Need to Know 15.03.23

This is our summary of some of the key legal developments across a range of sectors covering the period 13 to 19 March 2015.

It is intended for reference purposes only and does not constitute definitive advice. Links to the original source materials are included where there are no restrictions in terms of access. References may also be made to sources that require separate registration or subscription. A link to a source does not necessarily imply endorsement of the source or the material provided through the link. For further information on any of the matters discussed in this summary please contact Alexander Ross. If you have any comments, queries or suggestions please contact us at comments. All suggestions and comments are most welcome.

General

Government gives additional boost to UK creative industries in Budget 2015.

Ofcom publishes research on the media and communications activities of adults.

Competition and Markets Authority publishes open letters setting out guidance to secondary ticket business sellers and secondary ticket websites.

Technology

Ofcom announces that it has made the Wireless Telegraphy (Ultra-Wideband Equipment) (Exemption) Regulations 2015.

Ofcom publishes final statement on its review of mobile call termination markets.

Ofcom publishes statement on mobile donor conveyance charges for period 2015 to 2018.

European patent reform is the focus of talks between UK IP Minister and European Patent Office.

Nominet consults on proposed policy to clarify what data about domain name holders is published in the .UK WHOIS.

Broadcasting

Ofcom threatens statutory sanctions for Broadcasting Code breaches arising from election-related programming

Litigation

Regulations governing alternative dispute resolution for consumer disputes laid before Parliament.

Publishing

High Court awards US law firm and its principal £50,000 in damages in respect of defamatory online review posted by defendant via his Google account in the UK.

Court of Appeal finds that to mount a claim for harassment a claimant need not be targeted if he/she was foreseeably and directly harmed by the conduct.

Film & TV

Ofcom publishes Terms of Reference for a new project considering access to on-demand services on TV platforms.

Computer Games

TIGA applauds new support for UK video games sector announced in Budget 2015.

UKIE reports that PEGI age ratings are expanding to mobile.

Advertising

Advertising Standard Authority announces publication of European Interactive Digital Advertising Alliance’s 2014 Activity Report on online behavioural advertising.

General

Government gives additional boost to UK creative industries in Budget 2015.

In last week’s Budget, Chancellor of the Exchequer George Osborne followed up on the introduction of tax relief for high-end television programmes, animation, video games and theatre productions and the expansion of the successful tax relief scheme for films by announcing further welcome support to the UK creative industries.

Increase in the rate of film tax relief: the Government will increase the rate of film tax relief to 25% for all qualifying expenditure, subject to state aid clearance, from 1 April 2015.

New tax relief for children’s television: the Government will introduce a new tax relief for the production of children’s television programmes from 1 April 2015.  This will include game shows or competitions.  The relief will be available at a rate of 25% on qualifying expenditure

Reduction in the level of minimum UK expenditure for high-end television tax relief: currently, at least 25% of total qualifying expenditure on a high-end television programme must be UK expenditure in order to qualify for any UK tax credit.  This minimum UK spend threshold will be reduced from 25% to 10% from 1 April 2015, bringing the relief in line with the tax relief scheme for films.  This reduction in the minimum UK spend threshold for the tax relief scheme for films has had the effect of encouraging minority co-productions and increasing the number of films being attracted to the UK to utilise its world-class post-production/VFX facilities and skills base.

Modernised Cultural Test for high-end television programmes: the Government will modernise the Cultural Test under the tax relief scheme for high-end television programmes to align it with the Cultural Test under the tax relief scheme for films, which itself was modernised with effect from April 2014, to become a 35-point test (previously 31) with a pass mark of 18 (previously 16) to align itself with incentives in other EU Member States and to support the post-production/VFX sector and wider film production.

New tax relief for orchestras: the Government will provide tax relief to orchestras at a rate of 25% on qualifying expenditure from 1 April 2016.  The Government has consulted on the design of the relief and a summary of responses will be published shortly.

Skills Investment Fund: the Government will provide £4 million to extend the existing Skills Investment Fund for a further two years, providing funding for training and development in film, television, visual effects, video games and animation.

