Media law news from Abbas Media Law zoom-inAutumn 2018

REBEL’S LIBEL PAYOUT SLASHED PUSSYCAT DOLLS SUE MAIL

BLURRED LINES APPEAL REFUSED YOUR GUIDE TO PAVILION ROAD CLIFF WINS BBC HIT BY BIG PRIVACY DAMAGES

EXCLUSIVE INTERVIEW: LESBIAN BOX OFFICE’S JACQUIE LAWRENCE IN THIS ISSUE

DEFAMATION 20 QUESTIONS Pussycat Dolls sue over ‘prostitution’ Jacquie Lawrence of Lesbian Box Office claim...... 12 on what gets her going...... 22 Johnny Depp acts on ‘wife-beater’ allegation...... 12

Musk apologises for Twitter slur...... 13 Supreme Court considering Cosby case...... 14

Serious harm threshold cannot be met by cumulative allegations...... 15

BUSINESS AFFAIRS & RIGHTS Abbas Media Law’s production legal schedule, setting out the five key stages WINNERS & LOSERS of TV production and the legal issues Appeals Court won’t revisit Blurred producers must consider. In this issue, Lines...... 4 we focus on contributor releases...... 16 Daily Mail apologises to Earl Spencer. 4 MEDIA HAUNTS COPYRIGHT & IP RIGHTS Rebel Wilson’s damages slashed...... 5 Take a tour of Chelsea’s super-swanky Rage Against the Machine tell Farage to Pavilion Road...... 24 Sir Cliff wins against BBC...... 6 cease and desist...... 18 Fox settles Ali claim...... 20 PRIVACY & DATA PROTECTION REGULATION – OFCOM, ASA & Damages and apology for revenge IPSO Photographer owns copyright in last Marilyn pics...... 20 porn pics of dead woman...... 26 Eamonn & Ruth censured for child Convicted killers lose ‘right to be filming ...... 8 Shape of Water claim dismissed...... 21 forgotten’ case...... 26 Alex Salmond misled RT viewers ...... 8 Court rules on staying proceedings..27 Adam Johnson prison footage Child abuse inquiry fined £200,000. 27 justified ...... 9 Love Island avoids investigation...... 10 CONTEMPT & REPORTING BBC accidentally named teenager.... 10 RESTRICTIONS Logo too prominent in C4 Grand Prix Tommy Robinson released on bail....30 coverage...... 11 Court of Appeal allows doctor fraud Can’t Pay? infringes privacy again...... 11 reports...... 31

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

2 | zoom-in Autumn 2018 WINNERS & LOSERS

THE DAILY MAIL HAS APOLOGISED TO EARL SPENCER OVER ALLEGATIONS INVOLVING HIS LATE SISTER, PRINCESS DIANA: SEE P4 ZUMA Press, Inc. / Alamy Stock Photo Inc. / Alamy ZUMA Press,

zoom-in Autumn 2018 | 3 WINNERS & LOSERS

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

Appeals Court will not musical creativity and inhibit the Daily Mail apologises to reconsider Blurred Lines process by which later artists draw Earl Spencer over Diana inspiration from earlier artists to decision create new popular music’, and signed allegation n A US court has refused to revisit up 212 other musicians to an amicus n The Daily Mail has apologised to its decision to dismiss an appeal by brief in support of their appeal. Earl Spencer, brother of the late Prin- Pharrell Williams and Robin When judgment was handed cess Diana, over stories it published Thicke against a finding down on the appeal in both in print and online in January that their hit song March, the arguments 2017. It had alleged that he had refused Blurred Lines had advanced by Thicke his sister any accommodation on his infringed the The only route and Williams’ Althorp estate after the collapse of her copyright lawyers were marriage to Prince Charles. The article, in Marvin left for Thicke and rejected, and published in the ‘Platell’s People’ Gaye’s Got To Williams is to appeal to the jury’s column, had accurately reported that Give It Up. verdict and Earl Spencer refused his sister’s request The the Supreme Court, but award of for accommodation in a particular Court of the case seems unlikely to damages cottage, ‘The Garden House’, but the Appeals for meet the threshold for upheld. paper failed to mention that he had the Ninth There was, instead offered her other properties on Circuit was consideration however, a the estate. The article made the defam- considering a dissenting judg- atory allegation that Earl Spencer had request by Thicke ment from Jacque- ‘acted in an unbrotherly, heartless and Williams to recon- line Nguyen, who said and callous way towards his sister’ in sider its appeal ruling, made her colleagues had allowed ‘the refusing her accommodation at a time in March this year, by way of an Gayes to accomplish what no one has when she needed refuge away from en banc re-hearing, which would before: copyright a musical style’. Kensington Palace. That allegation have involved all the Court’s judges She said: ‘Blurred Lines and Got was untrue and caused him distress sitting rather than the original three. to Give It Up are not objectively and embarrassment. The appeal, which was heard in similar. They differ in melody, Following letters of complaint, October 2017, followed the deci- harmony and rhythm. the Daily Mail made an offer sion of a jury at trial to award $5.3m [The ruling] estab- of amends – a proce- (£4.1m) in damages and half the lishes a dangerous Because dure publishers can Blurred Lines copyright to Marvin precedent that the Mail used use when they have Gaye’s estate. strikes a devas- made an error and The jury’s decision and resulting tating blow to the offer of amends are willing to award caused consternation in the future musi- procedure, it will be correct it. The music industry, as it appeared to open cians and legal representa- the door to similar copyright claims composers required to pay a lower tives of Earl against songwriters who, inevitably, everywhere.’ sum in damages than Spencer and the are influenced by earlier recorded In spite of Daily Mail made works. In the wake of the decision, her trenchant if it had fought the a statement in open a number of prominent artists have criticisms, the case court, and the news- settled claims for infringement, appeal court refused to paper will publish an sometimes by adding as co-writers reconsider its verdict. apology. It has also agreed claimants whose historical work was The only route left for Thicke and not to publish the allegation again and alleged to have inspired them, rather Williams is to appeal directly to the will pay damages and costs. Because than risk a similar result at trial. United States Supreme Court, but the publisher used the offer of amends Williams and Thicke had previ- the case seems unlikely to meet the procedure, it will be required to pay a ously pointed to the risk that ‘the threshold for consideration at the lower sum in damages than if it had Blurred Lines verdict would chill highest level. fought the case.

4 | zoom-in Autumn 2018 Rebel Wilson’s A$4.5m damages cut to A$600,000 n Rebel Wilson, previously awarded the biggest pay-out special damages amount entirely, and lowered the general for defamation in Australian history – A$4.5m (£2.6m) – damages amount to A$600,000 (£344,000). has seen her damages massively reduced on appeal. The Judge said Wilson’s evidence was ‘not sufficient’ Last year’s award had followed a unanimous jury and that she was ‘unable to establish there was a causal verdict that Bauer Media had defamed the Australian connection between the defamatory publications for which actor by branding her a ‘serial liar’ who ‘fabricated almost Bauer was responsible and any loss that was suffered’. She every aspect of her life’. also rejected the claim that Wilson had suffered economic The company had published magazine articles loss as a result of the articles. claiming Wilson lied about her name, age and child- The actor was not present in court, but did point out, hood so she could make it in Hollywood. As a result, ahead of the appeal, that the verdict itself was not being the actress said, she missed out on several prominent film questioned, only the amount of money paid. roles and other opportunities. The original judge had explained in his ruling that the In its original decision, the Supreme Court of Victoria sum was intentionally large, saying: ‘Unless substantial awarded A$650,000 in general damages and A$3.9m in damages are awarded there is a real risk that the public ‘special damages’ for roles Wilson had lost. The size of the will not be convinced of the seriousness of the defamation.’ payout generated discussion in Australia over whether it The appeal underlines the difficulty in proving Shutterstock.com could stifle journalism that is in the public interest. economic losses resulting from a particular defamatory On an appeal by Bauer, the Judge disallowed the publication to the necessary standard. DFree / DFree

zoom-in Autumn 2018 | 5 WINNERS & LOSERS

Sir Cliff Richard wins £210,000 damages for privacy breach n Sir Cliff Richard has been awarded £210,000 in damages after the BBC was found to have breached his privacy when reporting a police search of his home that was part of an investiga- tion into a historic allegation of sexual assault. Sir Cliff was never arrested, and in 2016 the CPS announced that no charges would be brought. South Yorkshire Police had settled Sir Cliff’s claim against it for £400,000 at an earlier stage, but the BBC fought the case as a matter of principle. The Judge found that the reporting of the investigation, and the sensa- tionalist manner of it, which included using footage filmed via helicopter of the star’s home as it was being searched, amounted to breaches of Sir Cliff’s privacy. Importantly for journalists, the Judge found that individuals have a reasonable expectation of privacy in the fact of a police investigation. Unlike in previous cases, the Judge took the view that the principle of ‘innocent until proven guilty’ is not some- thing the general public consistently WENN.com understands, so there is a great stigma SIR CLIFF: NOT IN PUBLIC INTEREST attached even to the early stages of an they learn are under investigation, story, Dan Johnson, at the time a rela- investigation. While in some situa- considering whether in the particular tively junior reporter, was described tions it will be appropriate to name an circumstances the public interest in by the Judge as someone who ‘was individual – for example, where there reporting the name outweighs the capable of letting his enthusiasm get is a public safety issue or the police are person’s privacy rights. the better of him in pursuit of what seeking further information – in this The Judge considered in some he thought was a good story’, and case, although the Judge accepted that detail how the BBC had got the story was happy for the police to be under there was a significant public interest and the subsequent coverage of it. the impression that he had a story in the fact of the police investigation The main area of dispute was whether that he was in a position to broadcast into historic sexual abuse, he found South Yorkshire Police had volun- when that was not the case. In order that there was not a public interest in teered the information it provided to to prevent premature publication, the identifying Sir Cliff. the BBC, or whether it was manoeu- police confirmed facts and provided This is likely to change how police vred into providing it by the concern information to Mr Johnson that he had investigations are reported. Since the that the BBC would publish news of not previously had; he agreed he would Leveson Inquiry, police forces have the investigation before the police not publish the story in exchange for been increasingly reluctant to name search took place, thus risking any the police giving him advance notice those under investigation (in this case, evidence that might have been at the of the search. they did not name Sir Cliff publicly). property being destroyed. The BBC maintained it would Media outlets will now have to think The Judge found the latter was the never have published the story, carefully before naming those who case. The journalist who obtained the including Sir Cliff’s name, without

