M E D I A L A W e-Zine I N T E R N A T I O N A L ® 03/17

Research, analysis and opinion on international media law

Australia to extend copyright Broadcast market safe harbour legislation expansion in UAE bu Dhabi Media (ADM) has announced Shutterstock/ Claudio Bertoloni Athe launch of two radio stations, Radio 1 and Radio 2, as part of the company’s expan- sion of English-language radio stations. Launched in April, the stations bring ADM’s total number of radio networks under its umbrella to eight Radio 1 will specialise in delivering music content that targets 18-30 year olds while Radio 2 will broadcast content aimed at 30- 45 year olds, who favour content from 1980s and 1990s. Mohamed Ebraheem Al Mahmood, chairman and managing director at ADM, said: “The official launch of Radio 1 and Radio 2 under Media underscores our strategic efforts to create tangible change in media content at Abu Dhabi Media, and Turnbull government to undertake further diversify the media brands under its umbrella.” He added: “The addition of Radio 1 consultation to extend safe harbour provisions and Radio 2 reaffirms our continuous commitment to enhancing Abu Dhabi Media of Copyright Act ahead of introducing new law as a comprehensive and diverse media platform. It also highlights our ongoing he government is reviewing an exten- has undertaken additional consultations to efforts to further advance the media sector Tsion of the safe harbour provisions of the provide further opportunity for all matters of in the UAE and the region by supporting all Copyright Act ahead of introducing legisla- concern to be conveyed to the government to traditional and modern media”. tion. ensure the legislation achieves its objectives. The Arab Media Outlook Report 2016, Announced on 21 April in a press release Reforms currently before parliament which provides expansive data on media by Communications Minister Mitch Fifield, include educational licensing provisions and sector development in the pan-Arab region, the consultation is aimed at expanding the changes to improve the ability of libraries and highlights the broadcast sector as a significant safe harbour regime to provide rights holders archives to preserve copies of materials and market segment. with a useful mechanism to have infringing access unpublished works. The reports states: ‘Radio in the UAE material removed from online platforms. In his statement, Mr Fifield highlighted is expected to grow, led by its ability to The government is progressing significant that the government’s intention is to ‘develop substitute for expensive media such as print. reforms to national copyright law that include safe harbour legislation that encourages Digitisation trends are also becoming more legislating provisions to enable the block of the growth of Australia’s digital economy, prevalent in the UAE, with many stations websites promoting piracy. The government supports a thriving and vibrant creative offering their content online and via apps.’

What’s inside Contact 1-2 MEDIA MARKET NEWS COVERAGE Zineb Serroukh-Ouarda 3 US: WILL THERE BE A NEW WORLD ORDER AT FTC? Managing Editor 4-7 SIMMONS & SIMMONS LEGAL PRACTICE GUIDE: [email protected] DF UK SECTOR +44 7446 525 299 Contributors US: Federal Trade Commission Reform News By Andrew Lustigman, Olshan

