which the parties filmed attending to her husband in an am- feel they can talk freely to each other may bulance, and details such as her address and n In contrast to the Mr and Mrs F deci- be regarded as confidential and potentially occupation were captured by the filmmakers. sion, Ofcom found no breach and no rea- attract an expectation of privacy. However, Neither consented to the filming. sonable expectation of privacy in relation the matters being discussed here in this case

zoom-in Autumn 2016 | 7 REGULATION – OFCOM & IPSO were already firmly in the public domain following the stories of two landlords who lowed, and the material was all relevant. e.g. there were pages of material opposing had been left significantly “out of pocket” Miss Keeling had not consented to the the opening of the bar on social media, and by Miss Keeling. It stated it had not fol- broadcast of footage of her, and the intru- that Mr Hutchison was offering to look out lowed Miss Keeling for months, and set out sion and exposure in relation to the court for any trouble and help the couple deal each occasion on which filming took place proceedings (although themselves a matter with it. These topics could not reasonably – 7 occasions over 2 months, at only 2 of of public record) was greater than someone be considered to be personal or private to which Miss Keeling was filmed. On those 2 in her position could have expected. Thus Mr Hutchinson. Accordingly, his privacy occasions filming took place openly in pub- Miss Keeling had a legitimate expectation rights were not engaged and not unwar- lic places. of privacy in relation to the broadcast of her rantably infringed by the filming. For simi- Miss Keeling had said she did not wish full name and unobscured footage. lar reasons, and bearing in mind also that to be filmed, but no assurances were given However, the broadcast was warranted Mr Hutchinson’s face was blurred, Ofcom that the footage would not be broadcast, in the circumstances in the public inter- found his privacy was not unwarrantably indeed in correspondence it was made est. The broadcaster and landlords both had infringed by broadcast. clear that her identity would not be ob- their rights to freedom of expression, and the scured. Channel 5 said Miss Keeling broadcast was of relevant material to illus- could not have a legitimate expectation of trate the impact of non-payment of rent on Ofcom – Privacy: Nightmare privacy in relation to the court proceed- landlords. This outweighed Miss Keeling’s Tenants, Slum Landlords, ings, and that it appeared Miss Keeling limited legitimate expectation of privacy. Channel 5 – ‘public interest was concerned about her reputation – but outweighs privacy rights’ that any damage to her reputation was as a result of her own actions. BBC Trust: sex jokes n In this case, although the complainant Ofcom found that although filming about the Queen breached had a legitimate expectation of privacy both took place in a public place Miss Keeling BBC Guidelines (June 2016) in relation to the obtaining of material for did have a legitimate expectation of privacy the programme and in its broadcast; the in relation to being filmed being evicted. n Jokes about the Queen’s sex life broad­ public interest outweighed that expecta- Similarly, whilst the court proceedings cast on Radio 4’s Don’t Make Me Laugh tion of privacy, and the complaint was not themselves are a matter of public record, were a serious breach of the BBC editorial upheld. this does not obviate all rights of privacy in guide ­lines, according to the BBC Trust. The programme featured disputes relation to those proceedings. Being filmed The programme­ was made by So Radio, a between tenants and landlords. The pro- without warning, whilst being evicted and branch of So Television. The programme’s gramme in question featured Miss Keeling having been denied access to the property host David Baddiel introduced the topic: being evicted from her property for failure to collect personal effects could reasonably “The Queen must have had sex at least four to pay rent. The property was shown when be characterised as distressing and sensitive times” which panellists then commented the landlord went to conduct an inspec- such that it falls within “private life”. Simi- on. The pro­gramme was removed from the tion, and her furniture, clothes, toiletries larly, filming relating to the court proceed- BBC iplayer, but the comments were found etc were shown – the landlord expressed ings without warning could reasonably be frustration that it was now his responsibil- regarded as a sensitive or distressing situ- ity to box these items up and ar- ation in which Miss Keeling may range a time for her to collect have been feeling under pres- them. The narrator said: sure. From this Ofcom “Terry is following the found that the circum- letter of the law, but “Ofcom found stances did give rise to his tenant Sophia a reasonable expecta- knows her rights that there was tion of privacy. and isn’t going However, Of- quietly”. Footage a genuine public com found that of Miss Keeling in- there was a public cluded her object- interest in making interest which out- ing having a camera the programme…” weighed Miss Keel- “in [her] face.” The ing’s privacy rights. programme then showed There was a genuine another landlady talking public interest in mak- about problems they were hav- ing the programme and the ing with Miss Keeling. This included issues it covered: the difficulties the landlady going to court to obtain pos- landlords have and the emotional impact session, and that Miss Keeling had made ac- and expense of tenants not paying rent. cusations that the landlady had physically Filming landlords taking steps to evict abused her, the landlord describing her as a Miss Keeling was important to this end. “horrible woman”. Filming Miss Keeling allowed Channel Miss Keeling complained that filmmak- 5 to use a real example. The means were ers had followed her for months and filmed proportionate. There was no evidence HM THE QUEEN without her consent. Channel 5 said it was that Miss Keeling was at any stage fol-