6 | zoom-in Autumn 2018 confirmation from the police; and notable. The Judge found that such of the reporting of his decision. ‘It is that publication is a decision for damages were not only available where simply wrong to suggest there is now editors and was thus not within the a claim in defamation was brought, some blanket restriction on reporting power of Mr Johnson, which any but also in privacy claims. In this case investigations,’ he said. reasonable police media department a defamation claim was not brought, The BBC also objects to the would know. The Judge rejected this likely because the allegation – that Sir finding that Sir Cliff could be awarded as missing the point, as it was clear Cliff was under investigation by the damages for damage to reputation, that, and indeed Mr Johnson had the police – was true. This development when he had sued in privacy, not impression that, the police believed in the law is likely one reason why the defamation. there was a risk of publication before damages award was so high. Despite seeking to appeal, the the search took place. Sir Cliff welcomed the news, BBC will pay £850,000 towards Sir The Judge also noted the extent to saying he was ‘choked up’ at the judg- Cliff’s costs. which the BBC was concerned about ment. The BBC has apologised for It must be noted that the decision keeping the story exclusive. This is the distress caused to Sir Cliff and has does not say anything about the posi- common in newsrooms, but must not admitted it has lessons to learn. If the tion after a person has been arrested or inhibit examining the legal issues in BBC wants to appeal the judgment it even charged. Once a case reaches court, a report, or giving the subject of a will need permission to do so. It sought except to the extent that there are appli- potential report sufficient time and the permission of the Judge who made cable reporting restrictions in place, information to respond. the decision, but he refused. The there is no doubt that the media can The style of reporting, which the BBC is nonetheless entitled to ask the report what goes on in court, including Judge said added ‘drama and Court of Appeal directly, which the name of the individual and the a degree of sensation- will make its own deci- charges against them, without risk of alism’, also materially sion, although there privacy or defamation proceedings – increased the impact are strict time limits providing the report is fair and accurate. of the invasion of Media outlets within which it There have also been calls for Parlia- privacy. will now have to must do so. ment to look at the issue of whether The damages Since the and, if so, when suspects in police award in the case think carefully before judgment, the investigations should be named. These was very large, naming those who BBC has made calls are not new: in relation to rape/ more than double it clear that it sexual assault allegations in particular, that awarded they learn are under objects to the there have been various suggestions in to ex-Formula 1 investigation Judge’s findingrecent years to consider anonymity for supremo Max Mosley that the fact of the those against whom accusations are after revelations about investigation attracted made, given the enormous damage his sex life in the News of a reasonable expectation of that can be done to a person’s reputa- the World in 2008. The total sum will privacy. The BBC has described the tion even when they are acquitted. be even higher: the Judge found in ruling as having ‘raised significant The Judge’s finding that the principle that Sir Cliff should be able questions for press freedom’ and as public do not always fully understand to recover damages in relation to the representing ‘a dramatic shift against the presumption of innocence – the cost of dealing with the results of the press freedom and the long-standing feeling that there is ‘no smoke without press coverage, and lost opportunities ability of journalists to report on fire’ – is new in court judgments, but including a book deal. If the sums are police investigations’. perhaps better reflects the reality of not agreed between the parties, they It must be remembered, however, how the public react to allegations, will be heard by a court at a later date. that like all privacy decisions, this one in particular those as serious as child The £210,000 is made up of was fact-specific. There is no firm rule sexual offences. This may be something £190,000 for distress, loss of control that the fact of an investigation always Parliament will consider in future. For of the private information and damage attracts a reasonable expectation of now, those considering reporting such to reputation, plus a £20,000 aggra- privacy. There will be circumstances investigations will need to give careful vated damages award made after the where there is none, or where that thought to the balance between the BBC submitted its reporting of the expectation is outweighed by other media’s right to report and the public’s police search for Scoop of the Year at considerations, for example a risk to right to know on one hand, and the the Royal Television Society Awards. the public. The Judge emphasised this individual’s right to privacy and the The inclusion of damages for harm when refusing the BBC permission to maintenance of the presumption of caused to Sir Cliff’s reputation is appeal, expressing concern over some innocence on the other.

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

the girl, the footage illustrated his Ofcom regulates the content of all television and radio in the UK. comments about sexuality. Further, IPSO is the main regulator for the press and magazine industry. while Channel 5 had permission from the dance competition organisers to The Advertising Standards Authority regulates advertising. All film and put up filming notices, it was the regulators adjudicate on complaints with reference to codes unclear whether either the complainant of practice, with which those they regulate have to comply. The or her daughter had seen them. In any Ofcom Broadcasting Code is the main code relating to broadcast event Ofcom found it unlikely that the content, while IPSO judges complaints against the Editors’ Code. complainant would have consented to her daughter being included in a The ASA’s main codes are the BCAP Code for broadcast advertising, programme about adult relationships. and the CAP Code for non-broadcast advertising. Compliance with The ruling is a reminder to take these codes is important. Regulators can impose penalties and care when filming under-16s or people sanctions for non-compliance. Regarding privacy matters, the who might be under 16. Under Rule regulatory codes also have wider legal significance because of 7.1 of the Code, where a contributor provisions within the Human Rights Act 1998 and data protection is under 16 consent should normally be obtained from a parent or guardian. legislation. The result is that the Codes have a bearing not simply Programme-makers should also take in a regulatory context, but also on how the courts should act care with the context of contributions, when making any order affecting freedom of expression and the to ensure they do not inappropriately publication of journalistic, literary or artistic material. associate an under 16 with adult themes and/or portray them unfairly.

OFCOM: Channel 5 in an observation that strippers earn more during the fertile stage of their cycle. OFCOM: The Alex Salmond breach over Eamonn & During this interview, footage of the Show on Russia Today in Ruth’s 7 Year Itch complainant’s 13-year-old daughter dancing was shown. The channel breach n Ofcom has found that Channel 5 and the programme-maker said they n An episode of The Alex Salmond breached the Ofcom Code when it believed they had filmed only a dance Show, broadcast on controversial broadcast footage of a 13-year-old competition with participants over 16. current affairs channel Russia Today girl dancing, alongside comments They had since realised that they had (‘RT’), has been found to be in breach about the sexual nature of dancing, in filmed a category of younger dancers. of the Ofcom Code for materially Eamonn & Ruth’s 7 Year Itch. Channel 5 accepted that, given her misleading the audience. The programme, which explored age, showing footage of a girl in that methods couples use to reinvig- context was inappropriate but did not orate their marriages, included the believe it was in breach of the Code. presenters meeting a cognitive Ofcom disagreed and psychologist, Dr Lovatt, found that Channel at a dance competi- 5 had breached tion, to discuss the Ofcom found Rule 7. While effectiveness of it unlikely that the the complain- dance therapy complainant would ant’s daughter’s in improving appearance in sexual inti- have consented to her the programme macy between daughter being included was fleeting, couples. she was identi- Asked why in a programme fiable as her face people find about adult was unobscured. dancing attractive, relationships Similarly, while Dr Lovatt discussed it was clear that Dr the influence hormones Lovatt’s comments were / Shutterstock.com Twocoms can have on dancing, including not specifically referring to SALMOND: MISLED VIEWERS

8 | zoom-in Autumn 2018 Ofcom of orchestrating media coverage by publishing a prelimi- nary finding earlier this year, alleg- edly before receiving representations from the channel. RT also dismissed the misrepresentations as a ‘trivial teething problem’. This ruling further emphasises the importance afforded to main- taining audience trust in current affairs programmes, a principle that is increasingly important because of concerns about so-called ‘fake news’.

IPSO: Adam Johnson prison footage justified in the public interest n Press regulator Ipso has ruled that The Sun’s publication of footage of footballer Adam Johnson in prison was justified in the public interest.

Featureflash Photo Agency / Shutterstock.com Featureflash The former Premier League foot- EAMONN & RUTH: DISCUSSED SEXY DANCING baller was convicted of sexual activity The programme is hosted by the or portrayals of factual matters must not with a child and child grooming in former First Minister of Scotland, Alex materially mislead the audience.’ 2016, and sentenced to six years’ impris- Salmond, and produced by his own In reaching its decision, Ofcom onment. At his trial he had expressed production company, Slàinte Media. stated that audience trust is likely remorse, saying he was ‘ashamed’ of Russia Today is funded by the Federal to be particularly high in current what he had done. However, in video Agency for Press and Mass Commu- affairs programmes and that ordinary footage filmed inside HMP Moor- nications of the Russian Federation, viewers would not have expected that land, Johnson was seen telling a fellow and broadcasts on satellite and digital the emails and tweets originated from inmate that he had not committed rape terrestrial platforms in the UK. people linked to the programme and that ‘I wish I fucking did for six The first episode of Salmond’s series or to Mr Salmond. There- year [sic]’. He also expressed saw a complaint that the programme fore, the fact that four Four the view that he would ‘invented tweets presented as real of the questions did of the six not have received a from viewers of the show to direct the originate from custodial sentence debate on his views and terms’. such sources was messages were had he not been On the show, Salmond read out a a misrepresen- sent by people a well-known series of tweeted questions on subjects tation. Ofcom professional including his decision to appear on considered that connected either footballer. RT, Brexit, and his dealings with undermining directly or indirectly John- Donald Trump. viewer trust in son’s father RT confirmed that four of the this way resulted to the production of complained six messages were sent by people in the audience the show, or to that The Sun had connected either directly or indirectly being materially breached Ipso rules to the production of the show, or to misled, a breach of Salmond on accuracy, privacy, Salmond, including freelancers for the Rule 2.2 of the Code. harassment and clandestine show and the series director. Both Slàinte Media and RT were devices/subterfuge. Mr Johnson was Ofcom considered whether there critical of the decision, with Slàinte particularly concerned that his son had been a breach of Rule 2.2, which Media suggesting that it jeopardised was referred to as a ‘paedophile’ or provides: ‘Factual programmes or items freedom of speech, and RT accusing ‘paedo’, which, he said, is defined as ‘a

