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August 6, 2012
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Richard Hooper publishes final report on feasibility of developing a Digital Copyright Exchange.
House of Lords Select Committee on Communications publishes report on Government’s broadband strategy: Broadband for all – an alternative vision.
PhonepayPlus publishes update to its Notice to Industry on “Changes to prior permissions from 1 September 2011”, issued August 2011.
Google tells Information Commissioner’s Office that it still has some payload data collected by Street View vehicles in UK.
Government consults on legislating to give consumers access to data in an electronic, machine-readable form.
High Court quashes search warrants issued against supplier of foreign decoder cards to pubs showing Premier League.
High Court finds media finance company was owner of all IP rights in Michael Jackson tribute concert and was entitled to recover full amount from concert organiser.
UK Music, PRS for Music and PPL welcome Richard Hooper’s final report on feasibility of developing Digital Copyright Exchange.
High Court continues anonymity orders in privacy injunction cases despite injunctions being discharged by consent.
Press Complaints Commission rejects complaint following undercover activity to produce articles published in the Independent newspaper.
Competition Commission finds Sky’s acquisition and distribution of movies in the first pay window does not adversely affect competition in the pay-TV retail market.
British Film Commission and UK Trade & Investment form new partnership to provide extra £400,000 to BFC’s budget over next two years.
Advertising Standards Authority bans online gaming promotional ad claiming full refund if no win.
PEGI now in force as the single age-rating system for video games in UK.
Advertising Standards Authority publishes research into the public’s views on what is harmful and offensive in UK advertising.
Committee of Advertising Practice publishes help note on advertising in video-on-demand services.
Richard Hooper publishes final report on feasibility of developing a Digital Copyright Exchange.
The recommendation to facilitate an industry-led Digital Copyright Exchange came from Professor Hargreaves’ Review of Intellectual Property and Growth, published in May 2011. Business Secretary Vince Cable asked Richard Hooper, one time Deputy Chairman of Ofcom, to undertake a detailed analysis of whether and how such a proposal might work.
The report, “Copyright works: Streamlining copyright licensing for the digital age”, is Richard Hooper’s final report on the feasibility of developing a Digital Copyright Exchange. The report’s two key recommendations are the creation of a not-for-profit industry-led, industry-funded “Copyright Hub”, and the establishment of a steering group to drive forward and oversee the design and implementation of the Hub. The Copyright Hub would have five main purposes:
- to act as a signpost and be a navigation mechanism to the complex world of copyright;
- to be the place to go for copyright education;
- to be the place where any copyright owner can choose to register works, the associated rights to those works, permitted uses and licences granted;
- to be the place for potential licensees to go for easy to use, transparent, low transaction cost copyright licensing; and
- to be one of the authoritative places where prospective users of orphan works can go to demonstrate they have done proper, reasonable and due diligence searches for the owners of those works before they digitise them.
Richard Hooper said: “If the UK is to maintain and improve its position as world leader in the creative industries then it needs an efficient and responsive system to manage the use of creative rights. Setting up an industry led and industry-funded Copyright Hub will help maximise the potential for creators and rights owners on the supply side and the wide range of licensees and users on the demand side. Creating a single marketplace for copyright licensing would not only reduce the costs of licensing and simplify a complex system that can be difficult to navigate but would also bring together key players to have a more effective exchange and use of rights. This will only help boost economic growth, ensuring that both the industry and consumers are making the most of the UK’s creativity”. For further information and a link to the report, click here.
House of Lords Select Committee on Communications publishes report on Government’s broadband strategy: Broadband for all – an alternative vision.
The report states that the Government’s broadband strategy focuses too much on delivering speed, and risks leaving people and businesses in areas of the UK behind. The Committee says that the Government should be focusing more on access and the imperative of creating a “future proof” national network that is built to last. The Committee is concerned that the Government’s investment in this area could be a “tremendous missed opportunity, albeit that it is not too late to change course”.
As part of an alternative approach, the Committee argues that policy in this area should be driven by the need to arrest and ultimately eliminate the digital divide, rather than deliver enhanced provision for those with already good connections. Fundamentally, the Committee says that broadband provision should be considered a key part of the national infrastructure.
The Committee says that the Government should be creating a “robust and resilient national network, bringing open access fibre-optic hubs within reach of every community”. Open access to these fibre-optic hubs would provide a platform for local communities and businesses to access the broadband provision they want in the short term, and to upgrade that access flexibly as needs evolve over time.
