HomeInsightsNeed to Know – 2012.10.29

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General

Patents County Court holds that copyright subsists in design of woollen plaid fabric as artistic work.

Government publishes minimum standards for collecting societies.

European Commission’s Joint Research Centre finds that media and content digitisation benefits consumers, but revenues lag behind. 

Technology

European Patent Office extends number of languages available in its “Patent Translate” service.

Ofcom consults on 0500 telephone numbers.

Data Protection

European Data Protection Supervisor comments on European Commission’s consultation on its strategy to improve network and information security.

Broadcasting

Ofcom finds Prometheus promotions shown in programme breaks on Channel 4 were insufficiently distinguished as advertising. 

Ofcom finds matter of Sky voting app failure during Got to Dance final is resolved thanks to swift remedial action.

Prize Draws, Promotions and Competitions

Ofcom finds Channel 5 competition to win a holiday at a “luxury” resort gave undue prominence to the resort and was more akin to advertising than editorial.

Committee of Advertising Practice updates guidance on sales promotions.

Publishing

High Court fines Daily Mail and Daily Mirror £10,000 each for findings of contempt of court in respect of articles published about trial of Levi Bellfield.

Newspaper Society says it is against statutory regulation of the press.

Gambling & Betting

European Commission sets out action plan for online gambling.

Advertising

ASA clears “unlimited free texts forever” ad.

Committee of Advertising Practice publishes reminder on advertising to children in run-up to Christmas.

ASA finds post-production retouching on Dior mascara ad misleading because of lack of evidence to show the image of Natalie Portman did not exaggerate likely effects of product.

 

General

Patents County Court holds that copyright subsists in design of woollen plaid fabric as artistic work.

The claimant, Abraham Moon, was a woollen mill based in Yorkshire.  In 2004, the company’s design director designed an upholstery fabric known as “Skye Sage”, which was part of a range of furnishing fabric called the “Heritage Collection”.  In 2010 Abraham Moon discovered that a firm called Art of the Loom, the partners of which were the first four defendants in the case, was selling a furnishing fabric called “Spring Meadow”.  Abraham Moon believed that Spring Meadow was a copy of Skye Sage and issued copyright infringement proceedings.

The defendants denied infringement, claiming that Spring Meadow had been designed independently of Skye Sage.  In the alternative, they claimed that even if Spring Meadow was a copy of Skye Sage, there could be no infringement of copyright because copyright did not subsist in the Skye Sage fabric.

As to the origin of the Skye Sage fabric, the judge found that the pattern was designed by the design director himself as part of his overall design process.  He did not create it by copying, as alleged by the defendants.  In the judge’s view, “considerable artistic skill, labour and judgment was employed by [the design director] to produce the Skye Sage design.  It is his original work.  It is his own intellectual creation.  It was not copied from another source”.

The judge also accepted the claimants’ evidence that the sales director of Abraham Moon had given a sample book of the Heritage Collection to a third party who later contracted with the defendants to produce their own upholstery fabric collection, including Spring Meadow.

HHJ Birss QC found that the pattern of lines and blocks of Spring Meadow was “virtually identical” to the Skye pattern.  Further, in his view, it was hard to believe that the combination of the various similarities between the fabrics was a coincidence.  As such, the judge inferred that the later in time fabric, i.e. Spring Meadow, was produced by copying the earlier fabric, i.e. Skye Sage.  Further, he found various problems with the defendants’ evidence of independent design and was not satisfied with their explanation.  The defendants failed, therefore, to rebut the inference of copying. 

As for infringement, the claimant relied primarily on the “Skye Ticket Stamp” as a copyright work, both as a literary work and as an artistic work.  The Skye Ticket Stamp was essentially two pages of words and numbers that represented the instructions for how to set up the loom and produce the Skye Sage fabric.  The judge found that it was an original, literary work.

All Skye Sage fabric was made on a loom that had been set up in accordance with the Skye Ticket Stamp.  Therefore, anything copied from Skye Sage fabric was indirectly derived ultimately from the Skye Ticket Stamp, the judge said.  Although the Spring Meadow ticket stamp did not look like the Skye Ticket Stamp, the judge found that the key information on the Spring Meadow ticket stamp was derived from the Skye Ticket Stamp.  The Spring Meadow ticket therefore reproduced a substantial part of the literary work embodied in the Skye Ticket Stamp.  However, the judge said, “it is just not accurate to say that this Spring Meadow fabric is a reproduction of this literary work”, as the fabric was not a copy of the literary instructions. 