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

male predator who has a sexual attrac- anyone else. Some viewers felt this was the alleged mistreatment and use of tion towards pre-pubescent children’, misleading and that Dyer was being excessive force on young people by whereas Johnson’s convictions relate to ‘emotionally manipulated’ by the G4S staff at Medway Secure Training his actions towards a 15-year-old girl. programme-makers. Centre in Rochester, Kent. Ipso found no breach of its Code. Ofcom took the view that the The programme included footage The footage was given to the newspaper programme had not breached any of of two young people, referred to by by a third party. The Sun argued that its rules or guidelines. While acknowl- the pseudonyms Billy and Lee in publication of the material was justi- edging that Dyer’s reaction was diffi- order to prevent them from being fied in the public interest, and Ipso cult to watch, it said Love Island viewers identified. Their faces were also agreed. Ipso considered that, while would expect emotionally charged blurred, although their voices were prisons are public facilities, prisoners scenes and scenes ‘engineered to test not disguised, and an interview with may have a reasonable expectation of contestants’ relationships. Billy’s mother was shown in which her privacy in some areas, including the Programme-makers should always face was not blurred. laundry room, where the footage was be mindful of the duty they have to Although generally referred to as filmed. However, the public interest ensure the wellbeing of participants ‘Billy’ in the programme, Billy’s real in showing that what Johnson said in and contributors — in particular first name was audible on one occasion private was at odds with his remorse in reality TV scenarios such as Love and on two other occasions the name shown in court was proportionate to Island, which create a highly unusual was said but was ‘almost inaudible’; any potential intrusion into his privacy. and potentially stressful environment. his surname was never used. The newspaper had not set out to use Programme-makers should ensure The BBC said this was a genuine clandestine devices or subterfuge, but as contributors are sufficiently briefed and error that came about because the it had published the footage knowing it assessed to determine whether they can broadcast of the programme had been came from a hidden camera, the relevant cope. Psychological support should be brought forward, limiting the oppor- clause in the Ipso code was engaged. In offered where appropriate. tunities for pre-broadcast review. Once relation to the use of the word ‘paedo- Programme-makers’ duties the error was spotted, the BBC phile’, Ipso confirmed this was an may also continue after immediately removed accurate description. Johnson had been the show, including the programme from convicted of sexual activity with a minor de-briefing The BBC said iPlayer in order to and grooming, and sentenced to six participants and this was a genuine remove the refer- years in jail, and the article had stated preparing them ences. the age of his victim and made clear the for what is to error that came about While nature of his conviction. come once they because the broadcast acknowledging leave, and where the clear and appropriate, of the programme significant public OFCOM: No investigation offering ongoing had been brought interest in the of Love Island complaints access to psycholo- programme and gists or other assis- forward that errors can occur, n Ofcom has declined to investi- tance. All this should Ofcom found the BBC gate ITV2’s hit summer show Love be planned well in advance. to be in breach of Rule 1.28. Island, after more than 2,500 people Abbas Media Law can assist Rule 1.28 says: ‘Due care must be complained about how one participant, programme-makers in ensuring they taken over the physical and emotional Dani Dyer, was treated. Dyer, daughter comply with their duties of care, and welfare and the dignity of people under of EastEnders actor Danny Dyer, eventu- are happy to advise on all types of eighteen who take part or are otherwise ally won the show with island boyfriend programme. involved in programmes.’ It was noted John Fincham. that ‘this failure by the BBC could have The programme showed Dyer very seriously compromised the care of Billy upset after seeing a clip of Fincham OFCOM: BBC in breach and was avoidable’. reacting to the arrival of his ex-girl- over accidental naming of The BBC had apologised to those friend after she was brought to the involved, and Billy’s mother confirmed island as one the new contestants. She 14-year-old that he had not been identified by was not shown any footage of him n The BBC has been found in breach anyone who did not already know him. declaring his love for Dyer, or sleeping of the Ofcom Broadcasting Code over Ofcom found no breach in relation outside to avoid sharing a bed with a Panorama programme that exposed to the process of undercover filming.

10 | zoom-in Autumn 2018 The BBC had briefed and trained the OFCOM: Can’t Pay? We’ll Although the writ itself was a reporter, and filming was reviewed public matter, it did not follow that regularly by senior editorial staff, with Take it Away! infringed its consequences and impact on the advice taken from two independent privacy debtor were public matters. Mr K and experts on whether there were any safe- Mr L had a reasonable expectation of guarding concerns that needed to be n Ofcom has upheld a complaint privacy in the events that took place in reported immediately. Ofcom found that the treatment of Mr K and his the home, including discussion of the that these steps demonstrated the father Mr L in relation to an episode circumstances of the debt, their family appropriate level of ongoing scrutiny of Can’t Pay? We’ll Take it Away! situation and of Mr L’s health. and senior oversight. was an unwarranted infringement of Ofcom accepted the general their privacy. public interest in this type of The programme showed High programme. It took account of the OFCOM: breach by Channel Court Enforcement Officers seeking fact that the footage depicted the 4 in Grand Prix highlights to enforce a writ against Mr K for physical altercation as Mr K and Mr payment of a debt relating to a road L tried to remove the HCEAs from n Ofcom has found that references traffic accident. Footage of the exterior the property, which Channel 5 had to Rolex in Channel 4’s highlights and interior of their home was shown, described as an ‘assault’, but noted coverage of the qualifying laps for as was an altercation between them there was no complaint to the police the 2016 Singapore Grand Prix were and the HCEAs as they asked them by the HCEAs, and that the presence unduly prominent and in breach of to leave, as well as Mr L, who suffers of the film crew likely contributed Rule 9.5 of the Code. from post-traumatic stress disorder, to the highly-charged atmosphere. The references fell into two catego- becoming increasingly distressed by However Ofcom said that while ries: images of a large Rolex clock face their presence and the filming. The programme-makers have editorial that had been superimposed onto an next day, the debt was paid by Mr K’s discretion in how they tell a story, observation wheel in shots panning over vehicle insurer. including whether to use stories the race venue; and a Rolex logo graphic Footage inside the property was of individuals, this discretion only that appeared on screen alongside race filmed on body-cams provided to the extended to the inclusion of private information at various points during HCEAs by the production company. information if justified in the public the coverage. The camera crew remained outside on interest. Ofcom found that the images of the the pavement. While one purpose of There had been a very signifi- clock were unduly prominent because the HCEAs wearing the body-cams cant intrusion into Mr K and Mr L’s they dominated the screen, appeared was to ensure their safety, the produc- privacy rights, which outweighed the during location shots and were not inte- tion company had provided higher- broadcaster’s Article 10 rights both gral to the event or otherwise editorially quality cameras for filming in relation to filming and the justified. footage for inclusion in broadcast of the footage Ofcom noted that although Channel the programme, they Programme- – particularly taking 4 acquired the footage from a third owned the footage, account the nature party and the production process was and the audio makers should of Mr K’s debt, subject to time constraints, it had the was streamed always be mindful of which he thought opportunity to remove the images live back to the had been settled before broadcast. production crew. the duty they have to by insurers, the Ofcom considered, however, that While Mr K and ensure the wellbeing way in which the logo graphic was not unduly promi- Mr L were aware the footage was nent. In reaching its decision, it noted of the body cams, of participants and obtained within that it was small, appeared briefly and they were never contributors the home, and the was not subject to any product-specific told that they were state of Mr L’s health. restrictions. for the purpose of the This is not the first The ruling is a reminder that even programme, and would not Ofcom finding onCan’t Pay? if commercial references have been have expected them to be. Therefore We’ll Take it Away! – in the Winter included by a third party and do not Ofcom found the use of the body-cams 2017 issue of zoom-in we reported on constitute product placement, they to amount to surreptitious filming, the Miss F ruling, which also found can still fall foul of the prohibition on which was not warranted in the the use of body-cams to constitute undue prominence. circumstances. surreptitious filming.

zoom-in Autumn 2018 | 11 DEFAMATION

by others, whether on social media The law of defamation protects the reputation of individuals and or elsewhere. The ‘repetition rule’ companies. Statements are defamatory if they adversely affect a means anyone who publishes defama- tory comments is liable for them, even person’s or company’s reputation in the eyes of reasonable people. A when they are reporting what someone person or company can sue over defamatory statements in England and else has said. Publishers can, of course, Wales if they cause or are likely to cause serious harm to the person or, report disputes between parties, but in the case of companies, cause or are likely to cause serious financial in doing so care has to be taken not loss. Journalists – indeed, all those publishing content – need to be to adopt the allegations made by one side. Particularly where there are very aware of the law, and confident that what they are publishing is either serious allegations involved, such as not defamatory or, if it is, that they can avail themselves of one of the here, legal advice should be taken. defences to defamation.

Johnny Depp sues The Pussycat Dolls sue Daily having never been a primary singer or Sun over ‘wife-beater’ performer, with her credits limited to Mail publisher over backup vocals on two songs in 2004. allegation ‘prostitution ring’ claim This was before their breakthrough n American actor Johnny Depp is single Don’t Cha, which was released suing The Sun and its columnist Dan n The Pussycat Dolls and their in 2005. Wootton over a story that called the founder, Robin Antin, are suing the The Pussycat Dolls had recently actor a ‘wife-beater’ and criticised publishers of the Daily Mail over announced plans for a reunion, which Harry Potter author JK Rowling for articles published on MailOnline did not include Jones. MailOnline had standing by him. claiming the pop group was a ‘pros- reported extensively on the reunion, The article, headlined ‘How can JK titution ring’. The articles reported including that the group had parted Rowling be “genuinely happy” casting comments made on Twitter by former ways over personal differences, not wife-beater Johnny Depp in the new Pussycat Dolls member Kaya Jones, any immoral or illegal conduct; and Fantastic Beasts film?’, appeared in which included allegations that the had run many other stories on The print on 28 April and was posted on members of the group were abused by Pussycat Dolls over the years with The Sun’s website. The online version being given drugs and ‘passed around’ no hint of any allegations of the type has since been altered to remove the for sex by music industry executives. now sued over. As such, according to word ‘wife-beater’. According to the lawsuit, the state- the claim, when Jones’ allegations Depp is reportedly seeking ments also alleged that Antin acted as surfaced MailOnline had a duty to £200,000 in damages, in addition to the supposed madam, ‘den mother’, of investigate further before publishing. £10,528 in legal fees, as well as further the ring. As The Pussycat Dolls and Antin damages to be assessed at a later The action, brought in New York, are famous, a US court may consider date, according to court documents. says the allegations are false them to be ‘public figures’, He is also asking for an injunction and MailOnline knew This in which case, in order restraining the paper from ‘continuing they were false. It to sue in libel, they to publish’ allegations of spousal alleges that Jones case shows will need to show abuse. is disgruntled, the danger of malice – ie that In December, Rowling gave a unreliable, and the publisher statement in support of Depp’s casting ‘looking for her reporting defamatory knew the alle- as Gellert Grindelwald in the Fantastic 15 minutes of comments made by gations were Beasts movie series, writing: ‘The film- fame’, and that untrue or had makers and I are not only comfortable basic checks others, whether on reckless disregard sticking with our original casting, before the article social media or for whether they but genuinely happy to have Johnny was published were or not. There is playing a major character in the would have revealed elsewhere no such threshold for movies.’ this. The lawsuit sets out public figures in UK law. Some had lobbied against Depp’s that Jones was never an ‘offi- This case shows the danger of casting following his contentious cial’ member of the Pussycat Dolls, reporting defamatory comments made divorce from Amber Heard, during

