Need to Know – 08.02.16

General

Court of appeal rules on enforceability of sales agreement that did not stipulate price, specification and delivery date.

Intellectual Property

OHIM launches second consultation on its Strategic Plan 2020.

Technology

Department for Culture, Media and Sport publishes joint letter to European Commission on its review of Electronic Communications Framework.

European Commission adopts draft Decision to coordinate use of 700 MHz band for mobile services.

Coalition for a Digital Economy (COADEC) publishes submissions to Government’s call for ideas for its Digital Strategy.

Data Protection

Information Commissioner’s Office consults on revised privacy notice Code of Practice.

European Commission and United States agree new framework for transatlantic data flows: the EU-US Privacy Shield.

Article 29 Data Protection Working Party meets to discuss consequences of Schrems case for international transfers.

European Consumer Organisation, BEUC, says it is “highly sceptical” that EU-US Privacy Shield will protect Europeans’ personal data effectively.

Music

PRS For Music and PPL confirm plan to create joint venture for public performance licensing.

High Court sentences bar owner to 28-day suspended sentence for breach of court order prohibiting the playing in public of copyright sound recordings.

Publishing

Supreme Court considers issue of anonymity of parties in litigation.

High Court finds no “serious harm” in England and Wales to reputation of Portuguese libel claimant.

Pilot scheme begins allowing public and media access to Court of Protection hearings.

Film & TV

Ofcom publishes annual research into UK viewers’ perceptions of content standards for on-demand and online content.

High Court grants Norwich Pharmacal Order in copyright infringement case involving transmission of Premier League football matches.

Computer Games

British Film Institute figures show 237 games were approved for Video Games Tax Relief in 2015.

General

Court of appeal rules on enforceability of sales agreement that did not stipulate price, specification and delivery date.

The Court of Appeal has overturned a County Court ruling and found that a binding agreement had been reached between a customer and a car dealership for the purchase of a limited edition Porsche 911 even though the contract did not stipulate price, specification and delivery date.

The fact that there was no vehicle at the time of the agreement and that the dealer might not be allocated one, did not reduce it to a mere agreement to agree.  Under the Sale of Goods Act 1979 there can be a contract for the sale of goods the acquisition of which by the seller depends on a contingency that may or may not happen.  The Act also provides that the price of goods may not be fixed by the contract but may be “left to be fixed in a manner agreed by the contract…”, which was clearly the case here as the dealer’s terms and conditions provided that once a vehicle was available for delivery the purchaser must pay the balance of the purchase price, being the difference between “the importer’s recommended retail price” and any deposits paid.  (Hughes v Pendragon Sabre Ltd T/A Porsche Centre Bolton [2016] EWCA Civ 18 (20 January 2016) — to read the judgment in full, click here).

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Intellectual Property

OHIM launches second consultation on its Strategic Plan 2020.

The aim of this second process of consultation is to understand the full effects of the Regulation amending the EU trade mark, and to gather ideas and suggestions from all of OHIM’s stakeholders on the vision and strategic goals set by OHIM for the coming five years.

The consultation is open until 15 March 2016.  To access the consultation documentation, click here.

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Technology

Department for Culture, Media and Sport publishes joint letter to European Commission on its review of Electronic Communications Framework.

The letter, signed by Belgium, Czech Republic, Denmark, Estonia, Ireland, Finland, Lithuania, Poland, Sweden and the UK, essentially sets out some of the signatories’ priorities for the review.

As connectivity becomes increasingly essential for business and personal activities, users are expecting a higher standard of quality across all aspects of network performance, the letter states.  Therefore, reliability, bandwidth capacity, latency and resilience, are becoming just as important as connection speed to the user experience.  In order to drive up standards of network performance, the quality of the user’s experience should be a “key consideration for the framework”.

In addition, the letter says, the framework should continue to adhere to the principle of technological neutrality.  The flexibility of this principle is needed to provide consumers with “all-round, affordable quality of experience”.  This means the framework should support private sector investment in, and deployment of, high-speed high-quality networks capable of meeting current and future demand.  Promoting efficient competition and stable, predictable regulatory conditions for providers of electronic communication will spur private sector investment in digital infrastructure and should be at the heart of an updated framework.  It is also important that the framework encourages competition and private sector investment as far as is possible in less commercially attractive geographic areas.

Further, consumer protection should remain “a priority for the revised framework”.  The letter notes that the Commission has identified that many consumers now consider over the top (OTT) communications services to be the same as more traditional telecoms services, yet these two types of service are often regulated in different ways.  The signatories do not believe that automatically extending all consumer protection regulation provided by the framework to OTT services is the answer.  A proportionate approach is needed, the letter says, to avoid “unnecessarily burdensome regulation that will stifle innovative new services”.  Regulation should only be extended where there is “strong evidence that the interest of the consumer should be protected”.  The Commission should also consider deregulation of traditional telecoms services where this does not harm consumer interests, undermine regulatory enforcement powers or competition in the market, or compromise national security, public security or prevention, detection and prosecution of criminal offences.