The Committee also recommends that:
- Ofcom actively considers changes to several aspects of the regulatory regime;
- the Government undertakes a detailed costing of the Committee’s proposal, not least because it removes the final mile, the most expensive per capita component of the network, from the costs requiring public subsidy;
- the Government pays urgent attention to the way public funds are being distributed, particularly the operation of the Rural Community Broadband Fund; and
- the Government and industry consider the long term possibility of switching terrestrial broadcast from spectrum to the internet.
Commenting on the report, Committee Chairman Lord Inglewood said: “The Government is quite right to make broadband a policy priority – barely an aspect of our lives isn’t touched in some way by the internet, and developments look set to continue apace in the future…. Our communications network must be regarded as a strategic, national asset. The Government’s strategy lacks just that – strategy. The complex issues involved were not thought through from first principle and it is far from clear that the Government’s policy will deliver the broadband infrastructure that we need – for profound social and economic reasons – for the decades to come”. To read the Committee’s press release in full and for a link to the report, click here.
PhonepayPlus publishes update to its Notice to Industry on “Changes to prior permissions from 1 September 2011”, issued August 2011.
The update clarifies the identity of the persons who are required to apply for and hold prior permission certificates in respect of any services that fall within service categories requiring prior permission.
Providers of certain categories of premium rate service (PRS), which are deemed to carry a higher than normal risk to consumers, are required to seek prior permission from PhonepayPlus before they operate.
Providers who are granted prior permission agree to abide by any conditions set out in the prior permission certificate. Such conditions may vary by service category, and a failure to comply with them may result in the terms of the prior permission being breached and the prior permission being withdrawn, and/or the Executive formally raising a breach of the PhonepayPlus Code of Practice, for which a Tribunal may impose a range of sanctions.
The latest edition of the PhonepayPlus Code of Practice (twelfth), which took effect on 1 September 2011, shifted the responsibility for compliance with specific rules and outcomes relating to the operation and promotion of PRS from the “Service provider” (as defined in the eleventh edition of the Code) to the providers who control or are actually responsible for those aspects of the service. It is these registered providers that must seek and hold prior permission certificates before operating their services. Where more than one provider is involved in the provision of a particular PRS, they must all have prior permission.
As for the application process, it is the provider who is contracted to, or has arrangements with, the network operator in respect of the provision of the service that requires prior permission who will need to apply for the permission. Where more than one provider is involved, the application must set out details of all associated providers,
how the conditions of the permission will be divided between them, and confirmation from all associated providers that the application is correct. If prior permission is granted, then each provider listed in the application will receive a copy of the prior permission certificate (in which they will be named), which will clearly set out the conditions that each provider is responsible for and must comply with.
In the event of a breach of a key condition of permission, only the relevant responsible provider will be held liable, and not a provider who has no control over the fulfilment of the particular condition (although such providers may have separate due diligence and risk assessment obligations under the Code).
Any provider who fails to commence operation of its service(s) within six months of the issue of a prior permission certificate will need to re-apply for permission. To read the update in full, click here.
Google tells Information Commissioner’s Office that it still has some payload data collected by Street View vehicles in UK.
Google has written to the ICO confirming that it “still has in its possession a small portion of payload data collected by our Street View vehicles in the UK”. It has apologised for the error.
Having conducted a review of its handling of Street View disks, it would appear that Google also still has payload data from other countries as well. It says it is in the process of notifying the relevant authorities in those countries.
In its letter, Google states that it would like to delete the data but seeks the ICO’s instructions as to how to proceed.
The ICO responded by informing Google that it wants to examine the contents of the UK payload data and asking that the data be stored securely and made available to the ICO immediately.
The ICO has also published a statement saying that the data Google admits to still having should have been deleted in December 2010. “The fact that some of this information still exists appears to breach the undertaking to the ICO signed by Google in November 2010”, an ICO spokesperson said, adding that “The ICO is clear that this information should never have been collected in the first place and the company’s failure to secure its deletion as promised is cause for concern”. To read the ICO statement in full, and for links to the correspondence, click here.
Government consults on legislating to give consumers access to data in an electronic, machine-readable form.
