Media law news from Abbas Media Law zoom-inSpring 2019 HOLDING COURT AT THE DIXON

ED SHEERAN CASE GOES TO TRIAL

ELTON AND GOOGLE LIZ SETTLE HACKING FINED CASE €50M INSTA WARS GIGI HADID IN CELEBS VS PAPS RIGHTS ROW Ovidiu Hrubaru / Shutterstock.com EXCLUSIVE INTERVIEW: PROPER CONTENT’S DAVID DEHANEY IN THIS ISSUE

DEFAMATION 20 QUESTIONS Telegraph faces libel threat over Trump Proper Content’s David DeHaney on apology ...... 12 his life in TV...... 22 Supreme Court hears ‘tried to strangle’ claim...... 12 Sexual image claim struck out...... 14 Bridal shop brings claim over negative reviews...... 15 BBC report alleged corruption by Ukrainian President ...... 15

BUSINESS AFFAIRS & RIGHTS Abbas Media Law’s production legal MEDIA HAUNTS schedule, setting out the five key How The Dixon has revitalised the old stages of TV production and the legal Tower Bridge Magistrates Court...... 24 issues producers must consider. In this issue, we focus on distribution agreements...... 16 PRIVACY & DATA PROTECTION Chelsea Clinton settles case over WINNERS & LOSERS COPYRIGHT & IP RIGHTS children’s pictures...... 26 Elton and Liz settle hacking claims..... 4 Gigi Hadid sued for posting picture of Comedian case settles...... 26 herself on Instagram...... 18 Richard Burgon MP awarded £30k... 4 Bild loses bid to overturn photo ban 26 Netflix sued for trademark Facebook and Martin Lewis settle...... 5 infringement ...... 18 Google hit with €50m GDPR fine..... 27 Wolf of Wall St makers win case ...... 6 Ed Sheeran Let’s Get It On claim goes CBS pay out over JonBenét doc ...... 7 to trial...... 20 CONTEMPT & REPORTING RESTRICTIONS Only Fools dining experience REGULATION – OFCOM, ASA & accused ...... 21 BBC exec acquitted after sexual offence IPSO victim named on air ...... 29 New Can’t Pay? decisions ...... 8 Judge lifts order relating to gangland shooting...... 29 Complaint upheld over wrong photo. 9 Prosecutions for breach of Bulger killer George Galloway in breach...... 10 injunction...... 30 Red Bull ad banned...... 11 Mother who ‘abducted’ children can be named ...... 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 Spring 2019 WINNERS & LOSERS Shutterstock.com

THE ACTOR LIZ HURLEY HAS, ALONG WITH THE SINGER ELTON JOHN, SETTLED A PHONE- HACKING CLAIM AGAINST NEWS GROUP NEWSPAPERS: SEE P4 Everett Collection / Everett

zoom-in Spring 2019 | 3 WINNERS & LOSERS

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

Elton John and Liz Hurley The law firm acting for the celebri- political editor Tom Newton Dunn, settle phone hacking ties pointed to the fact that this is the was published on The Sun’s website fourth claim in the past 18 months from 14 April 2017 and was head- claims that has settled very close to the start lined: ‘REICH AND ROLL Labour’s n Phone-hacking claims brought by of the trial date. justice boss ridiculed after he Elton John, Elizabeth Hurley and A partner at the The joins a heavy metal band Heather Mills against News Group firm said: ‘Notwith- that delights in Nazi Newspapers have settled just before standing the settle- readiness of symbols.’ the start of a High Court trial. ments and the Facebook to agree It reported The claims are the latest in the growing body that the MP long-running litigation, over alleg- of evidence, a large settlement was a member edly widespread phone hacking at the News Group reflects the increasingly of heavy metal company, to have been resolved on the Newspapers band Dream eve of trial. Ltd continue critical climate in Tröll, a group The distinctive feature of the to refuse to which social media which, it said, claims that have been settled over the acknowledge ‘uses the name of past two years is that they allege phone that any phone companies find Hitler’s infamous hacking took place not only at the hacking took place at themselves SS security unit as News of the World, which closed after The Sun.’ lettering in its promo- the revelation that a private inves- Although the prospect of tional posters’. tigator had hacked into the phone a contested trial, at which the claims of It linked the allegation to the messages of murdered schoolgirl Milly criminality at The Sun might be consid- Labour Party’s decision not to expel Dowler, but also at The Sun. ered by a judge, appears as distant as Ken Livingstone for making widely At a hearing shortly before the ever, the litigation is set to continue, criticised comments about Hitler. scheduled start of the trial, the claim- with further claims in the pipeline. The article came about when ants’ barrister David Sherborne told the Newton Dunn was alerted to the fact judge that one of the ‘generic’ issues to that the band, with which Burgon had be aired at the forthcoming trial centred 30k for MP over allegation once recorded a spoken-word piece, on allegations that such activities were he joined band using ‘Nazi had published a promotional image on ‘widespread’ at The Sun – an allegation Twitter – accompanied by the hashtag which, he said, had been ‘vigorously not symbols’ #blacksabbath – featuring the slogan admitted to date’ by NGN. n Richard Burgon MP has been “We sold our soul for rock ‘n’ tröll”, NGN said it had offered sincere awarded £30,000 in a libel victory with the first letters of “sold” and “soul” apologies ‘for the distress caused by the against The Sun, which published an rendered in a lightning-bolt font. invasion of privacy’. article alleging he had joined a band When Newton Dunn contacted ‘News Group Newspapers that he knew took great pleasure in the Labour party for comment, he was has settled cases relating using Nazi symbols. referred to the 1975 Black Sabbath to voicemail intercep- Burgon, the Shadow compilation album We Sold Our Soul tion at the News of This is the Secretary of State for Rock ‘n’ Roll. the World which for Justice and MP The print version of the article said closed in 2011,’ fourth claim in for Leeds East, the use of the font similar to the SS said a company the past 18 months was handed the logo ‘takes off Black Sabbath’s 1975 spokesman. NGN damages after a album We Sold Our Soul for Rock ‘n’ Roll maintained, that has settled very three-day High which has the same fonts’. The online however, that it close to the start Court trial. The version of the article, however, made made ‘no admis- of the trial judge also granted no reference to Black Sabbath. sion of liability’ with Burgon an injunction The judge found that the image regards to ‘any allega- to stop further publication was based on the cover of the Black tions of illegal information of the allegation. Sabbath album. gathering at the Sun newspaper’. The article, written by The Sun’s Having determined that the article

4 | zoom-in Spring 2019 Facebook pays £3m to settle Martin Lewis scam ad claim

n Facebook has agreed to pay £3m to Citizens Advice to deliver a new UK Scams Action Project as part of its settlement of a libel claim against it by personal finance guru Martin Lewis. The claim by the consumer affairs campaigner and founder of Money- SavingExpert.com was brought over the publication of what Lewis said were over 50 adverts that appeared on Facebook in this country. He alleged that the adverts were often for scams and had big pictures of him, as well as featuring his name, alongside false promises or endorsements. Some adverts linked to related fake articles. Shutterstock.com The majority of the adverts were for get-rich-quick schemes, which Lewis said were fronts for binary trading

Drop of Light / firms based outside the EU. JOHN: SETTLED The legal claim was a ground- bore the meaning that Burgon knew about the source of the symbols in the breaking approach to an issue that that the band took pleasure in using online article. persists across a number of internet Nazi symbols, and that this was If Newton Dunn wanted the platforms. defamatory at common law and had protection of the defence he was not, As part of the settlement, in caused serious harm to Burgon’s repu- the judge found, entitled to ignore the addition to the donation to Citizens tation, the judge considered the news- information about the source of the ‘S’ Advice, Facebook has said that it will paper’s defences. being the Black Sabbath album. launch a new scam-ads reporting tool The defence of truth failed because Although publication of the article and a dedicated team of people to act the judge did not find that the band online had been limited to about 7000 upon such reports. The company has took great pleasure in using Nazi readers, the judge found that, in light also agreed to pay Lewis’s legal costs. symbols, and decided that the Dream of its meaning, Burgon was entitled to Lewis said he continued to be Tröll image was produced as a form £30,000 in damages. plagued by scam ads, and threatened of tribute to or imitation of the Black The failure by the newspaper to take action against other companies Sabbath album cover. to include the explanation that the responsible for online adverts. Since the meaning the judge had subject of the story had given in the ‘I’m not ruling out another lawsuit identified was one of fact, the defence online article, in contrast to the hard- if things don’t improve,’ he said, of honest opinion, on which The Sun copy version, illustrates the limits of adding that he hoped a precedent had also relied, was not available, although the responsible journalism defence. been set. the judge did find that Newton Dunn It is normally a requirement to The resolution of the claim itself honestly believed the MP should be report the gist of the claimant’s side uses an innovative approach that seriously criticised for associating of the story. Putting the allegation does not necessarily reflect how the with a band which used symbols of to the claimant and recording their complaint would have been disposed that kind. response is not a formulaic step in of through litigation. The public interest defence under the journalistic process, but essen- Lewis said: ‘The amount being s4 of the Defamation Act 2013, on tial to ensuring that an allegation donated to set up the Citizens which the newspaper also relied, was that may later be proved not to be Advice scams action project is far not available because the newspaper true can still be protected as respon- above anything I could have won failed to include what it had been told sible journalism. had I succeeded in a court. In fact,

zoom-in Spring 2019 | 5 WINNERS & LOSERS

we believe the amount Facebook is donating is substantially bigger than the biggest-ever UK court settlement for defamation.’ The readiness of Facebook to agree such a large settlement reflects the increasingly critical climate in which social media companies find them- selves operating.

