Media law news from Abbas Media Law zoom-inAutumn 2017

PARODY FAIR DEALING DEFENCE FAILS IN CANADA

OLIVIA DE REBEL HAVILLAND SUES FX WILSON OVER FEUD: BETTE WINS LIBEL AND JOAN CASE MATERIAL GIRL MADONNA SCORES CLOONEYS DOUBLE TO ACT OVER PRIVACY WIN TWINS PIX EXCLUSIVE INTERVIEW: BAKE OFF BOSS RICHARD McKERROW IN THIS ISSUE

WINNERS & LOSERS MEDIA HAUNTS Mischa Barton stops sex tape release ...... 3 Step inside Chess Club, the Mayfair bolthole that uses both sides of its Madonna accepts privacy damages ...... 4 members’ brains ...... 24 Sir Cliff wins latest round of BBC battle ...... 4 Blac Chyna gets ‘revenge porn’ order ...... 6 Eddie Jordan to pay indemnity costs ...... 6 Rebel Wilson wins libel case ...... 7

REGULATION – OFCOM, DEFAMATION ASA & IPSO James Woods settles with dead tweeter ... 12 C4 News: Ukip address already public ...... 8 Bad reputation foils libel claim ...... 12 Bride didn’t consent to be in background ..8 Sarah Palin sues New York Times ...... 13 Kardashians censured for daytime No preliminary trial in MP action ...... 14 swearing ...... 9 Gun lobby loses against Katie Couric ...... 15 PRIVACY & DATA PROTECTION Nailing the Fraudsters in public interest ...... 9 Madonna halts personal items sale ...... 26 BUSINESS AFFAIRS ‘Essex girl’ gags not offensive ...... 10 Olivia da Havilland sues FX ...... 26 Abbas Media Law’s production legal No privacy over 20-year-old conviction .... 10 schedule, setting out the five key stages of Can’t Pay? case goes to trial ...... 27 TV production and the legal issues producers Sun was right to report cop’s threesome .. 10 C4 can rely on release form ...... 27 must consider. In this issue, we focus on ‘Haunted bread’ complaints rejected ...... 11 distribution agreements ...... 16 Request for comment not harassment ...... 27 Government plans new data protection COPYRIGHT & IP RIGHTS law ...... 28 Parody fair dealing defence fails in United Clooneys to sue over twins photos ...... 29 Airlines case ...... 18 Kylie and Kendall Jenner sued over Tupac T-shirt ...... 19 CONTEMPT & REPORTING RESTRICTIONS Gene Simmons drops bid to trademark ‘horns’ sign ...... 20 Supreme Court allows identification of man named at trial ...... 30 Beyoncé and Jay-Z try to trademark twins’ names ...... 20 Times refused access to Sports Direct witness statements ...... 30 20 QUESTIONS Child murderers named ...... 31 Exclusive: Bake Off boss Richard McKerrow Rape-claim perjury defendant not entitled to on his personal passions ...... 22 anonymity ...... 31

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

2 | zoom-in Autumn 2017 WINNERS & LOSERS

(US) Mischa Barton sex tape to be handed over n Mischa Barton has been successful in her bid to stop In March, Ms Barton obtained temporary orders against the release of a sex tape. The tape was alleged to have been Mr Zacharias and another ex-boyfriend, Adam Shaw. secretly filmed by theOC actor’s ex-boyfriend Jon Zacharias, In a statement on behalf of Ms Barton, her lawyer said and was reportedly being offered for sale for up to $500,000. she had taken action not just for herself but for all women Ms Barton reached a settlement with Mr Zacharias: and girls: ‘Mischa wants everyone to know that we have it was agreed that he would not distribute the images, the right to control our own bodies and decide whether or that all explicit material in his possession would be not to have explicit photos out there for the world to see. handed over, and that he would stay at least 100 yards If a woman wants to do that, fine. If she doesn’t, fine. The away from Ms Barton. choice is hers and hers alone.’

zoom-in Autumn 2017 | 3 WINNERS & LOSERS

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

Madonna accepts damages Cliff Richard obtains order for ‘severe invasion’ of to reveal BBC source privacy n Sir Cliff Richard has won the latest n Madonna and her adopted four- round in his litigation against the BBC year-old twins, Stella and Estere, over the Corporation’s coverage of a have accepted an undisclosed sum in raid at his home in Berkshire in 2014. damages and payment of costs from His lawyers made an application to Associated Newspapers Ltd, publisher compel the BBC to disclose whether or of MailOnline. The article about the not its information relating to the fact twins was published while Madonna that Sir Cliff was under investigation was seeking to adopt. by the South Yorkshire Police came It gave the children’s names, age, from Operation Yewtree, the Metro- race and the fact that they politan Police’s investigation lived in an orphanage into sexual abuse allega- in Malawi, as well as MailOnline tions. referring to Madon- Sir Cliff applied to na’s pending appli- said it had the judge, Mr Justice cation to adopt the ‘no intention Mann, for an order girls. These are requiring the BBC SIR CLIFF: REQUEST GRANTED matters that are whatsoever of to confirm or deny Featureflash/Shutterstock private to the chil- exposing the girls that it had obtained spark a second investigation by the dren and Madonna, its information about Metropolitan Police into the source’s their adoptive mother. to any harm’ the raid from a source identity was small. In a statement in within Operation Yewtree; The Judge decided that the BBC’s the High Court, Madonna’s or alternatively, from someone right to freedom of expression was solicitor said the article had caused who had obtained the information engaged by the request, and that her ‘considerable personal distress and from within Yewtree. Sir Cliff was answering it would create a ‘chilling anxiety’ and said on Madonna’s behalf: not requesting the actual identity effect’ to some extent. However, the ‘Their actions could, in her view, of the source in question. The BBC answer to the question was very mate- have threatened the integrity and/ opposed the application, arguing that rial to Sir Cliff’s case. The matter or outcome of the adoption process, revealing the information would risk fell to be decided by balancing the which would have had potentially life- identifying the individual source, and parties’ competing rights and interests changing implications for the girls, as relied upon the legal tests that protect and, after carrying out that exercise, well as for Madonna and her family.’ anonymous sources. the Judge found that the balance lay MailOnline said it had ‘no intention The Judge found that clearly in favour of Sir Cliff. whatsoever of exposing the girls to any the risk that answering At the same hearing, harm and no reason to believe that they the question would The the Judge was told were in fact exposed to harm’. It stated lead to the iden- Judge found that Sir Cliff’s that Madonna had ‘published photo- tification of claim against graphs on her Instagram account of the individual that the risk that South Yorkshire her family taking a particular interest source was low. answering the question Police (who in the girls, together with their names The evidence had been sued and location during the course of the suggested that would lead to the jointly with the adoption process’. the pool of identification of the BBC for tipping Madonna has said she will donate individuals who them off about damages received to the Mercy James could have been individual source the raid) had been Institute for Paediatric Surgery in the source was large, was low settled. South York- Malawi, which she opened this year. while the possibility that shire Police acknowl- Madonna halts Tupac auction: page 26 an affirmative answer would edged that its conduct was

4 | zoom-in Autumn 2017 BLAC CHYNA HAS OBTAINED A RESTRAINING ORDER AFTER HER EX-FIANCÉ ROB KARDASHIAN POSTED EXPLICIT PHOTOGRAPHS OF HER ONLINE AND ACCUSED HER OF CHEATING. SEE PAGE 6 Kathy Hutchins/Shutterstock Kathy

zoom-in Autumn 2017 | 5 WINNERS & LOSERS

unlawful and expressed sincere apolo- agreed. Without agreement on all gies to Sir Cliff. The singer’s claim terms, there was no agreement. against the BBC continues. Mr Jordan argued he ought to be able to accept the £15,000 offer, but not suffer the normal costs conse- (US) Blac Chyna gets quences. The Part 36 regime protects restraining order against a party making an offer of settlement Rob Kardashian after from having to pay their own and the other party’s costs incurred after the ‘revenge porn’ post offer is made, if the other party fails to n American model and entrepre- beat the offer at trial, or if the party neur Blac Chyna has obtained a accepts the offer later. So, even though restraining order against her ex-fiancé the loser normally pays the winner’s Rob Kardashian after he posted costs, if a party fails to accept an offer explicit photographs of her online it ought to have accepted, it will have and accused her of her cheating on to pay costs from then onwards. him. Ms Chyna also alleged that Mr Mr Jordan was effectively respon- JORDAN: FAILED TO ENGAGE Kardashian had been abusive towards sible for costs incurred after September Press/Shutterstock Entertainment her, allegations he denied. they have adequate systems in place 2014. He had given no explanation Ms Chyna’s attorney, Linda to tackle online abuse, as well as ‘fake of why he had accepted an offer much Bloom, said ‘revenge porn is a form news’ and extremism. lower than those that had previously of domestic abuse’ and also referred been available. to that fact that it is a crime to post Mirror Group will only in fact explicit images without consent and Eddie Jordan to pay obtain its costs from September 2016, with intent to cause distress in Cali- indemnity costs after because of an undertaking it had given. fornia (where the former couple live) Mirror Group also argued that Mr and in other US States. hacking settlement Jordan should pay the higher rate of The offence is a misdemeanour in n Former Formula 1 team boss indemnity costs. The Judge agreed. Mr California, with a potential penalty of Eddie Jordan has been ordered to pay Jordan’s failure to engage properly in a $1,000 fine or six months in prison. indemnity costs, after settling his settlement negotiations was culpable. Such behaviour is also criminal in the phone-hacking case against Mirror In contrast to standard costs, under UK under the Criminal Justice and Group Newspapers just before trial by ‘indemnity costs’ the party claiming Courts Act 2015. accepting an offer that had been on the costs does not have to show that costs Mr Kardashian’s attorney, Robert table since September 2014. incurred are proportionate to the liti- Shapiro, said that his client had Mirror Group had admitted phone gation, and is given the benefit of any accepted the terms of the restraining hacking in relation to Mr Jordan. It doubt over whether costs are reason- order, and apologised on his behalf. made a number of offers to settle, able. This makes a real difference to Both parties have said they intend to ranging from £15,000 to £100,000, the sum recovered, as where costs focus on their daughter, named Dream. many of which did not are assessed on the standard Both lawyers in the case are high- receive a response. Just Courts basis, a party will profile and have past experience of before the trial in are keen normally recover less celebrity legal cases. Bloom acted for July, he accepted than full costs. Mischa Barton in her recent sex-tape a Part 36 offer to encourage It is not case (see p3). Shapiro formed part of from September settlement and known how OJ Simpson’s legal team, along with 2014 of £15,000 much the Rob Kardashian’s father, Robert damages, which take a dim view of costs will be, Kardashian. was the only offer refusals to engage but it is likely Rob Kardashian’s Instagram that remained to be signifi- account was shut down following open. in constructive cantly more than the posts. Social media platforms, While at times negotiations the £15,000 in including Instagram, have recently both parties had made damages. been under pressure from govern- offers of £90,000, other This case shows the ments around the world to ensure terms (including costs) were not importance of making and