Currently, consumers cannot easily access or use the data that is collected about them and their behaviour by businesses in order to develop new products and services. The Government project, “midata”, which is part of the Government’s consumer empowerment strategy, aims to give consumers more control and access to their personal data.
The Government claims that giving people access to their own data has the potential to “open up a wealth of opportunities for consumers and will benefit the whole UK economy”:
- Having information about their own transactions can enable consumers find a better deal, make savings, find services better suited to their needs or reveal useful things about their spending habits; and
- midata also creates opportunities for new markets to develop where businesses help consumers use their data to make better consumption decisions and lifestyle choices. Services to help consumers use their data are emerging as a business sector in its own right, creating a direct source of new jobs and tax revenues.
The Government says that increased data transparency and greater consumer choice will help promote innovation and competition and could also have a deregulatory effect. By giving people access to their data in a format that is machine-readable it may be possible to avoid the need for some types of regulation, for example, specifying product characteristics.
To date the “midata” project has proceeded on a voluntary basis and, the Government says, has enhanced understanding of consumer and business perceptions and the need for safeguards when consumers use their data. Accordingly, the Government is now consulting on whether to legislate to compel suppliers of services and goods to provide to their customers, upon request, historic transaction data in a machine-readable format. The requirement would only apply to businesses that already hold individuals data electronically.
The consultation closes on 10 September 2012. Open forums will be held at the BIS Offices over the summer to discuss the consultation. The dates for these are Thursday 9 August 3-5 pm; Thursday 16 August 3.30-5.30 pm; and Thursday 23 August 3-5 pm. To access the consultation documentation, click here.
High Court quashes search warrants issued against supplier of foreign decoder cards to pubs showing Premier League.
The High Court has quashed warrants, which were issued by a District Judge on 18 March 2011 under the Consumer Protection from Unfair Trading Regulations 2008 (CPRs), to search premises owned and occupied by a man suspected by Trading Standards of selling Albanian decoder cards to English pubs that allowed the pubs to show live Premier League matches when used in conjunction with a set top box he marketed through his business Alsat UK Ltd. The court quashed the warrants on the basis that Trading Standards had failed to disclose to the District Judge that any criminality associated with these practices was brought into question by the Opinion of Advocate General Kokott in Case C-403/03 and C-429/03 FAPL v QC Leisure which was then known to the Premier League and to Media Protection Services Ltd, the company that enforces the FAPL’s rights in this area and who had instructed Trading Standards in this case.
Lord Justice Davis in the High Court began by noting that the notion that the importation and sale of foreign decoder cards in circumstances such as these would be unlawful had been explicitly rejected by the Court of Justice in the European Union in FAPL v QC Leisure. The CJEU had held, amongst other things, that an “illicit device” for the purposes of the Conditional Access Directive was to be interpreted as not covering foreign decoder devices used, in disregard of the broadcaster’s will, outside the geographic area for which issued, or used in breach of a contractual limitation permitting their use only for private purposes. Davis LJ also noted that, applying Article 56 TFEU, the CJEU held that Member States were precluded from legislating so as to make unlawful the importation or sale or use of foreign decoding devices giving access to encrypted satellite broadcasting services from another Member State that included subject matter protected by the legislation of the first state; and that was so whether or not the foreign decoding device had been “procured” with the intention of circumventing the territorial restrictions in question or by the fact that it was to be used for commercial purposes, even though contractually restricted to private use. CJEU had further held, Davis LJ observed, that an exclusive contract containing such restrictions was prohibited under Article 101 TFEU.
Whilst the CJEU judgment was delivered on 4 October 2011 after the warrants in this case were obtained, Davis LJ noted in particular that its conclusions accorded with the Opinion previously expressed by the Advocate General and delivered on 3 February 2011. Davis LJ was clear that MPS and FAPL were “assuredly aware of such Opinion” even if Trading Standards were not. He also noted that specialist judges in the English courts, in directing a reference in those cases, had also previously expressed preliminary views to similar effect to those subsequently reached by the CJEU and again, MPS and FAPL would have known that.
For these reasons, Davis LJ considered that there was “significant and material non-disclosure to the District Judge”. Davis LJ was not prepared to accept that the possible existence of other offences or other unlawful conduct, arising from materials discovered by the searches (allegedly set top boxes modified for card sharing), could override the grave deficiencies in the information actually supplied to the District Judge in obtaining the warrants in the first place. (R (on the application of Helidon Vuciterni) v Brent Magistrates’ Court [2012] EWCA 2140 (Admin) (25 July 2012) – to read the judgment in full, click here.)