(US) Judgment for film- makers in Wolf of Wall Street libel claim

n A defamation claim against Para- LEWIS: PLAGUED BY SCAMS mount, the makers of The Wolf of Wall Street, has been thrown out by complained that the character of counsel and head of corporate finance at a US Court. Nicky ‘Rugrat’ Koskoff, a lawyer at Stratton Oakmont during a key period The judge granted summary the fictitious version of Stratton depicted in the film, and four years ago judgment on a claim Oakmont shown in the he launched a claim against the studio brought by the former film, played by PJ and production company behind it. general counsel of Byrne, was a depic- The ruling highlights the difficulty the infamous secu- The ruling tion of him. for claimants of bringing a claim over rities brokerage highlights the The film shows fictionalised depictions of real-life Stratton the Koskoff char- events. Oakmont, difficulty for claimants acter engaging in One feature unique to US law was the firm at of bringing a claim over a wide range of the need for Greene, as a public figure, the centre of criminal activity, to show ‘actual malice’ on the part of the 2013 film, fictionalised depictions including drug the defendant, ie to demonstrate that which starred of real-life events use, engaging in it knew the allegations made about the Leonardo DiCaprio sexual relations with claimant were not true. as Jordan Belfort and prostitutes, and other This is a key protection afforded was directed by Martin highly unprofessional to the media by US defamation law. It Scorsese. conduct. does not exist in the UK. The claimant, Andrew Greene, Greene was the actual general Here, the court pointed out, it was intertwined with the need for a defamation claimant to show that the statement complained of referred to him. The judge concluded that a number of interlinked elements meant Greene could not establish malice, saying: ‘Specifically, based on (1) the fictionalized nature of the Movie; (2) the undisputed facts that the Koskoff Character is a composite of three people and has a different name, nickname, employment history, personal history, and crim- inal history than the Plaintiff; (3) the Movie’s disclaimer; (4) evidence of each Defendant’s subjective Denis Makarenko / Shutterstock.com Denis Makarenko DICAPRIO: STARRED IN ‘WOLF’ understanding that no real person

6 | zoom-in Spring 2019 was portrayed – or defamed – by had killed his six-year-old sister, who was the Koskoff Character; and (5) the found dead in the basement of their home lack of evidence to the contrary, on Boxing Day in 1996, hours after she the Plaintiff cannot establish that had been reported missing. Defendants in fact entertained The show theorised that Burke had serious doubts as to the truth of struck JonBenét on the head, and that [the] publication.’ their parents had staged the crime scene Using controversial and recent so it would appear that an intruder was real-life events in fiction can be the killer. It came to this conclusion fraught with difficulty. However, despite the fact that in 2008 prosecu- this decision shows that removing tors had formally cleared Burke, and his identifiers by using name changes, parents John and Patsy Ramsey, of any disclaimers and creating composite involvement in JonBenét’s death. characters can help film-makers The lawsuit described the allegations minimise the defamation risks. as ‘false and defamatory per se’ and stated that the accusation that Burke killed his sister was ‘based on a compilation of lies, Globe Photos/ ZUMAPRESS.com half-truths, manufactured information, (US) JonBenét Ramsey’s JONBÉNET: BROTHER SETTLED CASE brother settles action and the intentional omission and avoid- aired a four-hour, two-part documentary ance of truthful information about the against CBS entitled The Case Of: JonBenét Ramsey in murder of JonBenét Ramsey’. n Burke Ramsey, the brother of September of that year. No details of the settlement, which murdered child beauty-pageant queen A number of forensic and other experts was described as an ‘amicable resolution’ JonBenét Ramsey, has settled his defama- appeared in the programme and were that was ‘to the satisfaction of all parties’, tion claim against CBS. Burke brought asked to come up with a theory about how were made public. the case, claiming $750m (£580m) in JonBenét was killed. The documentary The murder of JonBenét Ramsey damages, in December 2016 after CBS alleged that the then nine-year-old Burke remains unsolved. PERSONAL INJURY Beth Tweddle to take action against The Jump n Former Olympic athlete Beth Tweddle whole accident and the aftermath of what is taking legal action against the produc- happened.’ tion company Twofour, which is owned by Many other contestants were injured, ITV Studios, having been forced to undergo including Holby City actress Tina surgery on her neck and spinal cord after she Hobley, who dislocated her elbow and hit a barrier on the Channel 4 show The Jump. fractured her arm in two places; the Tweddle was airlifted to hospital in sprinter Linford Christie, who suffered February 2016 while training on the ski a hamstring injury; Made in Chelsea star jump at the show’s set in Austria. She said Mark-Francis Vandelli, who fractured his she had never fully recovered from the inci- ankle; Girls Aloud singer Sarah Harding, dent, which had affected her ability to work, who sustained a ligament injury to her and insisted the programme-makers have knee; and the Olympic swimmer Rebecca never accepted responsibility. Adlington, who dislocated her shoulder The 33-year-old confirmed she was in an incident she described by saying: seeking court proceedings to ‘prevent others ‘I’ve never suffered pain like that – it was

having to go through what I have for the worse than childbirth.’ Photo Agency / Shutterstock.com Featureflash past three years’. In total, 34 celebrities were injured across the four series She also said: ‘The effects of my accident still interrupt of the programme. my daily life and, aside from the severe physical injuries at Production company Twofour said in a statement: ‘This the start, the hardest part of the recovery process has been matter is being dealt with by our insurers and we are unable the psychological element, dealing with and processing the to comment as the claim is ongoing.’

zoom-in Spring 2019 | 7 REGULATION – OFCOM, ASA & IPSO

Ofcom found that matters relating Ofcom regulates the content of all television and radio in the UK. to the enforcement of a debt attracted IPSO is the main regulator for the press and magazine industry. a reasonable expectation of privacy, and the infringement of that privacy The Advertising Standards Authority regulates advertising. All was not warranted: Mrs Y and her the regulators adjudicate on complaints with reference to codes daughter’s privacy rights outweighed of practice, with which those they regulate have to comply. The the broadcaster’s freedom of expression Ofcom Broadcasting Code is the main code relating to broadcast rights. content, while IPSO judges complaints against the Editors’ Code. This case is an important reminder of the need to ensure that where The ASA’s main codes are the BCAP Code for broadcast advertising, consent is obtained it is informed and the CAP Code for non-broadcast advertising. Compliance with consent, and what is needed for consent these codes is important. Regulators can impose penalties and to be properly informed consent will sanctions for non-compliance. Regarding privacy matters, the vary depending on the circumstances. regulatory codes also have wider legal significance because of Where an individual has a medical or provisions within the Human Rights Act 1998 and data protection mental health condition, is drowsy and/ or in a state of distress, particular care legislation. The result is that the Codes have a bearing not simply is needed. in a regulatory context, but also on how the courts should act In the second case, Mrs R when making any order affecting freedom of expression and the complained on behalf of her and her two publication of journalistic, literary or artistic material. children about the filming and broad- cast of footage of them and the interior OFCOM: New Can’t Pay? the bodycams were being used to and exterior of their home, where High film footage for the programme as Court Enforcement Officers sought to We’ll Take It Away! well as for the Enforcement Officers’ enforce a writ against her estranged decisions safety. Ofcom considered this to be ex-husband in two visits to the property. surreptitious filming. All the footage inside the home was n During December, Ofcom inves- Ofcom concluded that it was not filmed on the Enforcement Officers’ tigated three complaints against reasonable for Channel 5 to conclude it body cams. Mrs R had made clear that Channel 5 about the programme Can’t had Mrs Y’s informed consent in rela- she did not wish to be filmed, asking Pay? We’ll Take It Away! It found in tion to the filming and broadcast of for the crew cameras to go away. As favour of the complainants in two footage of her and her daughter: their with Mrs Y and previous decisions, privacy cases and did not uphold the privacy was unwarrantably infringed. Ofcom considered that the bodycam third complaint. Channel 5 said it believed it did filming was surreptitious. Although In the first case Mrs Y complained, have consent, having spoken to Mrs Y. she was told after the second visit that on behalf of herself and her daughter, However, Ofcom found that Channel the bodycam footage was available to after High Court Enforcement Officers 5 had not obtained informed the programme-makers, Mrs visited their home about a debt consent: ‘Given that the R was not told during relating to unpaid nursery fees. The programme-makers What the filming. It was not material included the inside of their were clearly aware of is needed something she could home, and Mrs Y discussing her finan- Ms Y’s state of mind for consent to be reasonably have cial circumstances, her mental health and her depression foreseen, particu- and her daughter’s medical condi- and the medication properly informed larly as the crew tions. Mrs Y was visibly upset and was she was taking, we consent will vary cameras had been shown crying. When the Enforcement considered that it asked to retreat, Officers arrived, Mrs Y had just woken was incumbent on depending on the and had retreated, up and appeared drowsy. them in their later circumstances to the public road. Ofcom noted, as it has done in conversations with her Mrs R was therefore previous decisions relating to this to ensure that she was given the misleading programme, that the bodycams were made fully aware of who they message that interactions owned by the production company were and that she properly understood with the Enforcement Officers inside but worn by the Enforcement the nature and purpose of the filming. her home would not be filmed for the Officers. Mrs Y was never told that This did not happen.’ programme. This was akin to contin-