12 | zoom-in Autumn 2018 s_bukley / Shutterstock.com

PUSSYCAT DOLLS: SUING MAIL which the actress accused him of did nothing wrong, citing numerous Musk apologises for abuse – a claim strongly denied by examples of Depp’s out-of-control Twitter slur the actor. Wootton said in the article spending. that Rowling faced significant The management company’s n Tech billionaire Elon Musk has backlash from within counterclaim alleges his apologised to a British man, Vernon the #MeToo and Some lifestyle cost him Unsworth, who played a key role in Time’s Up move- $2m per month, rescuing a group of boys and their ment because of had lobbied with outgoings football coach from a cave in Thai- her support for against Depp’s including the land, after he called him a “pedo” on Depp. $3m he appar- Twitter. This isn’t casting following his ently spent Musk deleted the tweet, which the only legal contentious divorce from on blasting he posted after Unsworth called into dispute Depp the ashes of question the value of a mini-subma- is currently Amber Heard, during author Hunter rine the Tesla CEO had offered to involved in. which the actress S Thompson the rescue mission. He also deleted a Not only is he accused him of out of a cannon. follow-up tweet in which he doubled being sued for The star down on the allegation, saying: ‘Bet ya unpaid wages by abuse reacted angrily to a signed dollar it’s true.’ former bodyguards, he’s details of his private life In a response to another Twitter continuing to litigate against being dragged into the case, user, Musk issued an apology to his ex-managers. He claims their telling a newspaper: ‘It’s my money. Unsworth, saying: ‘My words were fraud and mismanagement brought If I want to buy 15,000 cotton balls a spoken in anger after Mr Unsworth him to the brink of financial disaster, day, it’s my thing.’ zoom-in will report said several untruths & suggested while the managers maintain they on developments. I engage in a sexual act with the

zoom-in Autumn 2018 | 13 DEFAMATION

mini-sub, which had been built as an The episode may yet result in legal act of kindness & according to specifi- action but, in any event, it clearly cations from the dive team leader.’ shows the dangers of unfiltered publi- Musk added: ‘Nonetheless, his cation on social media, especially actions against me do not justify my where the number of potential readers actions against him, and for that I formed by a prominent Twitter user’s apologize to Mr Unsworth and to the followers is so high. companies I represent as leader. The fault is mine and mine alone.’ Unsworth, 63, a British ex-pat US: Supreme Court living in Thailand, was one of the first considering whether to to become involved in the rescue effort to find the boys, who became trapped rule on Cosby case in the cave on 23 June. n The US Supreme Court is consid- He knew the cave system in which ering whether to take a case relating the boys were trapped, and helped to to a defamation suit against comedian coordinate the response, which ulti- Bill Cosby, brought by actress Kath- mately led to the boys being rescued. / Shutterstock.com Hutchins Kathy erine McKee. Musk attempted to become part of MUSK: APOLOGISED McKee says Cosby raped her in a the rescue effort when he ordered his While Unsworth might bring hotel room in Detroit in 1974. When engineers to build a ‘kid-size subma- defamation proceedings in a number his lawyer sent a letter to the news- rine’ and personally delivered it to of different jurisdictions, a claim in paper that published the allegations, Thailand. England and Wales might well see saying she lacked credibility and, However, the chief of the rescue him obtain substantial damages and a according to her complaint, calling her mission had called the device ‘not further apology, if Musk chose not to directly and indirectly a liar, she sued practical’ for the operation, which fight it. him for defamation. required squeezing through narrow The extremely serious allegation The Court dismissed her complaint, passageways in the cave. that Unsworth was a paedophile, holding that she was a ‘limited-purpose When Unsworth was which followed an earlier public figure’. In the US, public figures asked about the subma- tweet in which Musk have to show that the defendant acted rine in an interview Musk’s said it was suspi- with ‘actual malice’ in order to bring about the rescue apology would cious that he lived a claim in defamation. This means mission, he said in Thailand, was showing that the defendant knew what that it ‘had abso- be unlikely to form very substan- they said was false or was reckless as lutely no chance enough of a basis for tially published to its truth or falsity. The Court ruled of working’. to Musk’s 22.2 that McKee became a limited-purpose ‘He had no him to argue that there million followers public figure when she publicly made conception of had not been any on the social the accusations of rape. what the cave network. McKee is asking the Supreme Court passage was like,’ serious harm A court will infer to review this, framing the question as: Unsworth said. serious harm to repu- ‘Whether a victim of sexual miscon- ‘The submarine, I tation where there is a duct who merely publicly states that believe, was about 5ft 6in long, serious defamatory meaning that she was victimized (i.e., “#metoo”) rigid, so it wouldn’t have gone round is substantially published. has thrust herself to the forefront of a corners or round any obstacles.’ Musk’s apology would be unlikely public debate in an attempt to influ- Unsworth had earlier described to form enough of a basis for him to ence the outcome, thereby becoming Musk’s offer to help as a ‘PR stunt’, argue that there had not been any a limited purpose public figure who and had told CNN Musk could ‘stick serious harm, and would likely only loses her right to recover for defama- his submarine where it hurts’. be relevant to a possible reduction tion absent a showing of actual malice After Musk published the tweets in the amount of damages to which by clear and convincing evidence.’ about him, Unsworth said he was Unsworth was entitled, which would Cosby’s lawyers have responded, ‘astonished and angry’ and that he was probably be at the upper end of the saying McKee was already in the considering legal action. scale, given the circumstances. public eye, among other things as an

14 | zoom-in Autumn 2018 actress in various TV roles, and was not the UK. Therefore any viewing of the publication ‘has caused or is likely to an ordinary private individual coming programme within California cause the body serious financial forward as part of the #metoo move- was done without the loss’. ment. Rather, they seek to characterise authorisation of the The present case her as ‘an actress who uses her celebrity BBC. The fact that As a matter involves two claim- status to gain access to national media interviews and of law, it cannot ants, Mr and Mrs outlets in order to publicly accuse an location shots Sube, a married international entertainer — already were filmed be argued that the couple who have in the midst of a public controversy in California cumulative effect of a eight children. concerning allegations against him was not enough They are suing — of additional misconduct’ and ask for the Court number of allegations the publishers the Court to consider whether such to find it to be is greater than their of The Sun, the a person is indeed a limited-purpose conduct directed Daily Express and public figure. at that state. individual effect the Daily Star over The US Supreme Court chooses The finding that articles that criticised which cases to hear, and does not geo-blocking should them for rejecting a five- take very many. However, many have protect programme-makers and bedroom council house, and for marked this as one to watch. If the broadcasters from liability in other their actions and comments in rela- Court does hear the case, it will be of jurisdictions was a welcome one for TV tion to claiming benefits. The articles interest to all those who publish in the channels and producers. in large part consisted of quotes from US. Any change to the ‘public figure’ Mr Sube himself. rules is likely to make suing in defa- At an earlier hearing, the Judge mation in the US a little easier. By Serious harm threshold determined the meanings the arti- contrast, UK defamation laws have cannot be met by cles bore, including that the Subes no requirement for a public figure to were ‘milking’ the system and were show malice before they can sue: like cumulative allegations behaving arrogantly, unreasonably and any other individual they simply need n The High Court has for the first greedily. He found that none of the to show that publication cause ‘serious time ruled on whether the impact of factual imputations in the article were harm’ to their reputation. (See below.) cumulative allegations against an indi- defamatory at all, and that the mean- This is not Bill Cosby’s only recent vidual can overcome the ‘serious harm’ ings he found which were statements legal battle. As well as facing other cases threshold for defamation claims, when of opinion, while defamatory, did relating to sexual assault allegations the individual allegations by them- not cross the serious harm threshold. against him, he recently sued the BBC selves do not. Although some might think worse of for copyright infringement. As reported The Defamation Act 2013 intro- the claimants, the allegations would in zoom-in, the BBC succeeded in duced a ‘serious harm’ threshold that not cause serious harm to the repu- having the lawsuit, brought by Cosby must be overcome for a defamation tation in the eyes of right-thinking in California, dismissed. claim to be brought. Individuals and members of society generally. The BBC successfully bodies that do not trade The Judge initially left open the argued that copyright for profit (for example question of whether the allegations is a territorial right, charities) must show could nonetheless cumulatively cross and no actionable that the publica- the threshold, and decided this at a later infringement could Any change to the tion of the state- date. He came to the conclusion that have taken place ‘public figure’ rules is ment complained as a matter of law, it cannot be argued in California since of ‘has caused or that the cumulative effect of a number the programme likely to make suing in is likely to cause of allegations is greater than their indi- was only broadcast defamation in the US serious harm to vidual effect, such that the serious harm in the UK. Anyone a little easier the reputation threshold is now overcome. The law of who watched the of the claimant’. defamation operates in relation to each programme outside Where a company distinct meaning or imputation the the UK could only have or other body that publication is found to bear. It is not done so by evading the geo- trades for profit seeks to possible to overcome the serious harm blocking restrictions built into iPlayer bring an action, it cannot overcome threshold by aggregating two or more to ensure it is only accessed within the threshold unless it shows that less harmful imputations.