High Court finds media finance company was owner of all IP rights in Michael Jackson tribute concert and was entitled to recover full amount from concert organiser.
The claimant Quick Draw LLP provided gap finance to the media industry. It provided short term bridging finance of approximately £5 million to the first defendant Global Live Events LLP (GLE), run by second and third defendants Mr Hunt and Mr Henry, in relation to the Michael Jackson Forever tribute concert on held 8 October 2011. The loan was secured on the intellectual property rights and promotional materials arising from the concert. The concert was not broadcast live, but it was recorded and filmed by the fourth defendant, Iambic Media, a production company owned and run by Mr Hunt.
GLE failed to repay the loan and Mr Hunt and Mr Henry claimed that Iambic Media owned the rights in the concert. Quick Draw issued proceedings against GLE, Mr Hunt, Mr Henry and Iambic Media Ltd claiming repayment of the loan. Quick Draw also claimed ownership of the IP rights and materials in the concert, which it had acquired by way of security for the loan. In addition, it made alternative claims for procuring breaches of the loan agreement and in deceit against Mr Henry and Mr Hunt. Mr Hunt and Iambic Media counterclaimed in malicious falsehood.
In January 2012, faced with attempts by Mr Hunt to sell an edited version of the concert, Quick Draw successfully applied for an injunction that prevented the defendants from doing so until the trial took place.
The court found that “there can be no doubt” that GLE was liable for the full amount due under the loan agreement. Construing the various agreements and applying the principles set out in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, the court also found that the Debenture operated as an assignment of copyright to Quick Draw, subject to reassignment on satisfaction of the secured obligations. The document also included wording to the effect that future IP rights arising as a result of the concert would be assigned to Quick Draw. In addition, the Debenture operated so that future debts were assigned in equity and held on trust for Quick Draw by GLE. In the judge’s view, “It would be extraordinary had it been intended … that the Debenture should not be intended to catch future debts and intellectual property rights flowing from the Concert which was yet to take place”.
The court also found that all components of the claim in dishonest assistance against Mr Hunt in relation to repayment of monies when the Black Eyed Peas withdrew from the concert were made out, as was the claim of dishonest assistance against Mr Hunt and Mr Henry in GLE’s breach of trust in respect of ticket receipts.
As for ownership of the IP in the artwork, script, performers’ rights, films and sound recordings relating to the Concert, the court found that they had initially vested in GLE but had subsequently been assigned to Quick Draw as a result of the Debenture.
Finally, the court rejected outright the defendants’ counterclaim in malicious falsehood. Quick Draw was therefore successful in every element of its claim and was awarded indemnity costs. Wiggin LLP acted for Quick Draw. Quick Draw LLP v Global Live Events LLP [2012] EWHC 2105 (Ch) (30 July 2012) – to read the judgment in full, click here.
UK Music, PRS for Music and PPL welcome Richard Hooper’s final report on feasibility of developing Digital Copyright Exchange.
UK Music welcomed the idea that the “copyright hub”, proposed by Richard Hooper (see above), would support two music industry database projects: the Global Repertoire Database and the Global Recording Database. UK Music agreed that the industry should also provide the Secretary of State at BIS with an annual progress report.
Chief Executive of UK Music, Jo Dipple, said: “The front-footedness of the British music industry has been rightly recognised in Richard’s report. Our industry has shown great leadership in enabling the digital market place. But there is work to be done and UK Music has tasked itself to give the Secretary of State an annual update on the proposals. It is very important that we work together to maintain the momentum this process has created. We look forward to hearing Government’s response to specific proposals”.
Robert Ashcroft, Chief Executive of PRS for Music said: “… Looking ahead, we believe that the Copyright Hub recommended by Hooper could place Britain at the very centre of the global, online market for the creative industries. Coupled with industry efforts for a Global Repertoire Database, it will prove to be a critical building block in what must inevitably be an international project”.
Peter Leathem, Chief Executive of PPL said: “In their very sensible report Richard Hooper and Dr Ros Lynch have understood the importance of robust data to support licensing in the digital age and the efforts that PPL, and its record company and performer members, have made on this front. Even though there is more to be done they have helpfully suggested building on such work to make both direct and collective licensing solutions even more compelling to businesses. PPL has also committed to continue to develop its licensing services and will collaborate with the wider music industry to achieve this”. To read the UK Music press release in full, click here.