Video Games Prototype Fund: the Government will commit £4 million over four years to a new Video Games Prototype Fund, aiding access to finance and business support and targeting games development talent.  To access the Government’s Budget 2015 documentation, click here.

Ofcom publishes research on the media and communications activities of adults.

The research explores when and how people use services and devices throughout the day, covering personal and business use.

The research stems from the findings in the Digital Day 2014 consumer research, which were published in August 2014 as part of the Communications Market Report 2014.  Using data from the adults’ study, the report looks at “media multitasking”, the simultaneous use of media and communications services.

The research is part of a series of in-depth studies looking at particular groups within the data sets collected in the Digital Day 2014 consumer research.  To access the research, click here.

Competition and Markets Authority publishes open letters setting out guidance to secondary ticket business sellers and secondary ticket websites.

Publication of the letters follows the CMA’s investigation into the secondary ticket market and the undertakings it obtained from four of the largest UK secondary ticket platforms to ensure that buyers get improved information about the tickets available for sale.

The letters aim to raise awareness of the CMA’s expectations of business sellers and website operators and to provide assistance in complying with the relevant legal obligations.

Amongst the CMA’s expectations are the need to: i) provide information about the actual face value of the ticket; ii) only list multiple tickets in a single location if they are located together; iii) provide information as to any restrictions on entry (such as age restrictions); and iv) ensure buyers are made aware of the seller’s position as a trader (i.e. not a consumer).

These expectations reflect the position under the Consumer Protection from Unfair Trading Regulations 2008, which require businesses to give consumers, in a clear, intelligible, unambiguous and timely manner, all the information they need to make informed transactional decisions (even when selling through an online platform or marketplace).  In addition, the CMA reminds readers that the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 apply where contracts are concluded online, and require businesses to give consumers important information before they buy.

The letters also recommend keeping up to date with any changes in the law, as a failure to do so could result in enforcement by either the CMA or Trading Standards Services, which could lead to civil and/or criminal action.

Additionally, the letters remind readers to take “particular account” of the Consumer Rights Bill, currently at an advanced stage of its passage through Parliament, which includes provisions which, if passed by Parliament, will introduce a new duty on secondary ticket platforms (or facilities as they are described in the Bill) to report criminal activity, and will introduce financial penalties (up to £5,000) for secondary ticketing platforms and sellers who fail to provide information to buyers about seat location, restrictions and face value.  To read the CMA’s letter to business sellers, click here.  To read the CMA’s letter to website operators, click here.

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Technology

Ofcom announces that it has made the Wireless Telegraphy (Ultra-Wideband Equipment) (Exemption) Regulations 2015.

These Regulations amend the existing Wireless Telegraphy licence exemption criteria for Ultra-Wideband (UWB) devices.

UWB Devices use very large bandwidth so are able to transmit high data rates over short distances, but transmit at very low powers so as not to interfere with other devices.  The Regulations will implement a European Commission Decision on UWB devices that harmonises the technical parameters for equipment across all Member States.  The Regulations come into force on 25 March 2015.  To read Ofcom’s statement, click here.

Ofcom publishes final statement on its review of mobile call termination markets.

Mobile call termination refers to the process of connecting a voice call to a mobile phone user receiving that call.  When a consumer calls a mobile phone user on a different network, either from a mobile or a landline, the network operator they are calling charges a “termination rate” to the provider with whom they are placing the call.

Ofcom’s final statement confirms that Ofcom is implementing a new charge control, applying to all mobile operators, which will mean that termination rates will fall further in real terms from the current rate of 0.826p per minute to 0.475p per minute in April 2017 (based on 2012/13 prices).

Ofcom is adopting a transition period, between now and 1 May 2015, for the new mobile termination rates to take effect.  Between 1 April and 30 April 2015, the mobile termination rate cap will remain unchanged at 0.845p per minute (nominal price).  To read Ofcom’s final statement, click here.

Ofcom publishes statement on mobile donor conveyance charges for period 2015 to 2018.

