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