8 | zoom-in Autumn 2016 by the BBC Trust to have been personal, Ms Manji as their presenter on this day: intrusive and derogatory. The Daily Mail “Was it done to stick one in the eye of the reported that panellist, comedian Russell ordinary viewer who looks at the hijab as Kane’s remarks included: ‘For me, this is a sign of the slavery of Muslim women by just a quadruple representation of why in- a male-dominated and clearly violent re- herited power is so dangerous. The Queen ligion?”. The backlash was swift, and The having had sex at least four times is no Sun removed Tweets linking to the arti- laughing matter whatsoever because we’re cle. The matter was mentioned in Parlia- forced to imagine Prince Philip and his ment, with both Equalities Minister Jus- work in the creation of those children.’ The tine Greening and Speaker John Bercow Telegraph reported that there was reference making comments critical of Kelvin Mc- to genitalia. Kenzie’s article. A series of media figures The programme aired at 6.30pm, and defended Ms Manji and Channel 4 News. the offence was compounded as the broadcast Ms Manji herself wrote an article for the of the episode coincided with the Queen’s Liverpool Echo expressing her grief over 90th birthday – something which had not the Nice massacre, but saying she was been envisaged when it was recorded. not expecting an apology from MacKen- The BBC Trust condemned the pro- zie anytime soon. She echoed The Sun’s gramme, stating that the timing made mat- infamous Hillsborough front page by ters worse but that it was hard to see how the headlining the piece: “The Truth - why remarks would have been acceptable at any Kelvin MacKenzie’s smears won’t stop me time. There had been a failure in compliance from doing my job” and vowed that she as in answer to the question on the compli- would not be deterred “by the efforts of ance form as to whether the programme in- those who find the presence of Muslims cluded “potentially controversial references in British cultural life offensive.” Whilst to public figures” the production company The Sun has not commented, MacKenzie NO SPECIAL TREATMENT: TOM CRUISE had answered “no”. The Trust found that, remains defiant, writing about the mat- even with the leeway given to comedy, and to ter in a later column and has said he may untrue by his representatives. comment on public figures the programme refer Channel 4 News to Ofcom. MailOnline declined to respond to had caused unjustified offence. The breach the IPSO investigation, stating that the was found to have been “the result of the article was commissioned, written and combination of editorial misjudgement and IPSO: Scientologist leader edited for its US division, about Ameri- a failure of the compliance process.” The succeeds in complaint to cans, and about events which took place BBC apologised both publicly and to the IPSO, prompting review of in America. Thus it was written to com- Palace, and moved further episodes of the regulator’s remit ply with US law and journalistic conven- programme to a later slot. tions rather than the IPSO Code. Given n Head of the Church of Scientology, Mail Online’s lack of response IPSO David Miscavige has had a complaint found that it has failed to demonstrate IPSO: complaints over upheld by IPSO over a Mail Online ar- how it had complied with its obligations Kelvin MacKenzie article ticle about his relationship with Tom under the Code, including why it had criticising Channel 4 Cruise, entitled: “Exclusive: inside the failed to include Mr Miscavige’s position journalist wearing a hijab ‘bromance’ of Tom Cruise and Scientol- and how it had regard to previous deni- ogy founder David Miscavige: How they als, nor had it provided a defence of the n Over 1,900 members of the public, as gamble and smoke cigars together and accuracy of the article. Thus IPSO upheld well as a Channel 4 news presenter and share a special language – but Miscavige the complaint. the CEO of ITN (who produce Channel 4 secretly recorded the movie star” which The Mail Online stance triggered News) have complained to press regula- reported “exclusive interviews” with for- IPSO to launch a review of how its rules tor IPSO over a Kelvin MacKenzie arti- mer members of the church. As well as should apply to global digital publish- cle criticising Channel 4 News for hav- the allegation of secret filming, the ar- ers. IPSO said: “We want a solution that ing a presenter wearing a hijab reporting ticle reported special treatment being enables IPSO to be an effective regula- on the massacre in Nice on Bastille Day given to Mr Cruise who it was said was tor for relevant consumers and provides a (14 July). Fatima Manji, who has been treated like “Scientology royalty”, and definition that is intuitive and workable a member of the Channel 4 News team claims that other members of the church for publishers.” The regulator acknowl- for 4 years, appeared as a presenter on the were required to live in poor conditions. edged that having to comply with differ- nightly programme on the evening of the Mr Miscavige claimed the article was in- ent rules across borders was an issue for terrorist incident. Mr MacKenzie wrote a accurate and thus in breach of clause 1 some existing members and risks being column in The Sun saying he could “hard- (accuracy). He said that the interviews a disincentive for other global publish- ly believe my eyes”… “Was it appropriate were with “disaffected former members” ers who might join IPSO. IPSO said its for her to be on camera when there had of the church and that the allegations in board would conduct the review as ex- been yet another shocking slaughter by a the article had already been disproved or peditiously as possible and that submis- Muslim?” and accusing Channel 4 News denied, and that Mail Online had been sions on the subject would be welcomed of being deliberately provocative by using told that several of the allegations were by IPSO by 19 August.

zoom-in Autumn 2016 | 9 About Abbas Media Law We are specialists on all aspects of UK fine cuts, right through to picture lock. At other times clients law and regulation affecting the tel- seek advice on specific issues e.g. libel, copyright or other issues. evision, film, advertising and publishing We also advise many of the mainstream news providers. industries. We advise before publication and broadcast, working with creatives Business Affairs & Rights to minimise legal and regulatory risk, and following publica- We advise clients, both companies and individuals, on all as- tion and broadcast, defending content when it and its produc- pects of business and commercial affairs, and chain of title and ers come under attack. We work day-to-day with many of the rights issues, in connection with the television, film, advertis- country’s leading creative content producers. ing and publishing industries. We advise on deal-making, draft and negotiate all types of agreements, and we can answer all Content Advice your day to day queries. See page 14. We are experts in all aspects of the law – defamation, privacy, contempt, copyright (including fair dealing), the criminal law Regulatory threats and complaints – that affects the publishing and broadcasting of content in the We have many years’ experience dealing with high-profile post- UK, as well as all relevant regulatory rules – Ofcom, ASA, BBC broadcast complaints to the media regulators in particular Of- Editorial Guidelines, IPSO and the Editors’ Code. com and the ASA, advising on strategy, tactics, drafting of sub- Nigel Abbas, the firm’s founder, is the primary author of missions and defences and advocacy. Channel 4’s Producers Handbook, a comprehensive practical guide to best practice, regulation and the law as they apply to Legal Threats the making and broadcasting of the broadcasters’ programmes. Lawyers at Abbas Media Law have worked on some of the most Equal in scale and ambition to the BBC Guidelines, it is now legally challenging programmes over many years, including the benchmark for best practice training and procedures in the programmes made for the BBC’s Panorama and Channel 4’s UK independent television sector. The Handbook was first pub- lished in 2008 (as a joint handbook for Channel 4 and Channel Dispatches strands, fending off threats of attack from numer- 5) and is now made available online at http://www.channel4. ous high profile individuals and companies. We regularly advise com/producers-handbook/ and represent clients when legal threats are made against pro- Abbas Media Law’s lawyers and advisers are some of the grammes and other content, both before and after publication. most experienced content lawyers in the country. They have ad- Litigation vised on an enormous amount of television, film and other con- tent over many years, across all genres. Content that we work We advise and represent clients in most areas of litigation on appears on television, in cinemas, on-line or in print week- affecting the media, advising on strategy, tactics, drafting in-week-out. of pleadings and advocacy. Current and recent litigation We advise and work on some of the most exciting and chal- in which we have been involved includes defending a libel lenging factual programming; films and dramas, including the claim brought over defamatory words published online, act- most hard-hitting factually based works; and all kinds of enter- ing for an indie being sued for copyright infringement and tainment and comedy programmes. We advise on content from acting for a national broadcaster in respect of a claim for start to finish: advising on treatments and the feasibility of pro- judicial review of an Ofcom decision in respect of one of the jects even before commission, advising on scripts, rough cuts, broadcaster’s most popular series. The Team

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

10 | zoom-in Autumn 2016 20 Questions Fiona Campbell, Controller of BBC News mobile and online, and Advisory Chair of this year’s Edinburgh International Television Festival talks to Paul Hunwick.

What gets you out of bed in the morning? Jowell and Victoria Beckham Strong coffee Why those four? They are super smart women who have Who gave you your first career break? truly lived life. Jane Ellison, the editor of The Money Programme. She was one of the only Celebrity crush? The French photographer, illustrator female editors at time. We both had and author, Garance Doré, best known blonde, frizzy hair. I think that helped. for her fashion blog Describe yourself in five words First single you bought? Belfast girl, doesn’t like [to hear the Tainted Love by Soft Cell word] no Finest festival moment? Leaving Glastonbury in a helicopter What do you love about your job? That anything is possible. The internet Best advice you’ve been given by a work has brought boundless opportunities. colleague? 8JL) and take a Sal Psycle class - it’s the Just keep going Biggest legal pickle you’ve got most inspiring spin class in town. Biggest challenge facing the TV industry? yourself into? If you didn’t live in London, where would How the youth are turning off linear I once ended up giving evidence against you live? television in their droves a counterfeit currency gang who stood Ibiza What’s your biggest work regret? outside the court giving me ’clampers’. Favourite drink? Not accepting a job on ABC’s 20/20 in They even followed me to the train Moscow mule New York in 90’s station. How do you relax? Dancing or dining? How did you get out of it? Spinning class or see answer above Ooh, dancing Thankfully, I had the backing of the Patisserie Valerie or Greggs? Who makes you laugh? incredibly bright and rather handsome, Probably Greggs for a sausage roll Nigel Abbas Keir Starmer, KCB, QC What are you reading? How do you define success? What advice would you give “The The Silo Effect: The Peril When everyone is sitting around at the someone breaking into the internet of Expertise and the end of a project, laughing that they’ve industry today? has brought Promise of Breaking managed to pull it off Be as multi skilled as Down Barriers by boundless Describe a perfect day on holiday possible. Know how to Gillian Tett opportunities.” Me with a cold alcoholic drink sitting in shoot, edit and do graphics. Favourite TV show? the sun on a beach with friends and family Your rough guide to London? C4 News. I’m in love with knowing a big lunch is coming my way If budget is no object, stay at Jon Snow. Favourite designer? Claridge’s though I’ve sadly yet to Guilty TV pleasure? Isabel Marant. Her clothes are relaxed and manage it myself. Alternatively, Airbnb Scott & Bailey with Suranne Jones or at the same time, very sexy. on a house boat – the Thames is the Peaky Blinders What’s your biggest achievement in most beautiful thing in London. Eat at Who would you invite to a dinner party? life so far? Morito (195 Hackney Rd, London, E2 Hillary Clinton, Helen McCrory, Tessa My son, Lorcan, aged 3