The signatories emphasise the importance of the Commission taking a “consistent approach across the whole Digital Single Market Strategy to electronic communications services and OTT services”.  The proposals resulting from the consultations on the Electronic Communications Framework, platforms regulation, standards, consumer protection for digital content and Audiovisual Media Services Directive, plus the forthcoming E-Privacy Directive Review must avoid regulating the same services in multiple ways.  To read the letter in full, click here.

European Commission adopts draft Decision to coordinate use of 700 MHz band for mobile services.

As part of its Digital Single Market Strategy, the Commission is proposing a balanced long-term approach for the use of the ultra-high frequency (UHF) band (470-790 MHz).  Currently, this band is mainly used for TV broadcasting.  According to the proposal, more spectrum will be made available for mobile services in the 700 MHz band (694-790 MHz) by 2020.  The Commission says that this band is “ideal for providing high-quality internet to users”. Frequencies in the sub-700 MHz area (470-694 MHz) will remain available, as a priority, for audiovisual services.  The proposal is also in line with the most recent international agreements on the use of the UHF band including the 700 MHz band.

The proposal comprises two major elements:

  • the 700 MHz band: a common schedule for making it effectively available for wireless broadband use under harmonised technical conditions, and related coordination measures in support of the transition;
  • the sub-700 MHz band: long-term priority for the distribution of audiovisual media services to the general public, along with a flexible approach for spectrum use to cater for different levels of digital terrestrial television uptake in Member States.

The Commission says that the proposal will “make it easier and will reduce costs to develop innovative devices and services across the EU”.  There will be no need to switch between different bands and to adapt to divergent national requirements.

The Commission proposes that the 700 MHz band should be assigned to wireless broadband by 30 June 2020 at the latest in all EU countries.  This will be in line with the deployment of 5G in 2020.  To meet this deadline, Member States will need to adopt and make public their national plans for network coverage and for releasing this band by 30 June 2017.  The Commission says that they will need also to conclude cross-border coordination agreements by the end of 2017.  Such plans will “smooth the transition and ensure good network coverage that will help to bridge the digital divide and create the necessary coverage conditions for connected vehicles or remote health care”.

France and Germany have already authorised the use of the 700 MHz band for mobile services.  Denmark, Finland, Sweden and the UK have outlined plans to repurpose the 700 MHz band in the next few years.  To read the Commission’s press release in full and for a link to the draft Decision, click here.

Coalition for a Digital Economy (COADEC) publishes submissions to Government’s call for ideas for its Digital Strategy.

COADEC has submitted 16 ideas to help build on the UK’s digital success, ranging across skills, infrastructure, regulation and digital government:

  • place the ambition to be “the startup nation in Europe and one of the great startup nations of the world” at the heart of the new Digital Strategy;
  • use the Government’s soft-power to act as a champion for the digital economy;
  • provide more support to help prepare teachers to deliver the new computing curriculum in schools;
  • provide more support to adults looking to change career, including through innovative providers like Makers Academy and General Assembly;
  • create apprenticeships that work for digital startups and scale-ups, including better training offerings;
  • ensure that the UK is open to the best digital talent from around the world through the immigration system both for entrepreneurs and for workers;
  • raise the level of ambition and set out a roadmap for ubiquitous ultrafast connectivity;
  • adopt more permission-less approaches to innovation (e.g. regulatory sandboxes) across the public sector;
  • encourage (or require) more industries to open up their data to their consumers using APIs;
  • look at further areas (beyond fintech and the sharing economy) where government can assist emerging industries with the aim of unlocking innovation;
  • hold a review into changing modes of work, and how government can better support freelancers and the self-employed;
  • clarify the UK’s position on encryption, amending the draft Investigatory Powers Bill to give certainty;
  • go further on “Government as a Platform” allowing the creation of an app layer (based on open standards) on top of public services;
  • support and incentivise digital transformation of local government (e.g. with funding, technical assistance, and setting standards);
  • bring more technologists and digital expertise into the heart of government (learning from the White House Office of Science and Technology Policy, and the Presidential Innovation Fellows); and
  • reduce barriers for digital businesses scaling internationally, including through the Digital Single Market.

To read COADEC’s submissions in full, click here.

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Data Protection

Information Commissioner’s Office consults on revised privacy notice Code of Practice.

The ICO notes in its blog that this Code of Practice has not been revised for several years and, given how the way personal data is used changes rapidly, the ICO has undertaken a review.