6 | zoom-in Autumn 2017 responding to offers of settlement prop- erly. Particularly in privacy and defa- mation claims, costs can significantly outstrip the sums in damages in play. Courts are keen to encourage settle- ment and take a dim view of refusals to engage in constructive negotiations. Mirror Group has protected itself from a significant sum in legal costs.

(Aus) Libel win for Rebel Wilson against Bauer n Actor Rebel Wilson has won her libel claim against Bauer Media, the publisher in Australia of Woman’s Day and The Australian Women’s Weekly. A jury of six women spent two days deliberating over their verdict before deciding unanimously, on 15 June, that Ms Wilson had succeeded in her claim. The libel action was brought over WILSON: RAPPED IN COURT eight magazine articles, which Ms Krista Kennell/Shutterstock Wilson claimed alleged that she lied Melbourne after her victory, Wilson said saying it would ‘consider its options’ about her age, the origins of her first she felt the ‘stain’ had been removed after the verdict. name and her upbringing in Sydney. from her reputation after Bauer had ‘so The win for Wilson is not the end Ms Wilson was present maliciously’ attacked her. of the litigation, since the Judge still throughout the three- Wilson ‘The reason I’m here has to come to a decision on damages. week trial and gave is not for damages, Bauer argues that Wilson’s ‘extraor- evidence for six is seeking it’s to clear my dinarily large’ special damages claim days. During her $5.893m in special name. And the should be thrown out because she has evidence she fact the jury has failed to prove she suffered losses as a rapped, told jokes, damages – covering done that unani- result of the articles. did impersona- the loss of one film mously, and Wilson is seeking $5.893m in tions, repeated answered every special damages – covering the loss of assertions that she role – and general single one of the one film role – and general damages is distantly related damages of 40 questions in my of $1.2m, bringing the total sought to Walt Disney, and favour, I think proves to what her legal team has termed an broke down in tears. $1.2m what I’ve been saying ‘extremely conservative’ $7.093m. She told the Court that all along,’ Wilson said. Special damages compensate for the publication of the articles resulted ‘I was hoping the jury would do specific financial loss caused by the in her being sacked from roles in two the right thing and send a message action of the defendant. General feature films,Kung Fu Panda 3 and to these tabloids, and they’ve done damages in defamation are considered Trolls. Wilson said the head of produc- that so for me, it’s over in my mind. ‘at large’ – the court may award such tion company DreamWorks had fired I’m a person that’s really confident sum as it sees fit to vindicate the claim- her in person because she had become in my own skin and really felt like ant’s reputation and compensate for the ‘too divisive’ for family movies. She it was the right thing to do to take distress caused. said the effect of the articles was that this company on and prove how Wilson says any money she receives ‘month after month, doors that used to disgusting and disgraceful their in damages from her defamation case be open were shut’. chequebook journalism is.’ will go to charity, scholarships or the Speaking outside the court in Bauer Media released a statement Australian film industry.

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

OFCOM – PRIVACY: Say Ofcom regulates the content of all television and radio in the UK. Yes to the Dress – bride IPSO is the main regulator for the press and magazine industry. The Advertising Standards Authority regulates advertising. All the in background did not regulators adjudicate on complaints with reference to codes of consent to appear practice, with which those they regulate have to comply. The Ofcom n Ofcom has upheld a privacy Broadcasting Code is the main code relating to broadcast content, complaint by a woman who appeared while IPSO judges complaints against the Editors’ Code. The ASA’s in the background of TLC’s Say Yes to the Dress. main codes are the BCAP Code for broadcast advertising, and the Mrs Hatley was watching with her CAP Code for non-broadcast advertising. Compliance with these then-fiancé before their wedding when codes is important. Regulators can impose penalties and sanctions she appeared in the background of the for non-compliance. Regarding privacy matters, the regulatory codes programme for approximately three also have wider legal significance because of provisions within the seconds. She was identifiable, and the Human Rights Act 1998 and the Data Protection Act 1998. The result details of her dress could be seen. In line with industry practice, is that the Codes have a bearing not simply in a regulatory context, there were general disclosure notices but also on how the courts should act when making any order headed ‘Crowd Notice Release’ aimed affecting freedom of expression and the publication of journalistic, at members of the public entering the literary or artistic material. boutique, and the fact filming was taking place would have been obvious, given the presence of the camera crew. C4 News - UKIP official’s ington’s address was already in the TLC expressed concern that if address already public public domain. An individual crowd releases were found not may have a legitimate to be consent for those n Ofcom has not upheld a complaint expectation of privacy To what in the background by a senior UKIP official that his in relation to the extent the of programmes, privacy was infringed when Channel location of his or her this would have 4 broadcast footage that identified the home, even where location of a a big impact on road in which he lived and showed the that location is person’s home is programme- front door of his house. publicly available. makers and broad- Channel 4 News broadcast a report However, in this private will always casters. about the resignation of Adam case, Mr Heather- be a fact-sensitive There was a Heatherington as chairman of the ington’s home address conflict of evidence UKIP Merseyside branch, following had been published in issue over whether Mrs comments made by the leader of the full in the context of his Hatley had been contacted party, Paul Nuttall, and party donor, candidacy for local elections, and after filming, and whether she’d Arron Banks, about the Hillsborough it remained accessible to the public said that she did not wish to be on disaster. at the time of the broadcast. Accord- television. There was evidence that A road sign saying ‘Mystery Close’ ingly, given that only the street name calls had been made to her from a was visible, and the Channel 4 News was disclosed, the footage broadcast production company mobile phone. reporter said: ‘Across town, yet more did not reveal anything particularly Ofcom stated that it did not have mystery on Mystery Close.’ A close-up private or sensitive about Mr Heath- to decide whether crowd releases shot of a white door was then seen with erington. were valid consent because, given the the door number blurred. The reporter The decision shows that whether evidence of telephone calls having explained this was Mr Heatherington’s and to what extent the location of a been made, it was satisfied Mrs Hatley house, but he was out. person’s home is private will always had withdrawn any such consent. Mr Heatherington complained be a fact-sensitive issue, and broad- The ‘widely held cultural tradi- that his privacy had been infringed casters and publishers should care- tion’ of brides keeping their wedding and said he had been ‘targeted’ because fully consider all the circumstances dresses private until their wedding of the broadcast. involved in disclosing information day meant that details of dresses are Ofcom was satisfied Mr Heather- about it. private and sensitive to many brides,

8 | zoom-in Autumn 2017 and were to Mrs Hatley. As such, she had a reasonable expectation of privacy and the infringement of her privacy was not warranted. The decision is a reminder that, while filming notices in public and semi-public places can be a useful way for producers to seek the (implicit) consent of individuals in the back- ground to be filmed and to appear in programmes, they have their limi- tations. There is always a risk that individuals may not have seen the filming notices and, even when they have, consent can be withdrawn subse- quently before broadcast. When individuals are likely to have a heightened expectation of privacy, it is prudent to seek explicit informed consent, either on a signed release form or filmed on camera.