High Court continues anonymity orders in privacy injunction cases despite injunctions being discharged by consent.
Seven cases involving privacy injunctions, all against News Group Newspapers, were listed for a case management conference by motion of the court, which sent letters to each of the parties. The seventh case, NOM v News Group Newspapers Ltd [201-] EWHC 3174 (QB), was listed at the request of the parties.
Privacy injunctions had previously been ordered in respect of the six cases the subject of the court’s letters restraining publication of private or confidential information of a personal nature. The claimants were also anonymised, other than in the case of Frederick Goodwin (formerly MNB) v News Group Newspapers Ltd [2011] EWHC 1437 (QB).
Following the grant of the injunctions, the claimants took no steps, either to reach a final order by agreement, or to bring the cases to trial in accordance with the CPR. Further, News Group Newspapers did not apply to the court to strike out the claims or discharge the injunctions on the grounds of the claimants’ non-compliance with the CPR. This meant that no defence had ever been served.
The letters from the court to each of the parties reminded them of the Practice Guidance published by the Master of the Rolls, which requires active case management of interim injunction cases where publication of information is restrained. The cases were subsequently listed for a CMC on 20 July 2012.
Between the date of the letters from the court and 20 July the parties in each case submitted to the court forms of consent order, agreed as part of the terms on which the parties had reached final settlements. Each consent order incorporated terms continuing the anonymity orders, however, which are, as the court noted, derogations from the principle of open justice. Accordingly, the court had to be satisfied that such derogations were necessary for the purposes of respecting the parties’ rights to a private life before it could agree the orders.
The court observed that the fact that the various injunctions had been discharged did not mean that it would be lawful for anyone to publish the information, disclosure of which had been prohibited by those injunctions. The court held that the anonymity orders should be continued, as they were necessary. The public judgments contained information the publication of which the claimants had sought to prohibit. If the anonymity orders were discharged then the purpose of the actions would be defeated. The information in the judgments had been disclosed precisely because anonymity orders were in place meaning that the rights of the claimants had not been prejudiced. Since the consent orders did not amount to any admission by the claimants that the actions had failed in their purpose, it would be wrong to discharge the anonymity orders. (JIH and others v News Group Newspapers Ltd [2012] EWHC 2179 (QB) (30 July 2012) – to read the judgment in full, click here).
Press Complaints Commission rejects complaint following undercover activity to produce articles published in the Independent newspaper.
The Press Complaints Commission has ruled that a series of articles published in the Independent that reported on comments made by representatives from the PR firm Bell Pottinger to undercover reporters did not breach Clause 10 (Clandestine devices and subterfuge) of the Editors’ Code of Practice. A number of Bell Pottinger executives had been secretly recorded by journalists from the Bureau of Investigative Journalism (BIJ) who were posing as clients seeking advice on a public relations strategy for the Uzbekistan government.
Bell Pottinger argued that the subterfuge employed by the BIJ was unnecessary; that there was an insufficient public interest to justify the use of subterfuge and the material that resulted from it; that the presentation of the coverage had sensationalised the story and created a misleading impression that wrongdoing had been exposed. The firm said that no wrongdoing had been exposed; the coverage had downplayed the emphasis placed by staff members throughout the conversations on the need for a genuine commitment to reform in Uzbekistan, and subterfuge was in any case unnecessary as it would have provided information about its work to the reporters if asked openly.
The newspaper argued that there was a strong public interest in the story. Readers had a right to know about the firm’s apparent willingness to work with a regime that would remain “brutal” even if reforms were put in place, and that the public would otherwise be denied knowledge about how such regimes could gain political access and alter public perception.
The PCC noted that the newspaper’s actions were a clear prima facie breach of Clause 10 of the Code, which states that “the press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices”. The test was whether a sufficient public interest defence could be established. The PCC noted that the journalists had been investigating various claims that had been made about the activities of Bell Pottinger and other PR firms, rather than as a means of confirming a specific hypothesis about Bell Pottinger in particular, but ruled that “the means employed by the journalists had been appropriately tailored to explore the allegations made by confidential sources about the firm’s activities, which raised issues of significant public interest”. It acknowledged Bell Pottinger’s position that no “serious impropriety” had been exposed, but decided that the public interest was served by subjecting the complainants’ methods to “wider scrutiny and comment, particularly at a time when the possibility of imposing greater regulation on the [lobbying] industry was being debated”. To read the adjudication in Bell Pottinger Group v The Independent (26 July 2012), click here.