8 | zoom-in Spring 2019 uing to film when a person thought filmed carrying out his day-to-day work hammer attack”’, published on 21 filming had finished or leaving a camera activities, did not discuss anything August 2018. inside a property without consent. private or personal, and was not named. The article reported that a woman Mrs R said that she had mental Although the bodycam footage was with the same name as the complainant health problems that were made not obtained proportionately and Mr had been the victim of a hammer worse by the broadcast. She Ladsawut did have a reasonable attack, in which she was badly hurt. had discussed her health The expectation of privacy, The woman was described as a issues, those of her the broadcaster’s free “City worker” who was “repeatedly children and other consequences speech rights and bludgeoned near her home” in London. very personal of a mistake of the public interest The article, which was accompa- matters when outweighed Mr nied by a photo of the complainant, the Enforcement this kind will usually Ladsawut’s privacy gave further details of the crime, Officers arrived fall primarily on the rights. As such, including quotations from witnesses at the property. the complaint was and the woman’s employer. The article Mrs R added that organisation that not upheld. appeared online, and that version the programme had publishes the These are the also included a photograph of the upset her children. latest in a series of complainant. Ofcom found that Mrs content Ofcom decisions relating The complainant complained of R and her children had a to the programme, and in a breach of Clause 1 (Accuracy), as a legitimate expectation of privacy in the particular its use of footage from the result of the inclusion of the photo- material and that in the circumstances, bodycams of the High Court Enforce- graph. the interference with their privacy ment Officers – bodycams that are She said the image had been was not justified. Although some of provided by the production company. taken from her social media profile, the interactions between Mrs R and The complaints also follow, and refer- and she had not been contacted the Enforcement Officers took place ence, the High Court decision in Ali v to check if she was the victim. outside the house, filmed from the Channel 5, where the Court found that She complained of distress to street, Ofcom took the view that this the broadcasting of the programme her family and friends, and disrup- could not be separated from the filming was an infringement of Mr Ali and his tion to her personal and professional in the house. wife Mrs Aslam’s privacy, and awarded life as a result of the publication of By contrast, in the third case the each £10,000 in damages. Both sides the photograph. complainant, Mr Ladsawut, was a appealed that decision: the claimants The newspaper accepted that it had peripheral figure in the programme. appealed the damages awards, and made a mistake, removed the photo- He was filmed in his place of work, as Channel 5 appealed the finding of graph from the article and offered an the manager of a building the Enforce- liability. The hearing was held before apology. It said it had been provided ment Officers had attended in order to the Court of Appeal in early December. with the photograph by two separate enforce a business debt against a tenant. zoom-in will report when judgment is agencies, which it had relied on to He was shown letting the Enforcement given. check that the photograph related to Officers in and talking to them. the right person. The majority of the footage was The complainant declined the offer recorded on the Enforcement Officers’ of a public correction and apology, body cams, as Mr Ladsawut made clear saying she didn’t want anything that he did not consent to the main TV further to be published about the case. cameras being in the building. Ofcom IPSO: Complaint upheld However, the IPSO committee therefore again took the view that found that a correction was required to continuing to film using the bodycams, over wrong photograph make clear that the photograph used which were in place for the purpose of n IPSO has upheld a complaint by had been of the wrong person, because filming for the programme, was surrep- a woman who was wrongly identi- there was ‘a significant public interest titious filming. Mr Ladsawut was not fied in a photograph as a victim of a in recording that an inaccurate image made aware of the way the bodycam violent attack. had been published’. footage was being used. Anna Gos complained to the regu- The wording offered by the news- However, in the circumstances lator that the Daily Express breached paper was held to be sufficient to Ofcom did not consider there had been Clause 1 (Accuracy) in an article head- correct the inaccuracy. a breach of the Code. Mr Ladsawut was lined ‘“I didn’t recognise girl after Misidentification of the subject

zoom-in Spring 2019 | 9 REGULATION – OFCOM, ASA & IPSO

of an article in a photograph is not unusual, particularly where the media take advantage of the images many individuals make available of them- selves online. In this instance the regulator emphasised that it was the publisher that bore ultimate responsibility, which is an important reminder that the consequences of a mistake of this kind will usually fall primarily on the media organisation that publishes the content in question.

OFCOM: George Galloway in breach for Skripal programme n Ofcom has found that George Galloway’s talkRadio show on the Martin Hoscik / Shutterstock.com subject of the poisoning of Yulia and GALLOWAY TALKRADIO SHOW: NOT IMPARTIAL Sergei Skripal was in breach of its rules on due impartiality, as a result of its supportive of his own views, in that major political and industrial contro- failure to incorporate an alternative they either criticised the UK Govern- versy and major matters relating to view to that held by the presenter of ment, questioned the validity of the current public policy, due impartiality the UK government’s role. Government’s allegations about the must be preserved, and an appropriately Galloway presents a weekly show involvement of the Russian authori- wide range of significant views must be on speech radio station talkRadio, for ties, or expressed support for Jeremy included and given due weight. which the licence is held by TalkSport Corbyn’s response. Ofcom considered that the posi- Limited. Galloway was extremely dispar- tion of the UK Government on the The Skripals were poisoned, as it has aging of the limited number of listeners purported responsibility of the Russian since been conclusively demonstrated, featured whose views ran contrary to his State for the incident involving the by Russian agents in Salisbury on 4 own. Skripals, and the response of the UK March 2018. He interviewed a journalist for left- Government and the wider interna- Shortly after the poisoning, on 16 wing website The Canary and, with tional community, were subjects of March 2018, Galloway broadcast a reference to a poll that said the debate and political controversy show that considered the response of public blamed Russia for both in the UK and inter- the UK and Russian governments to what had happened, nationally and were the events in Salisbury. said he felt ‘sure that Statutory of both national He was intensely critical and this is a misrepre- sanctions can be and international mocking of comments made by the sentation’. importance. Defence Secretary, Gavin Williamson, Interactions an extremely serious In the and the then Foreign Secretary, Boris with listeners matter for broadcasters, circumstances, Johnson. continued in talkRadio was He questioned why Russian presi- the same vein and can go as far required to dent Vladimir Putin would carry out a throughout the as revoking their preserve due crime such as the poisoning, and went show. impartiality on to describe his reasons for believing In response to licence pursuant to Rules why the Russian authorities were not a complaint, Ofcom 5.11 and 5.12 of the responsible. considered whether there Code. He took calls and read messages had been a breach of Rules 5.11 and Ofcom found that, given the from listeners who were all broadly 5.12, which provide that, on matters of nature and amount of criticism of it in

10 | zoom-in Spring 2019 the programme, and taking into account a whimsical, humorous and fantastical that the programme was dealing with a suggestion only. matter of major political controversy, it Despite this, the ASA upheld the would have expected the viewpoint of complaint. the UK Government on the incident to The ASA said that according to be appropriately reflected. an EU Regulation reflected in the Although there was an arguable CAP Code, ‘only health claims listed reflection of this viewpoint in some of ASA: Red Bull ad banned as authorised on the EU Register are the contributions, these were not suffi- n A Red Bull poster that promoted permitted in marketing communica- cient to present an alternative view on the annual ‘4pm Finish Day’ has been tions for foods’. Health claims ‘were the matter of the Skripal poisoning with banned by the Advertising Standards defined as those that stated, suggested due weight. Authority. or implied a relationship between a Most of the listeners were aligned The poster included the words: food, or ingredient, and health’. with Galloway, and the brief contribu- ‘THE SECRET TO FINISHING In considering the complaint, the tions from those who were not were EARLY. Plans are afoot to finish at ASA accepted that the slogan ‘Red treated differently by him. four, But first, you have meetings and Bull gives you wiiings’ was trade- There was also no evidence as to deadlines galore. So remember the marked before 1 January 2005, and so how this edition of the George Galloway secret of every office superstar, And ‘did not have to be accompanied by an programme had been ‘clearly linked’ tame every task that’s thrown on your authorised health claim as generally with other talkRadio programmes radar. Because to leap every hurdle required by the Regulation’. However, broadcast on the same day, which a hectic day brings, You just need the ASA also took into consideration dealt with the same subject matter to know: RED BULL GIVES YOU that the exemption ‘did not protect and contained relevant alternative WIIINGS.’ the use of other specific or implied viewpoints. The complainant questioned health claims made about Red Bull Ofcom found that there had been whether the ad implied that Red Bull in the ad’. In making its decision, the breaches of Rules 5.11 and 5.12 and had a beneficial effect on health and in ASA considered ‘the picture of the was minded to consider a statutory particular on focus and concentration, can, the artwork and the text which sanction. which was a health claim that made it clear the ad was for TalkSport responded to the ruling must comply with the The Red Bull and there- by saying that the presenter’s ‘contro- CAP Code. fore any implied versial views’ would ‘not come as a Red Bull said complainant health claims in surprise to listeners’. the ad promoted a questioned whether the ad were in It said steps had been taken consumer initia- respect of that to ensure that ‘differing views are tive, the 4pm the ad implied that product’. expressed on air’, including the Finish, which Red Bull had a beneficial For those producer ‘speaking to Galloway of the encouraged reasons, the need for dissenting voices to be heard, workers to leave effect on health and in ASA ‘consid- something which Galloway has always an hour early on particular on focus ered that welcomed and encouraged’. a particular date. It consumers would Galloway was predictably critical explained these types and concentration understand that of Ofcom’s investigation, calling it a of initiatives were part the ad implied a rela- ‘transparently politically motivated of Red Bull’s humorous tionship between a food attempt at censorship’, which had brand ethos and stated that the and health, specifically that ‘already received its intended result – ad ‘did not suggest, either directly or Red Bull could help increase mental namely the partial stifling of [Gallo- implicitly, that consumption of Red focus, concentration and energy levels.’ way’s] lone voice… on the airwaves’. Bull would help achieve certain goals’. Because ‘those were not claims Statutory sanctions can be an It also said the ad called for people to be authorised on the EU Register’, the extremely serious matter for broad- efficient and complete their work faster ASA concluded that the ad breached casters, and can go as far as revoking to be able to leave early, which was not the CAP Code rules 15.1 and 15.1.1 their licence, so TalkSport will be a health benefit. It said the only refer- (Food, food supplements and associ- unlikely to want to take the risk of ence in the text to Red Bull was to their ated health or nutrition claims). As a allowing Galloway to maintain this well-known slogan ‘Red Bull gives result of this decision, the ad must not type of approach to his programme. you wiiings’, which it considered was appear again in its current form.