Award-winning intelligent IoT Will there be a new world order message platform at the Federal Trade Commission? Unified Inbox Pte. Ltd. (UIB) has announced the public launch, in April, of Andrew Lustigman In defining objective harm, Ms Ohlhausen their intelligent IoT messaging demo website, noted that this may be financial harm, or demo.unifiedinbox.com. something more than that. As an example of The site showcases live, interactive cases consumer injury alternative to financial harm, she for smart homes, smart enterprises and smart cited the FTC’s recent settlement with website, cities using the UnificationEngine intelligent Ashley Madison, and evidence that several people IoT messaging platform, which provides users had committed suicide after their names and and manufacturers with increased security other information was exposed. and interoperability. Ms Ohlhausen went on to address the On 04 April, the website received a negative implications that may affect consumers 2017 Webby Award for Website Features if the FTC fails to focus its energies toward cases of Italian media regulator blocks and Design — Technical Achievement for objective consumer injury. Namely, she cited the Websites. The UnificationEngine intelligent FTC’s settlement with start-up company, Nomi. IoT messaging platform is compatible with Further, Ms Ohlhausen opined that consumer Vivendi’s expansion into Italy over 20 different messaging channels, injury should be the focus when deciding what including WhatsApp, Viber, Facebook, Twitter remedies to seek. She noted that in several recent and many others. cases, as opposed to seeking a remedy aimed to citing violation of anti-trust law Carsten Czech, UIB Head of Design, said: redress the injury of the consumer, the FTC sought “Demo.unifiedinbox.com allows users to disgorgement, the company’s total revenues as Italian media regulator Agcom has ruled company of Mediaset that is controlled by connect their smartphones to control and monetary relief, even in cases where the company against the expansion of Vivendi into Italy on former Prime Minister Silvio Berlusconi. query a virtual smart home or smart city. did not exhibit fraudulent behavior. the grounds that it violates the country’s anti- Vivendi highlighted its surprise at the Users can message connected devices, Citing the FTC’s recent USD20 million trust laws. ruling, stating that it may file a formal vehicles, and infrastructure — from lights to settlement with Uber, Ms Ohlhausen opined that French media conglomerate Vivendi complaint to the European Commission and ovens to buses to cameras — using the most such disproportionate settlements, disconnected has built large stakes in Telecom Italia and an appeal to an Italian regional court. popular communications channels.” from the actual consumer harm caused, has significant shareholder voting rights in In a statement, the company said: ‘Vivendi The messaging platform is used by global FTC reform to focus on strengthening anti- ultimately harms businesses without advancing broadcaster Mediaset, almost a 30 per cent has always operated within Italian law, and smart device manufacturers and governments the consumer’s position. stake and rapid fire share purchases. specifically the Gasparri Law regarding the to enable users to communicate with their fraud and enhancing consumer protection Ms Ohlhausen also addressed several recent Agcom’s ruling, issued in April, includes protection of media pluralism from the appliances, electronics and cities as easily as advertising cases, whereby she believes the a one year deadline within which Vivendi creation of dominant positions.’ they do with their friends. Many think that the Federal Trade Commission consumer benefit should be factored into an FTC FTC’s “more strict than necessary” substantiation must reduce its stake in one of the two media Adding: ‘Vivendi neither controls nor According to Aby Varghese, UIB CTO, the will no longer be the significant enforcement action and resolution. standards effectively disadvantage consumers by companies. Agcom’s review into Vivendi’s exercises a dominant influence on Mediaset UnificationEngine platform was created to power it has been in recent decades. While At the ABA Consumer Protection Conference banning potentially truthful claims by companies purchase of Mediaset shares followed a which is controlled on an exclusive basis by increase security and convenience, which time will tell how things play out with the in Atlanta, Georgia in February 2017, Chairwomen to consumers. She argued that such strict complaint filed by Fininvest, the holding Fininvest with a stake close to 40 percen.’ have been IoTs two main problems. new administration and presuambly, new FTC Maureen K. Ohlhaus outlined the FTC’s consumer substantiation rules “overprotect” consumers, Commissioners, it is likley that the FTC will protection goals. She expressed that the FTC must and restrict their access to information. Finally, Ms remain a very powerful and thoughtful consumer strike a balance between protecting consumers Ohlhausen talked about her intention to reduce Turnbull government to extend safe harbour rules continued from page 1 protection agency focused on protecting from potentially unfair and deceptive market unnecessary regulatory burdens on businesses, in consumers from harm. What constitutes practices, and limiting the encumbrances placed conjunction with added FTC transparency. sector, while supporting the interests of media companies from broadcasting to more The spokesperson added: “License fees consumer harm, however, and the appropriate on legitimate businesses to the point where In conclusion, reports of the FTC’s death have copyright holders.’ than 75 per cent of the population. are being examined in the budget context remedy for noncompliance, may change under consumers are deprived of potential market- been greatly exaggerated. While the FTC will The extension of safe harbour provisions, A government spokesperson told Fairfax and the government does not comment on the current administration. generated benefits. likely remain a powerful agency addressing unfair to include online service providers not just that the Communications Minister continues budget speculation.” From reading FTC Commissioner Addressing areas of reform, Ms Ohlhausen or deceptive advertising, it is likely that the FTC internet service providers, has been the to have constructive discussions with his Other debated changes to media law Ohlhausen’s recent presentations, it appears discussed her intention to re-focus resources intends to shift its focus and scale back certain subject of debate for over a decade. crossbench colleagues regarding the media include the removal of the contentious that there will be a greater focus on bringing toward strengthening the FTC’s anti-fraud substantiation standards placed on businesses The topic of wider media reform has reform bill. “two out of three rule”, which stops media enforcement actions that have caused significant programme. She spoke of her plan to dedicate to allow consumers access to more information also dominated discussions in the political Speaking to Fairfax, she said: “Labor’s networks from having a television network, consumer injury, but not necessarily actions enforcement resources to address evident about the products they are consuming as it and business spheres as the market seeks opposition to the media law reform bill is a radio station and a in the same that have more of a theoretical harm. The and objective consumer injury, as opposed to becomes available. But, time will tell. to remove the “reach rule”, which prevents direct threat to local media jobs.” market, Fairfax reported. Commissioner believes that innovation and speculative injury, or subjective consumer harm.