zoom-in Autumn 2018 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

obligation to produce or to include the In every issue of zoom-in we examine the commercial, legal and regulatory individual, and no right to injunctive hoops programme-makers have to jump through to get their programmes relief, plus the usual boilerplate clauses safely to air. Our production legal schedule above sets out the five key covering matters such as data protec- tion, assignability, law and jurisdiction. stages of production which producers need to consider and the advice and Let’s consider these in more detail. expertise they are likely to need at each stage. In each issue, we focus on Under English law, a contract one or two particular aspects of production legal requirements. needs consideration to be legally binding, in other words there must appropriate. However, even the most be a bargain in which both parties Contributor releases basic release has to cover a number of to a contract receive some benefit. n Contributor releases are normally important points. Be aware that what In commercial contracts, often the required for contributors who take part needs to be included changes over consideration to one party will be in programmes. Broadcasters require time. For instance, just in the last a payment, and in return that party them, both as evidence of the indi- couple of years, there have been both will provide some product or service vidual having given informed consent additions, with releases now having to to the other. However, it is not usual to appear in a programme (in most include Diamond (Diversity Analysis to pay fees to members of the public cases an Ofcom Broadcasting Code Monitoring Data) wording; and revi- for appearing as themselves or telling requirement) and as confirmation of sions, for example to references to data their own story on television (unless the production company’s ownership protection following the implementa- their story needs securing for exclu- of rights in the footage shot. However, tion of the GDPR and Data Protec- sivity purposes, eg if it is particu- it is not always straightforward getting tion Act 2018. larly newsworthy), particularly in members of the public to sign contrac- For main contributor releases, the factual programmes. The paying of tual documents that are full of legal important provisions to remember are: fees in factual programming is gener- wording. consideration, acknowledgement of the ally frowned upon by broadcasters Depending on the nature of the nature of the programme’s content, as it might be seen by the viewer as contribution being given, a basic or rights clauses (assignment, moral affecting the authenticity of the indi- a fuller version of the release may be rights waiver, publicity consent), no vidual’s contribution. This tends to

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

be a big issue for US broadcasters in consideration for the agreement, it of these can work, and it is a good idea particular, where any payments to needs to be paid. to include explicit wording to confirm non-professional contributors must An alternative often used is for the the receipt and sufficiency of the consid- be justified and normally have to be release to provide that the producer eration in the release. agreed in advance. making arrangements to film the Acknowledgement of the nature Where no fee is to be paid, contrib- contributor and providing them and subject matter of the programme’s utor releases normally provide for with the opportunity to take part in content helps to evidence the informed nominal consideration, for example the programme or series is sufficient nature of the contributor’s consent, £1 being paid to the contributor. This consideration itself – and amounts to thereby managing the risk of a is acceptable, but if this is to be the ‘good and valuable consideration’. All continued on page 29

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

zoom-in Autumn 2018 | 17 COPYRIGHT & IP RIGHTS

Rage Against the Machine Copyright permeates all aspects of television production, providing tell Farage to cease and copyright owners with certain exclusive rights to do specific acts in connection with the copyright works that they own. Copyright protects desist people’s and companies’ creative endeavours so they can benefit and n US rap-rock band Rage Against profit from their work. A television company making a programme the Machine have threatened legal for broadcast will own copyright in the film it is producing. Copyright proceedings against Nigel Farage enables the owners to earn money by licensing rights in the programme over the name and branding of his Farage Against the Machine podcast. to others who wish to exploit it. At the same time, producers need to The band’s American attorneys ensure that rights in copyright works included within programmes – sent the former Ukip leader a cease so-called ‘underlying rights’, in music, archive, photographs etc – are and desist letter on 10 July. properly licensed from whoever owns them, unless they can rely on The band, who have always one of the statutory defences to copyright infringement, such as fair espoused revolutionary political views and are best known for their dealing. Infringing others’ copyright is likely to result in you being sued song Killing in the Name, accuse for damages and may mean that your programme can’t be shown. An Farage of ‘brazenly and unlawfully’ understanding of copyright is therefore essential for those working in exploiting their name and logo in the television production. publicity for his show, produced by the radio station LBC. ‘As you should know, RATM has publicly denounced the type of right-wing ideology you espouse,’ their letter says, ‘[so the] attempt to associate yourself with RATM is wholly inappropriate.’ Farage’s podcast ‘falsely associ- ates’ the politician and his ‘far right political views’ with the band, the letter goes on to say, the implication of which is ‘particularly abhorrent’ to the band. It points out that trademark law in the US, where the band resides, entitles IP rights owners to reme- dies such as compensatory damages, disgorgement of profits, injunctive relief, and attorneys’ fees in the event of a violation. It says: ‘Stop using RATM’s name and logo, change the name of your podcast, and find some other target to troll. We suggest President Trump.’ Farage has not responded, and it is unclear how far the band would be able to pursue their complaint, in this jurisdiction at least, under trademark infringement or passing off proceedings, given that the title of Farage’s podcast is not identical to the band’s name and is being used

Stuart Boulton / Shutterstock.com descriptively, rather than to denote FARAGE: TOLD TO STOP the origin of goods or services. The

18 | zoom-in Autumn 2018 Shutterstock.com Lucian Milasan /

THE COPYRIGHT IN THE LAST PICTURES OF MARILYN MONROE (SEEN HERE EARLIER IN HER CAREER) BELONGS TO THE PHOTOGRAPHER’S ESTATE, A COURT HAS FOUND: SEE P20

zoom-in Autumn 2018 | 19 COPYRIGHT & IP RIGHTS

sending of the letter nevertheless audio of him shouting, ‘I am the publicity,’ the complaint said. ‘To illustrates the potential difficulties greatest!’ It also featured allow someone else to exploit and risks in adopting and referencing NFL ‘legends’ as exam- those rights without well-known individuals or entities ples of greatness. In the UK authorization or with established names and titles. MAE had there is no need compensation would brought a false constitute a confis- endorsement to register works cation that would (US) Fox settles Ali claim claim on the basis in order to claim deprive an athlete of that Fox’s video any control over the n US TV studio Fox Broadcasting has was likely to cause copyright over use of their identity, settled a claim brought by Muhammad ‘confusion, mistake, them including the ability Ali Enterprises (MAE) over what or deception’ as to the to monetize the value of it said was unauthorised use of the affiliation or association of the use of their identity by boxer’s identity in a clip shown during Fox with Ali or MAE. license or assignment.’ a broadcast of the 2017 Super Bowl. While this type of claim has an In a hearing in May, an attorney MAE had, as previously reported in equivalent in this jurisdiction in the for Fox had argued that the video zoom-in, sued Fox in the state of Illi- law of passing off, the claim over the was an ‘editorial’ and protected by nois for $30m and punitive damages video also had a feature that does not the First Amendment, rather than over alleged ‘false endorsement and exist in English law: that of violation commercial speech, which is accorded violation of the right of publicity’ of publicity rights, which, in Illinois, more limited protection. because of its use of Ali’s name, image are protected by the state’s Right of It appears that Fox did not seek to and likeness in a promotional video, Publicity Act. pursue these arguments in the face of entitled The Greatest, shown The Act prevents the the extensive protection in American before its coverage of The commercial use of a law for those who work in the enter- the American foot- claim over person’s image and tainment industry. ball showcase. provides that they are The amount the video had a entitled to damages of the settlement feature that does not or an account of (US) Photographer owns remains undis- profits for a breach. exist in English law: copyright in Marilyn closed. Unusually, the Monroe pictures The video, that of violation of right persists even which began with after the death of the n A New York court has ruled that an image of a boxer publicity rights person in question. the famous ‘Last Sitting’ photographs in a robe that read ‘For many athletes, of Hollywood icon Marilyn Monroe The Greatest and The Lip, the most valuable asset they belong to the estate of the photogra- two common nicknames for Ali, own – due to their lifetime of work pher, Bert Stern. showed footage of Ali, and contained and accomplishment – is their right of Stern took the photographs at the

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

20 | zoom-in Autumn 2018 (US) Shape of Water claim dismissed n A US court has dismissed a copy- right claim that had been filed against The Shape of Water director Guillermo Del Toro and Fox Searchlight by the son of Pulitzer-winning playwright Paul Zindel. In dismissing the claim, the District Judge held there were only ‘minor similarities’ between the film and Zindel’s 1969 play Let Me Hear You Whisper. The claim had alleged that the film incorporated ‘numerous copyright protectible literary elements from the play’ and that the similarities were ‘too egregious to ignore’. In particular it alleged that there were at least 61 similarities between the play and the film, and that the film had been made ‘knowing that it infringed Zindel’s original literary work’. Kathy Hutchins / Shutterstock.com Hutchins Kathy Both works follow the story of a DEL TORO: DIDN’T COPY STORY cleaner who works in a laboratory and Bel-Air Hotel, Los Angeles, shortly contracts with Condé Nast where he falls in love with an aquatic creature before Monroe’s death in 1962. The was said to be the owner. The Lavenders that is being subjected to scientific set consists of 2,571 images, which the had not produced evidence to rebut the experiments. Court has decided are owned by the Bert presumption that Stern, and since his The Judge held that while the Stern 2010 Trust. Stern died in 2013. death the Trust, were the owners of the works share a ‘basic premise’, the The Court decided the matter as copyright. ‘concept is too general to be part of a copyright claim brought by Further issues, such protected’ and there were the Trust, of which Stern’s widow is a as whether Stern gave only ‘minor similari- trustee, against two former assistants certain photographs The Judge ties’ between them. to Stern, Lisa and Lynette Lavender, to the Lavenders In a 17-page who were reproducing and selling and authorised held that while the judgment, the modified ‘bejewelled’ versions of the them to do works share a ‘basic Judge ruled that photographs online via websites such certain things premise’, there were the claimant’s as eBay. The Lavenders had claimed with the works, list of alleged that Stern had never owned the will proceed to only ‘minor similarities’ similarities copyright; rather, the images were trial, as the facts between them included ‘many produced as a ‘work for hire’ for Condé remain in dispute. over-generalisa- Nast, publishers of Vogue. In the UK there tions of the works’ The photographs had at various is no need to register and ‘often mischarac- times been registered for copyright works in order to claim terises one or both works’. in the name of Stern, which created a copyright over them. The creator of The judgment concluded: presumption that he owned the copy- the work – or their employer where the ‘Despite some superficial similarities right. Further, he had dealt with the work is created as part of their duties and some shared basic plot points, the photographs as the copyright owner as an employee – automatically holds stories told by the film and the book on since they were produced, licensing the copyright unless they assign it to the one hand and the play on the other the works including entering into someone else. are different.’