zoom-in Spring 2019 | 11 DEFAMATION

sation for reputational and financial The law of defamation protects the reputation of individuals and damage. companies. Statements are defamatory if they adversely affect a Her lawyers commented that it was the apology that was most important, person’s or company’s reputation in the eyes of reasonable people. A because their client had experienced a person or company can sue over defamatory statements in England and direct assault on her integrity as a jour- Wales if they cause or are likely to cause serious harm to the person or, nalist. in the case of companies, cause or are likely to cause serious financial A partner at the law firm representing loss. Journalists – indeed, all those publishing content – need to be her tweeted: ‘Well-sourced, fact-checked reporting, even if unflattering, is not the aware of the law, and confident that what they are publishing is either “enemy of the people”. An abject and not defamatory or, if it is, that they can avail themselves of one of the factually incorrect apology and throwing defences to defamation. reporters under the bus are, however, enemies of good journalism.’ Apologies in defamation claims Telegraph faces libel that the ‘lurid’ apology had made her an are often made via a statement in open ‘international poster girl for “fake news”’ court. Reading the apology to a judge at threat from journalist over and that it ‘traduces Ms Burleigh’s repu- a public hearing means that the apology Melania Trump apology tation as a competent journalist’. itself is protected by privilege, and avoids ‘In fact, it is Telegraph Media the risk of the defendant to the original n An American journalist has demanded Group’s apology that is false,’ said claim facing a further complaint from a an apology from The Daily Telegraph the letter. third party over the apology. after the newspaper responded to a legal Burleigh’s letter drew attention to complaint by Melania Trump by taking Trump’s instruction of Charles Harder, down an article about her and agreeing to who represented Hulk Hogan in his Supreme Court hears pay the First Lady substantial damages. successful $140m (£108m) lawsuit ‘tried to strangle’ claim The unusual dispute arose from the against Gawker, which resulted in the publication in the Telegraph on 19 January site being closed down, saying that fear n The Supreme Court has heard an 2019 of a story by Nina Burleigh, head- of Harder ‘caused TMG to capitulate appeal in Stocker v Stocker – a libel claim lined ‘The mystery of Melania’, based on abjectly in the face of his letter without over an allegation made by Ms Stocker Burleigh’s book Golden Handcuffs: The regard to normal journalistic principles, that her ex-husband Mr Stocker ‘tried Secret History of Trump’s Women. at the cost of Ms Burleigh’s personal and to strangle’ her. Ms Stocker made the Within seven days of publication, professional reputation’. allegation on Facebook, as part of an following contact from Trump’s lawyers, The apology and subsequent legal exchange with her ex-husband’s new the newspaper removed the online threat by Burleigh come against the partner. article and apologised, saying the piece background of extensive defamation liti- The key dispute is over the meaning ‘contained a number of false statements gation involving both the President and of the words ‘tried to strangle’. Do which we accept should not have been the First Lady, which includes the latter’s they mean, as Mr Stocker alleges and published’. successful legal claim against the lower courts found, that he tried to A tweet from Presi- the publisher of the Daily kill Ms Stocker? Or do they mean, as dent Trump linked Mail, which led to Ms Stocker says, that he had violently to a report of the her being awarded gripped her neck? apology and Reading the damages and legal Although words can convey different commented that apology to a judge costs of close to meanings to different people, in defa- ‘Fake News is $3m (£2.3m). mation claims the judge will determine the Enemy of at a public hearing Burleigh the one true meaning of the words the People’. means that the apology is seeking an complained of – the meaning it would The news- apology, the convey to the ordinary, reasonable paper’s actions itself is protected removal of the reader. The judge does so by reading the were then met by by privilege original apology words themselves: the litigants cannot a further legal threat to Melania Trump, introduce evidence of what people who from Burleigh, whose payment for the orig- had in fact read the words understood lawyers said in a letter inal article, and compen- them to mean.

12 | zoom-in Spring 2019 Shutterstock.com

AN APOLOGY ISSUED TO FIRST LADY MELANIA TRUMP HAS PROVOKED A NEW LEGAL COMPLAINT AGAINST THE DAILY TELEGRAPH - SEE OPPOSITE Debby Wong /

zoom-in Spring 2019 | 13 DEFAMATION

In this case the trial judge looked at a senior employee with responsibility defamatory meaning relating to the the Oxford English Dictionary to assist for child welfare at Haringey Council, claimant having sent sexual messages him. Whether his use of the dictionary which was notoriously the local and images while at work; and, second, was appropriate is one of the matters authority in which the death of Baby P were an expression of opinion to the in issue. He then found that ‘tried to took place in 2007. effect that this conduct was inappro- strangle’ meant ‘tried to kill’. MailOnline reported that Carru- priate and unprofessional, or justified The judge found on the evidence thers had taken a series of images at her dismissal. that Mr Stocker had put his hand over the Haringey Council offices in Wood Carruthers had put in evidence in Ms Stocker’s mouth and under her chin Green, including one focusing on her which she accepted that she did send and this at least amounted to common cleavage which included her work pass, sexual messages and photographs to assault. There was also a police report of and sent them to a businessman she had someone she had met on a dating the incident, which showed Ms Stocker met on dating website Plenty of Fish. website and that she did so while she had handprints on her neck. The article referred extensively was at work. However, Ms Stocker could not to the Council’s involve- She also made clear that prove that her ex-husband had tried to ment in the deaths of The she did not contend kill her by strangulation. As a result, Baby P and another that, insofar as two Ms Stocker’s defence of truth failed and child, Victoria important of the articles she faces a costs bill in the hundreds of Climbié. distinction expressed opin- thousands of pounds. The Sun, ions, the opinions Ms Stocker is challenging the judge’s similarly, between reputational were not honestly decision on meaning, which was upheld reported that ‘A and privacy rights held. by the Court of Appeal. Her lawyers MANAGER in Assessing argue that if she succeeds on this issue, charge of safe- continues to give the prospects her defence of truth ought necessarily to guarding vulner- rise to difficult of success of the also succeed. able children for the defendants’ defences The case has attracted criticism Baby P scandal council issues of honest opinion under from women’s rights organisations, has been sending intimate s3 of the Defamation Act which take the view that if Mr Stocker photos from its offices’, giving 2013, the judge found that an succeeds, the law is silencing women details of Carruthers’ conduct. honest person could express the opin- who speak out about domestic violence. Carruthers brought claims for libel, ions in each of the meanings he had In the #MeToo era, the law has been misuse of private information and found, based on the facts admitted in criticised by those who wish to speak alleged breaches of the Data Protection the claimant’s evidence. out about experiences of abuse, whether Act 1998 against the newspapers, over The claimant had no real prospect they be sexual misconduct or violence. online and print versions of the articles. of defeating an honest opinion defence Both libel law and non-disclosure She claimed that, for the purposes raised by either publisher and they were agreements (often known as ‘gagging of her defamation claims, the articles both entitled to summary judgment on clauses’) have come under fire. meant that she had behaved unprofes- the defamation claims against them. In hearing this case, the highest court sionally, scandalously and unacceptably The judge noted that the claims in the land enters the fray. zoom-in will or improperly by sending the images. in misuse of private information and report further when the Supreme Court Both publishers asked the court to breach of data protection rights had gives its judgment. determine the meaning of the articles not been attacked by the publishers and grant summary judgment against and would continue. The story was the claims, on the basis that they had based on information Carruthers could Sexual image claim by no real prospect of success. reasonably have expected to remain council boss struck out The judge found that the hypothet- private, although it remains unclear ical ordinary, reasonable reader, having whether the newspapers will now argue n Two newspapers have been granted read the whole of the relevant articles, that there was a countervailing public summary judgment in a libel claim could not conclude that the claimant interest in publishing the information. by Haringey Council’s former child was in any way connected with the The important distinction between welfare chief, over stories reporting that Baby P and Climbié cases, other than reputational and privacy rights she had sent sexual texts and images by the fact that she worked for the continues to give rise to difficult issues to a man she met on an online dating Council. for the media, where a journalist’s first website while at work. He found in relation to each article instinct is often to consider whether The claimant, Carol Carruthers, was that they, first, bore a factual and non- what they are reporting is true.

14 | zoom-in Spring 2019 Bridal shop brings claim over negative reviews n A court in Scotland has described a defamation battle between a wedding dress shop owner and a disgruntled bride as ‘highly emotive on all sides’ at a preliminary hearing. The claim by Yvonne Watson, the owner of The Bridal Boutique, was brought in relation to a series of online reviews, by bride Marie Mason, which are said to have cost the shop business. After a dispute with the shop over a £2,000 mermaid-style dress, Ms Mason went online to express her anger and disappointment with her experi- ence, including on Facebook, Google Reviews, TrustPilot and the You & Your Wedding bridal forum. An alleged mix-up over the colour / Shutterstock.com Sovastock POROSHENKO: SUING BBC and size of the dress saw Ms Mason describe her treatment by the shop as gation that intermediaries acting for The judge found that both reports ‘disgusting’ and ‘vile’, and she warned Poroshenko had arranged a payment to had alleged corruption, and meant that readers: ‘Do not go here!!!!!!’ Cohen, in an effort to extend a meeting Poroshenko had procured or authorised Ms Watson, however, says the bride with the US President from a brief a corrupt payment of $400,000 to be made an ‘abusive and threatening’ photo-op into something that could be made to Cohen. He said that while this phone call and alleges that Ms Mason portrayed as ‘talks’. was a ‘bane and antidote’ case, there was demanded payment of £400 and Poroshenko argued that the ‘very little antidote in either report’. threatened that, if she did not receive meaning of the reports was that he had The judge went on to say that the it, she would publish bad reviews on made or arranged for a secret payment overall effect was that the viewer was social media websites. of $400,000 to Michael Cohen in order ‘presented with a large amount of The judge has ordered Ms Watson to fix back-channel talks, and was incriminating evidence and a denial to provide information on the loss she therefore guilty of serious corruption. that, in context, the viewer will claims to have suffered as a result of The BBC argued that the discount or reject. The presen- the bride’s posts online. A trial will be reports meant that there tation of the evidence is heard in May. were strong grounds to Ensuring entirely one-sided.’ suspect that there was The ruling indi- a secret payment fairness cates that ensuring BBC report alleged by intermediaries and balance for fairness and corruption by Ukrainian acting on behalf regulatory purposes by balance for regu- President of the Ukrainian latory purposes government; recording a denial may by recording a n A court has ruled that a report by and that, if such denial may not be the BBC on a secret payment alleg- a payment was not be an answer to an answer to a libel edly made to Donald Trump’s personal made, there were a libel complaint complaint. Where lawyer, Michael Cohen, was an allega- strong grounds to a report contains an tion of corruption against Ukrainian investigate whether accumulation of evidence President Petro Poroshenko. Poroshenko authorised the on a particular topic, simply Poroshenko brought a libel claim payment or was culpably aware of it acknowledging that there is an alterna- in London over reports on the BBC’s being made. But it said what was being tive perspective on a subject may not News at Ten on 23 May 2018 and on the reported were only claims, and denials be enough to prevent a finding that it BBC’s website. These detailed an alle- were prominently mentioned. carries a serious defamatory meaning.