Ensuring that individuals have a clear understanding of what is done with their personal data is a fundamental point of the Data Protection Act 1998, the ICO says.  This code of practice has been written to show organisations how they can achieve this in a clear and engaging way.

The revision of this code of practice still has at its core what data controllers need to do to provide privacy information and what is good practice.  However, there is also a further focus on producing privacy notices that individuals are more able to engage with.

In the ICO’s view, privacy notices are often “too long, overly legalistic, uninformative and unhelpful”.  These are the notices individuals choose to ignore, and therefore they miss out on important information.

The ICO is therefore recommending a more “blended” approach, using a variety of techniques to provide privacy information.  This is, it says, a more effective way of engaging individuals.  For example, a “just-in-time” message that appears to tell you why your email address is needed when you are filling out an online form will be more effective than having to click onto a separate privacy notice or search for this information.  Or perhaps providing a short video that explains what an organisation does with individuals’ personal data will reach a wider audience.  “These are just some of the recommendations we think will help to improve the effectiveness of a privacy notice“, the ICO says.

In addition, the ICO is providing advice on how to make privacy notices on smartphones and tablets as easy to view as they should be on a personal computer or laptop.  The Code also looks at the issues that organisations need to consider when providing privacy notices via other smart devices or when using big data analytics involving personal data.

Essentially, the Code provides advice to organisations about how to integrate choice for individuals into their privacy notices.

The code also looks at consent, in particular in relation to third party marketing (where an organisation has shared personal data with another organisation for marketing purposes).  The ICO has produced best practice standard wording for organisations to use when seeking consent for marketing, which it has tested with members of the public.  The ICO believes its recommended standard approach will ensure that individuals can indicate clear choice over who they would like to hear from and what products or services they are interested in.

The ICO says that it has also developed the Code with the proposed new European General Data Protection Regulation in mind, alongside the current 1998 Act.  However, it intends to make precise and technical changes to the final text after it has received all of the feedback from the consultation.  The consultation closes on 24 March 2016.  To read the ICO blog post in full and for a link to the consultation documentation, click here.

European Commission and United States agree new framework for transatlantic data flows: the EU-US Privacy Shield.

The Commission says that the new framework will protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses.

The Commission says that the EU-US Privacy Shield reflects the requirements set out by the Court of Justice of the European Union in Case C 362/14 Schrems v Data Protection Commissioner on 6 October 2015, which declared the old Safe Harbour framework invalid.

The new arrangement includes the following:

  • strong obligations on companies handling Europeans’ personal data and robust enforcement: US companies wishing to import personal data from Europe will need to commit to robust obligations on how personal data is processed and individual rights are guaranteed. The Department of Commerce will monitor that companies publish their commitments, which makes them enforceable under US law by the Federal Trade Commission (FTC). In addition, any company handling human resources data from Europe will have to commit to comply with decisions by European DPAs;
  • clear safeguards and transparency obligations on US government access: for the first time, the US has given the EU written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms. These exceptions must be used only to the extent that they are necessary and proportionate. The US has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement.  To regularly monitor the functioning of the arrangement there will be an annual joint review, which will also include the issue of national security access.  The European Commission and the US Department of Commerce will conduct the review and invite national intelligence experts from the US and European Data Protection Authorities to it;
  • effective protection of EU citizens’ rights with several redress possibilities: any citizen who considers that their data has been misused under the new arrangement will have several redress possibilities. Companies have deadlines to reply to complaints.  European DPAs can refer complaints to the Department of Commerce and the FTC.  In addition, Alternative Dispute Resolution will be free of charge.  For complaints on possible access by national intelligence authorities, a new Ombudsperson will be created.
  • The next stage is for the Commission to prepare a draft “adequacy decision” and to obtain the advice of the Article 29 Data Protection Working Party. In the meantime, the US side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsman.  To read the Commission’s press release in full, click here.

Article 29 Data Protection Working Party meets to discuss consequences of Schrems case for international transfers.

The Working Party has welcomed the fact of the conclusion of the negotiations between the EU and the US on the introduction of a “EU-US Privacy Shield” (see item above), which meets the deadline set by the Working Party in its statement of 16 October 2015.  The Working Party says that it looks forward to receiving the relevant documents “in order to know precisely the content and the legal bindingness of the arrangement and to assess whether it can answer the wider concerns raised by Schrems judgment as regards international transfers of personal data”.

The Working Party has been analysing the robustness of other transfer tools in the light of the reasoning of the CJEU in the Schrems case.  Accordingly, it has been assessing the current legal framework and practices of US intelligence and the conditions under which it allows any unjustified interference to the European right to respect for private life and data protection.