zoom-in Autumn 2016 | 11 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

During the period of exclusivity, the producer will usually In this and future issues of zoom-in we examine the commercial, legal and regulatory hoops also be granted certain limited rights so that the book may that programme-makers have to jump through to get their programmes safely to air. Our be adapted for television, for example by the writing of production legal schedule above sets out the 5 key stages of production which producers scripts or treatments, and may be pitched to prospective commissioners and financiers. This allows the producer to need to consider and the advice and expertise they are likely to need at each stage. In each investigate commissioner and financier interest in com- issue we focus on one or two particular aspects of production legal requirements. missioning and investing in the programme without hav- ing to purchase all rights in the book from the outset. If In this edition, we focus on option agreements (below) and Error & Omissions insurance the option period expires without the producer securing a (page 13). In the next issue we’ll focus on access agreements and fair dealing advice. commission and finance to produce the programme then both the producer and the author are released from their obligations to each other. The producer’s loss is limited to the option fee, and whatever time and money has been OPTION AGREEMENTS invested in the development. So far, so straightforward. However, in order to manage the producer’s risk should n Securing underlying rights for television programmes The types of works that can be optioned are broad, and the programme be commissioned and financed, it is usual is important. Programme-makers need to ensure that they are relevant to most genres of programming, from dramas for option agreements to incorporate a separate contract don’t waste time and money developing a programme to documentaries. While the most common use of an op- agreeing upfront all of the terms that will apply if the op- based on an underlying work e.g. a book, only to find that tion agreement is to secure the exclusive television rights tion is exercised and the programme gets made, and this another producer is out there pitching a programme on in a published book or series of books, options can work usually takes the form of an assignment or licence agree- the same subject. In addition, broadcasters and financiers equally well to secure exclusive rights in unpublished ment. This agreement covers all the terms and conditions may require that you can demonstrate you have secured works, blogs, an entire body of work of a particular artist, relating to the passage of rights in the book in order to the exclusive rights to an underlying work before they will for example a painter or musician, entertainment formats allow the producer to actually produce the programme i.e. confirm a commission or offer funding. It is for this reason and an individual’s life story. The terms of option agree- what rights the producer will hold, in what territory, for that option agreements are very useful documents. They ments can vary greatly, but the general deal structure is how long, what the author will be paid etc. can secure and demonstrate exclusivity, usually without usually the same. To use a published book as an example Whilst it is possible for an option agreement not the need for a large upfront financial investment from a programme-makers will agree a fixed fee with the author to incorporate an assignment or licence agreement at producer. in return for a fixed period of exclusivity over the book. continued on page 14

12 | zoom-in Autumn 2016 The zoom-in Television Production Legal Schedule

During the period of exclusivity, the producer will usually also be granted certain limited rights so that the book may be adapted for television, for example by the writing of scripts or treatments, and may be pitched to prospective commissioners and financiers. This allows the producer to investigate commissioner and financier interest in com- missioning and investing in the programme without hav- ing to purchase all rights in the book from the outset. If the option period expires without the producer securing a commission and finance to produce the programme then both the producer and the author are released from their obligations to each other. The producer’s loss is limited to the option fee, and whatever time and money has been invested in the development. So far, so straightforward. However, in order to manage the producer’s risk should the programme be commissioned and financed, it is usual for option agreements to incorporate a separate contract agreeing upfront all of the terms that will apply if the op- tion is exercised and the programme gets made, and this usually takes the form of an assignment or licence agree- ment. This agreement covers all the terms and conditions relating to the passage of rights in the book in order to allow the producer to actually produce the programme i.e. what rights the producer will hold, in what territory, for how long, what the author will be paid etc. Whilst it is possible for an option agreement not to incorporate an assignment or licence agreement at abbasmedialaw.com continued on page 14

zoom-in Autumn 2016 | 13 BUSINESS AFFAIRS & RIGHTS

Continued from page 13 lishing ‘novelisations’ of those episodes. Consequently, a producer may option the outset, if a programme based on the Authors may wish to re-use characters the life rights of an individual but be un- underlying work is commissioned, the from the original series of books in a new able to prevent another producer from producer would then be in the invidious spin-off series. How all of these various producing a programme about that indi- position of having to negotiate terms for scenarios fit with the rights of the author vidual. Nevertheless, there may well be production of the programme with the au- and the publisher of the optioned books, some benefit to optioning an individual’s thor after the event. This places the owner and the rights of the producer of the pro- life rights. For example, the producer of the underlying rights, the author, in a grammes, requires careful consideration. will usually seek to prevent that indi- very strong negotiating position and the Assignment and licence agreements vidual from talking about their life story producer in a correspondingly weak po- for formats have different issues to ad- with any other television company, so the sition. So while it may feel like a lot of dress, such as who owns adaptations of producer’s programme will be the only unnecessary work at the outset, and rather the format created by the licensee, and content that features the main subject of like ‘putting the cart before the horse’, it is the sale of an overseas version back into the programme. Similarly, if the option almost always in programme-makers’ best the format’s home territory where the secures the exclusive use of the individu- interests to negotiate all the terms for an commissioning broadcaster or financier al’s personal photographs and videos, that underlying work being the basis of a tele- may require holdbacks or a first option to brings a unique element to the producer’s vision programme at the outset, before any acquire rights in that version. programme. There is also the commis- commission or finance is offered. Options over life stories, or life rights sioning broadcaster to consider, as they There are a number of specific things as they are sometimes referred to, may not may require that life rights are secured be- to consider in relation to assignment and offer producers the same level of exclusiv- fore they will invest in the development or licence agreements depending on the work ity as an option over a book or other copy- production of a programme about an indi- being optioned. For published books, for right work, for instance if elements of an vidual, not only to demonstrate that the example, there will be the publication individual’s life story are already in the producer does have access to the individual rights to consider, particularly in relation public domain, for example through court and exclusivity as far as that is possible, to optioning existing and future books in records or newspaper reports. There is no but also to give assurance that the telling a series. Also if the programme is a suc- copyright in facts and individuals cannot of the individual’s story won’t result in any cess and the producer has adapted all pub- use the law of copyright to prevent oth- legal claim from the individual, for exam- lished books in the series for television, ers making programmes about them. The ple a privacy or defamation claim. the producer may wish to produce further subject of a programme or film may have a In short, option agreements are an programmes using the characters and ele- legal claim in privacy, if his or her privacy invaluable tool for producers to help to ments of the books in new and original ep- is unwarrantably infringed, or in defama- manage their development risk and also isodes that are not based on any books, and tion, if his or her reputation has been un- to reassure commissioning broadcasters subsequently there may be interest in pub- justly tarnished, but not copyright. and financiers

ABBAS MEDIA LAW are experts in all aspects of business affairs & rights issues affecting the television and other media industries. Our business affairs & rights team, Nigel Abbas and Jenny Spearing, advise clients, both companies and individuals, on all aspects of business and commercial affairs, and chain of title and rights issues, in connection with the television, film, advertising and publishing industries. We can advise you and help you in structuring a deal, we can draft and negotiate all types of agreements, and we can answer all your day to day business affairs, production and rights queries. A small Nigel Abbas, Founder selection of the types of agreements and deals we regularly advise clients on are: • commissioning and production agreements • financing agreements • distribution agreements • co-production agreements • all manner of underlying rights agreements such as option, access, Jenny Spearing, Consultant location, contributor and presenter agreements. We offer a first-class professional service offering clear practical advice and solutions. Please get in touch for further information about the services we offer.