zoom-in Spring 2019 | 15 BUSINESS AFFAIRS & RIGHTS

The zoom-in Television Production Legal Schedule

recoup expenses from gross revenues In every issue of zoom-in we examine the commercial, legal and regulatory it receives as a result of licensing the hoops programme-makers have to jump through to get their programmes producer’s content. safely to air. Our production legal schedule above sets out the five key A distributor may offer to pay an stages of production which producers need to consider and the advice and advance to a producer in return for a package of rights. This will also expertise they are likely to need at each stage. In each issue, we focus on be recoupable from gross revenue one or two particular aspects of production legal requirements. received by the distributor. The obvious benefit to the producer those to third-party licensees. of accepting an advance is that it Distribution agreements The process of negotiating indi- receives monies upfront, rather than n Production companies and vidual licence deals can be time- waiting for individual licences to producers may enter into agreements consuming for producers, whereas a be secured and money to come in, with distributors in order to exploit reputable distributor, based on its and where a programme budget has rights in their finished programmes experience of the market, should have a deficit it may wish to apply the and formats, or in order to secure a clear idea of where and to whom advance to fund that deficit. deficit funding for a production a particular programme or format Provided any deficit and the budget in the form of a distribution will sell, based on its content. It is means to fund it are agreed with advance. also likely to have good contacts and the broadcaster and any other finan- While it is possible for producers relationships with broadcasters and ciers of a programme, the principle to do their own individual licence other potential licensees, and should that the deficit is recoupable before deals, for example with overseas be able to anticipate the reason- any net profit shares are payable is broadcasters, it is often quicker and able parameters of the commercial generally accepted; whereas, if a more straightforward to license a deal achievable. In return for the distribution advance is not applied package of rights to a distributor, distributor’s expertise and efforts, to programme costs, it will generally in order that it may seek to license it will deduct a commission and be considered to be gross revenue in

16 | zoom-in Spring 2019 The zoom-in Television Production Legal Schedule

the hands of the producer for the into its slate ‘on spec’) or a producer If a distributor does not offer to purposes of calculating and paying decides not to accept any offered pay an advance for a programme/ net profit shares. advance for any reason (eg if it is a format, it may still be willing to If a distributor doesn’t offer an small sum), this removes an element cover the cost of creating an inter- advance for any reason (eg it may be of recoupment from the gross-to-net nationally cleared version of the uncertain about the likelihood of a calculation, meaning the producer content, and/or of the deliverables sale, so will only accept the content should receive profit more quickly. continued on page 28

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 Spring 2019 | 17 COPYRIGHT & IP RIGHTS

who publishes an image online may Copyright permeates all aspects of television production, providing own the copyright in it and may copyright owners with certain exclusive rights to do specific acts in have implicitly given consent for its copying by others, it is not safe to connection with the copyright works that they own. Copyright protects assume that this is the case. people’s and companies’ creative endeavours so they can benefit and The proliferation of claims of this profit from their work. A television company making a programme type, particularly in the US, may lead to for broadcast will own copyright in the film it is producing. Copyright a new battleground emerging between enables the owners to earn money by licensing rights in the programme celebrities and the media. Unlike in this country, many to others who wish to exploit it. At the same time, producers need to American states have a right of ensure that rights in copyright works included within programmes – publicity, which means consent to use so-called ‘underlying rights’, in music, archive, photographs etc – are a person’s photograph or likeness is properly licensed from whoever owns them, unless they can rely on required. one of the statutory defences to copyright infringement, such as fair Some of the new generation of social media stars are hitting back. dealing. Infringing others’ copyright is likely to result in you being sued In a forthcoming case in Louisiana, for damages and may mean that your programme can’t be shown. An American football player Odell understanding of copyright is therefore essential for those working in Beckham Jr has brought a claim television production. against a picture agency that demanded $40,000 after he posted a photo of way without permission amounted to himself on his Instagram account. (US) Gigi Hadid sued for copyright infringement. The complaint says that the demand posting picture of herself The complaint says: ‘Hadid for such a payment was ‘shocking, reeks on Instagram was named as a defendant… in a of bad faith, and emphasizes the utterly [previous] lawsuit alleging copyright troll-ish behavior’ of the agency. n Supermodel Gigi Hadid has been hit infringement after she posted a different There is a newsworthiness exception with a copyright infringement claim by photo of herself on her Instagram to the right, which makes claims of a paparazzo whose picture of herself she account without licensing it from the this kind difficult for celebrities, but published on her Instagram account. copyright holder.’ privacy law has to a large extent been The complaint against Hadid, The agency says the facts in the developed by high-profile and well- whose Instagram account has almost previous case were nearly identical to resourced claimants, so further change 46 million followers, alleges that she those in its own, adding that ‘Hadid’s in this area should not be ruled out. ‘copied and posted’ to her Instagram Instagram account includes at least fifty account a photo belonging to examples of uncredited photographs of Xclusive-Lee, Inc ‘without license or Hadid in public, at press events, or on (US) Netflix sued for permission from Xclusive’. the runway’ which were mostly or all trademark infringement Hadid had told her posted without permission. followers in October 2018 A picture agency by publisher that she was being The in the position of n The publisher of the Choose Your ‘legally pursued’ for proliferation Xclusive appears Own Adventure book series is suing posting a photo of claims of this to have a Netflix, alleging that the streaming of herself on her clear-cut claim service’s immersive filmBlack Mirror: Instagram account, type may lead to a for copyright Bandersnatch infringes its trademarks. in a long post new battleground infringement for The film, like the hooseC Your Own that described the a photo that a Adventure books, allows viewers to emotional toll of between celebrities person has posted direct the character’s action, leading being pursued by the and the media without permission, to a variety of possible endings. paparazzi, and which regardless of who Chooseco LLC, the Vermont- criticised picture agencies appears in it. based book publisher, alleges that for demanding payment from The complaint shows Netflix deliberately exploited the young fans for reproducing their photos. how widespread celebrities’ use of brand awareness of its book series, Xclusive says that Hadid knew pictures in this way has become, which has sold 265 million copies, to that posting pictures of herself in this and makes clear that, while a person launch the show.

18 | zoom-in Spring 2019 THE MODEL GIGI HADID IS BEING SUED BY A PHOTOGRAPHER FOR SHARING A PHOTO OF HERSELF ON INSTAGRAM - SEE OPPOSITE Tinseltown / Shutterstock.com Tinseltown

zoom-in Spring 2019 | 19 COPYRIGHT & IP RIGHTS

According to Chooseco, Netflix challenge for a small independent sought a licence to use the Choose publisher like Chooseco,’ she said. ‘The Your Own Adventure trademark but use of Choose Your Own Adventure in negotiations never resulted in a deal. association with such graphic content The claim also notes that 20th Century is likely to cause significant damage, Fox recently optioned the rights to impacting our book sales and affecting develop an interactive film series based our ability to work with licensing on the books. partners in the future. We would prefer The claim contends that the film is not to resort to litigation but given the violent and disturbing – including refer- damage that we will suffer as a result ences to murder, decapitation, drug use, of the use of our mark we’ve been left and the mutilation of a corpse – in a way with no other option.’ that is inappropriate for the young adult Claiming infringement, dilution readers of the book series. Chooseco and unfair competition, Chooseco / Shutterstock.com Hutchins Kathy says the violent imagery tarnishes the demands at least $25m (£19m) in SHEERAN: ‘SOMBRE’ Choose Your Own Adventure brand, which damages or Netflix’s profits, which- between a show they watch and a plane instead has readers going on expeditions ever is greater. The company also seeks they fly.’ to Atlantis or space, with some having injunctive relief. Trademark law in this country more than 40 endings. Netflix hasn’t yet responded prevents third parties using, in the RA Montgomery, the original publicly to the claim. course of trade, an identical or similar publisher and author of the Last year the founder of sign where the use of the sign is Choose Your Own Adventure easyJet, Stelios Haji- detrimental to the distinctive character series, died in 2014. Ioannou, started a or repute of the trademark. His widow, Shannon Trademark trademark infringe- Trademark claims of the type Gilligan, now leads claims of the ment case against made against Netflix by Chooseco are the company. Netflix over the unusual, but potentially serious where She issued a type made against comedy series Easy. the alleged infringement can be shown statement about Netflix by Chooseco He is claiming to have resulted in damage to the mark. the trademark suit, the streaming of in which she sought are unusual, but the series in the to clarify that the potentially EU breaches the (US) Claim Ed Sheeran film has nothing to do trademarks held by copied Let’s Get It On will with the books, and that serious easyGroup, which include the film does not ‘adhere to the ‘easy’ and a series of trade go to trial Choose Your Own Adventure rules about marks with ‘easy’ as the prefix. n A New York judge has ruled that a successful interactive storytelling’. At the time, Netflix responded claim against Ed Sheeran over alleged ‘The misappropriation of our by saying: ‘We’re looking into it, but similarities between his hit Thinking mark by Netflix presents an extreme think viewers can tell the difference Out Loud and Marvin Gaye’s Let’s Get