Competition Commission finds Sky’s acquisition and distribution of movies in the first pay window does not adversely affect competition in the pay-TV retail market.
In its final report, the Competition Committee has concluded that Sky Movies, which currently offers the first pay movies of all the big Hollywood studios, is not a sufficient driver of subscribers’ choice of pay-TV provider to give Sky such an advantage over its rivals when competing for pay-TV subscribers as to harm competition.
The Commission found that:
- more consumers attach importance to other service attributes, like having access to a broad range of content and to price, than they do to seeing recent movie content;
- the launch of new and improved movie services by Netflix and LOVEFiLM, which reflects an increasing trend of audiovisual content being delivered over the internet, has increased competition and consumer choice; and
- the recent launch of Sky Movies on Now TV gives consumers, for the first time, a choice of subscribing to Sky Movies separately from their subscription to other pay-TV content (from whichever provider).
The decision confirms the Commission’s revised provisional findings, which were published in May 2012.
The Commission says that it has recognised throughout its inquiry that the way people are watching movies is changing and it has observed that these changes have been reflected in new services becoming available. Although Sky currently holds the rights to the movies of all six major Hollywood studios in the first subscription pay-TV window, LOVEFiLM and Netflix have already acquired the first subscription pay-TV window rights of several other studios (responsible for movies such as the Twilight series and the recently-released The Hunger Games) and rights to movies of many of the major studios in subsequent pay-TV windows. The Commission says that as these rival services increase their subscriber numbers it expects that the barriers to them acquiring further rights will continue to fall. To read the Commission’s press release in full and for a link to the report, click here.
British Film Commission and UK Trade & Investment form new partnership to provide extra £400,000 to BFC’s budget over next two years.
Making the announcement at the Creative Content Summit, part of the British Business Embassy in London to coincide with the Olympic Games, Minister for the Creative Industries Ed Vaizey MP said the partnership will “enable the BFC to maximise global impact, driving further investment to the UK”.
According to the UK Screen Association, the joint venture provides “a vital opportunity to grow inward investment and extend the UK’s international commercial activity through film”. It will also allow the BFC to maximise the benefits of the proposed TV tax credits if it is implemented as planned in April 2013.
The UK Screen Association says that aside from funding, the partnership with UKTI will allow the BFC to extend its remit to global territories and capitalise on potential opportunities with emerging markets through UKTI’s existing international network.
Adrian Wootton, Chief Executive of the BFC and Film London said, “We have the facilities and the talent in the UK to welcome additional film and high end TV production and we are delighted to be working with UKTI to grow our commercial activity and forge new networks in the US and emerging markets”. To read the UK Screen Association’s press release in full, click here.
Advertising Standards Authority bans online gaming promotional ad claiming full refund if no win.
An online ad on a gambling website, www.bet770.com, was headed “Bet770 is giving you a first bet for free!” Further text stated, “Interested in placing a bet? Head to … Bet 770! It’s 100% safe and everyone’s a winner! If you win your first £70 bet, you will pocket the winnings! Otherwise, don’t panic! Bet770 will refund you the entire £70! It’s as simple as that! To enjoy this offer without any commitment, you need to: 1. Register for the first time with Bet770; 2. Make a deposit; 3. Place the free bet of your choice … Everyone’s a winner on Bet770!” A link at the foot of the ad stated, “General conditions of this offer”. Clicking on this ad revealed further conditions, which included, “Only your first bet will be refunded … This refund will be credited to your account in the form of a bonus” and “To unblock winnings coming from your bonus, you need to bet at least five (5) times the bonus amount on events with odds of at least 1.50, on sports bets (single) except system bets, and combination”.
The complainant challenged whether: 1) the claim “Bet770 will refund you the entire £70” was contradicted by the general conditions; and 2) the condition that winnings from the bonus had to be turned over five times on events with odds of at least 1.50 was sufficiently prominent.