The statement refers to number portability, i.e. the process that enables people to retain their telephone number when they switch communications provider.  The statement concerns the level of wholesale porting charges that mobile communications providers charge each other in order to recover certain costs associated with the provision of mobile number portability.

General Condition 18 (GC18) places obligations on communications providers to provide number portability.  These include, among other things, the requirement that wholesale porting charges are cost-oriented and based on the incremental costs of providing portability.

In September 2014 Ofcom published guidance on how communications providers should set charges to meet these obligations.  In the light of the guidance, Ofcom consulted on the appropriate maximum level of certain porting charges between mobile communications providers.

Ofcom’s statement gives direction to mobile communications providers on the maximum charge they can levy on each other, related to the provision of number portability, for the next three financial years.  To read Ofcom’s statement, click here.

European patent reform is the focus of talks between UK IP Minister and European Patent Office.

UK Minister for Intellectual Property, Baroness Lucy Neville-Rolfe, and EPO President, Benoît Battistelli, met on 18 March 2015 at the EPO headquarters in Munich to discuss recent developments in the patent system in Europe and globally.

Mr Battistelli and Baroness Neville-Rolfe shared common views on recent developments, including the recent reforms implemented at the EPO concerning international harmonisation, and the upcoming unitary patent system.

Also on the agenda were joint activities between the EPO and the UK Intellectual Property Office.  The EPO and the IPO signed a co-operation agreement in March 2014, facilitating access to patent information for British businesses and scientists, as well as IT services and e-learning tools.  Companies from the UK filed more than 6,800 patents at the EPO last year.  This was up 4.8% compared to 2013, and represented the highest growth rate for the UK since 2011.  It was also well above the 1.2% average increase of the other EPO member states.  To read the EPO’s press release, click here.

Nominet consults on proposed policy to clarify what data about domain name holders is published in the .UK WHOIS.

Nominet wants to ensure that it has accurate data essential for running .UK.

Nominet’s objective is also to balance playing its part in running a safe and trusted internet with an increasing desire for privacy online.

Nominet is seeking feedback on two aspects:

  • the .UK WHOIS opt-out service: Nominet is proposing to clarify who’s eligible to opt-out of having an address published in the .UK WHOIS; and
  • registrars’ privacy services: Nominet is proposing a framework that ensures registrars offering privacy services to domain name holders still provide Nominet with accurate contact data.

The consultation will run until 3 June 2015.  To access the consultation documentation, click here.

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Broadcasting

Ofcom threatens statutory sanctions for Broadcasting Code breaches arising from election-related programming.

In the run up to the General Election, which will be held in the UK on 7 May 2015, Ofcom reminds all broadcasters that “great care” needs to be taken when broadcasting election-related programming.  In particular, broadcasters should ensure that they comply with Section Five (Due Impartiality) and Section Six (Elections and Referendums) of the Broadcasting Code, as well as the prohibition of political advertising contained in s 321 of the Communications Act 2003.

Ofcom says that it will consider any breach arising from election-related programming to be potentially serious, and will consider taking regulatory action, as appropriate, in such cases, including considering the imposition of a statutory sanction.  If a complaint is made which raises a substantive issue concerning due impartiality during the election period, Ofcom says it may expedite any investigation and “broadcasters should be prepared to engage with Ofcom on short timescales”.  To read Ofcom’s Note to Broadcasters on Election programming, published in Issue 275 of its Broadcast Bulletin (16 March 2015), click here.

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Litigation

Regulations governing alternative dispute resolution for consumer disputes laid before Parliament.

The new Regulations will implement the core provisions of the Alternative Dispute Directive (2013/11/EU).  The Regulations designate, with effect from 7 April 2015, the “competent authorities” that will be responsible for vetting and monitoring “ADR entities”, which provide alternative dispute resolution services in compliance with the specified standards set out in the Directive.  Those authorities include Ofcom and the Gambling Commission.  The Regulations also set out obligations on traders to provide certain information to consumers about accessing ADR.  These trader information requirements will come into force on 9 July 2015.