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 Spring 2019 It On should go before a jury, because In this case, where Sheeran is historic pop songs against those who material facts are in dispute. relying on the principle, the judge held write modern hits shows no sign of The lawsuit has been brought by that a trial was required ‘regardless of abating, particularly where there is the the estate of Marvin Gaye’s Let’s Get It whether the deposit copy or sound prospect of a jury making an award of On co-writer Ed Townsend, who sued recording of [Let’s Get It On] defines the substantial damages. Sheeran (along with co-defendants scope of the composition’s copyright’. Sony/ATV Music Publishing, and The same judge is also hearing Atlantic Records) in 2016 alleging a separate claim over similarities Only Fools and Horses that Thinking Out Loud lifts ‘melody, between the two songs, brought by dining experience accused harmony and rhythm compositions’ Structured Asset Sales, a company that from the song Townsend co-wrote with claims it also owns part of Gaye’s song. of infringement Gaye in the early 1970s. This is the latest example of high- n The producers of Only Fools and In dismissing an application by the profile copyright litigation involving Horses The Musical have accused the defendants for summary judgment, the two artists. creators of a dining experience based the judge said: ‘Not only are there As previously reported in zoom-in, on characters from the BBC series of substantial similarities between several Marvin Gaye’s estate successfully sued copyright infringement. of the two works’ musical elements, but Robin Thicke and Pharrell Williams The musical, which opened at an ordinary observer might for allegedly copying Gaye’s London’s Theatre Royal Haymarket experience the aesthetic hit Got to Give It Up in February, has been endorsed appeal of both works as Ed Sheeran’s in their 2013 track by the estate of John Sullivan, the same.’ Blurred Lines. the writer of the long-running He said it was lawyers The estate won sitcom. Its promoter, Phil McIntyre in dispute whether memorably $5.3m (£4m), and Entertainments, has objected to Only the harmonic the jury’s verdict Fools, the Cushty Dining Experience rhythm of Let’s describe Let’s Get was finally upheld because it is not authorised by the Get It On was too It On as a ‘sexual on appeal late last creators of the original series and common to deserve year. has not paid any royalties to them, copyright protection. anthem’ Prolific hitmaker unlike the musical. The creators of There is a video on Sheeran has also the dining experience, Interactive YouTube that shows Sheeran previously been involved in Theatre International, deny playing live, segueing from his own a copyright claim, which saw him infringing copyright because they song into Let’s Get It On to the delight compelled to give the writers and say they have not used any scripts or of his fans. producer of the TLC song No Scrubs music from the original show. The judge said jurors ‘may be writing credits on his song Shape The developments are a reminder impressed by footage of a Sheeran of You, due to alleged similarities that drawing on works created by performance which shows him seamlessly between them. others can lead to copyright claims transitioning between [the songs]’. The phenomenon of claims by from a variety of interested parties, Sheeran’s lawyers rely on what they owners of the intellectual property in not just the primary rights holders. call the ‘sombre, melancholic tones, addressing long-lasting romantic love’ of Thinking Out Loud as different from Let’s Get It On, which they memorably describe as a ‘sexual anthem’. One issue that has loomed large in the case is the question of whether American copyright law only protects those elements of a song that have been logged with the US Copyright Office. This is usually relied on by defendants to such claims, who say that while they were inspired by the earlier work, this inspiration does not extend to using elements of a song that has been logged DarioZg / Shutterstock.com with the US Copyright Office. ONLY FOOLS: DINING EXPERIENCE

zoom-in Spring 2019 | 21 20 QUESTIONS Doing things properly David DeHaney has held senior positions at leading production houses including Firecracker Films, Nutopia, Love Productions, Granada and the BBC. He set up his own company, Proper Content, in 2016 and is currently working on a major social experiment and a property format for C4, a feature documentary on male suicide for C5, and a BBC sports documentary. He also knows how to get the most out of a Nando’s chicken

What gets you out of bed in the Which of your programmes are looked after properly, none of which morning? you most proud of? was true. In the end, we got out of it I get up at 6.30am, then it’s down- At the end of each one I always think simply because of how the programme stairs, coffee, feed the dogs. that one, but if I had to pick, it might was made. Of course everyone had be Out of Africa: Heroes and Icons. been looked after and the parents How many hours a week do you I am proud of them all as a body and kids were absolutely happy with work? of work. what we did. I don’t think it ever stops. I can’t go to the cinema or watch a programme What advice would you give Most diva-ish moment you’ve without thinking about how they did someone starting out in TV? witnessed? it and how it was constructed. Don’t listen to those who say you I was making a show at Sony with can’t do it. Beyoncé and her ‘Head of Ambience’ Who gave you your first wanted all the lighting changed. That career break? Biggest legal pickle was something. I joined the industry as you’ve got yourself a volunteer, but then into? What are you reading at the started a company The biggest one moment? for myself and got ‘Don’t listen to was for Boys and I’m making a programme about an umbrella deal those who say you Girls Alone, where race and the subconscious, so I’m at Mentorn Media we had Ofcom reading Why I’m No Longer Talking from a guy called can’t do it’ complaints as to White People about Race by Reni Ben Robinson. well as complaints Eddo-Lodge. from viewers and What do you love in the press. Govern- Favourite restaurant? most about your job? ment ministers and the Nando’s. I go for the whole chicken It’s a continuous journey of discovery. NSPCC got involved. The complaint cut into four so I can have one hot, one About the world; about other people; was that some of the children were mild, one lemon, one straight. That and about yourself. caused undue distress and weren’t way I get the whole kaleidoscope.

22 | zoom-in Spring 2019 Favourite shops? Dream dinner party guests? Describe yourself in five words. Sounds of The Universe record store Arsène Wenger, Thierry Henry, I’m just a normal bloke. in Soho, and Foyles because I’m old- Patrick Vieira… you get the idea. fashioned. I also love a men’s clothing If you could retire tomorrow, shop in Copenhagen called Norse Who would you least like to get what would you do? Store. stuck in a lift with? Travel. I’d like to spend a year in the Tommy Robinson. Far East, because I’ve just not been Favourite TV shows? there enough. Black Earth Rising and House of Cards. If you could change one thing about yourself, what would it be? What is the greatest invention Favourite place to have fun? I should speak up more. of all time? The Great North Wood Pub in West Bose Quiet Comfort headphones. Norwood. Last time you cried? When I was about 11, maybe Any pet peeves? Most-used expression? younger… actually, no. I cried when I Nah… I’m an easy-going kinda guy. ‘Do you know what I mean?’ was 32 when my best mate died. Paul Hunwick

zoom-in Spring 2019 | 23 MEDIA HAUNTS: THE DIXON See you in court

Ever been in court and thought, ‘I could do with a strong drink?’ and, specifically, the SE1 postcode and Now you can. The Courtroom Bar is at the centre of a new the history of the building. To create design-led hotel called The Dixon in SE1. Paul Hunwick speaks something that felt unique to – but at exclusively to Joe Stella, the creative talent behind the interior same time at home in – the area. There is architectural history here extending he former Tower Bridge Magis- diate. The double-height lobby, with over 100 years. We wanted to be trates Court and Police Station its original terrazzo floor, oak-panelled respectful to something that has stood Thas been transformed into a walls and restored roof light, retains the test of time but also create some- stylish new Marriott Autograph all the drama of the entrance to court thing that feels very current. Collection hotel called The Dixon. Its but with the added joy of curated ‘We captured the character of the area interior has been designed by Twen- art and contemporary luxe through artwork and the use ty2degrees Design Partnership, who fittings. The contrast The of pattern in our specially have taken their inspiration from between old court- double- commissioned carpets modern design movements, artists’ house and new [which echo the homes and European café culture. hotel sets the height lobby, with Thames]. Detailing As you approach the entrance of tone. its original terrazzo responds to original this Grade II listed building, origi- Joe Stella, Edwardian details, nally designed in 1906 by John Dixon creative director floor, retains all but in a contem- Butler (hence the name), just at the of Twenty2de- the drama of the porary way. We moment you wonder how you’ll get grees Design, took the juxtaposi- in, large, imposing wooden doors explains: ‘Our brief entrance to tion of new and old, magically swing open. It’s a bit was to respond to the court taking inspiration from Hogwarts, but the impact is imme- locality of the building the rough and refined, and

24 | zoom-in Spring 2019 elements of the surrounding area, and brought that into a luxurious context.’ The Dixon There are some standout moments 211 Tooley St, SE1 2JX – most notably The Courtroom Bar, 020 3959 2900 which sits at the heart of the building. thedixon.co.uk Hotel manager The judges’ bench has been repur- Hasham Soliman Rooms 193, including 9 suites. Starts at £199 per night posed as a very well-stocked bar. Stella Facilities Restaurant, café, private dining area, cocktail bar, meeting rooms, explains: ‘In the courtroom, the person gym who commands the most respect is the Who might one see there? Design aficionados, hipster millennials, visiting judge. In a cocktail bar, it’s the person Americans mixing the drinks. We wanted the Eat For breakfast, try the Vegan Fry Up (£12.50). For lunch, the Butler Sand- barman to command that same respect wich made with salt beef brisket, watercress, pickles and mustard on caraway beneath the same wooden canopy.’ bread (£10). For dinner, Duck, Duck & Duck (Shanghai master-stock leg pie, The bar itself is sunken. ‘The beauty roasted breast, liver parfait, £24) of this,’ says Stella, ‘is that you can sit Drink Tall Judge Martinez: pine nut-infused gin, rose vermouth, apple juice, in a normal height chair and still look matcha tea infusion and syrup (£12) comfortably into the eye of the person Power tables In the bar, sit eye level with the barman. At dinner, go for a pouring your drinks.’ What we at booth. For parties up to 30, ask about the private dining room zoom-in like best is that you can have Dress code A cheery rub of suits, designer dresses, hipster chic and high-end your martini served on the same bench athleisure where the first woman to be appointed Within walking distance Tower Bridge, Maltby Street Market, Tate Modern to the professional judiciary full-time in Look out for Jars of locally made, award-winning Bermondsey Street Honey, Britain, Sybil Campbell OBE, presided. available to purchase from the café As you leave the lobby and make Don’t say ‘Is Tom in tonight?’ The place has no connection with Tom Dixon your way along the corridor to the lifts and restaurant, look out for a triptych Entering the restaurant, Provi- private dining room which is a homage of historical locals: Ernest Shackleton, sioners, you are transported into a to this British icon. We’re probably the explorer; George Orwell, who lived different world. It’s lighter in spirit, the only people apart from the Design on Tooley Street when writing Down almost playful. ‘The restaurant is a Museum to have his original sketches and Out in Paris and London; and local departure from the rest of the design on display. They have a rawness to boy Charlie Chaplin. This leads you of the hotel,’ says Stella. ‘We created them. They are very personal.’ past the lift, which is surrounded by old something that feels standalone. We This joins seamlessly with the café, keys. ‘They are original Met Police keys developed the concept with the restau- which has a European, midcentury left on the site,’ says Stella. ‘Some from rateur Clive Watson [of Blixen, Lorne modern feel to it. Most vitally, they’ve the cells that were part of the original and previously Riding House Café got the coffee right. Hotels often fall police station.’ fame] and, rather than taking the down by serving flavourless black stuff food as a starting point, we created made from cheap beans. Not so here. the design around someone. We were They produce their own blend, roasted looking at mid-century modern design in-house and the happy, well-trained and Bauhaus. One individual who staff won’t balk if you ask for an oat- came up was the iconic British indus- milk cortado. trial designer Sir Kenneth Grange. Not Does The Dixon have the celeb- everybody knows his name, but every- rity buzz of Chiltern Fire House? The body knows his stuff. He designed the aching coolness of the Ace Hotel in Intercity train, a parking meter, a black Shoreditch? No. But do you always cab, all sorts of things. want that, or the fight to acquire and ‘We weren’t trying to replicate then keep a table? This is something his work, but create something in the altogether calmer, more grown-up, same spirit. We got close to completion backed up with intelligent design. It’s a and Kenneth Grange, who’s still alive great place to meet friends and clients, and working as a designer, was kind especially American ones who will enough to provide us with some of his love its proximity to Tower Bridge. Or old sketchbooks. There’s a wall in the simply enjoy some damn fine coffee.