OFCOM – STANDARDS: E! in breach for Kardashians swearing n Entertainment channel E! has been found in breach of the Ofcom Code for airing the word ‘fuck’ during a daytime showing of Keeping Up with the Kardashians. During a telephone conversation in the programme, Kourtney Kardashian said: ‘What the fuck?’ E! apologised KARDASHIAN: EFFED DURING THE DAY for any offence caused, saying the Tinseltown/Shutterstock swearword had not been noticed OFCOM – PRIVACY: subsequently broadcast. because it had been ‘partially masked’ The segment showed a full-screen by another person shouting in Complaint over Nailing close-up of Mrs Fisher’s face several the Fraudsters not the scene. It had corrected When times. The commentary referred to the the error as soon as upheld fact that she had made 22 false claims it was notified, individuals to insurers, had faked serious illnesses and reviewed n Ofcom did to dupe insurers out of money, had its procedures have a heightened not uphold a received payouts totalling almost to minimise expectation of couple’s privacy £10,000 and was even moved into a the risk of a privacy, it is prudent complaint over a specially adapted home to help her similar incident programme that cope with a non-existent disability. occurring again. to seek explicit featured them in Footage was shown of Mrs Fisher’s Ofcom found a informed their home as it arrest at her home, during which Mr breach of Rule 1.14: was being searched Fisher could also be seen, although ‘The most offensive consent by the police. Footage his face was blurred. The programme language must not be of this, and of complainant referred to the fact that Mrs Fisher broadcast before the watershed.’ Mrs Fisher being arrested, was subsequently pleaded guilty to 22

zoom-in Autumn 2017 | 9 REGULATION – OFCOM, ASA & IPSO counts of fraud and was jailed. of Hollywood ‘stars’ were being looked Mrs Fisher complained that Mr after by a ‘gun crook’ while filming in Fisher’s and her own privacy were Scotland. It said that Granger, who in infringed because neither of them 1996 had been ‘busted with revolvers gave consent to be filmed, because and an ammo stash in a gangland cop footage of the arrest was included sting’, had daily face-to-face dealings without her consent, and because with the actors. It quoted a source who footage of the inside of her home and said: ‘Robert is open about his past belongings was included without her and shows no remorse. He thinks he’s a consent. She also complained that hardman.’ It said that the complainant Mr Fisher’s privacy was infringed was imprisoned for four years in 1997 because footage of him in his home for the offence. was included without his consent. The Committee found that, in light Ofcom found that Mr and Mrs of Granger’s conviction, it was not Fisher had a legitimate expectation of Featureflash/Shutterstock significantly inaccurate for the article NORRIS: TOLD ESSEX JOKES privacy, both in the obtaining of mate- to characterise him as a ‘hardman’. rial and in the programme as broad- board.’ Granger’s offence was not spent cast. However, on balance, and in the Mills pointed out to listeners that under the terms of the Rehabilitation particular circumstances of this case, the jokes were being told by someone of Offenders Act in Scotland. Further, the public interest in filming from Essex who was on a this conviction related to a serious and broadcasting the programme about Essex. offence for which he had received a material, which Ofcom Ofcom inves- substantial custodial sentence. There showed the work of found that tigated whether was no reasonable expectation of the police inves- the programme privacy in the information and no tigating crime, while the jokes had breached rules associated breach. outweighed the the potential to offend, on generally Interaction between Granger and complainants’ they were unlikely expected stand- the reporter did not raise any issues of right to privacy. ards. It found harassment. Nor was there any subter- to have exceeded no breach, fuge involved in taking pictures of most listeners’ saying that while Granger or recording his comments. OFCOM – the jokes had the The complaint was not upheld. STANDARDS: expectations potential to offend, Reporting of convictions is a diffi- they were unlikely to cult area: where they are spent, their Scott Mills Radio have exceeded most listeners’ disclosure may be prevented by privacy 1 show cleared over expectations. or data protection rights. Here, the ‘Essex girl’ jokes conviction was for offending so serious that it could never be spent and char- n Ofcom has found that ‘Essex girl’ IPSO: Report of acterised as private information. jokes told during a 24-hour Comic 20-year-old conviction Relief programme hosted by Scott not in breach Mills in March were not in breach of IPSO: Sun undercover its Code. n Press regulator IPSO has rejected a story on police officer not Ofcom received two complaints complaint against The Scottish Sun that that the jokes, which included ‘What a report of a man’s 20-year-old convic- in breach does an Essex girl say after her doctor tion breached his privacy rights. n IPSO has rejected a complaint from tells her she is pregnant? “Is it mine?” Robert Granger, who was working a serving policeman who was selling were sexist and derogatory. They were on film sets as a roadie, complained sexual services to members of the told by guest Bobby Norris, star of about an article headlined Hollywood public while on sick leave. reality show The Only Way Is Essex. Stars & The Gun Crook. He complained Former Sussex Police officer Daniel Listeners also sent in jokes, of breaches of the Editors’ Code Moss alleged that The Sun article, including: ‘What’s the difference relating to accuracy, privacy, harass- published under the headline ‘Sicknote between an Essex girl and an ironing ment, clandestine devices and subter- Cop Sells Threesomes’, breached the board? Occasionally you have trouble fuge, and discrimination. clauses of the Editors’ Code relating to getting the legs apart on an ironing The article reported that a number privacy, harassment, and clandestine

10 | zoom-in Autumn 2017 video of the journalist visiting the matters on a public website. There was complainant’s home, obtained with a no reasonable expectation of privacy. hidden camera. This video recorded There was no suggestion that the jour- the conversation the complainant nalist had engaged in intimidation or had with the journalist and showed harassment in making their enquiries. the journalist handing money to the The complaint was rejected. complainant’s girlfriend, before being led into the bedroom. IPSO found that the newspaper had Irish regulator rejects credible evidence that the complainant complaints about was engaged in the sale of sexual services to members of the public; and ‘haunted bread’ that there was a clear public interest n The Broadcasting Authority in verifying the claims of a source, in of Ireland (BAI) has rejected 11 confirming the complainant’s identity complaints about a panellist on The as a serving police officer, and in estab- Late Late Show referring to the Cath- lishing the extent of his participation. olic Eucharist as ‘haunted bread’. There was also a clear public interest A member of comedy hip-hop duo in establishing whether the conduct The Rubberbandits made the remark exposed him to potential blackmail. during a discussion about faith in The newspaper’s view that subter- Ireland. fuge would uncover material that The BAI rejected complaints that could not be obtained by other means it caused harm and offence and found WENN UK/Alamy RUBBERBANDITS: INSULTED EUCHARIST was reasonable. The newspaper’s that it had not breached the principle actions had been proportionate to of the Code of Programme Standards devices and subterfuge. the clear public interest in under- dealing with respect for persons and It reported that the complainant, taking the investigation. The video groups in society (Principle 5). a serving police officer, ‘has been provided confirmation of the The BAI took into account that the selling threesomes with police officer’s identity segment aired at 11.20pm, well after his girlfriend for £210 and the extent of the watershed, and that the comment an hour’ on an adult It was not his involvement was made in the context of a discus- escorting website. It significantly in the activities. sion about religion. The panellist was said that an under- Given the clear entitled to express his own views, and cover reporter from inaccurate for the public interest the BAI did not take the view that he the newspaper had article to characterise in establishing intended to mock others. posed as a client and this information, It also considered that audiences met the complainant Granger as a IPSO found the would have been familiar with the and his girlfriend ‘hardman’ publication of this comedic style of The Rubberbandits, at their home, after material with which the comment was he had booked a ‘half justified in The in keeping. While the hour threesome’ through the the public remark was offen- website. This had taken place while interest. newspaper’s sive to some, it the complainant had been signed off While the view that was editorially sick from work, and Sussex Police had conversation justified and did subsequently launched an investiga- with the jour- subterfuge would not infringe the tion into his conduct. nalist took place uncover material that Code. However, The article acknowledged that the at the complain- the BAI noted activity was not illegal, but included a ant’s home and could not be obtained that the presenter statement from the ex-head of Scotland related to matters by other means was could have demon- Yard’s Flying Squad, saying people of a sexual nature, strated greater have a right to expect the conduct of the complainant had reasonable sensitivity to the police to be beyond reproach. used his home as a loca- potential for offence when The online version of the article tion to undertake a commercial dealing with the comments. All included a two-and-a-half minute transaction, having advertised these complaints were rejected.

zoom-in Autumn 2017 | 11 DEFAMATION

The law of defamation protects the reputation of individuals and any facts to suggest that Mr Woods companies. Statements are defamatory if they adversely affect a has ever been a cocaine addict or used any other drugs.’ person’s or company’s reputation in the eyes of reasonable people. A In England and Wales, it is not person or company can sue over defamatory statements in England and possible to continue a defamation action Wales if they cause or are likely to cause serious harm to the person or, after the death of one of the parties. in the case of companies, cause or are likely to cause serious financial Unlike in certain other types of legal loss. Journalists – indeed, all those publishing content – need to be action, eg contractual claims, in defa- mation law, a person’s estate cannot take aware of the law, and confident that what they are publishing is either over the action. not defamatory or, if it is, that they can avail themselves of one of the The matter was considered recently defences to defamation. in a case relating to defamatory posts on an online Subaru car forum, where argument had been heard but judg- (US) James Woods drops ment not yet handed down when the claimant died. lawsuit against deceased The Judge found she was not able anonymous tweeter to hand down judgment, the action having ended on the death of the n Hollywood actor James Woods had claimant. In making this finding, the dropped a defamation lawsuit against Judge gave reasons why it makes sense an anonymous, and now deceased, for a defamation action to end with the Twitter user. death of the parties: only the claimant Woods issued proceedings against can give evidence as to damage and Twitter user ‘Abe List’ over a tweet distress caused; only a defendant can saying: ‘Cocaine addict James Woods give the necessary evidence where still sniffing and spouting.’ Woods there is a plea of malice. stated that he was not and had never Malice would have been in issue been a cocaine addict, and sought $10 has Woods’ case continued: as he is a million damages. He also requested public figure, to succeed in a defama- that Twitter provide him with List’s tion action under US law he would have real identity, something Twitter had to prove Abe List acted with actual resisted. malice – that he made the statement Woods had fought off List’s motion knowing it to be false or with reckless to dismiss the action as restraining disregard for its truth or falsity. political speech, with the Judge Tinseltown/Shutterstock finding that the allegation that he was WOODS: SUED DEAD TWEETER a cocaine addict was one of fact. List Claim fails because of had sought to appeal, but when the you to the bowels of Hell. Get it?’ existing bad reputation appeal was dropped it was revealed that Woods has now dropped the case ‘Abe List’ (whose real name has after a settlement was reached. n A man who was wrongly identi- still not been revealed) had Abe List’s lawyer wrote fied in newspaper articles as having passed away. Woods Woods a letter stating been convicted of the sexual assault However, Woods intended that his client did of a young girl has had his libel claim intended to continue not intend his thrown out because of a previous to pursue the case to continue to comment to be conviction for a similar offence. against the tweet- pursue the case taken as a statement Bilal Ahmed brought proceedings er’s estate. After against the of fact: ‘On behalf over articles on the Daily Star website learning of the death, of my client and and MailOnline, which reported the he tweeted: ‘Learn tweeter’s my client’s surviving conviction of three men who had this. Libel me, I’ll sue estate family, I acknowledge committed serious sexual offences you. If you die, I’ll follow that they are not aware of against a 16-year-old girl. One of those