2 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.com www.medialawinternational.com March - April 2017 | Media Law International ® e-Zine | 3

[email protected] +212 522 77 72 40 www.garrigues.com Simmons & Simmons : Legal Practice Guide

Shutterstock/ Bohbeh sale of e-books (-1.6 per cent (2015) and -4 per cent (2016)). What are the most significant publishing cases or transactions over the past year?

Immediate Media, parent company of the Radio Times and other magazine titles such as Top Gear, was sold to Hubert Burda Media by private equity group, Exponent, for an estimated GBP 260 million. Is there any government-owned media? If so, how does the government media differ in operation from the private media, if at all?

Newspapers in the UK are privately-owned. What, if any, bodies regulate publishing activity? Are they governmental, quasi- governmental, or independent? What are some of the major laws or regulations?

The press in the UK has long been subject to self-regulation. The Independent Press Standards Organisation (IPSO) is an independent body regulating over 1,500 printed titles, including all the major national print except the and The Guardian.

Members of the IPSO are required to comply with the Editors’ Code of Practice. The IPSO replaced the former Press Complaints Commission in 2014. To what extend and by what process can the government censor publishing activity?

The self-regulated status of the press prevents government intervention and censoring of published activity. The right to freedom of speech has long been recognised as a common law right in the UK but it also has a statutory basis in Article 10 of the European Convention on Human Rights (ECHR) which is incorporated into UK law by the Human Rights Act 1998.

The UK’s participation in the ECHR will be unaffected by Brexit and the right to freedom of speech will remain a fundamental right protected in the UK.

Notwithstanding the general principle of freedom of speech, the Official Secrets Act 1989 allows the Government to prevent the publication of official information where it is in the interests of national security to do so.

What significant trends are you seeing in now account for more than 75 per cent of the Financial Times’ total paying Similarly “D-A Notices” are official requests made by Government that the Alexander Brown, a partner at your market? audience. Various printed newspapers have also transformed into free press does not publish items on specified subjects for national security titles (paid for by advertising revenue) in light of the increasing challenges reasons. However these notices are not legally enforceable. Simmons & Simmons UK, highlights Sales of printed media have been steadily on the decline, with seven of in the industry. the UK’s national papers losing sales at a rate of more than 10 per cent year Is there any limitation of the number of trends in the publishing sector, on year to December 2016. This contrasts with the growing popularity of Following a sharp decrease in physical book sales from 2010 to 2014 linked publishing media (including broadcast digital media. Taking the Financial Times as a case in point, during 2016 to the emergence of e-books, there was a rise in the sale of physical books outlets) that any one entity can own providing a legal practice overview its number of digital subscribers rose 14 per cent and digital subscribers in 2015 (+0.4 per cent )and 2016 (+7 per cent) matched by a decline in the or control (for anti-trust reasons or otherwise)?

4 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.com www.medialawinternational.com March - April 2017 | Media Law International ® e-Zine | 5 Simmons & Simmons : Legal Practice Guide