14 | zoom-in Autumn 2016 DEFAMATION

The TV3 case related to comments The law of defamation protects the reputation of individuals and companies. made on Tonight with Vincent Browne, a popular news and current affairs pro- Statements are defamatory if they adversely affect a person’s or company’s gramme. In a show in May 2013, it was reputation in the eyes of reasonable people. A person or company can alleged that Mr Browne made comments sue over defamatory statements in England and Wales if they cause or are to the effect that Mr Hogan engaged in racist behaviour, was prejudiced against likely to cause ‘serious harm’ to the person or, in the case of companies, members of the travelling community, cause or are likely to cause serious financial loss. Journalists, indeed all and had intervened with the local au- those publishing content, need to be aware of the law, and confident that thority in relation to housing allocation for Travellers. what they are publishing is either not defamatory or, if it is, that they can The Irish Daily Mail case related to avail themselves of one of the defences to defamation. The Defamation articles published in September 2012, Act 2013 has made some significant changes to defamation law and the which also inferred that Mr Hogan was prejudiced against the travelling com- consequences are only now starting to filter through, for example how the munity and had intervened with the lo- courts are interpreting the ‘serious harm’ provisions, as well as the new cal authority in relation to housing al- public interest defence contained within s.4 of the Act which replaced the location for Travellers. Both TV3 and Associated Newspa- old public interest defence commonly known as ‘Reynold’s privilege’. In pers previously indicated that they in- this section we look at some recent notable defamation decisions involving tended to defend the claims. TV3 had those in the media and the public eye. said that Mr Browne’s comments were honest opinion. Associated Newspapers had previously said it would defend the articles as being in the public inter- est. However, both media organisations Damages and apology for in damages to Croatian actor Ljubomir have now apologised. TV3 said in its soldier wrongly identified as Jurkovic, whose photograph the newspa- apology that the allegations were “un- her criminal twin sister per had used on its front page, wrongly true, unwarranted and defamatory”. The identifying him as alleged Nazi war Mail accepted that the articles n A soldier who was wrongly identi- criminal Samuel Kunz. The were “unfair, mislead- fied in a newspaper has received damages photograph was in fact of ing and damaging to and an apology for libel. Lance Bombar- the actor playing an of- “the case Mr Hogan’s repu- dier Kerry-Ann Morris’ twin sister and ficer in the Croatian tation.” Mr Ho- mother were convicted of child cruelty in Ustasa (the Croatian shows the gan, through his 2015 over the death of a 7-year old girl. Fascist Movement) solicitors, has The Nottingham Post published a photo- in a film. In ad- need to take care in issued a state- graph of Morris, taken when she attended dition, there have ment saying he court to give evidence for the prosecution been many other identifying individuals in feels vindicated in the case. It wrongly identified her as instances over the photographs or footage by the result. her non-identical twin sister. years where media The law of Her solicitor told the High Court: organisations have caught up in the defamation in “The meaning of the combined arti- had to pay libel dam- Ireland differs to cle and photograph is that the claimant ages to those whose news” that in England & was tried for murder of a young child in photographs have been Wales, although the her care and convicted of cruelty to that mistakenly used in contexts Irish Defamation Act 2009 child”, and that the coverage had caused which are defamatory. and the England & Wales Defa- her considerable stress and upset. mation Act 2013 are similar in many re- The publisher of the Nottingham spects. Post apologised for the error in agreed Irish politician Phil Hogan Damages awards for defamation in terms in court. It had already removed gets defamation damages Ireland can also be significantly higher the photograph from online having ac- from TV channel and than in England & Wales. Irish defama- knowledged its mistake. It also paid an newspaper tion cases are still heard by juries, who undisclosed sum in agreed compensation. themselves award damages when claim- The case shows the need to take care in n Both TV3 and Associated Newspapers ants are successful. Whilst Irish judges identifying individuals in photographs or (publishers of the Irish Daily Mail) have are now able to give them guidance footage caught up in the news, and what settled libel actions with Phil Hogan, an on amount, this has not stopped juries can happen when mistakes are made. EU Commissioner and former Irish Min- awarding large sums. This is not the first time wrongly iden- ister. The amount of damages paid has In 2014 the Irish Supreme Court held tifying an individual in a photograph has not been disclosed by the parties but The that a woman was entitled to €1.25mil- resulted in libel damages. In 2013 the Times has reported it to be in the region lion (reduced from the jury award of Independent paid an undisclosed sum of €200,000. €1.87million) for a series of defamatory