12 | zoom-in Autumn 2017 (US) Sarah Palin sues New York Times over editorial n Former Republican vice-presidential nominee Sarah individuals, that were under cross-hairs in the advert. Palin is suing The New York Times over an editorial that However, it maintained that the errors did not ‘undercut linked her to a 2011 mass shooting in which Democratic or weaken the argument of the piece’. congresswoman Gabby Giffords was seriously injured and The New York Times has applied for the case to be six others killed - something Ms Palin says the newspaper dismissed, saying it was an honest mistake and so Ms Palin knew to be false. cannot prove ‘actual malice’. Unlike in England and Wales, The article linked Ms Palin to the shooting and claimed in the US, when bringing a libel claim public figures such that a campaign advert of hers showed Ms Giffords and as Ms Palin must prove malice – that The New York Times other Democrats under stylised cross-hairs. published despite knowledge that the allegation was false It ran on the day of another shooting, in which a or with reckless disregard as to whether it was true or not. gunman opened fire on Republican congressmen as they Ms Palin maintains that the newspaper knew what it was played baseball. publishing was false, pointing to the fact that it had previ- The newspaper corrected the piece the next day, ously published other articles debunking the notion of a confirming that no link was established between Ms Palin link between political rhetoric and the 2011 shooting. A

and the shooting, and that it was electoral districts, not judge is expected to rule on the matter later this summer. Collection/Shutterstock Everett

zoom-in Autumn 2017 | 13 DEFAMATION

men had the same name as the claimant. no prospect that he would be able to In error, the newspapers included establish serious harm, as he already among the photos of the convicted men possessed a bad reputation following the claimant’s photograph. the publications regarding his 2014 As soon as the publishers conviction. were made aware of the While an existing bad mistake, they removed There was reputation has often the photographs. proved problematic The claimant no prospect for libel claimants argued that the that the claimant in the past, this erroneous publi- decision shows cation of his would be able to how the Court photograph in establish serious will take that connection with into account the article about harm, as he already when considering the 2016 convic- possessed a bad the question of tion showed him as ‘serious harm’. As a sexual predator who reputation readers of zoom-in will preyed on naive young know, since the Defama- girls, causing him serious harm, tion Act 2013, to bring an action Viktor W Adams/Alamy Viktor including suffering disgrace, threats for defamation a claimant must show BROWN: CLAIMS SERIOUS HARM and abuse from his local community. that any statement complained of has However, one of the publishers caused or is likely to cause serious caused serious harm to his reputation. later discovered that the claimant harm to his reputation. The two sides agreed that there had in fact been convicted of a serious should be a trial, as a preliminary sexual offence against a 17-year-old issue, of the meaning of the words girl in 2014, and sentenced to three No preliminary trial in and their defamatory tendency, ie and a half years’ imprisonment. MP’s libel action whether the allegation lowered Mr That conviction received very wide Brown in the estimation of right- publicity at the time. n A judge has ruled that there will thinking members of society gener- The claimant said that he was not be a separate trial of the question ally. However, Mr Brown opposed trying to put his past behind him: of serious harm in a libel claim over there being a trial of serious harm as a he was a reformed character and had allegations made about an MP in a preliminary issue. been accepted into his local commu- biography of Tony Blair. The decision relates to a relatively nity. Before the articles with the The claimant is Nick Brown, MP technical area of libel law, but the wrong picture appeared, his family for Newcastle upon Tyne East and broader issue is whether the serious and community had given him a the Labour Party’s chief whip. He has harm test under the Defamation second chance, and he had regained sued journalist Tom Bower Act 2013, and the preliminary their trust. After the publications, and publisher Faber & trials that are increasingly friends and family had distanced Faber over a passage being ordered to decide themselves from him and he was the in Mr Bower’s book The broader whether it is met, subject of verbal abuse. He had also Broken Vows: Tony issue is whether is in fact saving been prescribed anti-depressants and Blair, the Tragedy parties time and felt ‘emotionally ruined’. of Power, which the serious harm test costs, which it The claimant failed to show his says Mr Brown under the Defamation was intended to claim had a real prospect of success. ‘was accused by do. This was the first time the issue of the News of the Act 2013 is in fact In this case, harm to a person’s reputation, where World of paying saving parties time the Judge decided that reputation has already been £100 to rent boys that to determine damaged by conduct of the same seri- in order to be kicked and costs serious harm as a ousness as that alleged by the libel, around a room’. preliminary issue would had been considered by the Court. Mr Brown claims that be more likely to complicate, The Judge decided that there was the allegation is defamatory and has delay and waste resources than to

14 | zoom-in Autumn 2017 simplify, expedite and economise. Among the factors that influenced this decision were that the prelimi- nary trial would raise substantial issues of fact and law, and that the defence’s case on the law was raising novel issues that would need a thor- ough factual inquiry. Further, the defendants had not made clear the scope of the defence of truth that they had told the claimant they might rely on shortly before the hearing. Without clarity on the evidence they would rely upon, there was no basis to find that a preliminary issue would yield a significant saving. The decision demonstrates the extent to which the procedural aspects of libel law, and the costs associated with them, continue to preoccupy litigants and the courts.

Gun lobby libel case against Katie Couric dismissed n A Virginia judge has dismissed a libel claim brought by the Virginia Citizens Defense League (VCDL), a gun rights advocacy organisation, against journalist, author and former TV network host Katie Couric. The case concerned a documentary, Under the Gun, in which Ms Couric asked members of the group: ‘If there are no background checks for gun Kathy Hutchins/Shutterstock Kathy purchasers, how do you prevent felons COURIC: QUIZZED GUN LOBBY or terrorists from purchasing a gun?’ It then showed the group members question: ‘They either could not, or this was not defamatory: ‘Not having sitting in silence for eight seconds. In would not, say how to keep felons and an answer to a question on a difficult reality, they had responded by others from obtaining firearms and complex issue is not defamatory.’ giving their views against without background This is an interesting case, as the gun control. checks…The editing Judge dismissed the case even though The Judge The Judge simply dramatizes the footage in question had been comprehensively dismissed the the sophistry of the manipulated. dismissed the VCDL members.’ It would not be unreasonable to claim, finding case even though Further, the assume that the courts might come that the scene was the footage in Judge found that to a similar conclusion in the UK neither false nor the meaning of regarding a claim for defamation. defamatory. While question had been the piece was that However, such editing and manipu- VCDL members had manipulated the VCDL members lation might well raise regulatory responded, they did could not or would not issues under the Ofcom Broad- not actually answer the answer the question, and casting Code.

zoom-in Autumn 2017 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

to deal, depending on how valuable In every issue of zoom-in we examine the commercial, legal and regulatory the programme is to the distributor. hoops programme-makers have to jump through to get their programmes Value is usually based on sales projec- safely to air. Our production legal schedule above sets out the five key tions, drawn up by the distributor and its experience of selling similar stages of production which producers need to consider and the advice and programmes. expertise they are likely to need at each stage. In each issue, we focus on When negotiating terms with one or two particular aspects of production legal requirements. distributors, producers not only need to get the best commercial deal. They also Distribution agreements genres of programming eg classical need to ensure that all relevant terms music programmes; others, particularly in agreements with commissioners n When producers retain rights in larger companies, represent a wide range and financiers are acknowledged. The programmes after commissioners and of genres, from scripted programmes to crossover with distribution agreements other financiers have taken their shares, factual ones. will usually be in relation to territory they will want to exploit them. Making Distribution agreements between and rights, and ensuring the exclusivity individual sales to overseas broadcasters a producer and distributor will usually granted to the commissioners and other is time-consuming, so often, producers cover key terms such as the level of financiers is respected, so the producer opt to license a package of rights to advance payment, if any; the licence doesn’t end up in breach of contract. a distributor for onward licensing to period; the rights being granted and In addition, any holdbacks imposed broadcasters. their definitions; the distributor’s on the producer by the commissioning There are numerous distributors commission rates; and the ability to be broadcaster and other financiers need operating today: some large, some reimbursed for distribution costs. to be reflected in the contract with the small; some attached to production Like most contracts, such terms distributor – for example, a commis- companies, some independent. Some are subject to commercial negotiation sioning broadcaster’s world or territory- distributors specialise in particular between the parties, and vary from deal continued on page 19

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

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

We provide a first-class professional service offering clear practical advice and solutions. Please get in touch for more information about the services we offer.