The Regulations set out the requirements that a competent authority must be satisfied that an organisation meets before it can become an ADR entity, as well as the ongoing obligations and assessment of ADR entities.  The Regulations also require traders who are obliged to use ADR to provide information regarding the ADR entity they use on their websites and in their general terms and conditions.  Traders must also provide a consumer with information regarding the availability of ADR when the trader has exhausted its internal complaint handling process in relation to a complaint brought by that consumer.  The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015/542 can be accessed here.  An Explanatory Memorandum to the new Regulations is available here.

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Publishing

High Court awards US law firm and its principal £50,000 in damages in respect of defamatory online review posted by defendant via his Google account in the UK.

The second claimant, Mr Timothy Bussey, was a lawyer practising in the state of Colorado in the United States through his law firm, The Bussey Law Firm PC, the first claimant, and of which he was the principal.

Mr Bussey issued libel proceedings in the UK as a result of a defamatory allegation posted on his Google Maps profile.  The posting read as follows:

A Google User received 10 months ago

Overall Poor to fair

Scumbag Tim Bussey, pays for false reviews, loses 80% of his cases.

Not a happy camper

3 out of 3 found this review helpful.”

The posting was made alongside a number of positive reviews of the firm and the services offered, which rated them as “excellent”.  The offending post was not only directly defamatory of both claimants, Sir David Eady said, but also inevitably had the effect of undermining those commendations.

The central issue on liability was whether the claimants could prove to the required standard that the defendant, Jason Page, was responsible for the posting.

Mr Page admitted that the posting had been made from his Google account.  As Sir David said, “He could hardly do otherwise”.  This fact was established by Mr Bussey who had instructed a firm of California lawyers to obtain a subpoena in respect of Google’s records.  Mr Page’s response was to advance certain hypothetical explanations as to how an unidentified third party might have posted the allegations via his account, but without his knowledge.

Sir David found that, in the light of the probabilities, the likelihood was, in the absence of any convincing explanation to the contrary, that the posting from Mr Page’s account was authored or authorised by him.  It was “extremely improbable”, he said, that anyone had successfully hacked into Mr Page’s account with a view to posting the words complained of.

As for damage, Sir David said that the publication was calculated to cause serious harm to Mr Bussey’s firm and, in particular, to Mr Bussey’s personal and legal practice reputation.  Sir David found that it was likely to have been read by a significant number of people and, in particular, by potential clients.  Taking into account the need to compensate for injury to the firm’s, and Mr Bussey’s, reputation and the need for clear vindication, Sir David awarded a total of £50,000 in damages, which amounted to the voluntary cap the parties had already agreed to.  Sir David declined to grant punitive damages, but only because the voluntary cap had been reached, implying that, in the absence of such cap, he would have awarded a further £25,000.  (The Bussey Law Firm PC v Jason Page [2015] EWHC 563 (QB) (6 March 2015) – to read the judgment in full, click here).

Court of Appeal finds that to mount a claim for harassment a claimant need not be targeted if he/she was foreseeably and directly harmed by the conduct.

The question for the Court of Appeal was whether a person who had been harmed from harassment aimed at someone else could avail themselves of the protection of the civil remedies afforded under the Protection from Harassment Act 1997.

Mrs Carole Levi, the second claimant, claimed damages and an injunction against Mr Bates, the first defendant, in relation to statements made by Mr Bates in Leeds United Football Club’s match programmes, which had already been found to be defamatory of Mrs Levi’s husband, Mr Melvyn Levi, who was the first claimant.  The defamatory statements related to a grudge Mr Bates held against Mr Levi in connection with the transfer and ownership of the Club.

In one match programme, Mr Bates had suggested that readers should put questions to Mr Levi to justify his behaviour and had published Mr and Mrs Levi’s home address.  In another, Mr Bates had written “Thanks Melvyn.  By the way, you do know that your phone number is in the book don’t you”.  The phone number clearly referred to that of Mr and Mrs Levi.

At first instance, the judge had found that, although Mrs Levi would have been affected by the suggested confrontations and concerned that club supporters knew her address and telephone number (the police had in fact advised the Levis to take precautions and a special response alarm had been fitted at their home), which might well have caused her alarm and distress, the publications had not been targeted at her and therefore she could not claim under the 1997 Act.