zoom-in Spring 2019 | 25 PRIVACY & DATA PROTECTION

source material for their jokes and Since the Human Rights Act 1998 came into force, English law has routines, but the law applies to developed a legal right to privacy. The courts can and will intervene to comedians just as it does to anyone else. Often, legal risk is managed by protect privacy rights where they are infringed without justification. not providing identifying informa- This is commonly referred to as ‘misuse of private information’. tion about living individuals or by Personal information is also protected by the Data Protection Act, so seeking the explicit consent of the journalists and programme-makers need to be aware of, and comply person being referred to, but this is with, its rules as it applies to them. In this section, we report on some not always possible. Comedians and recent privacy and data protection decisions of note. those producing or broadcasting comedy should always seek legal advice to ensure any risks are prop- Chelsea Clinton settles Comedian case settles erly identified and dealt with. privacy case over n A case brought against comedian children’s pictures Louise Beamont by her estranged (Germany) German husband over material contained newspaper loses bid to n Chelsea Clinton and her husband in her Edinburgh Fringe stand-up Marc Mezvinsky have settled a privacy show Hard Mode has settled. Mr overturn photo ban claim they brought on behalf of their Reay had sued Ms Beamont in defa- n The European Court of Human children against Associated Newspapers. mation, privacy and under the Data Rights has refused to overturn an Associated Newspapers is the publisher Protection Act over material in Ms injunction preventing the publica- of the Daily Mail and the MailOnline Beamont’s show about him. Mr tion of images of a prisoner sitting website. They had published unpixel- Reay claimed the show was shirtless in a German prison lated photographs of the couple’s two defamatory, revealed yard while on remand. children, then aged three and one, in private details of his The case The prisoner which their faces were ‘clearly visible’, and Ms Beamont’s was a journalist, in a series of articles in 2017. relationship, and prompted concerns detained on The claim alleged misuse of private included still over the extent to suspicion information and breach of data protec- and moving of rape and tion law, and was contested by Asso- images of him which comedians could assault of his ciated Newspapers. However, on 10 without his use material about real ex-girlfriend, January the High Court heard that a consent. who was later settlement had been reached. The terms The parties people in their lives acquitted of of the settlement were not disclosed. released a brief without the risk of all charges. The case bears some similarities to joint statement Upon release he the one brought by The Jam singer saying a settlement being sued obtained, in 2011, Paul Weller on behalf of his three chil- had been reached, Mr an injunction from dren, over the publication of pictures Reay had discontinued the Cologne Regional Court of them in the street during a case and the parties would not to prevent further publication and family outing in Cali- be commenting further. distribution of the images, which by fornia. That case went The case prompted then had been published widely. The as far as the Court Both cases concerns over the following year, the Cologne Court of of Appeal, which show that extent to which Appeal upheld this publication ban. upheld the findings comedians could Axel Springer AG, which in favour of Weller particular care must use material publishes the daily newspaper Bild, and the award of a be taken with the about real people and Bild GmbH and Co KG, the total of £10,000 in in their lives company managing its website, were damages. Both cases use of images of without the risk of unhappy with the ban and applied show that particular children being sued. Come- to the ECHR on the basis that care must be taken dians often make their right to freedom of expression with the use of images of provocative statements was infringed. The ECHR didn’t children. and use their own lives as sympathise, finding instead that the

26 | zoom-in Spring 2019 German courts had correctly prior- itised the privacy of the photo- graphed man over the rights of the newspaper to publish. The ECHR could see no strong reason to override the German courts. It accepted the weight the German courts gave to the surrep- titious nature of the photography, that the man had a reasonable expec- tation of privacy while in prison, and that a strong media appetite for a story isn’t automatic justification for publishing private material. The ECHR also found that the penalty imposed on the two appli- cant companies had been accept- able, namely the ban on publishing or distributing the photograph and an order to repay a modest sum in lawyer’s fees. zoom-in has reported on privacy complaints to Ofcom and the UK court involving the C5 series Can’t Pay? We’ll Take It Away! (See p8.) In those cases it has been found that a person filmed inside their home during an eviction has a right to privacy that outweighs the rights of the broadcaster. These cases are always fact-specific but these UK rulings and the latest ECHR deci- sion are a reminder that even where a degree of wrongdoing is in play, programme-makers do not have an automatic right to film and broadcast at will. Certain locations and scenarios will attract a higher expectation of privacy, requiring a higher level of public interest to justify the intrusion. We would advise programme-makers to seek advice whenever this kind of higher-risk filming is planned.

(France) Google hit with €50m fine for GDPR breach n

Everett Collection / Shutterstock.com Everett The CNIL, the French data CLINTON: CHILDREN PHOTOGRAPHED protection regulator, has levied a €50m fine on Google for the

zoom-in Spring 2019 | 27 PRIVACY & DATA PROTECTION

company’s failure to comply with its to users about its data consent poli- continued from page 17 GDPR obligations. cies, and didn’t give them sufficient The decision was in relation control over how their information is it requires, but again this sum will to complaints brought by the used. The regulator said the company be recoupable from gross revenues. NGOs None of Your Business and had yet to address these violations. There will customarily be delivery La Quadrature du Net. ‘The amount decided, and the costs incurred by a producer when NOYB is an organisation set up publicity of the fine, are justified entering into a deal with a distrib- to engage in strategic privacy liti- by the severity of the infringements utor, even if it is just to create a copy gation by Austrian campaigner Max observed regarding the essential prin- of some or all of the commissioning Schrems, who first came to promi- ciples of the GDPR: transparency, broadcaster’s deliverables. While nence with a series of regulatory and information and consent,’ the CNIL the producer won’t necessarily be in legal complaints against Facebook said in a statement. profit, this does mean the producer in respect of its transfer of data from Google issued a statement saying is not out of pocket, and the recoup- the EU to the United States. that people ‘expect high standards of able element is kept small, so in The complaints against Google, transparency and control from us’. theory profit should be arrived at which have also been made in similar It added: ‘We’re deeply committed more quickly than where there is a form in respect of Instagram, What- to meeting those expectations and the full advance. sApp and Facebook, related to consent requirements of the GDPR.’ A key thing for production so-called ‘forced consent’ and the It later announced that it intended companies to bear in mind when bundling of services by Google with to appeal, because it was ‘concerned considering entering into a distri- a requirement for users to consent to about the impact of this ruling on bution deal (or individual licences) the use of their data. publishers, original content creators for content is any applicable hold- Article 7 of the GDPR estab- and tech companies in Europe and backs imposed by the commis- lishes stringent conditions around beyond’. sioning broadcaster and any other the question of consent, including NOYB noted that, while the fine financiers, such as a world premiere that the request for consent shall be of €50m is the highest so far imposed transmission right. These should be presented in a manner that is clearly under the GDPR for privacy viola- included in any contract with the distinguishable from the other tions, the maximum fine under GDPR distributor and licensees to ensure matters, in an intelligible and easily would be based on 4% of Google’s that they are complied with, and accessible form, using clear and plain turnover, which would be €3.7bn. that the producer doesn’t end up in language. It also provides that the The application of the GDPR to breach of its programme financing data subject can withdraw consent at American tech companies will be a agreements. If a different version any time, doing so as easily as when key battleground for them in Europe, of a programme is required for any it was given. as the EU seeks to impose its very particular territory, eg to remove The CNIL found that Google different standards for the exploita- any archive, stills or music that failed to provide enough information tion of personal data. cannot be cleared cost-effectively, or if further clearances are required, it is advisable for the producer to draw up a budget for the attendant costs in advance of committing to the deal. This should also include the costs of any additional deliverables, in order to ensure that either the producer is willing to absorb these costs or that it is receiving suffi- cient money from the distributor or licensee to cover them. While different distributors’ terms generally follow similar frameworks, there are individual terms that are worth considering and negotiating by producers on a case- GOOGLE: FINED by-case basis.