The Working Party says that it conducted its assessment in the light of the European Fundamental Rights, which set out four essential guarantees for intelligence activities:

  • processing should be based on clear, precise and accessible rules: this means that anyone who is reasonably informed should be able to foresee what might happen to her/his data when they are transferred;
  • necessity and proportionality with regard to the legitimate objectives pursued need to be demonstrated: a balance needs to be found between the objective for which the data are collected and accessed (generally national security) and the rights of the individual;
  • an independent oversight mechanism should exist, that is both effective and impartial: this can either be a judge or another independent body, as long as it has sufficient ability to carry out the necessary checks; and
  • effective remedies need to be available to the individual: anyone should have the right to defend her/his rights before an independent body.

The Working Party stresses that these four guarantees should be respected whenever personal data are transferred from the EU to the US and to other third countries, as well as by EU Member States.

Although the Working Party recognises the efforts of the US in 2014 and 2015 to improve the protection of the data of non-US people, it still has concerns over the current US legal framework as regards the four essential guarantees, especially regarding scope and remedies.

The Working Party says that it “stands ready” to analyse the result of the negotiations in relation to the Privacy Shield in the light of the European Fundamental Rights set out above.  It says that it will “especially have to consider” whether its concerns regarding the US legal framework can be alleviated following the introduction of the Privacy Shield.  The Working Party says that it will also analyse to what extent this new arrangement will provide legal certainty for the other transfer tools, and examine whether the provisions respect the powers of data protection authorities as set out in Article 28 of the Data Protection Directive (95/46/EC).

The Working Party has called on the Commission to provide all documents pertaining to the new arrangement by the end of February.  The Working Party will then be in position to complete its assessment for all personal data transfers to the US at an extraordinary plenary meeting that will be organised in the coming weeks.  After this, the Working Party will consider whether transfer mechanisms, such as Standard Contractual Clauses and Binding Corporate Rules, can still be used for personal data transfers to the US.  In the meantime, the Working Party considers that this is still the case for existing transfer mechanisms.  To read the Working Party’s press release in full, click here.

European Consumer Organisation, BEUC, says it is “highly sceptical” that EU-US Privacy Shield will protect Europeans’ personal data effectively.

In response to the European Commission’s announcement that a new framework for transatlantic data flows, the “EU-US Privacy Shield”, has been agreed (see item above), BEUC has expressed its concern that it will not adequately protect European consumers.

BEUC says that it is “highly sceptical that this ‘shield’ can protect Europeans’ personal data effectively according to the requirements set out by the ECJ in its Schrems vs Facebook ruling”. The fundamental differences in protection between the US and EU data protection regimes are too large and remain unchanged, it says.

BEUC is specifically concerned that, as it says, “Hardly anything, except general principles, has been disclosed” and that, “there is little to indicate the US will change its approach to data privacy”.

BEUC emphasises the following concerns:

  • there is still no independent US authority equivalent to the EU data protection bodies in competence, powers and obligations when it comes to complaint handling;
  • the Privacy Shield does not seem, as was the case with Safe Harbour, to be based on anything firmer than company self-certification; and
  • companies who build their business model on amassing personal data cannot be trusted to handle privacy complaints: one of the redress possibilities proposed under the Privacy Shield deal.

BEUC notes that when the Article 29 Data Protection Working Party met in Brussels last week (see item above) they were unable to confirm the Commission’s claim that the Privacy Shield meets the benchmarks set by the Court of Justice of the European Union and effectively protects European consumers’ personal data.

It will take several weeks until the actual content of the Privacy Shield agreement is finalised.  In the meantime, BEUC says, “consumers, citizens, data protection authorities and the European Parliament are all left in the dark.

BEUC concludes by saying: “It is now time to call the bluff on this poker game in which the US holds all the cards”. BEUC wants data protection authorities to “carry out their duty and start actively investigating whether companies transferring European citizens’ personal data to the US are complying with EU data protection rules”.  To read BEUC’s press release in full, click here.

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Music

PRS For Music and PPL confirm plan to create joint venture for public performance licensing.

PRS for Music and PPL have confirmed that, following a strategic review commenced in 2015, the two companies plan to create a joint venture.  The new joint venture company, jointly and equally owned by PPL and PRS for Music, would focus on serving all PPL and PRS for Music UK public performance licensing customers.

This will, the collecting societies say, further streamline the experience for customers obtaining public performance licences, allowing them to secure a joint PPL and PRS for Music licence with a single phone call or a few clicks on the web, paid for with a single invoice.

Over the coming months, PRS for Music and PPL will be undertaking the necessary preparatory work for the joint venture, including engagement with regulators and other key stakeholders.