zoom-in Autumn 2017 | 17 COPYRIGHT & IP RIGHTS

the first time the Court has ruled on Copyright permeates all aspects of television production, providing the exception. The term ‘parody’ is not copyright owners with certain exclusive rights to do specific acts in defined in the Act, so the Court looked at the word’s ordinary use, as well as connection with the copyright works that they own. Copyright protects the scheme of the Act, the intention of people’s and companies’ creative endeavours so they can benefit and Parliament and how parody had been profit from their work. A television company making a programme interpreted in other jurisdictions. for broadcast will own copyright in the film it is producing. Copyright The Court found: ‘Parody should enables the owners to earn money by licensing rights in the programme be understood as having two basic elements: the evocation of an existing to others who wish to exploit it. At the same time, producers need to work while exhibiting noticeable ensure that rights in copyright works included within programmes – differences and the expression of so-called ‘underlying rights’, in music, archive, photographs etc – are mockery or humour.’ Untied.com, the properly licensed from whoever owns them, unless they can rely on Court said, did fall within that defini- one of the statutory defences to copyright infringement, such as fair tion. However, the Court found that dealing. Infringing others’ copyright is likely to result in you being sued the dealing with the work was not fair. The amount of dealing with the for damages and may mean that your programme can’t be shown. An work was substantial: the website was understanding of copyright is therefore essential for those working in a copy of United’s website homepage, television production. an important aspect of United’s deal- ings with its customers. The Court (Canada) Parody fair The Court found that the website noted that it was questionable whether infringed United’s trademarks by the parody exception could be invoked dealing defence fails in using visually very similar marks with where there is confusion – parody United Airlines case similar placement, which resulted required the viewer to understand that in the likelihood of confusion for what they are seeing is a spoof. Mr n Jeremy Cooperstock owns and consumers. The website was designed Cooperstock was not able to satisfy the operates a website, untied.com, high- to evoke the appearance of the United Court that there was ever any intent lighting alleged failings by United website. There was evidence from the for humour: rather, the purpose of the Airlines and allowing users to read content and tone of some complaints website was to embarrass United. and submit complaints about United. that some consumers submitting The UK law equivalent is the United sued Mr Cooperstock for copy- complaints to untied.com thought exception to copyright infringement right and trademark infringement over they were submitting them to the for fair dealing for the purposes of cari- the website. airline. The small changes that had cature, parody or pastiche at section United has a number of registered been made did not stop the likelihood 30A Copyright Designs and Patents trademarks including the ‘UNITED’ of confusion. The use also constituted Act 1988. As in the Canadian statute, and ‘UNITED AIRLINES’ marks, passing off, and diminished United’s ‘parody’ is not defined, although its globe logo, and website content goodwill in the trademarks. the European Court of Justice has including images and layout. Turning to copyright, the approved a definition similar to the Untied.com uses design The Court also found the website one above adopted in the Canadian and graphics similar to be infringing. Mr case: ‘In broad terms, parody imitates to those on the amount of Cooperstock sought a work for humorous or satirical effect. United website. dealing with the to rely upon the It evokes an existing work while being After United work was substantial: fair dealing for noticeably different from it.’ complained, Mr the purposes of The exception is untested here Cooperstock the website was a copy parody excep- too, having only come into force in made certain of United’s website tion to copyright October 2014. This Canadian case will small changes to homepage, an important infringement therefore be of significant interest to the design and in the Canadian all those seeking to anticipate how the added a disclaimer aspect of United’s Copyright Act, parody exception is likely to be inter- stating: ‘This is not dealings with its but the Court found preted by the UK courts. the website of United customers that it did not apply. Abbas Media Law are experts in Airlines.’ This is thought to be fair dealing - see p20.

18 | zoom-in Autumn 2017 BUSINESS AFFAIRS & RIGHTS

continued from page 16 specific ‘premiere rights’. Most distributors are likely to require that programmes are delivered to them fully cleared for the rights, licence period and territory being granted to them. This may be costly for a producer, particularly where a programme contains significant commercial music, or where union agreements require payment of royalties and residuals. It may be possible for a producer to negotiate for some clearance costs to be covered by the distributor – although they will likely be claimed back by the distributor as a distribution cost. Another term worth consideration is whether a distributor requires an option to acquire rights in subsequent programmes. It is usually a good idea for all series of a programme to sit with the same distributor, so that licensees can easily find them. However, how options operate in practice need to be addressed. For example, if the producer-distributor relationship is not working well after series one, or for whatever reason series one is not selling well, a producer needs to ensure that it is reasonably free to seek another distributor for future series. As regards accounting, distributors Featureflash/Shutterstock KENDALL AND KYLIE: SOLD TWO TUPAC TEES may be fairly inflexible, as accounting will be dictated by the distributor’s (US) Kylie and Kendall Christopher Wallace aka The Noto- accounting software, and the same rious B.I.G. – like Tupac, a rapper terms will be applied to all licensors. A Jenner face suit over who was killed in the 1990s. workable audit right, however, is essen- Tupac T-shirt Wallace’s mother hit out against tial for producers. the T-shirts on social media, making There is a wealth of finer detail for n Sisters Kylie and Kendall Jenner clear that they were in no way affili- producers to consider. Small changes are facing a copyright claim from a ated with her son’s estate: ‘I have no can make a big difference. Sell-off photographer who says they used idea why they feel they can exploit periods (for physical copies like DVDs), two photographs he took of the late the deaths of 2pac and my Son Chris- allowing the distributor to continue rapper Tupac Shakur on T-shirts. topher to sell a t-shirt’. to sell stock for a short period after Photographer Mike Miller says Kylie and Kendall Jenner apolo- expiry of the licence period; sell-over the photographs were used without gised, saying: ‘We are huge fans of periods, allowing the distributor to his permission on the T-shirts, which their music and it was not our inten- enter into agreements that run beyond retailed for $125. Kendall + Kylie, tion to disrespect these cultural icons the licence period; and the percentage the sisters’ fashion brand, has said in any way.’ of reserve against returns (again for in a statement that only two of the The entire collection has now physical copies) that a distributor can T-shirts were sold before they were been removed from stores and online. hold back are all worth negotiating, removed from distribution. Nonetheless, the fashion label main- as they can result in producers getting The T-shirt is one of a series, tains that ‘the allegations made are back rights earlier or being paid net which among others also featured completely false and the lawsuit receipts earlier.

zoom-in Autumn 2017 | 19 COPYRIGHT & IP RIGHTS is baseless…There has been no Beyoncé and Jay-Z infringement or violation of anyone’s rights,’ stating that the images were trademark twins’ names purchased from a company that had n Beyoncé and Jay-Z have applied the right to license them. to register their baby twins’ names. zoom-in will report further as the Applications for Sir Carter and case proceeds. Rumi Carter were filed by the same company that filed an application to trademark the name of their older Gene Simmons drops bid sister, Blue Ivy Carter. to trademark devil horns Beyoncé and Jay-Z (real name Shawn Carter) submitted the appli- n Kiss singer and bassist Gene cation on 26 June, which is believed Simmons has dropped a bid to trade- to be shortly after the twins were mark the rock/metal ‘devil horns’ born. The trademark application hand gesture. The bid had drawn SIMMONS: DIDN’T INVENT HORNS Tinseltown/Shutterstock relates to a wide range of products criticism from many who see the including baby strollers, clothing, gesture as being generic and having and Trademarks Office that indi- skincare products, baby toys, playing been in use by artists and fans for viduals would connect the gesture cards and entertainment services. many years. specifically to him as a performing They are not the first celebrities to Simmons had filed an applica- artist. trademark their children’s names. tion specifying the gesture as being Many had been quick In December last year made with the right hand, index and to point out other The Victoria Beckham little fingers aloft, thumb out to the and earlier uses applied to trade- side. The gesture is, however, also of the gesture, trademark mark the name the American Sign Language gesture including by application relates of her daughter for ‘I love you’. Many others perform John Lennon Harper the rock/metal devil horns with on the cover to products including and sons the thumb tucked in, holding the of the Beatles baby strollers, clothing, Brooklyn, middle and ring fingers to the palm. single Yellow Cruz and Simmons stated he first performed Submarine. The skincare products, baby Romeo. David his version of the gesture on a Kiss more common toys, playing cards and Beckham tour in 1974. version of the registered his Simmons’ application was gesture, with entertainment name as a trade- withdrawn last week. No reasons thumb tucked in, is services mark in 2000, and were given, but had he proceeded, often credited to Black Victoria Beckham in Simmons may well have faced a diffi- Sabbath’s Ronnie James 2002, three years after the cult task persuading the US Patents Dio. pair were married.

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

20 | zoom-in Autumn 2017 BEYONCÉ AND JAY-Z HAVE FILED APPLICATIONS TO TRADEMARK THE NAMES OF THEIR TWINS, SIR CARTER AND RUMI CARTER. SEE PAGE 20 Sky Cinema/Shutterstock

zoom-in Autumn 2017 | 21 20 QUESTIONS The Bake Off boss As The Great British Bake Off returns for its first season on Channel 4, zoom-in speaks exclusively to Love Productions co-founder Richard McKerrow – about why GBBO works, how to start an indie, and his own passions, from Springsteen to Spurs

What do you love most about don’t be afraid to say ‘I don’t know’. your job? What advice would you give Never knowing what’s going to someone starting their own happen next. indie? What gets you out of bed in the If you have the dream, be patient, morning? wait for the right moment and take Children or the daylight. a leap of faith when it comes. Take complete responsibility for your own Who are the three greatest programmes. living musicians? Bruce Springsteen, Bob Dylan and How did The Great British Bake Roy Harper. Off come into existence? Persistence in the pitching of a simple What advice would you give to clear idea, the belief that anything that your 16-year-old self? hasn’t been done before is possible, Slow down. If you’re fortunate, life is and the passion and dedication of a long, not short. brilliant team with a documentary If you could change two things sensibility who have mostly stuck about yourself, what would together for eight years. they be? What is the secret to the show’s Think more. Talk less. appeal? Who gave you your first career National group therapy, the sense of break? endless foreplay and the sheer sense A career is forever evolving and people of escape provided by catastrophe or are always giving me breaks, but if I ‘cake-astrophe’ in a cupcake. had to name some people who have How will Bake Off be different helped massively along the way on C4? and tried to keep me in It won’t be, except the check, they would be: ‘A good magnificent Prue Leith, Mark Galloway, Anna the delightful Sandi Beattie, Sara Ramsden, friend tells Toksvig, the unique Letty Kavanagh, you what you Noel Fielding and Kieran Smith, Simon Paul Hollywood [will Evans and Jay Hunt. don’t want to make it] better than Most used hear’ ever. Plus we have 12 expression? wonderful new bakers and ‘Bollocks to the Poll Tax.’ their extraordinary bakes. What advice would you give Favourite GBBO moment? someone starting out in TV? Meeting an MP outraged that we Never give up, listen to your gut and might film a second series ofBenefits