zoom-in Autumn 2016 | 15 DEFAMATION articles in a newspaper which alleged that he was guilty of falsely prosecuting circumstances of the case.” What is rea- that she was unfaithful to her husband, and raping Ms de Freitas, but rather in the sonable will depend upon the role of the played a part in the break-up of another case of one article that there were strong defendant. Mr de Freitas was sued, not marriage, and was prepared to engage in grounds to suspect him of this; or in the the media organisations. The judge found an adulterous relationship in order to ad- case of the other article, that there was it was reasonable for someone like Mr de vance her career. a real possibility Ms de Freitas had been Freitas to rely on the news organisations The maximum damages award in Eng- raped by him. to carry out further enquiries and checks. land & Wales (where juries are no longer Mr de Freitas pleaded the section 4 This was so even in relation to the Guardi- routinely used) is around £200,000 for the public interest defence, which applies an comment piece which Mr de Freitas had most serious libels (for example where a where both (1) the statement was on a mat- himself authored. Where the individual is national newspaper alleges that an indi- ter of public interest, and (2) the defend- a contributor they are not to be expected vidual is a terrorist). This means that de- ant reasonably believed that publishing to undertake all the enquiries expected of fendants in Irish libel actions have a great the statement was in the public interest. a journalist. deal more to lose in the event of a ruling The matter was clearly of public in- The court found that Mr de Freitas’ against them. terest: whether the CPS had made the belief was reasonable. He was in a unique wrong decision in prosecuting Ms de position to raise the issues, he had made Freitas in particular given her mental some investigations into the case against Economou v de Freitas – new health difficulties and the fact that she his daughter and had sufficient material to statutory s.4 public interest killed herself on the eve of trial. There challenge the CPS view, and there was an defence succeeds were also other matters of public inter- urgency to publishing. What he said was est in play including whether an inquest about the CPS and his daughter rather n This is the first case to fully consider ought to cover the role of the CPS in than directly about Mr Economou, who he the new public interest defence under sec- such circumstances, and the desirability avoided naming. His tone was found to be tion 4 Defamation Act 2013. of permitting private prosecutions for measured, and the judge found it hard to The claimant, Mr Economou, had been allegedly false allegations of rape. see how he could have expressed his views accused of rape by Ms de Freitas. He was The judge found that the defendant’s on the CPS decision without impliedly de- arrested but not charged. Mr “belief” had to be that the pub- faming Mr Economou. A failure to put Mr Economou, who has always lication of the words them- Economou’s side of the story did not defeat denied the rape allega- selves rather than the de- the defence. In the circumstances the pub- tion, sought to per- “where the famatory imputation lic interest defence succeeded. suade the police to individual is a were in the public in- This case will be of interest to any- investigate Ms de terest. Mr de Freitas one producing public interest material Freitas for pervert- contributor they was found to have which risks defaming someone. It pro- ing the course of believed that publi- vides some indication of how the new justice. They de- are not expected to cation of the words defence will work in practice. However, clined to do so. Mr undertake all the was in the public it is to be noted that the defendant here Economou mount- interest. was an individual, and a grieving father, ed a private pros- enquiries expected A belief will only not a media organisation. The burden ecution against Ms be reasonable if it was on a media organisation, in particular in de Freitas for pervert- of a journalist” arrived at after conduct- relation to checking material, making ing the course of justice in ing “such enquiries and further enquiries and including what the relation to the rape allegation, checks as it is reasonable to ex- subject of the allegation has said about which the CPS eventually took over. Ms pect of the particular defendant in all the it, is likely to be higher. de Freitas, who suffered from bipolar affec- tive disorder, killed herself four days before the trial. Ms de Freitas’s father wanted the in- Leonardo DiCaprio to testify in quest into her death to be expanded to in- clude the role of the CPS, and sought to Wolf of Wall Street libel case raise the issue publicly, and so gave press n A New York judge has ordered Holly- who was a producer on the film as well statements, interviews and wrote an arti- wood star Leonardo DiCaprio to give evi- as starring in it, be deposed. The claim is cle himself. Mr Economou sued for libel dence in a libel claim relating to his 2013 brought by Andrew Greene, a former asso- on two broadcasts and five newspaper arti- film Wolf of Wall Street. DiCaprio had ciate of the film’s main character and real- cles. He said they meant that he had falsely sought to avoid giving testimony in the life “wolf of Wall Street” Jordan Belfort. prosecuted Ms de Freitas for perverting suit brought against the producers of the Greene claims that a character in the film the course of justice by accusing him of film including Paramount Pictures, with - Nicky “Rugrat” Koskoff - is based upon rape when the truth was he had raped her. the defendants stating that the testimony him. According to Greene’s claim the film The pieces did not name Mr Economou, of Martin Scorcese and writer Terence depicted him as a criminal, a degenerate, although he was named elsewhere. The Winter should be sufficient. However, and a drug user and repeatedly mocked judge found that only two of the pieces a judge has now ordered that DiCaprio, his hairpiece. The film’s claims were false were defamatory of him and caused serious harm to his reputation. They meant not

16 | zoom-in Autumn 2016 Amber Heard sues Doug Stanhope for defamation n Actress Amber Heard is suing comedian Doug Stanhope for Stanhope, who is a long-time friend of Depp, wrote a col­umn in defamation over an article he wrote which suggested that she is The Wrap which the magazine entitled: “Johnny Depp is Being blackmailing her estranged husband Johnny Depp with domestic Blackmailed By Amber Heard – Here’s How I Know” in which violence allegations.­ Heard alleges several incidents of domestic he claimed Heard had threatened to lie about Depp “publicly violence against Depp - photographs of her with facial injuries in any and every possible duplicitous way if he didn’t agree to have been published. A court granted Heard a restraining order her terms”. Heard’s lawsuit calls claims that she fabricated the against Depp in May. Depp denies her claims. Depp’s lawyer re- domestic vio­lence allegations “completely false” and states that sponded to the motion seeking a restraining order stating: “Am- she “never undertook any action that could even remotely be de- ber is attempting to secure a pre­mature financial resolution by scribed as ‘blackmail”. Heard has said that if she wins she will alleging abuse.” Heard has also filed for divorce. donate any damages to a domestic violence shelter in Arizona. and defamatory, the lawsuit says, and in- jured Greene’s professional reputation (as an attorney and an investment banker/ venture capitalist) as well as his personal reputation. Paramount has said that Ko- skoff was a composite character based on a number of individuals. Greene is claim- ing damages of $15 million. Because of the First Amendment to the US Constitution which protects free speech, for Mr Greene to succeed in his claim he would need to show that the defendants acted with mal- ice. DiCaprio has been ordered to testify “at a reasonable time and place agreed to by the parties”. The case continues, we will report on future developments in future is- sues of zoom-in.

zoom-in Autumn 2016 | 17 COPYRIGHT & IMAGE RIGHTS

(US) Appeal filed following The law of copyright permeates all aspects of television production, Led Zeppelin’s Stairway to providing copyright owners with certain exclusive rights to do specific Heaven win acts in connection with the copyright works that they own. Copyright n It’s been reported that lawyers acting protects people’s and company’s creative endeavours so that they for the trust of the late musician Randy can benefit and profit from their work. A television company making a Wolfe aka Randy California have filed an programme for broadcast will have copyright in the film it is producing appeal after losing a long disputed copy- right claim at the end of June when a jury and the broadcaster in its broadcast. Copyright enables the owners to in Los Angeles found that Led Zeppelin earn money by licensing rights in the programme to others who wish to had not plagiarised Stairway to Heaven’s exploit it. At the same time, the producers need to ensure that rights famous guitar intro. Band members Jimmy Page and Rob- in copyright works included within programmes, so called ‘underlying ert Plant had been accused of lifting the rights’ e.g. in music, archive, photographs etc., are properly licensed intro from Taurus, an instrumental track from whoever owns them, unless they can rely on one of the statutory by American band Spirit. The case was brought by the trustee of Randy Wolfe defences to copyright infringement, such as fair dealing. Infringing (given the moniker Randy California by others’ copyright is likely to result in you being sued for damages Jimi Hendrix) who wrote Taurus but died and may mean that your programme can’t be shown. Accordingly, an in 1997 rescuing his son from drowning. Music experts had offered differing views on understanding of copyright is essential for those working in television the similarity between the two songs, but production. In this section of zoom-in we round up some recent the jury found that although the Led Zep- copyright news in the world of media and entertainment. pelin members had access to Spirit’s work, the introductory riff to Stairway to Heaven was not “extrinsically similar” to Taurus. There have been a series of copyright news stories from the music Page and Plant welcomed the verdict, say- industry over the last few months. Here we give you a run-down of ing it put to bed the origins of the song. which chart toppers are in the clear, and who has potentially choppy Led Zeppelin have also lost their bid waters ahead… to recoup $800,000 spent defending the claim. The Judge ruled that the case was them. Last September a judge ruled not frivolous, and that there was no evi- ‘Happy Birthday to You’ dence that the estate of Randy Wolfe “har- finally in the public domain that Warner/Chappell did not own the music or lyrics and therefore had boured nefarious motives”, and so the band n The long running saga over wheth- no right to charge royalties. Judge could not recover their legal costs. er you have to pay royalties for the King found that the melody was taken use of the ubiquitous Happy Birth- from a different song “Good Morning day song has finally been settled in to All”, a children’s song from over Ed Sheeran faces two the US courts. The song is now in the 100 years ago. The judge found that copyright suits public domain, and can be used with- the origin of the lyrics was less clear, out permission or royalties. A judge with the first reference to them dating n Ed Sheeran is being sued for copy- in Los Angeles approved a settlement from 1901. Happy Birthday to You right infringement for a reported $20 under which Warner/Chappell Music can now be performed, recorded and million in Los Angeles by the writers have agreed to pay back $14 million reproduced without fear of a claim for of X-Factor winner Matt Cardle’s single to those who have paid royalties to royalties for its use. Amazing who are alleging that Sheeran’s