It is anticipated that the new company will start licensing in 2017, followed by a 12-month period during which the full transition of public performance licensing will be completed.  It is likely that the new joint venture will be located in a UK city outside the M25.

Robert Ashcroft, Chief Executive, PRS for Music, said: “Creating a single point of contact for our UK public performance customers would allow us to significantly simplify music licensing for UK businesses. It is in our members’ and customers’ interests to ensure that our licensing is ever more accurate and efficient. A joint venture between our organisations would be a landmark event for both societies”.

Peter Leathem, CEO, PPL commented: “Both our organisations firmly believe that the proposed joint venture would be a very positive development for both our customers and our members, building on the successful joint licensing solutions and other joint working initiatives that PPL and PRS for Music have delivered over the last few years”.

Geoff Taylor, Chief Executive BPI & BRIT Awards, said: “We are delighted at this announcement.  The UK already has an enviable reputation for the quality of its licensing bodies, but record labels are committed to making music licensing as simple as possible for users and ever more efficient in terms of administration.  The creation of this joint venture represents a significant milestone – one that many thought was too difficult to achieve.  Our congratulations to the management of PPL and PRS.  BPI will be very supportive of the ongoing work to implement the joint venture”.

To read PPL’s press release in full, click here.

High Court sentences bar owner to 28-day suspended sentence for breach of court order prohibiting the playing in public of copyright sound recordings.

The defendant, Mr Brian John, operated a bar in Muswell Hill, London, called Socialite.  PPL undertook investigations of infringing public performances at Socialite and wrote to Mr John trying to persuade him to take a licence before infringement proceedings were commenced.  Although Mr John made some staged payments by cheque, he did not take a licence, and as a result proceedings were commenced in August 2013.  No response was received to the proceedings and, accordingly, in January 2014 PPL issued and served an application for judgment in default.  That application was granted and an order made prohibiting Mr John from playing or authorising the playing in public of sound recordings within the PPL repertoire.

PPL became aware that the injunction was not being complied with.  Accordingly, in March 2015, the order was personally served on Mr John.  Notwithstanding that, in April 2015 an investigation agent instructed by PPL visited the premises and obtained evidence of sound recordings within the PPL repertoire being played in public.  In May 2015 PPL wrote to Mr John warning him that a contempt application might be made, with the potential consequences.  Mr John still failed to regularise his position.  Accordingly, PPL applied to the court for committal of Mr John.

The only issue before the court so far as the question of breach of the order was concerned was one of sanction.  Mr Justice Arnold noted that the case was very similar to Phonographic Performance Ltd v Fletcher [2015] EWHC 2562 (Ch).  As in that case, although the evidence specifically relied upon in support of the committal application only related to breach of the order on one date, it was clear that there were breaches of the order extending over a period of time.  Therefore, as in that case, Mr John’s contempt of court could not be described as accidental or inadvertent, but had to be regarded as a deliberate and knowing infringement of PPL’s rights contrary to the order of the court.  Therefore, Arnold J said, the threshold had been passed for the imposition of a custodial sentence.  On the other hand, however, Arnold J did not consider that an immediate custodial sentence would be appropriate.  Thus, he decided that the appropriate sanction was a suspended sentence.

In determining the length of the sentence and the length of suspension, Arnold J took into account various mitigating factors in Mr John’s personal circumstances, as well as the fact that the business was not prospering, and that Mr John was endeavouring to sell it.  Accordingly, Arnold J said that the period of the sentence should be fairly short, setting it at a period of imprisonment of 28 days.

In terms of setting the length of suspension, Arnold J said that he had to allow for the possibility that Mr John’s business would continue to be operated by Mr John for at least some period of time.  He therefore set the period of suspension at 18 months on condition that Mr John did not infringe PPL’s rights again.  In addition, Arnold J awarded PPL damages in the sums of £3,310.54 plus £108.16 and £550 to cover interest.  (Phonographic Performance Ltd v John T/A Socialite Bar [2015] EWHC 3394 (Ch) (20 October 2015). 

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Publishing

Supreme Court considers issue of anonymity of parties in litigation.

The appellant, C, who had suffered severe mental health problems for most of life, was convicted of murder in 1997 and sentenced to life imprisonment, with a tariff originally set at 15 years but reduced on review to 11 years.

Having spent some time in secure psychiatric hospitals, C’s responsible clinician made various applications to the Secretary of State for consent for C to have unescorted community leave on the grounds that he was no longer a danger to himself or others.  Consent was refused on each occasion.

In November 2013 C applied for judicial review of the Secretary of State’s final decision.  In December 2013, the High Court ordered that C be anonymised in the proceedings.  This was continued at the end of December when permission to apply for judicial review was granted.