zoom-in Autumn 2018 | 21 20 QUESTIONS Classy warrior

Jacquie Lawrence has been a TV producer, director and Who gave you your first career commissioning editor. She won a Bafta for Ross Kemp on break? Gangs and published her first book, Different for Girls, in 2015. Christo Hird on Out on Tuesday for It is now a web drama on her own channel, Lesbian Box Office. Channel 4. He gave me a job as a She lives in west London with her two children and her wife, runner. I think he had a street urchin Dawn Airey. Most of the time… employment policy. What gets you out of bed in the because it’s the only time nobody is Which programme that you’ve morning? asking me to do something. been involved with are you The school bus. If I’m not there exactly most proud of? on time, I’m in trouble. Ask any mum. Favourite restaurant? We took over the schedule at C4 and The Ivy Club. created Coming Out Night. Michael Where do you live? Jackson gave me the Ellen coming- Mainly Chiswick. It’s a cabal for Favourite shop? out episode and allowed me to build Geordies and professional lesbians. Zadig & Voltaire, because they give a schedule around it. It was a rallying You have to have a Bugaboo to push women of a certain age the excuse to call for people to come out. along the High Road and because it’s dress like rock chicks. between the BBC, Sky and White City Where do you keep your Bafta? House, it’s wise to carry a proposal at Favourite drink? Not in the toilet, but opposite. You all times. My wife lives in New York Pink Champagne. Is that terrible? I don’t see it when you go in, but you most of the time because she’s CEO of used to be a class warrior, I hope I don’t see it when you come out. It has Ross Getty Images, and we have a house in get ripped apart. It’s just that as I’ve Kemp’s name on it. Builders love it Oxford. I promise I’m not showing off, become older, my ability to consume and expect him to be living here. it’s just worked out that way. alcohol has diminished and the posh stuff doesn’t give me a hangover. What advice would you give London or New York? someone starting out in TV? New York for fantasy. Chiswick for What is Lesbian Box Do not let class, regionalism, race reality. We moved to Greenwich Office? or gender get in your way. Village before the American election, Fizz Milton and I set Fight for your right to be expecting a brave new world with it up to produce and ‘Do not involved in television. Hilary Clinton, but we got Trump and show the kind of let class, then two things happened. We got lesbian content that Biggest a scary email from the girls’ school, mainstream TV regionalism, race TV-related legal saying: ‘We want you to know, school companies aren’t. or gender get in pickle you’ve got will be a safe space for them. We have We wanted to combat yourself into? counsellors on stand-by to help them what I call ‘lesbian your way’ A lot of my output through this traumatic time.’ Then roadkill’. Lesbians on was about sex and sexu- we saw a note on a neighbour’s car TV were either knocked ality, and we once needed to that read: ‘He’s our President now so off their bikes or killed in a car feature a dildo. My bosses wanted faggots watch out.’ I called our old crash. Our policy is: ‘No lesbian will me to use a flaccid one to stay within school asking them to take the girls be maimed or killed in the making the Mull of Kintyre Penis Rule. I had back, citing political asylum. We were of our programmes.’ I’ve got great to explain flaccid dildos don’t really back within two weeks. admiration for programme-makers exist. putting gay characters into main- What keeps you awake at stream shows, but the characters are Most diva-ish moment you’ve night? often quite diluted. For instance, you witnessed working in TV? Writing. I write from 10pm to 2am never see a lesbian Tory on TV. At a press conference for Coming Out

22 | zoom-in Autumn 2018 JACQUIE LAWRENCE: ‘I’D LIKE TO BE THE LESBIAN RUPERT MURDOCH’

Night, a reporter thought I was Anne First record ever bought? Describe yourself in five words. Heche and asked me what it was like Metal Guru by T-Rex. Optimistic. Energetic. Northern. being Ellen’s girlfriend. Let’s just say, it Inclusive. Proud. didn’t go down very well. But hey, for Most used expression? five minutes, I was Ellen’s girlfriend. ‘Blimey!’ Because I can’t swear in front If you could retire tomorrow, of the children. what would you do? Favourite TV shows? Move to LA, sit next to a pool and Anything by Sally Wainwright. I love Dream dinner party guests? write. Become the Jackie Collins of No Offence, Last Tango in Halifax and A Hilary Clinton, RuPaul and Denise lesbian literature. Very English Scandal. Welch. What is the greatest invention Funniest thing you’ve ever seen Dream job? of all time? written about yourself? I’d like to be the lesbian Rupert For us, IVF. It’s resulted in the The Daily Mail once described me as Murdoch. most precious two things in our the Filth Peddler to Michael Grade’s lives. I couldn’t have done the Pornographer-in-Chief. Last time you cried? whole jiggery-diggery-dooby About two weeks ago. Dawn and thing. Paul Hunwick Favourite place to have fun? I both cried when our 11-year-old If I have the kids, Soho House. If not, daughter got an Academic Progress Different for Girls: The Whole Story is Chateau Marmont in LA. Award at a prizegiving day. available at lesbianboxoffice.com

zoom-in Autumn 2018 | 23 MEDIA HAUNTS: PAVILION ROAD

April’s Cafe at Boutique 1 Stylish café-restaurant by Pablo Flack and David Waddington of Bistro- theque fame. Officially one enters through women’s fashion emporium Boutique 1 on Sloane Street, but those in the know slip in via the palm-filled terrace on Pavilion Road. The toilets are at the back of the store, so you can pick up a Victoria Beckham dress and a Fornasetti candle on your way back MOYSES STEVENS: to the table. FLOWERS WITH Great for: Sex and the City-style UNDISPUTED alfresco lunches. BRITISHNESS 127-128 Sloane St, SW1X 9AS 020 7118 0111 aprilscafe.com

Provenance Village Butcher Erin Hurst and Guy Gibson moved to Notting Hill 15 years ago from New Zealand, and struggled to find good-quality meat. ‘We missed the wonderful flavour of the home-bred, grass-fed meat we both grew up eating on the farm, so we decided to do some- thing about it. That something is Provenance.’ Great for: Wagyu beef, raised on grass 247 Pavilion Rd, SW1X 0BP 020 7730 5243 provenancebutcher.com

Where do media darlings rub shoulders with oligarchs, royalty and the Chelsea set? Pavilion Road of course, the ‘village high street’ that runs parallel to Sloane Street. Paul Hunwick strolls along London’s swankiest thoroughfare Bread Ahead Pavilion Wine Amazing breads and an interesting A selection of over 250 wines are for selection of baking classes: take the sale on the ground floor shop, or to children, or use them as novel team- sample upstairs in the tasting room. building workshops. Great for: Wine, of course, but also Great for: Family and New York- check out their Chilgrove gin and themed baking workshops tonic tasting events 249 Pavilion Rd, SW1X 0BP 255 Pavilion Rd, SW1X 0BP 020 7403 5444 020 7824 8249 breadahead.com pavilionwine.co.uk

24 | zoom-in Autumn 2018 KXU Gym Moyses Stevens Deluxe gym pronounced by locals as Florists since 1876 and by appointment ‘kix’. Whether you’re a weightlifter, to HRH Prince Charles, Moyses Stevens yoga freak or spinner, KXU has a class offer luxury blooms for every occasion. to suit you. Same-day delivery. Great for: Physiotherm Infrared Great for: Flowers with undisputed Sauna, which claims to eliminate toxins, Britishness aid weight loss, improve heart function 188 Pavilion Road, SW3 2BF and help with arthritis 020 8772 0094 241 Pavilion Rd, SW1X 0BP moysesflowers.co.uk 020 3948 3840 kxu.co.uk Cosmetics à la Carte Cosmetics à la Carte is committed Granger & Co to ‘empowering women to look and Bill Granger’s celebrated Antipodean Natoora feel the most confident and beautiful cuisine comes to Chelsea. They have a Merrill Lynch banker turned green- version of themselves’. It must work. walk-in-only policy before 5pm, so look grocer extraordinaire Franco Fubini Their customer list includes Kate Moss, for queues outside and be prepared to lifts fruit and veg to an art form. ‘Once Grace Jones and Lady Gaga. wait for a table. savoured, great flavour will change the Great for: Beauty-regime overhauls Great for: Eggs and celebrity-spot- way you enjoy fruit and vegetables such as the ‘Fresh Start’ package (£220), ting. Excellent menu for anyone with forever.’ which includes a complete make-up and allergies. Great for: Tomatoes and rainbow skincare tutorial 237-239 Pavilion Rd, SW1X 0BP carrots that ‘pop’ from the shelves like 192 Pavilion Road, SW3 2BF 020 3848 1060 jewels 020 7259 9454 grangerandco.com 245 Pavilion Rd, SW1X 0BP cosmeticsalacarte.com 020 7730 5444 Heidi Klein natoora.co.uk London Cheesemongers Want to turn heads in St Tropez this Jared Wybrow claims he founded summer? Heidi Klein sells women’s The Roasting Party London Cheesemongers after beachwear that will get you noticed for Italy was once regarded as coffee purchasing five whole Gruyère on a all the right reasons. Think directional Mecca, but Australia’s obsession with whim. His passion and knowledge of colourways, luxurious Italian fabrics caffeine poses a serious challenge. cheese certainly make for a captivating and hand-painted prints. These boys know their beans. experience. You can sometimes smell Great for: Not just swimwear. The Great for: Take an early morning the shop before you see it. Cape Elizabeth raffia wide-brim hat power espresso ‘to go’ from the ground Great for: Cheese and drink pairings, (£165) is very Joan Collins floor counter, or sit in the powerfully upstairs in the tasting room on Saturday 257 Pavilion Road, SW1X 0BP air-conditioned upstairs: ideal for afternoons 020 7259 9418 working 251 Pavilion Rd, SW1X 0BP heidiklein.com 253 Pavilion Rd, SW1X 0BP 020 7730 2088 020 7730 6655 londoncheesemongers.co.uk theroastingparty.co.uk