As for the Skye Ticket Stamp as an artistic work, although to a layman the ticket looked like two pages of words and numbers, the judge accepted witness evidence that “to an experienced fabric designer, the ticket has real visual significance”.  People in the industry could in fact see the fabric design from looking at the ticket (and vice versa).  Therefore, copyright subsisted in the Skye Ticket Stamp as an artistic work within s 4 of the CDPA 1988.  It was, the judge said, a “graphic workIt may be of an unusual sort but it is a record of a visual image”.

As for whether the Spring Meadow fabric was a copy of the Skye Ticket Stamp, whilst it was true that there was no visual resemblance between the two works in the sense that one was a plaid fabric design and the other was a collection of words, letters and numbers, it was also true that to people in the industry, one had a clear visual resemblance to the other.  Therefore, HHJ Birss QC said, “the appearance of Spring Meadow reproduces the whole or a substantial part of the appearance of Skye Sage and thus is a reproduction of the whole or a substantial part of artistic work embodied in the Skye Ticket Stamp within the meaning of s 17 of the 1988 Act”. 

The defendants argued that they had a defence to copyright infringement under s 51 of the CDPA on the grounds that the Skye Ticket Stamp was a design document and it was therefore no infringement of copyright to make the Spring Meadow fabric to the design recorded in the Skye Ticket Stamp.  The judge rejected this analysis, preferring instead the analysis of the claimants, who submitted that the Skye Sage design represented “surface decoration” and was therefore excluded from the operation of s 51 by the definition of “design” in s 51(3).  Accordingly, he rejected the defence under s 51.  (Abraham Moon & Sons Ltd v Andrew Thornber [2012] EWPCC 37 (5 October 2012) – to read the judgment in full, click here).

Government publishes minimum standards for collecting societies.

The minimum standards, which cover fairness, transparency, and good governance, are intended, the Government says, to form the basis of collecting societies’ individual codes of practice.  An initial review of these codes will be undertaken by an independent code reviewer in November 2013, one year after launch. 

The minimum standards have been developed in conjunction with collecting societies and users as part of the Government’s consultation on copyright reforms. They are intended, the Government says, to be a living document and will evolve to take account of market developments.

The Government is currently taking legislation through Parliament that includes provision for a backstop power that will require a collecting society to adopt a code of practice if its self-regulatory code fails.  The consultation on codes of practice concluded that one year was a sufficient period of time for collecting societies to put in place codes that comply with these minimum standards.  For a link to the new minimum standards, click here.

European Commission’s Joint Research Centre finds that media and content digitisation benefits consumers, but revenues lag behind.

The Report by the JRC (the Commission’s research service) entitled “The media and content industries. A quantitative overview”, included sectoral studies on production, distribution, pricing and consumption in cinema, music, newspapers, videogames, book publishing and broadcasting.  The Report found that digital spending, i.e. the acquisition of media products in digital format, tripled from 2006 to 2010 worldwide, with the recording music sector now achieving 30% of its global sales in the digital market.  

The digital success of the music sector contrasts with other media and content industries, which are moving at a slower pace towards digital distribution.  Only 6% of film/video, newspapers, magazines and book sales were digital, according to the Report. 

According to the Commission, the Report explains how new techniques result in efficient distribution, unleash new markets and bring lower costs for the consumer.  However, worldwide, industries only saw their revenues rise slightly between 2006 and 2010.  The study highlights the increasing interconnection and convergence of the content industries sector with the information and communication technologies sector.  The content and ICT industries together are growing globally for the period 2006-2010 at an annual rate of 8.4%, while the content sector grew at a rate of 4.9%.

In the Commission’s view, the digital shift “offers new opportunities for the content and media industry to recoup investments through the exploitation of new distribution channels and devices”.  In addition, it says, seizing full advantage of opportunities to distribute media and content cross-borders will be essential to maximise audiences, readers and revenues.

These issues will be tackled in a European Commission policy paper on Convergence and Connected TV in the coming months.  To read the Commission’s press release in full, click here.

Technology

 European Patent Office extends number of languages available in its “Patent Translate” service.

The EPO has made available a second set of European languages in its free automatic translation service “Patent Translate”.  With the addition of Danish, Dutch, Finnish, Greek, Hungarian, Norwegian and Polish, the service now enables translation from and into English for thirteen languages and is accessible on the EPO’s free online patent database, Espacenet.