22 | zoom-in Autumn 2017 THE NEW GBBO TEAM: PAUL HOLLYWOOD, SANDI TOKSVIG, NOEL FIELDING AND PRUE LEITH

Street in his constituency, only to Favourite shop? to another broadcaster - we’re embracing discover that he was even more upset Fopp for its vinyl. the move and putting our heart and soul by a baked Alaska being thrown into What are you reading at the into the new series. a bin, aka ‘Bingate’. No, not really… moment? Dream dinner party guests? it’s the momentous compilation of lots Oliver Sacks’ On the Move (again) and The Spurs first 11, Mauricio Pochettino, of little magical moments. Elizabeth Strout’s Anything Is Possible. Noam Chomsky and Oliver Sacks if he Biggest achievement in life? Favourite TV shows? was still with us. Surviving years of motorcycling… so Six Feet Under and Hill Street Blues. First record you ever bought? far! Biggest TV-related legal pickle Easter by Patti Smith. Favourite place to have fun? you’ve got yourself into, and how Last three websites you visited? On my motorcycle, Brazil, did you get yourself out? The Guardian, tottenhamhotspur.com Ibiza, Wandsworth, ‘Slow There have been a few, and ducatiuk.com. Latchmere Leisure including Baby Borrowers, down. which involved me Last time you cried? Centre (see the A late-night conversation with an old Maccabees song from If you’re having to go on 24-hour news to try to friend... their first album) and fortunate, life explain the meticulous White Hart Lane. Any wise words? safeguarding measures I wish I could say is long, not A good friend tells you what you don’t we had in place; and Boys want to hear. Paul Hunwick Wembley, but experi- short’ and Girls Alone – turning ence makes me fear that to zoom-in magazine’s bril- Great British Bake Off airs on Channel 4 won’t be the case. liant editor to deal with the fallout this autumn. It will be the first series for hosts Favourite restaurant? and the huge number of complaints to Noel Fielding and Sandi Toksvig, and judge Mirch Masala in Tooting. Ofcom. Oh, and having to take Bake Off Prue Leith

zoom-in Autumn 2017 | 23 MEDIA HAUNTS: CHESS CLUB

Checkmate Wipe the memory of school chess club from your mind: Paul Hunwick talks exclusively to Francesca Zampi about how her new Mayfair venture is making the classic board game sexy. Get ready for Chess Club, but not as you know it

beach club in Ibiza, a speak- a venue with a restrictive members have an actor, next to a surgeon, next easy in Soho, a restaurant in licence, I did wonder if London to a professor, next to a theatre director A Paris, a bar in New York. If needed another members club. Then – a real mix of right- and left-brain you’ve not heard of the Experimental I thought about my friend thinking people, so we put Group or misbehaved in one their who is a cancer surgeon together a membership 22 venues around the world, you’re at the Royal Marsden. committee to reflect not getting out enough. For their She’s intelligent ‘Chess uses that. This included an first project in Mayfair, Experimental and beautiful, but both sides of your economics professor have teamed up with the brains (and although there are at LSE, the heads beauty) behind Soho’s The Box, lots of clubs aimed brain, which echoes of fiction and non- Francesca Zampi. That’s ‘Chess’ to at media types, our thinking on fiction at Harper- her friends. there wasn’t really Collins, and an A&R ‘I had a good relationship with the anything for her. The membership’ person from Warner [Experimental] boys and we’d always most interesting dinner Bros. I like the idea of wanted to do something together,’ says tables I sit around have the cross-pollination of Zampi. ‘When they came to me with a variety of guests. You might different industries.’

24 | zoom-in Autumn 2017 Why chess? ‘It’s on Chester- in the enviable position of owning his curated by the photographic editor field Street,’ says Zampi, ‘the club own farm. Hence, seasonal artichokes of AnOther Magazine and a former was formerly the Games Room, and appear on the plate like green jewels McQueen archivist. Patrick Grant it’s my nickname. Calling it Chess and look as if they might have been from Norton & Sons recently gave a Club started as a bit of a joke, but it plucked from their stalks talk on his eureka moment, became more and more interesting. that very morning. This This and there’s a monthly Chess is one of the few games that is as close as you can gathering where uses both sides of your brain at the get in central London is as close members drink wine same time, which echoes our thinking to eating straight as you can get and discuss new on membership. When you play, you from the ground. in central London works of art. The don’t think about anything else.’ Chess champions club also offers a Mindfulness for the intelligentsia. Michael Pein and to eating straight series of workshops The club is split over two floors David Howell drop from the it calls Lessons and designed by Fran Hickman. Her in to play and teach in… Last month scheme is uplifting and playful. The every Tuesday, but this ground was Lessons In Design chess reference points (black-and- is nothing like chess club with Fran Hickman. Next white square tiled floors) don’t step at school. There are velvet-covered month it’s calligraphy with into theme park territory. It has an chairs, martinis and, at 27, Howell Lamplighter London. ‘Ooh yes,’ says eclectic-modern feel: rust carpets, is the youngest chess Grandmaster in Zampi. ‘It’s a chance to learn how to vibrant pops of colour, a bar with the UK. This is sexy chess. beautifully hand-write invitations a cork front. If 1970s design god There are other events too, and love letters.’ David Hicks were alive today, he’d be amused. Chess Club The ground floor has an excellent 1a Chesterfield St, easy-dining restaurant by Jackson London W1J 5JF Boxer, one of the few chefs in London 020 7495 6171 chessclublondon.com Founders: The Experimental Group and Francesca Zampi Manager: Johannes Hartmann Eat: All-Day-Breakfast Muffin, £11, or Panisse with Green Onion Mayonnaise, £6. It has the sinful appeal of French fries, but is actually made from guilt-free leek and chickpea Drink: Try the Pawn Storm: an in-house invention, named after a chess move and containing Amores mezcal, fresh grapefruit, lime juice and agave, £14 Who to know: Maître d’ and events director Ollie Elia. Charm in a suit, handsome, speaks five languages and offers the warmest of greetings. What’s not to love? Don’t miss: Monthly cocktail-mixing demonstrations Membership fee: £450 per year + £200 joining fee. Under 30s: £350 per year + no joining fee How to join: Apply online at chessclublondon.com. They are considering applications from new members now, but places are limited Power table: Seating in the restaurant is pretty egalitarian, but if you’re looking to impress or host a meeting, book the ambitiously named Table 400 upstairs. It’s big, oval and has views over elegant gardens Who might you see? Marc Quinn, artist and Richard Reed CBE, entrepreneur are on the board. Aidan Turner and Dexter Fletcher are members Number of members: 850 Capacity: 120 Opening hours: Monday to Thursday 8am-11.30pm; Friday 8am-midnight; Saturday 10.30am-midnight

zoom-in Autumn 2017 | 25 PRIVACY & DATA PROTECTION

Olivia de Havilland sues FX Since the Human Rights Act 1998 came into force, English law has over Feud: Bette and Joan developed a legal right to privacy. The courts can and will intervene to protect privacy rights where they are infringed without justification. n 101-year-old Hollywood legend and This is commonly referred to as ‘misuse of private information’. Oscar-winning actress Olivia de Havil- Personal information is also protected by the Data Protection Act, so land is suing US cable network FX over journalists and programme-makers need to be aware of, and comply the television show Feud: Bette and Joan. with, its rules as it applies to them. In this section, we report on some The show recounts the rivalry between actresses Bette Davis and recent privacy and data protection decisions of note. Joan Crawford. Ms de Havilland says it falsely portrays her as a hypocrite selling gossip to promote herself. (US) Madonna halts She has filed a lawsuit in Los auction of Tupac letter Angeles for infringement of the right and underwear to publicity, invasion of privacy and unjust enrichment. She seeks damages, n Madonna has obtained a Manhattan profits and an injunction. The lawsuit court order stopping the auction of states: ‘In an 80-plus year career, she personal items, including a letter from has steadfastly refused to engage in her former boyfriend, the late rapper typical Hollywood gossip about the Tupac Shakur; other private letters and relationships of other actors’ and that photographs; a hairbrush with strands she ‘has built a professional reputation of her hair; and previously worn under- for integrity, honesty, generosity, self- wear. The Judge ordered Gotta Have sacrifice and dignity.’ It! Collectibles to remove 22 items It alleges that FX has promoted from the auction. Other, less personal the show falsely using Ms de Havil- items remain for sale. land’s name and identity, and that the Madonna said she had not known the show depicts events in such a way that JStone/Shutterstock items were no longer in her possession MADONNA: UNDERWEAR NOT FOR SALE viewers would be expected to believe until she became aware of the auction. they were an accurate account of what ‘The fact that I have attained celebrity my “image”, I would be letting down happened and what was said; whereas in status as a result of success in my career half of the people who made me what fact, a depicted interview given by Ms does not obviate my right to maintain I thought I was. I never meant to hurt de Havilland about Davis and Crawford my privacy, including with regard to you.’ In a separate letter to another indi- is fake, and statements apparently made highly personal items,’ she said, also vidual, Madonna referred to Whitney by Ms de Havilland are false. ‘There is referring to the possibility of her DNA Houston and Sharon Stone as ‘horribly no public interest to be protected by being extracted from hair strands. mediocre’. putting false statements into the mouth The letter from Tupac, who died in The auction house, and Madonna’s of a living person, damaging their repu- 1996, was reportedly expected former friend and personal tation,’ the lawsuit says. to sell for up to $400,000. assistant Darlene Lutz, In the show, Ms de Havilland is In it, Tupac wrote: ‘For Madonna who put the items played by Catherine Zeta-Jones. She is you to be seen with a up for auction, the only person depicted in the series black man wouldn’t said she had not insist the items who is still alive, and says she was not in any way jeop- known the items are rightfully Ms consulted before the show aired. Ms ardize your career Lutz’s to sell. de Havilland has applied for the court – if anything it were no longer in her ‘We are confident process to be fast-tracked, due to her would make you possession until she that the Madonna advanced age. seem that much memorabilia In an interview with The Hollywood more open and became aware of will be back,’ a Reporter in April, the show’s producer exciting. But for me, the auction spokesman said. A Ryan Murphy said: ‘I didn’t write [to] at least in my previous further hearing has Olivia because I didn’t want to be disre- perception, I felt due to been set for 6 September. spectful and ask her, “Did this happen?