Hans’ Bar & Grill Taking its name from Sir Hans Sloane, this hotspot’s seasonal menu is rooted in British produce and skilfully executed by head chef Adam England. Great food, glamorous interior. Great for: Power breakfasts, smart lunches and sexy dinners 164 Pavilion Road, SW1X 0BP 020 7730 7000 hansbarandgrill.com

zoom-in Autumn 2018 | 25 PRIVACY & DATA PROTECTION

It is a well-known principle of Since the Human Rights Act 1998 came into force, English law has defamation law that the dead cannot developed a legal right to privacy. The courts can and will intervene to sue for libel, since they cannot obtain vindication, and their relatives have no protect privacy rights where they are infringed without justification. claim unless the words reflect on their This is commonly referred to as ‘misuse of private information’. reputations. Personal information is also protected by the Data Protection Act, so However, the position in privacy journalists and programme-makers need to be aware of, and comply law is different. In particular, where with, its rules as it applies to them. In this section, we report on some proprietary rights such as copyright recent privacy and data protection decisions of note. are involved, there may be a claim even where the individual is deceased at the time of the offending behaviour. Damages and apology for sexual images with intent to cause Both the Ipso and Ofcom codes distress. She received a fine and a six- in principle protect relatives of a revenge porn pics of dead week suspended sentence. deceased person against intrusions woman The newspaper claims it did not into grief or distress. know the images it bought from her Similar rights were also in issue n The Sun has paid substantial were stolen. in a recent High Court claim against damages and made a public apology to After Hinte’s death, her daughter, Facebook, in which the Court granted the family of a deceased grandmother Natasha Douglas, pursued a claim an order that the company disclose over the publication of stolen topless against News Group Newspapers, the the identity of a person who requested pictures of her, printed following the publisher of The Sun, on behalf of her the deletion of the Facebook account rejection of her lottery win claim in mother’s estate. The claim was for the of the claimant’s former partner. The 2016. misuse of private information, breach claimant alleged that the deletion Susanne Hinte, who died suddenly of confidence, copyright and data had interfered with her bereavement of a heart attack in August 2017, protection law, and the distress the process and was an intrusion into her had tried to claim a £33m lottery article caused to Hinte. private and family life. prize with a ticket that she said had Ms Douglas said: ‘I felt very strongly Although there are unlikely to been damaged in the wash. Camelot that it was important to continue this be reputational issues relating to the rejected her claim, but Hinte became claim against The Sun on behalf of my deceased, both their rights and the a favourite with the tabloids, who gave late mother - not only because it’s what rights of those close to them can be a her the nickname ‘Lotto Gran’. she would have wanted, but also to difficult area in legal terms. Later in 2016, Hinte’s former hold them accountable and make friend Julie Howard sold other people aware that it’s topless pictures of her Where totally unacceptable to Convicted killers lose for £750 to The intrude into some- ‘right to be forgotten’ case Sun, which then proprietary one’s life as they published the rights such as did in this case. n Two German men, convicted of photographs on ‘Their murder in 1993, who attempted to its website and copyright are involved, actions caused a have their convictions removed from in print. there may be a claim huge amount of media archives have had their case Howard pain - revenge rejected by the European Court of admitted she even where the porn is an awful Human Rights. Unlike most so-called obtained the individual is thing, no matter ‘right to be forgotten’ cases, which are pictures after Hinte who you are.’ brought under data protection law, the borrowed her smart- deceased NGN has not two men argued the case under human phone and the images had admitted liability, but rights law, maintaining that the reports been automatically saved in a cloud settled for a five-figure sum. about them were interfering with their storage service. She told police she The statement in open court apolo- right to private and family life under had sold the photographs to humiliate gising to Hinte’s family, read Article 8 of the European Convention Hinte after they fell out. as part of the settlement, was on Human Rights. In January 2017, Howard was the first in a privacy case for a The Court rejected their argument. found guilty of disclosing private deceased person. In balancing their right to privacy

26 | zoom-in Autumn 2018 WENN Ltd / Alamy Stock Photo / Alamy WENN Ltd STUNT: WANTED STAY against the media’s right to freedom itself. This decision favoured freedom The case was brought by James of expression and the public’s right to of expression and the public’s right to Stunt, former husband of Petra Eccle- be informed, their privacy rights had be informed about past events. stone. He sued Associated Newspa- to give way. The Court found that the pers, publishers of the Daily Mail reports continued to contribute to a and MailOnline, over their use of his debate of general interest that had Court rules on when personal data in various stories about not been diminished by the passage proceedings about him, each of which was illustrated with of time, and noted that the two men photographs. Associated had sought had put matters into the media them- journalistic material will a stay of his data protection claims selves when seeking to have their case be stayed under section 32(4) Data Protection re-opened. Act 1998, which requires the court to This is an unsurprising decision on n When will a court stay data protec- impose a stay where the personal data the facts: the convictions were for the tion proceedings relating to journal- in question is being processed ‘a) only murder of a famous actor and were not istic material? That is one of the ques- for the special purposes, and b) with a spent under German law. Right to be tions the Court of Appeal sought to view to the publication by any person forgotten cases are generally brought answer in a decision handed down at of any journalistic, literary or artistic against search engines like Google, the end of July. The Court also had to material which, at the time twenty- asking them to remove the links to consider whether the legal provision four hours immediately before the an article as opposed to publishers requiring the imposition of a stay is relevant time, had not previously been removing or amending the article compatible with European law. published by the data controller’. The

zoom-in Autumn 2018 | 27 PRIVACY & DATA PROTECTION

‘relevant time’ here is the time when literal interpretation of the words of stances than had been understood by the court is considering the matter. the provision. However, such a literal many media organisations. Where The stay remains in place unless interpretation would, the Court said, material has already been published, and until the Information Commis- ‘provide extremely wide ground for a stay will not be imposed in relation sioner’s Office makes a determination stifling or delaying claims for breaches to legal action about that material. that the material is not being processed of the DPA.’ It would be far more The Court also found that the relevant for journalist purposes and/or with a extensive than is necessary to prevent provision in the Data Protection Act view to publication. Mr Stunt argued infringement of the right to freedom 2018 (which replaced the DPA 1998 that the imposition of a stay was of speech. from May 2018) has a similar meaning, incompatible with European law and Had the Court found the wider and indeed is clearer than the 1998 denied him the right to an effective meaning contended for by Mr Stunt and Act in this regard. This may mean that remedy. The decision in this case has the ICO, it would have found that not more data protection actions against wider importance, and so the ICO was to be compatible with European law, media organisations can proceed than permitted to take part in proceedings. as it went beyond what is necessary to was previously thought. If the Court had found that reconcile privacy rights and the provision was incom- The free speech rights. Having patible with Euro- instead found that a Independent Inquiry into pean law, it would Court found stay only applies Child Sexual Abuse fined have had to either that the reports in more limited interpret it in a circumstances, £200,000 for identifying way that was continued to contribute two of the three possible victims compatible, or to a debate of general judges on the dis-apply it. Court of Appeal n The Independent Inquiry into Child Mr Stunt interest that had not were content Sexual Abuse has been fined £200,000 and the ICO took been diminished by that the provision by the Information Commissioner’s the position that was compatible Office (ICO), after sending an email section 32(4) meant a the passage of with European law. that identified possible victims of the stay had to be imposed time The third judge was non-recent child sexual abuse that the whenever a media organi- less sure on the issue, high- Inquiry is charged with investigating. sation (or other body/person) said lighting concerns about the process An email was sent by an Inquiry the personal data was being processed the ICO goes through in considering staff member to 90 Inquiry partici- only for the purposes of journalism whether the material is indeed being pants, telling them about a hearing. with a view to publication of material processed only for journalistic purposes After a mistake was spotted, a second it had not previously published, even and with a view to future publication – email was sent in which the 90 indi- if some of that material has already including that the ICO is not obliged to viduals’ addresses were in the ‘to’ been published. The ICO said this is make an assessment at all, potentially rather than the ‘bcc’ field. This meant also what happens in practice: media leaving the case permanently stayed. As each could see all the others’ email organisations routinely assert that a the Court was not in agreement, addresses, identifying them stay should be imposed because they they referred the case to the as possible victims. Of hold the personal data, which they have Court of Justice of the the 90 individuals, in fact already published, with a view European Union for 52 either had to the publication of ‘new’ journalistic a decision, as it is a An email was their full names material in future. matter of European sent in which the 90 in their email The Court, however, preferred the law (the EU Data addresses, or position argued for by Associated, Protection Direc- individuals’ addresses had a name label that a stay could not be imposed once tive on which the were in the ‘to’ rather attached, and the personal data has already been 1998 Act is based). 23 included a published. In short, section 32(4) For media than the ‘bcc’ field partial name. The simply prevents action seeking to stop organisations, the incident took place publication taking place proceeding – finding on when a stay in February 2017. ie a pre-publication injunction. can be – indeed, must be The ICO found this to The Court acknowledged that – imposed by a court will be the be a breach of the Data Protec- the alternative position argued for by most interesting aspect of this judg- tion Act 1998. The Inquiry had failed Mr Stunt and the ICO was the more ment. It is in more limited circum- to use an email service that could