Lord Justice Briggs, examining the authorities, however, found that “targeting” referred to the concept of targeted behaviour, i.e. behaviour aimed at someone, rather than behaviour which was not aimed at anyone, but which might cause alarm or distress (such as a person driving a fast car through a neighbourhood, speeding and driving dangerously, thereby causing alarm and distress, but not targeting anyone).

Further, Briggs LJ said, the conduct complained of need not be “targeted” at a claimant if he or she is foreseeably likely to be directly alarmed or distressed by it.  After all, the only express requirement in the 1997 Act was that the claimant be a victim of the relevant course of conduct (s 3(1)).

Briggs LJ agreed with the judge that alarm or distress suffered out of sympathy for the targeted victim of harassment (in this case Mr Levi) was insufficient to found a claim under the Act.  A claimant had to be harassed by it, in the sense that the conduct complained of must have had some direct effect upon the claimant in terms of causing foreseeable harm, usually, but not limited to, alarm and distress, he said.  Briggs LJ’s view that the harm must be foreseeable arose from s 1(1)(b), which requires that the perpetrator knows or ought to know that the relevant course of conduct amounts to harassment.

Therefore, Briggs LJ said, “the ability to bring a harassment claim extends beyond the targeted individual only to those other persons who are foreseeably, and directly, harmed by the course of targeted conduct of which complaint is made, to the extent that they can properly be described as victims of it”.

Here, it was clearly foreseeable that, by directing hostile acts at Mr and Mrs Levi’s home and inciting club supporters to participate in Mr Bates’ campaign against Mr Levi, Mrs Levi would suffer alarm and distress by an apprehension that supporters would attend or telephone her home, even if, in the event, it did not actually happen.

Further, Briggs LJ said, there were no free speech issues under Article 10 of the European Convention on Human Rights that impacted on this particular situation.

Therefore, Briggs LJ said, the judge had been wrong to exclude Mrs Levi’s claim and she was entitled to damages of £6,000, but not an injunction.  (Melvyn Levi v Kenneth Bates [2015] EWCA Civ 206 (12 March 2015) – to read the judgment in full, click here).

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Film & TV

Ofcom publishes Terms of Reference for a new project considering access to on-demand services on TV platforms.

On the basis that video on-demand services are becoming increasingly popular, Ofcom is now commencing work to consider how consumers access these services and whether any concerns exist if access to these services is limited on the TV platforms used to watch traditional broadcast services.  The purpose of the Terms of Reference is to inform stakeholders of the focus and scope of the assessment, and Ofcom’s intended approach in advance of a consultation document setting out its preliminary views.

Areas of interest will include the availability and integration of linear TV channels with VOD services and content services delivered over-the-top (OTT) using the internet, as well as user interfaces and navigation services which enable the content available on the platform to be easily discoverable.  In particular, Ofcom will consider the potential for platforms to act as a gateway, which might result in competitive distortions and poor consumer outcomes.  Comments on the Terms of Reference must be received by 17 April 2015.   To read Access to on-demand services on TV platforms – Terms of Reference, click here.

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Computer Games

TIGA applauds new support for UK video games sector announced in Budget 2015.

TIGA, the network for games developers and digital publishers and the trade association representing the UK videogames industry, has strongly applauded the Government’s decision to launch a new £4 million Prototype Fund to help start-ups in the video games sector, as announced in Budget 2015.

The Government also announced an additional £4 million funding over the next two years to support the Skills Investment Fund.  TIGA says that it has been campaigning for both measures and engaging with policy makers to achieve this.