Shutterstock/ Bohbeh Yes, there are a number of restrictions on cross media ownership. Under publication would be in the public interest. The Police and Criminal cross media ownership rules contained in Media Evidence Act 1984 provides a special regime for the police when Ownership Rules, no entity can own both a television licence allowing they wish to obtain “journalistic material” – “that is material acquired broadcasting on Channel 3 and one or more national newspapers with an or created for the purposes of ”. aggregate market share of 20 per cent or more. Section 10 of the Contempt of Court Act 1981 also enables journalists Similarly, an owner of one or more national newspapers with an aggregate to protect their sources of information in court cases unless one of market share of 20 per cent or more is not allowed to own more than 20 four exceptions applies: (1) it is in the interests of justice; (2) it is in per cent interest in a Channel 3 licence holder. the interests of national security; (3) for the prevention of disorder; (4) for the prevention of crime. On a local level, the cross media ownership rules prohibit cross ownership in all three of: one or more local newspapers with an aggregate local The above rights are awarded to institutions (news organisations) as market share of more than 50 per cent, a local radio station and a regional well as journalists. Channel 3 licence. Do online publishers receive any different Do news organisations receive any different rights or protections than traditional rights or protections than ordinary citizens broadcast or printed publishers? and/ or businesses? Online publishers do not receive any additional rights or protections In defamation claims journalists can rely on the defence of public than printed publishers. interest under section 4 of the Defamation Act 2013. Where a journalist makes a defamatory statement it may be protected Although online service providers providing services that consist of from any action provided that it is in the public interest to make “mere conduit”, “caching” and/or “hosting” services are exempt from that statement similarly it may rely on the common law “qualified liability for content in some circumstances (under the E-Commerce privilege” defence. Directive).

Journalists also benefit from exemptions from UK data protection The ruling of the CJEU in Sotiris Papasavvas v O Fileleftheros Dimosia laws. The “journalism” exemption at section 32 of the Data Protection Etaireia Ltd and Others, Case C-291/13, confirmed that online news Act 1998 (DPA) applies to most provisions of the DPA, excluding the publishers in the EU can be held liable for unlawful material on their 7th principle (which allows individuals to see copies of their personal websites. Are bloggers protected as news providers? The claimant must establish the following in a claim for defamation: (i) the data) and section 55 offence (unlawful obtaining of personal data). Are “citizen journalists“ protected as news words complained of are defamatory of the claimant (i.e. damages his/ This ruling came after the district of Nicosia referred the question as providers? her reputation); (ii)the words complained of are published to a third party Under section 32 processing of personal data can be exempt from to whether online news providers could be considered as providing and that the defendant published or is responsible for the publication of all sections of the DPA to which section 32 applies if that processing “mere conduit” or “caching” or “hosting” services and were therefore Section 32 of the DPA may apply to citizen journalists and bloggers the words; and (iii) the words complained of were published about the is undertaken with a view to publishing journalistic material protected the E-Commerce Directive. according to the ICO guidance on “Data Protection and Journalism” claimant. and provided that the data controller reasonably believes that provided that what they are publishing is in the public interest. Are there any restrictions on the types and/ Similarly bloggers and citizen journalists can enjoy the protection of or amount of advertising material in printed the public interest defence under the Defamation Act 2013 and the media? common law defence of “qualified privilege”. Article by Yes, advertisements in printed media are subject to UK Code of Non- Bloggers and citizen journalists could also enjoy the protection broadcast Alexander Brown, of section 10 Contempt of Court Act 1981 and the protections of “journalistic material” under the Police and Criminal Evidence Act Advertising, Sales Promotion and Direct Marketing, which sets out the Partner at 1984. general compliance requirements as well as advertising guidelines for various kinds of products, including alcohol, tobacco, pharmaceuticals, diet Simmons & Simmons Bloggers and journalists will however struggle to gain membership products, financial services and gambling. to the National Union of Journalists (NUJ). UK Does a publisher have liability for the third Membership to the NUJ is largely restricted to individuals who earn income party advertising that it runs? through journalism. The press card obtained through such membership is Simmons & Simmons important for access purposes. Yes, a publisher may also be liable for defamation if an advertisement DD: +44 20 7825 4954 on its newspaper is held to be defamatory by virtue of it allowing the M: +44 7966 488 637 What are the principle elements of a claim advertisement to be published on its newspaper. [email protected] for defamation?

6 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.com www.medialawinternational.com March - April 2017 | Media Law International ® e-Zine | 7 Featured Firm: Gugushev& Partners

Leading Bulgarian Law Firm

“Gugushev & Partners has developed an established position in the market and is rising as one of the region’s most widely respected practices. Founding partner Stefan Gugushev has exceptional experience advising a broad range of clients and leads the team in its advice on broadcasting, programming and regulation. Working with peers, leading lawyer Petko Angelov advises on advertising, sponsorship and licensing matters.” Media Law International 2016

Gugushev & Partners Law Office Phone: +359 2 815 75 10 11A Aksakov St., fl. 5, office 3 Fax: +359 2 981 69 64 1000 Sofia [email protected] Bulgaria www.gugushev.com

8 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.com