26 | zoom-in Autumn 2017 things while being harangued by a position and was not persuaded that representative of their landlord. Mr Leigh would be able to persuade The eviction was by court order. a court that he was not bound by the Channel 5 says the couple had no agreement. reasonable expectation of privacy, and Mr Leigh’s rights to privacy were that in any event it was outweighed by weak when balanced against Channel the public interest in showing the work 4’s right to freedom of expression. He of bailiffs and how those who fail to had consented twice to filming and pay their rent are dealt with. It argued had not been misled. Any invasion that the claim had no realistic prospect of his privacy was relatively minor, of success. The Judge disagreed and his appearance was short, most of the refused to give summary judgment. filming was outside his property and he Most programme-makers will was portrayed in a positive light. The be used to privacy complaints being subject matter was a topical one and made to Ofcom, claiming an unwar- the clip in question was of potential

Everett Collection/Shutterstock Everett ranted infringement of their importance for the fairness of DE HAVILLAND: NOT A GOSSIP privacy rights and breach the programme overall. Did that happen? What was your take of section 8 of the Ms de The Judge also noted on that?”’ Ofcom Broadcasting Havilland says that Mr Leigh’s main In a statement, FX said the show Code – see the Yes concern was that the was meticulously researched, and that it to the Dress deci- the show falsely clip did not portray will vigorously defend the claim: ‘The sion on p8. This portrays her as a matters fairly. law on this is very clear: no permissions is a relatively rare The Judge of any kind were required in order to case, where the hypocrite selling refused to grant tell the tale.’ complainants have gossip to promote an injunction as he Ms de Havilland has appeared in 49 decided to pursue a was not persuaded films includingGone with the Wind and legal remedy instead. herself that Mr Leigh was more The Adventures of Robin Hood. likely than not to succeed Feud: Bette and Joan has aired in at trial – the test for the granting the US and is expected to air in the UK Court refuses injunction: of an interim injunction that will affect this autumn. C4 can rely on release form the exercise of the right to freedom of expression. n A man who appeared in Channel 4’s This is another case where individ- Channel 5 fails to stop Battling the Bailiffs has had his appli- uals with complaints about fairness and Can’t Pay? We’ll Take It cation for an injunction to prevent its privacy have gone to the civil courts broadcast rejected. Mr Leigh appeared rather than Ofcom. See also Channel Away! privacy case in one, less than five-minute, segment, 5’s Can’t Pay? We’ll Take it Away! n A privacy case relating to the appearing on screen for around 30 above. The case is also interesting for Channel 5 programme Can’t Pay? We’ll seconds. He had consented to filming, the Judge’s analysis of the contractual Take it Away! will proceed to trial after but had purported to withdraw that position when individuals consent to the channel failed in a bid to obtain consent. The clip showed bailiffs participate in programmes. summary judgment. arriving at Mr Leigh’s property, and The programme showed the claim- leaving after another man, Mr Martin, ants being evicted from their home asked them for ID. Approaches by journalists with their two children. They say this Although it had been apparent not harassment was a misuse of their private informa- for some time that Channel 4 did tion, that they were identifiable, that not accept Mr Leigh’s withdrawal of n A court has struck out part of a they did not consent to being filmed consent, he made his application only claim that alleged that approaches by and that the broadcast caused them shortly before broadcast. This meant journalists seeking comment on stories a loss of dignity. They complain the that if an injunction had been granted, they were going to run constituted programme showed the inside of their the whole programme would likely harassment. home, including bedrooms and bath- have been pulled from the schedule. Zipporah Lisle-Mainwaring rooms, and them gathering up their The Judge looked at the contractual brought claims against the publishers

zoom-in Autumn 2017 | 27 PRIVACY & DATA PROTECTION

of the Daily Mail in defamation, harass- itself is expected in September. new criminal offences: deanonymising ment and copyright. zoom-in has Changes include broad- anonymised data, and altering previously reported on her defamation ening the definition This records to prevent their claim, in which she obtained £54,000 of ‘personal data’, disclosure via a subject in damages. confirming that is helpful access request. Two direct approaches had been things like IP confirmation that The existing made to Ms Lisle-Mainwaring: one addresses and offence of unlaw- by email, and on one occasion, a jour- DNA do indeed normal journalistic fully obtaining nalist doorstepped her but left when count as personal attempts to seek personal data requested. Ms Lisle-Mainwaring’s data. will be widened solicitors sent a letter stating that she Those comment are unlikely to include unlaw- did not wish to be contacted, directly processing personal to be found to be fully retaining data or indirectly. From that point, no direct data will no longer that was initially attempts were made to contact her, but have to register with harassment obtained lawfully. when there was a development in the the Information Commis- Those planning to story, journalists approached her profes- sioner’s Office (ICO) and pay a fee. process data in a way that presents sional advisers for comment. Also, there will no longer be an optional a high risk will be required to undertake The Judge ruled that this was £10 fee when someone makes a subject a data protection impact assessment. within the bounds of normal journal- access request – companies should This is good practice in any event, but istic practice and there was nothing update their policies accordingly. will now be enshrined in law. oppressive, unacceptable or exceptional The minimum age at which children Importantly for the media, the about it. He took the view that her real will be able to give consent to access government confirms it intends to keep complaint was about the articles, not online services using their personal the exemption for journalism, art and the journalistic approaches, and struck data will be 13. The GDPR specifies literature – currently section 32 Data out this element of the claim. This is 16 but allows countries to lower the Protection Act 1998 – broadly as it is. helpful confirmation that normal jour- age: 13 accords with the policies of the This is important where it is vital nalistic attempts to seek comment are main social media platforms. There will to use particular data in a journalistic unlikely to be found to be harassment. also be a requirement for social media endeavour, but it is not possible to Ms Lisle-Mainwaring also claims companies to remove material posted by get consent; where other reasons for that the publication of a series of articles children if they request it upon turning processing the data don’t apply; and/or about her constitutes harassment. That 18. This is an extension to the so-called where the data is ‘sensitive personal data’ element of the claim was not struck out ‘right to be forgotten’. such as data relating to health or people’s and will continue. Adults will also be able to ask for sex lives. However it must be remem- data to be removed by those that hold bered that the exemption does not apply it if it is no longer necessary, they with- to all data protection rules, and only Government outlines new draw consent, the organisation holding applies where publication is envisaged data protection law the data has no legitimate interest in to be in the public interest and it is not doing so or there has been a breach of possible to comply with the rules while n The government has announced data protection laws. However, organi- still producing the piece of journalism. If plans for a data protection bill. The sations can refuse to remove the data in doubt, seek legal advice. proposals for the most part incorporate where they are exercising the right to The government also says it will into UK law the EU’s General Data freedom of expression or hold the data ‘amend provisions relating to the ICO’s Protection Regulation (GDPR). for other public interest reasons, such as enforcement powers to strengthen the This will become law in May 2018 for public health or research purposes. ICO’s ability to enforce the re-enacted in any event, but putting it into UK The maximum fine the ICO can levy section 32 exemptions effectively.’ We law allows the government to fill in for the most serious breaches will be will have to wait for the Bill to see various gaps, and ensures the law will raised from £500,000 to £17m or 4% exactly what is meant by this, but it remain the same after Brexit. of global turnover – this replicates the may refer to the regime whereby any The Bill will also bring into force GDPR, which refers to €20m. Organi- court action is stayed until the ICO the EU’s Data Protection Law Enforce- sations will be required to notify the decides whether or not personal data ment Directive, dealing with the ICO within 72 hours if they have a is being processed for the purposes of handling of personal data in a policing data breach that puts people’s rights journalism, art or literature. zoom-in and criminal justice context. The Bill and freedoms at risk. There will also be will report on this when more is known.