The ASA considered the average consumer would understand from the claim, “Bet770 will refund you the entire £70” to mean that they would receive a cash refund, which could be withdrawn without restrictive limitations. Because the condition that the “refund” would be in the form of a bonus contradicted the claim, the ASA concluded that the ad was misleading. The ad therefore breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising) and 3.9 (Qualification). To read ASA Adjudication on Coaldale Enterprises Ltd (1 August 2012), click here.
PEGI now in force as the single age-rating system for video games in UK.
As of 30 July 2012, PEGI, the pan-European age-rating system for video games, became the exclusive age-rating system for video games in the UK. As a result, it is now illegal for a retailer to sell a video game with a PEGI age-rating of 12, 16 or 18 to someone below that age.
Before 30 July 2012, games that required classification were rated by the BBFC, while games that were exempt from classification carried a PEGI label. The new law puts an end to this hybrid situation and PEGI is now the sole system for classification. All new video games will now carry a PEGI age-rating.
The Games Ratings Authority, which is the operating name of the Video Standards Council when dealing with all matters concerning the age-rating of video games, will assume its position as the officially designated body in the UK for rating video games. To read the PEGI press release in full, click here.
Advertising Standards Authority publishes research into the public’s views on what is harmful and offensive in UK advertising.
The ASA says that the research, carried out on behalf of the ASA by Ipsos MORI, reveals that the ASA is “broadly getting it right” when it comes to judging where the line should be drawn in terms of inappropriate or harmful ads. However, the research also reveals some “unexpected findings”, which indicate some public concern about hard-hitting charity and public services ads.
Specifically, most children spontaneously mentioned charity and public service ads as those that had upset or bothered them or their younger siblings. Some felt upset by the ads themselves, while others were worried because they wanted to help the cause but were unable to do so. Those ads were also a particular concern for parents. When it came to harm and offence more generally, other areas of concern spontaneously mentioned by participants were: sexual content and nudity, body image, violent content and gender stereotypes.
In summary, the research reveals that:
- overall, participants’ views of ads that had been the subject of complaints were broadly in line with the decisions taken by the ASA;
- one in six adults (16%) said they had been personally offended by an ad or ads in the last 12 months, slightly lower than the proportion (19%) who had been offended when similar ASA research was conducted in 2002;
- participants felt that the wider media showed stronger harmful and offensive content than advertising;
- protecting children from potential harm was a key priority for both parents and non-parents alike, rather than just a concern for parents;
- three in ten children (30%) aged 11-16 surveyed said they had been bothered by an ad in the last 12 months. Sexual, violent and scary content were their main reasons.
To read the ASA’s press release in full and for a link to the research, click here.
Committee of Advertising Practice publishes help note on advertising in video-on-demand services.
CAP reminds advertisers that advertising in video-on-demand services is subject to the CAP Code, and that it is the marketer who bears the primary responsibility for ensuring compliance.
Further, some advertising in video-on-demand services is subject to regulation under the Communications Act 2003 in addition to the CAP Code. In those cases, it is the video-on-demand service provider, not the marketer, that bears the primary responsibility for ensuring compliance with the Act.
The standards set out in the Communications Act are reproduced in Appendix 2 to the CAP Code and the ASA will consider complaints that advertising falls short of those standards. The ASA will take up complaints that fall under Appendix 2 with the on-demand service provider; complaints that fall under the other rules in the CAP Code will be taken up with the marketer.
The rules in Appendix 2 of the CAP Code apply to advertisements that:
- are included in an “on-demand programme service” on ATVOD’s list of notified providers; and
- can be viewed as a result of the viewer selecting a programme to view.
If advertising appears which is not as a result of the viewer selecting a programme to view, it will not be subject to regulation in accordance with the rules in Appendix 2. For example, advertising on navigation pages, such as a list of the programmes that are available to view, which appears before the viewer has selected a programme to view is outside the scope of Appendix 2.
Advertising that can be viewed as a result of the viewer selecting a programme to view is subject to the rules in Appendix 2. This includes pre- and mid-roll advertisements that are displayed when the viewer selects a particular programme.
Advertisements need not be audiovisual in order to fall within the scope of Appendix 2. All advertising that is displayed as a direct result of the viewer’s choice of programme is covered by Appendix 2. For example, a banner advertisement that is targeted at a viewer who has chosen to view a particular programme would fall within the scope. To read the help note in full, click here.
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