28 | zoom-in Spring 2019 CONTEMPT & REPORTING RESTRICTIONS

given written consent. Journalists The law of contempt makes it a criminal offence for the media should always be aware, and editors to publish or broadcast comments or information that creates should question any name appearing in such a report. This case also shows a substantial risk of serious prejudice to active UK legal the importance of obtaining pre- proceedings, in particular criminal proceedings heard before broadcast legal advice where appro- juries. Penalties for contempt can be serious: fines, even priate. If there is any doubt about imprisonment. Many activities are capable of amounting to a whether a victim has consented to be contempt, including: publishing seriously prejudicial material; identified, or about whether a name is real or a pseudonym, it is sensible to obtaining or publishing details of jury deliberations; breaching remove the name from any report. reporting restrictions or a specific court order; making payments to witnesses; filming or recording inside court buildings without permission; and publishing information obtained from confidential Judge lifts order relating court documents in both civil and criminal proceedings. to gangland shooting n A judge has varied a court order BBC exec acquitted after at the BBC for nine years, had never that would have effectively prevented reported on a court case before, the reporting of a trial relating to a sexual offence victim although Ansari said he did gangland attack in which a named on air not know this in advance. seven-year-old and his The BBC criticised the mother were shot on n The head of news at BBC Asian decision to bring the Reporting the doorstep of their Network, Arif Ansari, has been prosecution against restrictions home. acquitted after a Rotherham sexual Ansari personally Prosecutors offences victim was named in a live rather than against particularly affect had applied for an broadcast. Ansari was editing the the organisation. court proceedings order under section programme in question, and stood Ansari was 45 of the Youth accused of allowing a reporter to name found not guilty involving children Justice and Criminal the victim as he reported live from because the judge Evidence Act 1999 outside the trial of her abuser. could not conclude in respect of Christian Victims of sexual offences have that Ansari had ‘reason- Hickey, the young victim. automatic lifelong anonymity under able suspicion’ the report would The section allows the court the Sexual Offences (Amendment) breach the victim’s anonymity when to make an order prohibiting the Act 1992. This applies not just to he reviewed the script. She nonethe- publication of information about victims named in court hearings: the less flagged the issue of training for a young person who is concerned protection starts at the time the alle- court reporters. in the proceedings which would be gation is made. The victim said she felt sick and likely to lead members of the public The reporter, who had shown the panicked when she heard her name to identify them as being concerned script to Ansari in advance, broadcast. The reporter in the proceedings. said he believed the name has apologised to the The Press Association argued that was a pseudonym. victim for what the this amounted to an unreasonable Ansari said that he The victim said judge found was an restriction on reporting of the trial. had not questioned she felt sick and ‘honest mistake’. It said the effect of a restriction on the name because The Sexual ‘any matter likely to lead to his iden- anonymity for sexual panicked when she Offences (Amend- tification’ would not only restrict offences victims is heard her name ment) Act is a reporting of his name, but also that a basic principle of vital piece of legis- a boy had been shot, his age, that he journalism and he broadcast lation for anyone was shot on his doorstep at home, trusted the reporter. reporting on allega- that his mother was also shot and her The script was not seen by tions of, or the trial of, name, that this happened in Salford BBC lawyers. sexual offences. Victims in 2015 and that it was part of a In fact the reporter, having been cannot be named unless they have gangland turf war.

zoom-in Spring 2019 | 29 CONTEMPT & REPORTING RESTRICTIONS

Trial judge Mr Justice Popplewell asked what, realistically, would be left for the media to report of the trial given the nature of the restric- tion proposed. The court had to balance the ‘competing interests’ of the continued recovery and welfare of Christian Hickey and the require- ment of open justice, he said. He added: ‘It seems to me the proposal for a balance to be drawn in the way the prosecution seek to draw it is not a practical solution to the balance of competing interests. ‘It would render [the police inves- tigation into the Hickey shooting] virtually unreportable in any mean- ingful way.’ Mr Justice Popplewell adopted an alternative ‘excepting direc- tion’ allowing the media to report the names and relationships, and to use a pixellated photo which was taken of the boy when he was in his hospital bed. He added: ‘Given the history of what has already happened, the balance comes down in favour of open justice, permitting the reporting of proceedings subject to some addi- tional protections which can be put in place.’ Reporting restrictions particu- larly affect court proceedings Photo Agency / Shutterstock.com Featureflash involving children. MALONE: PROSECUTED Here, an order with the narrow Chief Justice; in the second, actress prevents the media or individuals purpose of protecting the victim of Tina Malone faces separate contempt from publishing images which claim a crime would have resulted in an proceedings. to be of Venables and Thompson inability to report any meaningful Jon Venables and Robert (whether or not it is them). details of a high-profile trial. Thompson received The injunction is world- life sentences Without wide and applies equally in 1993 for better public to the internet, social Prosecutions for breach of murdering two- media and main- Bulger killer injunction year-old James understanding stream media. Bulger when of why such orders In the first set n Two sets of criminal proceedings they were both of proceedings, for contempt of court have resulted aged ten. are made, these are Richard McKeag, from the sharing of information The pair unlikely to be the 28, and Natalie online said to relate to Jon Venables, were released Barker, 36, admitted one of the killers of James Bulger. in 2001 and last cases of their breaching the ban In the first, two individuals given new identi- kind on revealing Vena- narrowly avoided jail following a ties, and an injunc- bles’ identity by posting sentencing hearing before the Lord tion was put in place that pictures and other details.

30 | zoom-in Spring 2019 The Lord Chief Justice Lord faces contempt of court proceedings who instructed what was described as Burnett and Mr Justice Warby handed over a post on social media which ‘an army of lawyers’ to fight the case. McKeag a 12-month sentence, while purported to show images of Vena- It was, however, supported by an Barker was given eight months, both bles. The star of Shameless posted on independent court-appointed chil- suspended for two years. Facebook: ‘I need a lawyer asap!!!! dren’s guardian. Lord Burnett said that only their I’ve been committed to the high The judge has previously criti- personal circumstances prevented court!!!’ cised the mother’s ‘highly manipula- them being sent to prison immedi- The unusual injunction prohib- tive conduct’ in making a ‘furtive flit’ ately for their ‘serious’ breaches of iting the killers’ identification was to Ukraine. the injunction protecting Venables’ relatively easy to enforce when it was A statement authorised by the identity, and that there was a risk made almost 20 years ago. In an era judge in relation to his decision to of someone being ‘killed or seri- of mass access to large-scale publica- allow identification said that he had ously injured’, including anyone who tion through the internet and social ‘decided that publicity was positively was wrongly identified as one of the media, however, the order has been in the interests of these children on Bulger killers. repeatedly breached online. the specific facts of this case’. McKeag admitted the breaches Without better public under- It added: ‘He decided that the arising from an article on his website, standing of why such orders are made mother, her new husband, and the freeandfearless.org.uk, entitled ‘Jon and the consequences of breaching maternal grandfather may be named Venables Pictured - Killer’s Identity them, these are unlikely to be the and their photographs may be Revealed’ in November 2017. last cases of their kind. published.’ The article included photographs Publication of the names was, at said to be of Venables, and claimed to the time of going to press, embargoed give details of his new identity and Mother who ‘abducted’ pending appeals. place of work. children in family court Children and their parents are McKeag was aware of the injunc- typically named where they have tion and referred to the risk of legal fight can be named gone missing and the court seeks the action and to his intention to ‘defeat n A judge has ruled that a wealthy media’s assistance in tracking them the legal system by mass mother who has defied court down. publication’, the orders to return her chil- This ruling is important since court heard. dren to this country it appears to be the first time a Barker The case is part of can be named, along court has decided that those who had posted with her father and are involved in the alleged abduc- a picture an ongoing debate new husband. tion of children can be ‘named and said to be of surrounding media The father shamed’, in spite of their wherea- Venables on of the two girls bouts being known, and in the face her Twitter access to and reporting at the centre of of their opposition to publicity. account, of cases in the family the dispute, a The usual position in such cases is which had dual UK-Russian that, like all family court proceedings 649 followers. courts national, applied under the Children Act 1989, the The post received to the Family Divi- hearings take place in private and the 24 retweets and a sion of the High Court statutory prohibition on the publica- number of likes. for permission to identify the tion of material that might identify She refused to take the post mother and the maternal grandfather, the children means no one involved down in the face of warnings from a Ukrainian businessman. can be named. Twitter and the police. His application, which was The case is part of an ongoing The Attorney-General, Geoffrey supported by a number of media debate surrounding media access Cox QC, said: ‘These are both serious organisations, followed the mother’s to and reporting of cases in the examples of contempt of court and refusal to return to this country after family courts. I instigated these proceedings as it going on holiday with her daughters In spite of a change in the rules was in the wider public interest to in Ukraine in 2017, despite a court to allow greater media access almost do so. Posting this material online ruling that they must live in the UK. ten years ago, the work of the family is a crime.’ The application was resisted by the courts remains a challenging subject Meanwhile, actor Tina Malone mother and the maternal grandfather, for the media to cover.

zoom-in Spring 2019 | 31 ABOUT ABBAS MEDIA LAW

We are specialists on all Training for producers aspects of UK law and AML 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 The Team exciting and challenging factual programmes; news; films Nigel Abbas Founder and dramas; and all kinds of entertainment and comedy Nigel is a barrister with over 20 years’ experience programmes. Nigel Abbas is the primary author of Channel advising the media and entertainment industries. 4’s Producers’ Handbook, a comprehensive guide to best Clare Hoban Senior Lawyer practice, regulation and the law as they apply to the making A highly experienced media lawyer, Clare joined AML and broadcasting of programmes. in January 2016 after 11 years at the BBC. Business Affairs & Rights Jenny Spearing Senior Business Affairs Adviser We advise clients on all aspects of business affairs, chain of Jenny is a business affairs expert with nearly 20 years’ title and rights issues, in connection with the television, film, experience in television production. advertising and publishing industries. We advise on deal- Paul Schaefer Lawyer making, draft and negotiate all types of agreements, and can Paul is an experienced media lawyer, having worked as answer all your day-to-day queries. See page 16. in-house counsel for newspapers and broadcasters. Legal and Regulatory Threats, and Litigation Lucy Chisholm Batten Trainee Solicitor We regularly represent clients when legal and regulatory Lucy began her training contract in September 2018 having threats are made against programmes and other content, worked as a Paralegal for Abbas Media Law since 2017. both before and after publication. We represent clients in Jan Tomalin Consultant most areas of litigation affecting the media, advising on Over the last 30 years, Jan has advised on an enormous strategy, tactics, drafting of pleadings and advocacy. number of television programmes, across all genres. 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