The High Court rejected C’s challenge as to the lawfulness of the Secretary of State’s decision, but granted an order of anonymity.  C was refused permission to appeal in relation to the dismissal of his claim, but granted it in relation to the refusal of anonymity.  The Court of Appeal dismissed his appeal.  The original anonymity order remained in force however pending the determination of C’s appeal to the Supreme Court.

In September 2015, the Parole Board directed the release of the appellant on life licence, but with certain conditions, one of which was that C change his name due to the high level of media attention his case had received.  C was released from hospital in October 2015.

The first issue for the Supreme Court was whether there should be a presumption of anonymity in civil proceedings, or certain kinds of civil proceedings, in the High Court relating to a patient detained in a psychiatric hospital, or otherwise subject to compulsory powers, under the Mental Health Act 1983.  The second issue was whether there should be an anonymity order on the facts of this particular case.

In respect of the first issue, Lady Hale said that the first question in all cases such as this was: is anonymity necessary in the interests of the patient?  It would be wrong to have a presumption that an order should be made in every case, she said, and that there was “a balance to be struck”.  The public has a right to know, not only what is going on in the courts, but also who the principal actors are, Lady Hale said.  This is particularly so where notorious criminals are involved.  The public needs to be reassured that sensible decisions are being made.  On the other hand, the purpose of detention in hospital for treatment is to make the patient better, so that he/she is no longer a risk either to himself or to others.  That whole therapeutic enterprise may be put in jeopardy if confidential information is disclosed in a way that enables the public to identify the patient, Lady Hale said.  The public’s right to know therefore had to be balanced against the potential harm, not only to the patient, but to all the others whose treatment could be affected by the risk of exposure.

As for application in this case, Lady Hale noted that this was “a horrendous crime” that had caused “incalculable distress to the families of the victims”.  She noted that all victims have certain rights under the Domestic Violence, Crime and Victims Act 2004, mediated through the providers of probation services.  Such rights, though limited, should enable the providers to reassure the victims’ families that the arrangements made for the discharge of the patient will not put them at risk in any way.

The public too has an interest in knowing how difficult and sensitive cases of this sort are decided, both by the Secretary of State and by the courts, Lady Hale said.  That public oversight is usually protected by holding the hearing in public, so that the kinds of evidence and arguments considered are known, even if the identity of the patient concerned is not.  In this case, it was the media interest with which the Supreme Court was principally concerned.

Lady Hale said that, in favour of anonymity, were all the general considerations about harm to C’s health and well-being, the “chilling effect” of a risk of disclosure, both upon his willingness to be open with his doctors and other carers, and upon his willingness to avail himself of the remedies available to challenge his continued deprivation of liberty, long after the period deemed appropriate punishment for his crimes has expired.  Added to those were the specific risk elements identified in evidence.  The existence of a risk to C from members of the public was also acknowledged in letters from the Secretary of State and reflected in the Parole Board’s requirement that he change his name.  The evidence showed that C was much more likely to be able to lead a successful life in the community if his identity was not generally known.  The risk of “jigsaw” identification, of people putting two and two together, would remain despite the change of name, Lady Hale said.

Balancing all these factors, Lady Hale concluded that an anonymity order was necessary in the interests of C.  Without it, she said, there was a very real risk that the progress C had made during his long years of treatment in hospital would be put in jeopardy and his re-integration in the community, which was an important purpose of his stay in hospital, would not succeed.  The court therefore allowed the appeal and maintained the anonymity order already in place.  (R (C) v Secretary of State for Justice [2016] UKSC 2 – to read the judgment in full, click here).

High Court finds no “serious harm” in England and Wales to reputation of Portuguese libel claimant.

The defendant, Impresa Publishing SA, was the publisher of the weekly Portuguese newspaper Expresso.  The claimant, Alvaro Sobrinho, was a citizen of Portugal and Angola.  He was an international banker, employed by Banco Espirito Santo (BES), which was, until 2014 when it collapsed, the second largest bank and financial institution in Portugal.

In June 2014, Expresso published an article (both in hard copy and online) alleging that Mr Sobrinho’s bad management of BES had led to its collapse and that he had embezzled millions of dollars from the failing bank.

Mr Sobrinho commenced libel proceedings first in England and then in Portugal.  The Portuguese proceedings were subsequently dropped.

Mr Justice Dingemans had to consider, as preliminary issues, (i) whether s 1 of the Defamation Act 2013 (the “serious harm” test) was satisfied; and (ii) whether the action should be dismissed as an abuse of process.

In Dingemans J’s judgment, the publication in England and Wales of the article and that part of the article which had been published online had not caused serious harm to Mr Sobrinho’s reputation in England and Wales as at December 2015 and January 2016, was not likely to do so.