28 | zoom-in Autumn 2018 send a separate email to each indi- continued from page 17 company or for any other reason. The vidual, and failed to provide staff with complaint at a later date from the contributor could of course still sue for adequate guidance or training on the contributor that they were misled damages in appropriate circumstances. importance of double-checking that into taking part. The producer has a What tended to be standard data email addresses were entered into the choice as to whether or not to include protection clauses within release forms ‘bcc’ field, not the ‘to’ field. a description of the programme in the have changed recently, since the GDPR After the February 2017 breach, release or not. If one is included, it is and Data Protection Act 2018 came into the Inquiry hired an IT company to essential that while being accurate, it force in May this year. Where, previ- manage its mailing list, and relied on is sufficiently broad to allow for minor ously, ‘consent’ was usually sought from advice from the company that it should changes to the programme that may contributors to process their personal prevent individuals from replying to arise during production. data, this is generally now not appro- the entire list. However, in July 2017 Clearly, rights clauses are vital in a priate as a basis for processing. This is five email recipients hit ‘reply all’, release form, in order to evidence that because under the GDPR, ‘consent’ can which revealed their email address to the producer owns the footage it has be withdrawn at any time. In any event, all those on the mailing list, which shot and can deal with it freely. An there will often be more appropriate should not have happened. Also, by assignment of copyright and all other bases for processing. What is important sharing individuals’ email addresses rights throughout the world in perpe- is that if the release form does directly with the IT company without their tuity is a standard requirement in a reference data protection issues, the consent, the Inquiry had breached its release form. It is also a good idea to correct information is provided. Prac- own privacy notice. include ‘work for hire’ wording so the tically, producers may find it better to ICO director of investigations rights position for the US is covered direct contributors to the production Steve Eckersley said: ‘This incident too, particularly if the programme is company’s privacy notice for infor- placed vulnerable people at risk, intended for international distribution. mation about the processing of data which is concerning. IICSA should A waiver of moral rights is also subjects’ personal data; and keeping and could have done more to ensure standard, in order to be clear that the references to data protection within the this did not happen. People’s email producer has an absolute and free right release form to a minimum. addresses can be searched via social to edit the footage it has shot and to The last two clauses mentioned networks and search engines, so the preserve the editorial independence of above are assignability and law/juris- risk that they could be identified the producer. diction. The latter is probably obvious: was significant.’ Given the sensitive Broadcasters also require the right a producer is going to want their home nature of the work of the Inquiry, it to use an individual’s name, likeness, territory law and courts to handle was obvious that the breach was likely photograph, biography and voice to any claims. This clause only tends to to cause substantial distress. publicise and promote the programme, become an issue if the contributor is It is also a reminder of how easily and as this is a separate (so-called not based in the same home territory as a data breach can occur. It seems clear ‘publicity’) right, this requires a the producer and wants their own law/ that in this case what happened was an specific consent to be obtained from the jurisdiction to apply. As the producer is honest mistake, and the Inquiry did contributor. issuing the release, it has the stronger not have adequate systems in place to The next few clauses are considered argument to apply its own law/juris- prevent that mistake resulting in a more boilerplate in nature, but they do diction, but this can still become a data breach. All those who deal with have an important role in a contributor sticking point, particularly with US personal data, whether in programme release. contributors. production, newsgathering, or simply A clause stating the producer is not ‘Assignability’ is usually an explicit in relation to their company’s own obliged to include the contribution in requirement of broadcasters in their employees need to be aware of data the programme (or any programme) commissioning agreements, to ensure risks, and take action both to prevent or to exploit the programme or the that the benefit of the release can be data breaches occurring and to ensure contribution is helpful in managing the assigned to them to allow them to compliance with the relevant legisla- contributor’s expectations, and again in exploit the rights in the programme tion – the GDPR, Data Protection preserving the editorial independence granted to them or potentially take over Act 2018 (which replaced the 1998 of the producer. production in the event of termination. Act from May 2018) and the Privacy A ‘no injunct’ clause requires the Abbas Media Law are experts in & Electronic Communications Regu- contributor to waive their right to seek drafting and advising on all kinds lations. Abbas Media Law can advise to injunct or restrain the exhibition of of contributor and other production and assist with all aspects of data the programme, whether for breach services agreements. For advice, please protection law and compliance. of the agreement by the production get in touch: [email protected]

zoom-in Autumn 2018 | 29 CONTEMPT & REPORTING RESTRICTIONS

been argued on Robinson’s behalf The law of contempt makes it a criminal offence for the media that since he had served the equiva- to publish or broadcast comments or information that creates lent of four months in prison, the decision should simply be quashed a substantial risk of serious prejudice to active UK legal and not re-heard, but the Court proceedings, in particular criminal proceedings heard before decided that the alleged contempt juries. Penalties for contempt can be serious: fines, even was serious, such that a judge may imprisonment. Many activities are capable of amounting to a impose a longer sentence, and that contempt, including: publishing seriously prejudicial material; the determination of the allega- tions was in the public interest, so a obtaining or publishing details of jury deliberations; breaching re-hearing was appropriate. reporting restrictions or a specific court order; making payments Robinson was granted bail until to witnesses; filming or recording inside court buildings without that re-hearing, on the condition permission; and publishing information obtained from confidential that he keeps a distance of at least court documents in both civil and criminal proceedings. 400 metres from Leeds Crown Court. This is not the first time Tommy Robinson has been found guilty of After adjourning for only 33 contempt. In May 2017 he was given Tommy Robinson released minutes to allow Robinson to find an 18-month suspended sentence on bail legal representation, the Judge then at Canterbury Crown Court. In proceeded with the contempt hearing that case he had attempted to film n English Defence League founder and imposed 13 months in prison. defendants in an ongoing rape trial Tommy Robinson (real name Stephen Proceedings were complete less than within the precincts of the court, and Yaxley-Lennon) has been released on five hours after the alleged contempt filmed two pieces to camera in which bail, pending the re-hearing of the took place. he commented on the trial, poten- contempt case against him. The Court of Appeal quashed that tially risking derailing that trial. In May, Robinson was jailed for decision and sent the case back to In handing down the suspended 13 months having pleaded guilty the Crown Court to be re-heard by sentence, the Judge made it very clear to contempt of court in relation to a different judge. The Court found to Robinson that if he did anything a Facebook live video of himself that the contempt hearing should similar again, he would be sent to outside Leeds Crown Court, which he not have proceeded so quickly. As prison. Robinson had also attempted filmed and broadcast. In that video, the video had been deleted, a longer to appeal this sentence, but the Court he attempted to film defendants adjournment would have of Appeal upheld it. entering court and made comments been appropriate: the Both the original that included reference to the iden- contempt hearing Leeds sentence and tities of the defendants, the charges should not have the release on bail against them and charges that had not taken place that As this case reminds sparked protests been proceeded with against some of day. Impor- and allegations the defendants. There is a reporting tantly, no us, contempt laws about free restriction in place preventing the detailed do not just apply to speech and reporting of details of the trial in particulars of the judiciary. question, which is part of a series of exactly what mainstream media However, the trials, until after the conclusion of all actions were outlets, but to everyone appeal decision the trials, to ensure the fairness of the said to consti- said nothing trial process. tute contempt about whether The video was viewed over 250,000 were drawn up or Robinson had or times. After he was brought before put to Robinson, so it had not committed the Judge, Robinson offered to delete was unclear what he was contempt of court; rather, the video, and the Judge required him admitting to or on what basis he it picked up on procedural errors, to do so, as he was concerned that if was being sentenced. a function of the Court of Appeal that jurors (and potential jurors) were to This was a failure to follow the ensures fairness for all those brought see it, it would risk both the ongoing relevant procedural rules, which was before the Court. The re-hearing will trial and trials yet to start. more than a technical breach. It had be a normal application of the rules of

30 | zoom-in Autumn 2018 Edward Crawford / Shutterstock.com Crawford Edward

ROBINSON: FILMED OUTSIDE COURT contempt that are in place to ensure sional experience in order to get a job to lift it when challenged by the BBC. jurors aren’t prejudiced and trials do as a consultant surgeon. Colleagues The Court of Appeal then over- not have to be abandoned. subsequently raised concerns about turned the order, emphasising that Those reporting trials in the his competence as a bowel surgeon in this case, accurate and contempo- media will be well aware of the and his hospital trust carried out an raneous reports of the trial were not rules of contempt relating to crim- investigation. After a review prejudicial, and that imposing inal trials, and the strict liability by the Royal College a restriction was unnec- they impose. One must always of Surgeons, he was This essary and not the take care when reporting ongoing dismissed from the decision appropriate way trials, particularly where reporting role. There was reinforces to limit jury restrictions are in place, and take then a police access to archive legal advice as necessary. As this investigation that reporting material. case reminds us, contempt laws do into the deaths restrictions must only In reality, not just apply to mainstream media of a number juries are outlets, but to everyone. of his patients, be made in exceptional regularly and this was circumstances, and is directed not to reported in the therefore helpful for seek out addi- Court of Appeal overturns media. tional informa- restriction on doctor’s trial The investigations the media tion relating to a were not relevant to the defendant and news n The Court of Appeal has overturned matters the jury had to decide organisations, well versed a reporting restriction that prevented in the fraud trial, but the defendant’s in contempt law, are careful about the media from reporting a doctor’s barrister argued that online reports linking case reports to archive fraud trial, and has warned against of the trial could include links to the stories online. This decision rein- imposing restrictions too easily. previous investigations, which could forces that reporting restrictions Dr Sudip Sarker was on trial for influence the jury. The trial judge must only be made in exceptional fraud, on the grounds that he had agreed, granted an order preventing circumstances, and is therefore dishonestly exaggerated his profes- all reporting of the trial, and refused helpful for the media.

zoom-in Autumn 2018 | 31 ABOUT ABBAS MEDIA LAW

We are specialists on all Training for producers aspects of UK law and AAML conducts training for those working in television regulation affecting the production. We prepare and deliver bespoke training television, film, advertising programmes for clients, or producers can avail themselves of and publishing industries. AML’s regular training programme. We advise before publication and broadcast, working with This year we have conducted a variety of talks for producers creatives to minimise legal and regulatory risk, and following on legal and compliance issues, including data protection, publication and broadcast, defending content when it and copyright, true crime, blue-light shows and the many and varied its producers come under attack. We work with many of the issues that can arise in access-based programmes. country’s leading content producers. For further information about the training AML offers, and to find out more about scheduled talks and masterclasses near you, Content Advice email [email protected] Abbas Media Law boasts some of the most experienced content advisers in the country. We work on the most exciting and challenging factual programmes; news; films The Team and dramas; and all kinds of entertainment and comedy programmes. Nigel Abbas is the primary author of Channel Nigel Abbas Founder 4’s Producers’ Handbook, a comprehensive guide to best Nigel is a barrister with over 20 years’ experience practice, regulation and the law as they apply to the making advising the media and entertainment industries. and broadcasting of programmes. Clare Hoban Senior Lawyer Business Affairs & Rights A highly experienced media lawyer, Clare joined AML We advise clients on all aspects of business affairs, chain of in January 2016 after 11 years at the BBC. title and rights issues, in connection with the television, film, advertising and publishing industries. We advise on deal- Jenny Spearing Senior Business Affairs Adviser making, draft and negotiate all types of agreements, and can Jenny is a business affairs expert with nearly 20 years’ answer all your day-to-day queries. See page 16. experience in television production.

Legal and Regulatory Threats, and Litigation Paul Schaefer Lawyer We regularly represent clients when legal and regulatory Paul is an experienced media lawyer, having worked as threats are made against programmes and other content, in-house counsel for newspapers and broadcasters. both before and after publication. We represent clients in Lucy Chisholm Batten Paralegal most areas of litigation affecting the media, advising on strategy, tactics, drafting of pleadings and advocacy. Lucy is a law graduate with over 12 years’ experience of working in the media and entertainment industries. 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