Fair dealing advice

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

18 | zoom-in Autumn 2016 song Photograph is a note-for-note copy of their song. The songwriters, Martin Harrington, who has written for Kylie Minogue and Emma Bunton, and Thomas Leonard, who has written for the Backstreet Boys and Echosmith, have filed documents set- ting out just how many identical notes they say the two songs share. It is alleged that given the “striking” similarity be- tween the songs, the defendants in the case must have known they were infring- ing copyright. As well as Sheeran, the defendants include Johnny McDaid of Snow Patrol, who is credited as a co-writer on Photo- graph, and divisions of Sony/ATV Music Publishing and Warner Music Group. Harrington and Leonard are using the same US lawyer used by the family of Marvin Gaye, who last year won a copy- right case in relation to Robin Thicke’s song Blurred Lines. Photograph has sold over 3.5 million copies and was recently used in the film Me Before You. The matter will now be heard by a court in California. Sheeran’s representatives have not commented. Sheeran is also facing a second copy- right suit from the heirs of the composer of Marvin Gaye’s hit song “Let’s Get It On”. Sheeran, Sony/ATV Music Publish- ing, and Atlantic Records are being sued in New York by the heirs of Ed Townsend who, according to the suit, created the musical composition and co-wrote the lyrics in 1973. It is alleged that Sheeran’s song “Thinking Out Loud” uses melodic, harmonic and rhythmic elements of “Let’s Get It On”. Townsend is seeking damages to be assessed by a jury. Sheeran and the other defendants have not yet commented on the suit.

Justin Bieber facing copyright claim in relation to his song, Sorry. n White Hinterland (real name Casey Dienel) is suing for copyright infringe- ment, claiming the song used an eight- second vocal loop from her 2014 song Ring the Bell. Dienel is suing Bieber, Skrillex, who co-wrote and co-produced the song, and three other co-writers of #WEDON’TSTEAL : JUSTIN BIEBER the song. She is claiming damages, and acknowledgement of the infringement, before filing the suit, and that he could Bieber and Skrillex have responded via and an injunction preventing further have licensed the song to use as a sample Twitter. Skrillex tweeted “SORRY but we use of Ring the Bell without permission. but had not done so. The claim states that didn’t steal this” with a video of how the Commenting on the lawsuit Dienel said Sorry, which went to number 1 in thirteen section of the song was produced. Bieber she had contacted Bieber’s management countries, uses the vocal loop eight times. retweeted him with “#wedontsteal”.

zoom-in Autumn 2016 | 19 PRIVACY & DATA PROTECTION

idea she was being photographed. Since the Human Rights Act 1998 English law has developed a legal right Ms Mathers has not only been the sub- ject of a large social media backlash for the to privacy. Commonly referred to as ‘misuse of private information’ the “body-shaming” post, but is reported to courts can and will intervene to protect privacy rights where they are have lost her job on a Los Angeles radio infringed without justification. show and been banned from all branches of LA Fitness gym, for life. Personal information is also protected by the Data Protection Act and The 2015 Playmate of the Year is also journalists and programme-makers need to be aware of, and comply reportedly under investigation by the po- lice over the post. Under the Californian with, its rules as it applies to them. In this section we report on some criminal law, it is unlawful to use a cam- recent privacy and data protection decisions of note. See also Ofcom era to look at or record someone in a place and IPSO privacy decisions on pages 6-9. where they have a “reasonable expectation of privacy”, such as a changing room or bathroom. Undoubtedly, a person naked in Amazing Animals – no tricks. The fact that CAPS could have pub- the shower at a gym would have a reason- injunction (privacy/ lished the piece without using photographs able expectation of privacy. Ms Mathers has was not the point, the photographs added apologised for the post. confidence/copyright) to the piece and their use was a matter of In England and Wales, the “reason- journalist judgment. Amazing Animals had able expectation of privacy” standard also n Amazing Animals, a company which claimed it only wanted to prohibit the use applies to a claim for ‘misuse of private provides animals for film, television and of photographs which it itself could com- information’. Had the incident happened commercials has failed in its bid to get an mercially sell. However, CAPS website was here in England, the woman photographed injunction against an animal welfare cam- not a business rival to Amazing Animals. in the shower could have brought a civil paign charity. Amazing animals, sued Cap- Interestingly the court also found claim (under misuse of private infor- tive Animals Protection Society (CAPS) af- that animal acts are capable of mation) for damages, and for ter the society displayed photographs and benefitting from perform- an injunction for removal video taken at Amazing Animals’ zoo on its ers rights under section “the of the image. website illustrating an article alleging the 180 Copyright, De- Both the taking animals were treated inhumanely. signs and Patents Act court also of the photograph Amazing Animals holds open days, and 1988. Although the and its distribution a representative from CAPS had visited, animal is a key part found that animal would constitute bought a ticket and taken photographs and of the performance, acts are capable of a violation of her video clips. Other photographs were ob- so is the human Article 8 ECHR tained from an Amazing Animals employ- trainer, without benefitting from right to privacy, ee. The action was brought on a number of whom the perfor- and the misuse of bases including breach of confidence, breach mance would not take performers what was her privacy of contract and breach of performers’ rights. place. Importantly the information. Amazing Animals argued that the test act was rehearsed. The rights” It is arguable whether for whether an injunction should be grant- judge found that it was justi- Ms Mathers would have been ed was whether there was a serious issue fiable as a matter of public policy for at risk of a criminal investigation to be tried and if so where the balance of animal acts to have the same protection as had she taken and posted the image in this convenience lies – known as the American other acts. Whether these performers rights jurisdiction. Cyanamid test. CAPS argued that as their were breached was a matter to be decided Article 10 freedom of expression rights at trial. Whilst animals don’t have legal were engaged the test should be that based rights themselves, the acts they take part in HARASSMENT: Journalist on section 12 Human Rights Act 1998. are covered by the law just as human-only gets police harassment Section 12 states that the court should not performances. warning revoked grant an injunction restricting freedom of expression unless satisfied that the claimant n Journalist Gareth Davies has succeeded is likely to succeed at trial. According to PRIVACY (US): Playboy model in getting a Police Information Notice, the case of Cream Holding v Banerjee, this in trouble after body shaming also called a harassment warning notice, means “more likely than not” to obtain a Snapchat revoked. The warning was issued by the permanent injunction. The Supreme Court Metropolitan Police (the Met) after Mr recently confirmed that this is the correct n Playboy model Dani Mathers has faced Davies contacted a convicted fraudster approach in PJS v News Group Newspapers a huge backlash in the US, after posting a seeking comment on a story he was prepar- (the celebrity injunction case) The judge Snapchat image featuring a photograph of ing. The Independent Police Complaints found that the section 12 test was the cor- another woman naked in the shower at her Commission (IPCC) had been asked by Mr rect one in the circumstances, and refused gym with the caption: “If I can’t unsee this Davies to quash the warning but had re- to grant an injunction. The publication then you can’t either”, alongside a photo- fused. The admitted conduct complained was in the public interest, there are differ- graph of herself apparently laughing at the of was one phone call and two direct ent views about animal welfare and animal woman’s body. The woman clearly had no emails, plus an email to the fraudster’s so-