Dingemans J did not come to a firm conclusion as to exactly why publication had not caused, and was not likely to cause, Mr Sobrinho serious harm in this jurisdiction.  It may have been that the very limited extent of the publication in England and Wales avoided such serious harm; or it may have been that because the text of the article had set out Mr Sobrinho’s defence, the detrimental effect of the meaning of the article had been lessened.  Alternatively, Dingemans J said, it may have been that because Mr Sobrinho had an established and good reputation in England and Wales no one believed the article so far as it concerned him.  It may also have been because there had been a Parliamentary inquiry in Portugal into the collapse of BES, during which Mr Sobrinho had given evidence that had allowed him to put the matter straight.  The inquiry had been covered by the Portuguese media and had been made available in England to the same extent that the publication of the article had been available in England.  This meant that if there had been no need to pursue proceedings in Portugal because Mr Sobrinho’s reputation had been restored, the same applied in England and Wales. “At the end of the day I am unable to identify, on the evidence, why no serious harm was caused to Mr Sobrinho’s reputation, but there was none”, Dingemans J said.

Dingemans J also concluded that pursuit of the proceedings was “not worth the candle” and was a Jameel abuse of process.  This was because Mr Sobrinho’s reputation had been so effectively restored by the reporting of his and other evidence to the Parliamentary inquiry in Portugal that it was no longer worth the time, effort and expense of pursuing proceedings in Portugal, and because coverage by the Portuguese media was available in England and Wales to about the same extent that the publication of the article was available in England and Wales.  (Alvaro Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) (22 January 2016) – to read the judgment in full, click here).

Pilot scheme begins allowing public and media access to Court of Protection hearings.

A new Pilot Practice Direction will apply to new proceedings issued from 29 January 2016 onwards.  Hearings scheduled already under the old rules will not be changed, but some urgent open hearings will feed through to the courts from next month.

The Practice Direction will effectively change the default position to one where hearings are held in public with reporting restrictions to protect identities.  This means that when an order has been made under the pilot, both the media and the public will be able to attend, unless a further order has been made which excludes them.  This will also apply to proceedings issued pre-29 January, but where a further hearing becomes necessary after the start date.

The specialist Court makes decisions about the personal welfare (e.g. medical treatment) and the property and affairs of persons who lack capacity to make them themselves, applying a best interests test.  The Court of Protection’s main base is in London but it also sits throughout England and Wales.

Court of Protection judgments have been routinely published since 2010 and serious medical cases (such as a decision to stop life support) are held in public, with the identities of those concerned kept anonymous.  Committal hearings where a custodial sentence is imposed are also held in public.

Her Majesty’s Courts and Tribunals Service (HMCTS) is also amending the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing.  Lists will be published on a weekly basis in court buildings and online at www.courtserve.net.

The pilot is expected to run in all regions for at least six months (with the possibility of extension) to allow for the changes to be fully tested.  Media organisations consulted during the pilot’s development included the Society of Editors and the News Media Association.

In an advisory role, the Ministry of Justice Analytical Services will seek to understand how the pilot has been implemented and how it has worked in practice, exploring issues such as accommodating press and the public in courtrooms, and any publication or unwanted disruption attributed to the changes.

Sir James Munby, President of the Court of Protection, said: “For the last six years accredited media have been able to attend Family Court cases and have been better informed about the work of the Family Court as a result.  It is logical to look at extending this greater transparency to the Court of Protection, provided the right balance can be struck to safeguard the privacy of people who lack capacity to make their own decisions”.  To read the Society of Editors’ press release in full, click here.

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Film & TV

Ofcom publishes annual research into UK viewers’ perceptions of content standards for on-demand and online content.

The research covers the full range of content available on-demand and online, from “catch up” TV services to user-generated video clips and subscription services such as Amazon Prime.

Around 2,100 adults, and 500 teenagers aged between 12 and 15, were asked for their views about content standards for on-demand and online services.

Around one in ten adults (12%) claimed to have seen something that concerned them, rising to 28% for teens.  Bullying/victimisation is now one of the top concerns for parents (37%) about online content, alongside violence (54%) and the welfare of children/young people (36%).

This work supports Ofcom in its role in protecting viewers, especially children, and will help inform future decisions on how best to protect people who use these services.

Ofcom works as part of the UK Council for Child Internet Safety (UKCCIS) to help address concerns about online safety and chairs a working group on social media.  The group produced a practical guide on online child safety for social media providers, published in December 2015, which can be accessed here.  To access Ofcom’s research, click here.

High Court grants Norwich Pharmacal Order in copyright infringement case involving transmission of Premier League football matches.