28 | zoom-in Autumn 2017 George Clooney to sue over photos of twins n George Clooney has promised to sue French magazine couple’s property in Lake Como, Italy, and climbed a tree Voici over paparazzi photos of his twins. to obtain the photographs. He said: ‘Make no mistake, When twins Ella and Alexander were born in June, the photographers, the agency and the magazine will be George and his wife Amal, a human rights lawyer, released prosecuted to the full extent of the law. The safety of our a statement: ‘This morning Amal and George welcomed children demands it.’ Ella and Alexander Clooney into their lives. Ella, Alex- In response, the magazine said: ‘The images published ander and Amal are all healthy, happy and doing fine. in Voici this Friday are a response to a public demand. George is sedated and should recover in a few days.’ But People love George Clooney and have been following they have not released any photographs. his life story for years now. Those pictures do not put in Clooney claimed photographers had gone onto the danger Mr Clooney, his wife or their kids.’ Denis Makarenko/Shutterstock

zoom-in Autumn 2017 | 29 CONTEMPT & REPORTING RESTRICTIONS

not releasing or confirming names of The law of contempt makes it a criminal offence for the media those arrested. to publish or broadcast comments or information that creates Ultimately the majority decided open justice must prevail. The impact a substantial risk of serious prejudice to active UK legal on Mr Khuja’s family life was indirect: proceedings, in particular criminal proceedings heard before neither he nor they participated in the juries. Penalties for contempt can be serious: fines, even trial. He had no reasonable expecta- imprisonment. Many activities are capable of amounting to a tion of privacy in matters referred to in contempt, including: publishing seriously prejudicial material; open court. There was a public interest in the story, and Mr Khuja’s identity obtaining or publishing details of jury deliberations; breaching was not an irrelevant feature of it. reporting restrictions or a specific court order; making payments If the privacy rights of individuals to witnesses; filming or recording inside court buildings without referred to in criminal trials are to be permission; and publishing information obtained from confidential protected, the appropriate way would court documents in both civil and criminal proceedings. be through managing the trial in such a way that they are not identi- fied in open court in the first place. to balance Mr Khuja’s privacy rights Once a name has been referred to in Supreme Court allows with the freedom of expression rights open court, where it can be heard by identification of man of the press and public. Both the any member of the public attending, named in criminal trial High Court and Court of Appeal it is extremely difficult to justify a decided that the balance came down restriction on it being reported - such n The Supreme Court has ruled that in favour of freedom of expression. restrictions were described as ‘direct an Oxford businessman who attempted The Supreme Court, by a margin of press censorship’. to obtain an order for anonymity after 5:2, came to the same conclusion. he was referred to in a child sexual The Judges addressed the ques- grooming trial can be named. tion of whether there was a legal Times refused access to Tariq Khuja was arrested after a presumption that most members Sports Direct case witness complainant reported that she had been of the public understand you are abused by a man with the same, very innocent until proven guilty. The statements before trial common, first name. She did not pick majority found there was not a legal n The Times has been refused access to Mr Khuja out of an identity parade. He presumption to be applied whatever witness statements before trial, even was released and has never been charged. the circumstances: it was simply though they had been referred to at a He has always maintained his innocence. that the Judge in this case had found pre-trial hearing. Mr Khuja’s name was mentioned that while some of the public would The case was ultimately tried in during the trial of nine other men on equate suspicion with guilt, most early July. Jeffrey Blue had claimed sexual grooming charges. The Judge would not. that in a conversation at a pub, Sports made an order under section 4(2) The two dissenting Judges took Direct boss Mike Ashley had promised Contempt of Court Act preventing the view that there had been a legal him £15 million if he increased Sports the reporting of his name to presumption to this effect Direct’s share price. The parties gave prevent prejudice to any The based on previous case evidence of ‘drink-fuelled’ meetings, future trial. law, but that this was including on one occasion Mr Ashley When it became Judges without eviden- vomiting into a pub fireplace. The clear that there addressed whether tial foundation Judge ruled in Mr Ashley’s favour, were no proceed- there was a legal and should be finding that the offer was clearly a ings against Mr re-considered. joke. Khuja imminent, presumption that most They noted The Times wanted the documents the press applied members of the public concerns over before the evidence was given at trial to lift that order understand you are the reputational – when it becomes automatically and Mr Khuja damage done to available. It argued that because the sought a privacy innocent until individuals named witness statements had been referred injunction. proven guilty as suspects, and the to and seen by the Judge at an earlier The Court sought move towards the police hearing, there was a ‘strong default

30 | zoom-in Autumn 2017 that are made available in advance the case could not properly be under- may be published with the protection stood by the public unless Markham of qualified privilege, and without the and Edwards were named. Rejecting counterweight of those matters being arguments about the effect of inter- tested by cross-examination as they national obligations relating to the would be at trial. rights of the child, the Court made The case is a cautionary tale. Media clear that decisions about the identi- organisations should not assume that fication of under-18 defendants would just because a document has been depend on the facts of the particular referred to in the course of a prelimi- case. nary hearing, there will be a default right of access to it. On an applica- tion for access to documents, evidence Perjury defendant should be put in explaining why the who made false rape documents are sought. allegations not entitled to

Mark Thomas/Alamy anonymity ASHLEY: VOMITED INTO FIREPLACE Court of Appeal names presumption’ that the documents child murderers n A person on trial for perjury and should be made available. perverting the course of justice in rela- The Judge found the approach was n Two child killers have been identi- tion to allegations of rape and sexual mistaken. While this is the default fied following a decision by the Court assault is not entitled to anonymity, position, it is not a ‘strong presump- of Appeal. the Court of Appeal has confirmed. tion’, and all the circumstances of the Lucas Markham and Kim Edwards Jemma Beale was convicted of four case had to be considered. were found guilty of the murder, counts of perjury and four counts of The Times had put in no evidence committed when they were 14, of perverting the course of justice. She as to why it wanted the material. The Edwards’ mother and younger sister. had made allegations of rape and Judge found it likely that it was to An order had been made prohib- sexual assault against a series of men, report the evidence in the trial that iting their identification when they one of whom was convicted of rape was about to start. Essentially the first appeared at the Magistrates’ based on her false evidence, and served issue was one of timing. Court. Such orders, under s45 of the two years in prison before his convic- There were good reasons why the Youth Justice and Criminal Evidence tion was overturned. Court should not generally make Act 1999, are typically made in trials Victims (and alleged victims) of witness statements publicly available involving under-18 defendants in the sexual offences automatically have before the witnesses give evidence. A Crown Court. lifelong anonymity under the Sexual witness statement forms evidence that The effect was that the defining Offences (Amendment) Act 1992, would previously be, and still today feature of the murder, that it involved starting from the moment an alle- in a criminal case is, given Edwards killing her own mother gation is made. However, there is orally on the day. Access and younger sister, could a carve-out in the Act: it does not to witness statements On an not be reported, as the prevent the reporting of the person’s at trial replaces the application familial connection identity in any criminal proceedings public and media would effectively have other than those relating to the sexual right to be in for access to identified Edwards offence. court and hear documents, evidence and Markham. This means that while victims have evidence given, should be put in On Edwards’ anonymity in reports of criminal trials but there is no conviction, various of the person accused of the sexual corresponding explaining why the press organisa- offence, and any appeal, they do not reason to provide documents are tions applied to lift have anonymity in any other criminal access in advance. sought the order. The Judge proceedings. This includes criminal Witnesses may give granted the application, proceedings against them for perjury statements but ultimately but stayed his decision pending or perverting the course of justice. never be called at trial. Defamatory appeal. The Court of Appeal found that the assertions made in witness statements The Court of Appeal agreed that wording of the statute was clear.

zoom-in Autumn 2017 | 31 ABOUT ABBAS MEDIA LAW

We are specialists on all film, advertising and publishing industries. We advise on deal- aspects of UK law and regu- making, draft and negotiate all types of agreements, and can lation affecting the televi- answer all your day to day queries. See page 16. sion, film, advertising and publishing industries. We advise before publication and Legal and Regulatory Threats, and Litigation broadcast, working with creatives to minimise legal and regula- Lawyers at Abbas Media Law have worked on some of the most tory risk, and following publication and broadcast, defending legally challenging programmes over many years, fending off content when it and its producers come under attack. We work threats of attack from numerous high-profile individuals and with many of the country’s leading creative content producers. companies. We regularly represent clients when legal and regulatory threats are made against programmes and other Content Advice content, both before and after publication. We also represent We are experts in all aspects of the law that affect the publishing clients in most areas of litigation affecting the media, advising and broadcasting of content in the UK, as well as all relevant on strategy, tactics, drafting of pleadings and advocacy. regulatory rules. Nigel Abbas, the firm’s founder, is the primary author of Channel 4’s Producers Handbook, a comprehensive The Team practical guide to best practice, regulation and the law as they Nigel Abbas Founder apply to the making and broadcasting of the broadcaster’s Nigel is a barrister with over 20 years’ experience programmes. advising the media and entertainment industries. Abbas Media Law’s lawyers and advisers are some of the Clare Hoban Senior Lawyer most experienced content lawyers in the country. We work on A highly experienced media lawyer, Clare joined some of the most exciting and challenging factual program- AML in January 2016 after 11 years at the BBC. ming; films and dramas, including the most hard-hitting factually based works; and all kinds of entertainment and Jenny Spearing Consultant comedy programmes. We also advise many mainstream news Jenny is a business affairs expert with nearly 20 years’ providers. experience in television production.

Business Affairs & Rights Felicity McMahon Consultant We advise clients on all aspects of business affairs, and chain Felicity is a highly versatile barrister specialising in of title and rights issues, in connection with the television, media law. SUBSCRIBE zoom-in – media law and compliance news, updates and analysis for those working in the media and entertainment industries. Be informed about the important legal and compliance issues affecting your business or profession. Visit abbasmedialaw.com to get free magazine issues delivered straight to your inbox. To receive a printed copy email [email protected] abbasmedialaw.com