20 | zoom-in Autumn 2016 licitor. All were seeking to put allegations site. Approximately 1,600 more claims are he intended to publish to her. on the cards. The Home Office admitted A Police Information Notice is issued the blunder but had denied that it was a where a complaint is made of behaviour case in which damages should be awarded. which would amount to an offence under Mr Justice Mitting disagreed and awarded the Protection from Harassment Act 1997, each claimant damages for both misuse of but where there is not enough evidence to personal data and breach of the Data Pro- prosecute. tection Act 1998. Mr Davies had sought a judicial re- view of the IPCC decision not to quash the warning, and permission to proceed with ICO Regulatory fines the claim had been granted. Mr Davies had argued that issuing a warning where n The ICO (Information Commissioner’s a journalist was engaged in journalistic Office) operates a regulatory system of activity such as this (in this case, seek- compliance with Data Protection laws. ing to put allegations to the subject of a The ICO has strong powers at its dis- story) was contrary to the right to freedom posal, including the power to fine up to of expression as protected by Article 10. £500,000 for serious breaches of the Data It would also have a serious chilling effect Protection Act. There is a specific statu- across the media. tory journalistic exemption, but media In May the Met and IPCC settled the companies and individuals can still be claim. The Met confirmed they would re- fined for data security lapses. Accordingly, voke the warning, without any admission it is very important that media companies of liability. The IPCC and the Commis- have a corporate data protection policy sioner of the Metropolitan Police agreed in place and that staff abide by it. Abbas that they would write to the College of Po- Media Law advise clients on all aspects of licing requesting it review national guid- policy and procedure in order to minimise ance, in relation to the use of Police Infor- FURIOUS : KYM MARSH risk in connection with breaches of the mation Notices in a journalistic context. Data Protection Act and the ICO’s regula- The settlement has been hailed as a vic- tory regime. Below is a recent example of a tory for freedom of speech and for common 1997. Under the new legislation someone company being fined by the ICO for a data sense. A journalist is well-advised to put convicted of an offence can face up to two security lapse. allegations of wrongdoing to the person years in prison and a fine. accused before publishing an article. The Section 33 includes a number of de- law on harassment should not be used to fences including a defence for journalistic Police force fined for prevent this proper practice. activity where there is a public interest in accidentally sending out disclosure. details of sex offender to Sex tape offered to Sun on member of the public Sunday of Kym Marsh Data Protection n Dyfed-Powys Police Force has been n In June, it was reported that the Sun n Data protection law protects ‘person- fined £150,000 after a breach of data pro- on Sunday had been offered a film of Kym al data’ which is any data relating to an tection rules resulted in a member of the Marsh performing a sex act and posing na- identifiable living person. The recent big public erroneously receiving an email in- ked. The newspaper said that it was offered news on data protection is the publication cluding the names, addresses, telephone the footage for £30,000, but declined to and formal approval of the new General numbers and email addresses of eight sex make any offer. On finding out, the furi- Data Protection Regulations (GDPR). offenders. They were sent in error by a po- ous Coronation Street star said that she had However, following Brexit, the big ques- lice officer who selected the wrong email referred the matter to the police. tions is whether or not, or to what extent, address from the force’s email directory. In April 2015, the Criminal Justice the UK will end up adopting EU data The directory was meant to contain only and Courts Act 2015 (section 33) created protection rules. See Brexit – a new land- internal email addresses, but had been ex- a new criminal offence of Revenge Por- scape for media law? P2 panded to include external email addresses nography, making it an offence to disclose that were frequently used. It is a reminder private sexual photographs and films to a to both individuals and businesses to take third party without the consent of the in- Home Office pays damages great care with personal data. Businesses dividual who appears in them if it is done for data error need to have measures in place to prevent with the intent to cause that individual problems like this from occurring. In this distress. Previously, these cases have been n The Home Office will have to pay a case the data breach had the potential to be prosecuted under other areas of legislation, total of £39,500 to six asylum seekers extremely serious - in the monetary pen- such as the Communications Act 2003, whose personal data was published in er- alty notice the Information Commissioner Malicious Communications Act 1988 ror on the Home Office website, and then noted that a sex offender had been killed in or the Protection from Harassment Act re-shared by a US document-sharing web- a vigilante attack in 2008.

zoom-in Autumn 2016 | 21 CONTEMPT AND REPORTING RESTRICTIONS

came to light in the course of appeals The law of contempt makes it a criminal offence for the media to publish against conviction and sentence being pursued by Mr Ali and Mr Rehman. She or broadcast comments or information that creates a substantial risk of was sentenced to 3 months in prison, serious prejudice to active UK legal proceedings, in particular criminal suspended for 12 months. proceedings heard before juries. Penalties for contempt can be serious: Under section 8 of the Contempt of Court Act 1981 it is an offence to ob- fines, even imprisonment. Many activities are capable of amounting tain, disclose or solicit any particulars to a contempt, including: publishing seriously prejudicial material; of statements made, opinions expressed, obtaining or publishing details of jury deliberations; breaching reporting arguments advanced or votes cast by members of a jury in the course of their restrictions or a specific court order; making payments to witnesses; deliberations in any legal proceedings. filming or recording inside court buildings without permission; and Disclosing jury deliberations to some publishing information obtained from confidential court documents of the convicted men in this case would have been a clear breach of the Act. in both civil and criminal proceedings. In this issue of zoom-in, we In the second case, James Smith, a report on some unusual prosecutions for contempt: two men who were juror in a drugs trial, carried out inter- prosecuted for taking photographs in court and publishing them; and net research on his phone about one of the defendants and shared it with the two jurors who were prosecuted for breaching contempt rules. fellow jurors. The judge in this case had repeatedly directed the jurors not “Fuk the judge!” facebook requirement to show a specific intent to to conduct internet research. This led interfere with the administration of jus- to the trial having to be abandoned and posts end in conviction tice in order to prove contempt - it was approximately £80,000 of wasted court enough that taking the photos was done costs. James Smith was sentenced to 9 n Two men who took photographs of deliberately and was in itself a crime. months, suspended for 12 months, and their friends at a Crown Court and pub- It is worth remembering that al- ordered to pay a fine of £900. lished them online have been convicted though the law on sending text-based Section 1 of the Contempt of Court of the offence of deliberately taking communications, such as Tweets, from Act 1981 is very broad and states that photographs in court (section 41, Crim- court have been relaxed for journalists in any conduct that tends to interfere with inal Justice Act 1925), and contempt recent years, taking photographs or re- the course of justice, in particular legal of court - that the taking of the photo- cording sound is still strictly prohibited. proceedings, regardless of intent can be graphs interfered with the administra- a contempt of court. Section 2 specifical- tion of justice. ly restricts what can be published, and The first man used his mobile phone Two jurors found guilty in essence criminalises the publication to take pictures of two friends on trial: of contempt of anything which creates a substantial one who was appearing via videolink risk that legal proceedings will be seri- and another who was appearing in the n Two jurors in separate trials have ously impeded or prejudiced. dock. The second defendant used his been convicted of contempt of court. In this case a juror actively sought phone to take a picture of the judge. Deborah Dean was a juror in a trial out additional information about the All the images were then posted on involving child sexual offences and traf- defendant online and disclosed it to his their respective Facebook pages along- ficking involving 5 defendants. After the fellow jurors despite multiple warn- side critical comments about witnesses trial, Ms Dean wrote letters to ings from the trial judge not or those acquitted. One post contained two of the defendants, in to. This conduct was the judge’s photo, framed by the words which she disclosed not only in direct “Fuk the judge!”. detail from the contravention of Both men claimed they did not know jury delibera- “Disclosing a judge’s direc- that taking pictures in court was an of- tions. tion but also fence but the judge showed little sympa- Dean sent jury deliberations by showing thy citing the fact that their regularity two letters fellow jurors in court as defendants - the first defend- to Usman to some of the extraneous ant had 16 convictions, while the second Ali who informa- defendant had 54 - meant they were fa- had been convicted men in this tion about miliar with court rules and procedures. convicted the de- The judge pointed out that, “There are of sexual case would have been a fendant he signs at the entrance to every court room activity prejudiced at Bristol Crown Court, slightly larger with a child, clear breach of the his ability to than A4 size, saying: ‘Notice to All Court and a letter appear in the Users. The use of mobile telephones, re- to Shakeal Reh- dock as a neu- cording equipment and personal stereos man, who had been Act.” tral figure and be is not allowed in the courtrooms.” convicted of traffick- judged only on the The judge found that there was no ing and rape. The letters facts presented at trial.