In September and November 2014 two Premier League football games were screened to members of the public at the pub, The Spiders Web in Grimsby, owned by the defendants, Richard and Mandi Wells.  Mr and Mrs Wells did not have the permission of the claimant, the Football Association Premier League Ltd (FAPL), which was the holder of the copyright in the graphics associated with Premier League games, to transmit those matches to the general public.

FAPL issued proceedings against Mr and Mrs Wells seeking various orders, including a declaration that there had been an infringement of copyright, an injunction to restrain Mr and Mrs Wells from repeating the acts of infringement of FAPL’s copyright and various consequential orders.

FAPL applied to the court for judgment in default of Mr and Mrs Well serving an acknowledgment of service.  This was granted by Mr Justice Snowden, who also had to consider FAPL’s request for Norwich Pharmacal relief in the form of an order that Mr and Mrs Wells provide details of all dealings with, including the identities of, their supplier/s of any set top box, decoded card, IPTV box and/or other goods and/or services used to screen the matches.

Snowden J noted that such relief is conventionally granted, as a matter of last resort, against a non-wrongdoer who has become mixed up in wrongdoing requiring them to disclose to a claimant the identity of a person against whom the claimant believes that they may have a cause of action, so as to assist the claimant to decide whether to bring proceedings.  This case was not, Snowden J said, “entirely on all fours” because the allegations here were that Mr and Mrs Wells themselves were wrongdoers who had infringed FAPL’s copyright.

However, Snowden J decided that, following Wilko Retail Limited v. Buyology Limited [2014] EWHC 2221 (IPEC), he did have jurisdiction to make such an order.  In Wilko, His Honour Judge Hacon had declined to grant relief on the facts, but had granted relief under the Norwich Pharmacal regime by referring to the provisions of Article 8 of the Enforcement of Intellectual Property Rights Directive (2004/48/EC), which provides that, in IP infringement proceedings, a court can order that information on the origin and distribution networks of the goods or services which infringe an intellectual property right be provided “by the infringer and/or any other person who” is involved in the infringement in question on a commercial scale.

In Snowden J’s view, Article 8 is “directly targeted at the type of relief that is sought in this case”.  He noted that Article 8 does not have direct effect under English law, but as Mr Justice Arnold said in Cartier International v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch), the English courts have a duty to interpret s 37 of the Senior Courts Act 1981 so as to give effect to the Directive so far as possible.  Snowden J said that this was probably the reason that had underpinned HHJ Hacon’s decision in Wilko Retail that he did in fact have the jurisdiction to make the type of order sought.

Accordingly, Snowden J made an order requiring Mr and Mrs Wells to provide, within 14 days, information identifying the persons who had provided them with the goods or services that had enabled them to screen the infringing Premier League football games in 2014.  (The Football Association Premier League Ltd v Richard Alan Wells [2015] EWHC 3910 (Ch) (7 December 2015) — to read the judgment in full, click here).

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Computer Games

British Film Institute figures show 237 games were approved for Video Games Tax Relief in 2015.

Ukie reports that new figures from the BFI show “the positive impact that the Video Games Tax Relief is having on growing the UK games industry”.

The statistics show that, in total, 237 games received certification in the scheme’s first full calendar year, with a total EEA/UK spend of £728.9 million.  Of these 237, 116 have been confirmed for final certification (meaning the final claims have been paid out on finished games), with 121 remaining in interim stages (for games that have not yet been finished).

Total combined budgets for the games given final certification was £180.9 million, with budgets for the interim projects totalling a further £548 million; this all adds up to a total of £728.9 million EEA/UK spend.

The tax relief gives a return to the developer of around 20% of their qualifying production costs, meaning that Video Games Tax Relief delivered a value to UK games businesses in 2015 of roughly £145 million (20% of the EEA/UK spend).

The BFI stats show that the average UK spend for games with final certification experienced a huge increase from Q1-3 to Q4, growing from £600,000 to £3.4 million, showing a wide range in the budgets of the projects being funded.

Ukie CEO, Dr Jo Twist, responded to the stats, saying: “These figures show that the Video Games Tax relief is working to encourage strong growth in our sector.  The high interim figures also indicate that this is only expected to show more growth in the coming months and years, with more culturally British games being created in the UK with a wider range of budgets.  Now that we have a clearer picture of the impact, with the full first year’s figures, Ukie would like further detail to be provided, starting with a regional breakdown of the numbers to show how VGTR is helping across the country.  We are now undeniably in a stronger place thanks to VGTR.  We have a level playing field with the rest of the world, and now we need to capitalise on that opportunity.  Initiatives such as the Mayor-funded Games London plan and the London Games Festival, which will showcase why the UK is games capital of the world, are showing what we can achieve with the right support in place”.  To read Ukie’s press release in full and for a link to the BFI statistics, click here.

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