TIGA presented seven key proposals to policy makers, political parties and the Government in the Autumn Statement 2014 and in the run-up to the 2015 Budget:

  • a Prototype Fund should be made available to enable start-up studios to access finance and develop playable prototypes;
  • a Creative Content Fund should be established in order to encourage new studio formation, stimulate creativity, new content development and IP generation;
  • the amount of money that a company can raise via Seed Enterprise Investment Schemes should be increased from £150,000 to £200,000 per annum to reflect the rise in development budgets required to make internationally competitive games;
  • an Export Tax Relief (currently illegal under EU law) should be explored with the EU as it would incentivise more small firms to export, thereby promoting export-led economic growth;
  • regional/national “Games Development Incubators” should be established at a university or at a consortium of universities in each of the English regions and in each of the nations within the UK to enable more successful start-ups, boost universities and power regional growth;
  • a pilot Training Tax Relief should be introduced for small and medium-sized enterprises to enable them to offset expenditure on training, Continuous Professional Development for staff, and education outreach activities, against corporation tax; and
  • the Skills Investment Fund should be maintained to enable UK games businesses to enhance skills in the games industry.

Dr Richard Wilson, CEO or TIGA, said: “TIGA applauds the new support promised by the Chancellor in the Budget for the UK video games sector.  Following the achievement of Games Tax Relief, TIGA’s top priority has been the achievement of a new Prototype Fund to enable start-up studios to access finance and develop playable prototypes.  TIGA also called for the maintenance of the Skills Investment Fund, a measure that enables more studios to invest in skills, training and workforce development.  TIGA submitted seven key proposals in our Budget Submissions to the Government and we are thrilled that the Chancellor has supported two of them.  This is a great day for the UK video games development and digital publishing sector.”  To read TIGA’s press release in full, click here.

UKIE reports that PEGI age ratings are expanding to mobile.

PEGI has announced an expansion of its age ratings which means they will appear on apps released on more mobile and digital storefronts in Europe, as part of a global initiative called IARC (the International Age Rating Coalition).

IARC was established to streamline the process for getting an age rating for digital games.  The IARC process, which makes it easier and free for developers and publishers to get a territory age rating for their games through one questionnaire, is now being used across Google Play and the Firefox Marketplace, with the aim to roll out across other platforms at a later date.  UKIE says that there is no cost to developers or publishers to get their ratings via IARC and the process is designed to be fast and easy.

IARC signals the first time international ratings organisations have joined forces to agree a unified process that simultaneously generates ratings for multiple territories such as PEGI (for Europe), ESRB (for North America), ClassInd (for Brazil), USK (for Germany) and the Classification Board in Australia.  More rating authorities are expected to join up in the future and publishers/developers releasing games on platforms which have signed up to IARC will be required to use the IARC procedure.

CEO of UKIE, Dr Jo Twist said: “We are pleased to see major mobile platforms adopting the new IARC system, making it easy and, importantly, free for businesses that publish games to get age ratings across a number of major games markets.  Having PEGI ratings on more mobile platforms across Europe also means that we have a more consistent and clear rating process to help consumers understand which games are appropriate for all ages.  The introduction of IARC, and its ability to give developers and publishers a territory-relevant rating via one online questionnaire, plus the work the industry has put into the system globally, reflects how seriously the games industry considers its responsibility to players.

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

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Advertising

Advertising Standard Authority announces publication of European Interactive Digital Advertising Alliance’s 2014 Activity Report on online behavioural advertising.

The EDAA has published its 2014 Activity Report, detailing the work being undertaken across Europe, including by the ASA, to help give consumers greater transparency and control over online behavioural advertising.

The ASA took up responsibility for enforcing the rules on OBA in February 2013.  The rules require third parties that deliver behaviourally targeted ads to make clear they are doing so, and to provide a relevant opt-out mechanism on their own website and on the OBA ads that they serve by, for example, including the “Your Online Choices” icon on their advertisement.

According to Nick Stringer, the EDAA Chair, the EDAA Activity Report highlights that more and more businesses are “delivering innovative ways for consumers to manage their privacy” and that people are now more aware of the privacy management tools available, such as the “Your Online Choices” icon.

However, Mr Stringer says, “there is still much work to do” and the EDAA’s processes need to “deliver a globally aligned and efficient initiative for both companies and consumers”, but also to continue to boost awareness of the privacy tools on offer.  For a link to the EDAA Report, click here.

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