22 | zoom-in Autumn 2016 Solicitor General Robert Buckland sends a lesson to other jurors about their conduct e.g. interviewing possible wit- QC MP instigated both sets of contempt responsibilities.” nesses, is not capable of creating a sub- proceedings and after the hearings said: Whilst these convictions relate to stantial risk of serious prejudice to any “These are both serious examples of ju- the conduct of jurors it’s a reminder for trial. It’s also worth remembering that in ror misconduct where the repeated direc- journalists to take care when report- addition to contempt rules there are oth- tions of the judge were blatantly ignored ing on criminal proceedings. From the er laws in place that restrict what can be … any action which interferes with point that proceedings are active, i.e. reported, particularly in relation to the the administration of justice is a seri- arrest, journalists must ensure that not preliminary stages of a trial. If in doubt ous breach and I hope today’s judgment only what they publish, but also their always seek advice.

REPORTING RESTRICTIONS: Cliff Richard in the clear. Singer says he intends to sue, and seeks changes to the law n Cliff Richard has been told by police that no action will be taken against him in relation to allegations of historic sexual abuse. When the allegations emerged, of- ficers from South Yorkshire police raided the singer’s home whilst he was away, a raid which was broadcast live on the BBC. The BBC has apologised to Cliff Rich- ard for any distress caused but says that it stands by its coverage. The entertainer now says he plans to sue both the BBC and the police force for misuse of private in- formation and breach of the Data Protec- tion Act. He has also spoken out against the law which means that whilst alleged victims of sexual offences have lifelong anonymity, those who are accused can be named, even if they are never charged; a position which he sees as grossly unfair. Under section 1 Sexual Offences (Amendment) Act 1992, alleged victims of sexual offences have lifelong anonym- ity, unless they are over 16 and waive their right to anonymity in writing to a publisher. Anonymity applies from the SUING : CLIFF RICHARD moment the allegation is made. The ano- nymity provisions have been extended to yer was named in the press – he had not been debated for some years. Some view cover victims of female genital mutilation accepted a caution but denied the allega- it as grossly unfair that allegations can be (FGM), and the government has recently tion and the case was to proceed before a made under the protection of anonymity, announced proposals to extend it to vic- magistrate. The police have said no action allegations which may well stick or taint tims of forced marriage. will be taken against him in relation to the a reputation even if the individual is never Another example of controversy over sexual assault allegation, and his solicitor charged with any offence. Others say it is the anonymity of alleged victims of sexual called on the police to investigate the QC important to the administration of justice offences is a case relating to two lawyers. as to whether she has wasted police time to publicise these matters. With sexual Recently, a male lawyer and a female QC or perverted the course of justice. The QC offences, where it is often one person’s were said to have been engaged in inde- has strongly stood by her claim, her solici- word against another, it is often claimed cent acts in Waterloo station. The female tor stating that she made the allegation of to be vitally important that the accused QC accepted a police caution for outrag- sexual assault in good faith, and any sug- is named, to encourage other victims to ing public decency, but at a later point gestion to the contrary is false, and con- come forward, as many did once the alle- alleged that she had in fact been the vic- firming that the police are not investigat- gations against Jimmy Saville were made tim of a sexual offence as she had been too ing her in relation to any offence. public following his death. The debate as intoxicated to consent. This meant that The arguments for and against nam- to where the correct balance of rights lie she had anonymity, whilst the male law- ing those accused of sexual offences have carries on.

zoom-in Autumn 2016 | 23 Continued from page 2 sphere. As regular readers of zoom-in will dia regulators’ codes such as Ofcom’s and Brexit will depend upon the exact relation- know, the General Data Protection Regula- IPSO’s codes. Indeed it was the introduc- ship which is negotiated with the EU. tion (GDPR) is due to come into force across tion of the ECHR into domestic law by the However, as regards copyright, as the the EU in early 2018. This may well be be- Human Rights Act 1998 which directly led Intellectual Property Office (IPO) pointed fore the UK has left the EU. The GDPR has to the UK courts developing a law of pri- out in a factsheet published in August on “direct effect”, meaning it will come into vacy, which was largely absent before. Brexit and its effects, irrespective of EU force automatically without the government David Cameron’s Conservative govern­ membership, the UK is and will continue passing any laws. There are some aspects ment were making plans to withdraw from to be a party to a number of important in- which are left to national governments by the ECHR, and to replace it with a “Brit- ternational agreements which mean that the GDPR, including importantly the jour- ish Bill of Rights”, which potentially could UK copyright works will continue to have nalism exemption which will replace section lead to a great deal of uncertainty. How­ protection worldwide. It will be whether 32 Data Protection Act 1998. ever, at present, no firm plans have been and, if so, the extent to which, the UK de- It will be for the government or future announced and, in recent weeks, it’s been cides to implement EU copyright directives governments to decide the exact path the reported that Theresa May’s government and regulations in the future that remains UK takes when it comes to data protec- has dropped these plans, or at least has put unknown at this time. tion laws, but it seems unlikely that the them ‘on the back burner’. So, irrespective While the UK remains a member of the UK would choose not to follow EU rules of Brexit, the influence of the ECHR on our EU, EU Trade Marks will continue to be because even once the UK has left the EU, media law looks set to remain at least in the valid in the UK. There is some uncertainty anyone dealing with the personal data of short to medium term. until any deal is done over how these will EU citizens will need to comply with the So where does that leave us? For the apply to the UK in the future after Brexit GDPR provisions. This will be important moment, we remain a member of the and the government is currently consulting if you are working with - and dealing with EU and nothing has changed. However, on the matter. However, post any Brexit the personal data of - people from other EU as Brexit negotiations proceed, changes deal there will be nothing to stop UK in- states, including the Republic of Ireland. which will impact on the media indus- dividuals and companies registering EU The European Convention on Human try may well become apparent. And as trademarks in Europe to protect their marks Rights (ECHR) is quite separate from the regards the ECHR, if the government in all remaining EU member states. EU, but has had an enormous influence on or a future one does end up replacing it There’s also a question mark hanging media law in the UK. Article 8 protects with a Bill of Rights then things could over our data protection laws, which over privacy, whilst Article 10 protects freedom change quite substantially. zoom-in will the last few years have become increasingly of speech. This influence is felt throughout be keeping a close eye on events and will important in the media and entertainment privacy and defamation law; and in the me- report on any changes as they arise. SUBSCRIBE zoom-in – media law and compliance news, updates and analysis for those working in the media and entertainment industries.

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