Patent Translate was launched in February 2012 to enable multilingual access to patent documents available on the EPO website.  By the end of 2014 the service is expected to cover all 28 languages of the EPO’s 38 member states, plus the most important non-European languages in patents, including Chinese, Japanese, Korean and Russian.

The EPO says that the service “aims to help European businesses better search and identify relevant patent documents for their R&D projects”.  Patent Translate is also expected to facilitate the implementation of the future unitary patent.  “With the unitary patent reducing the burden on companies to provide mandatory translations, automatic translation will be even more important as a means of offering free access to patent documents in any official language, the EPO says.  To read the EPO’s press release in full, click here.

Ofcom consults on 0500 telephone numbers.        

0500 is a Freephone range like 080.  Originating communications providers may not charge callers for 0500 calls except when their charges are notified to callers at the start of the call.

Created in 1982, the 0500 range has been closed to new allocations since 2001.  0500 numbers that were already allocated to customers can continue to be used.  Cable and Wireless Worldwide is the only range-holder for 0500 numbers and operates most of the active 0500 numbers, although some 0500 numbers have been ported and are now managed by other terminating communications providers.

Ofcom says that the number of active 0500 numbers has been declining over several years.  The volume of calls to 0500 numbers is only a small fraction of the number of call minutes to 080 numbers (and of volumes on some of the other non-geographic number ranges like 0845), and a very large proportion of 0500 calls are to a small group of numbers operated by fewer than 30 organisations.  Further, consumer awareness and understanding of the 0500 range is very poor compared to other non-geographic number ranges.

The consultation considers various options available for the 0500 range: maintaining the status quo; aligning it with 080 as free-to-caller; capping charges from mobile phones; or withdrawing the number range.

Ofcom’s preferred option is to withdraw the 0500 range.  Ofcom considers that, on balance, “this offers the greatest net benefit to consumer – reducing consumer confusion, secures best use of telephone numbers, and enhances the clarity and simplicity of the new Freephone regime (080) for the benefit of consumers and businesses”.  Ofcom is seeking responses by 8 January 2013.  To access the consultation documentation, click here.

Data Protection

European Data Protection Supervisor comments on European Commission’s consultation on its strategy to improve network and information security.

The Commission’s strategy aims to step up the fight against cybercrime, as well as address cyber security.  The purpose of the strategy is also to minimise the risks of technical failures, especially in respect of critical infrastructures.

The EDPS emphasises that the security of data processing operations is “a crucial element of data protection”.  Further, it says, the correct application of data protection principles, including security requirements, is “a core condition for the success of the deployment of networks and information systems.  When the security in the digital space is enhanced, the level of data protection in this area should be equally improved”.  Therefore, the EDPS says, any strategy adopted in order to improve network and information security should take full account of data protection principles, and compliance with data protection law “should be regarded as an integral part of the objective of cyber-security”.

Unfortunately, the EPDS notes, “the public consultation does not mention data protection as an element to be considered”.  Further, it says, notwithstanding the existence of widely recognised technical standards, there is no EU provision clearly setting out the scope of what types of incidents or threats are being tackled in the context of network and information security.  The public consultation refers to “cyber security” and to “cyber threats” without, however, providing a clear definition of what these terms would entail.

The EDPS says that “a clear distinction should be made between accidental events, which are incidents that have occurred on a network or an information system, and malicious actions, which could have a connection with cybercrime”. In this respect, the EDPS notes the absence of a legal definition for cybercrime in EU legislation.  There is therefore a need to provide for a clear definition of the types of incidents or threats that any future policy action aims at addressing.  

In terms of data protection, the EDPS’ concerns include:

  • The exchange of information between the public and private sector: the organisations concerned should implement a solid data protection scheme in their procedures for dealing with information exchanges, as they often involve data collected for initial commercial purposes as well as international data transfers;
  • Reporting cyber security incidents: the reporting of cyber security incidents is closely linked to the data breach notification obligation.  Therefore, data protection authorities should be involved where relevant;
  • Raising awareness about cyber-security: the EDPS supports awareness-raising campaigns regarding online security, but it should also include references to data protection risks and to prevention tools (such as data protection by default settings, appropriate security parameters, etc); and
  • Implementing ways to ensure security: in line with the “privacy by design” concept, the EDPS says that there should be a mandatory application of privacy-enhancing technologies and other “best available techniques” in all network and information systems deployed on the internet.

To read the EDPS’ comments in full, click here.

Broadcasting 

Ofcom finds Prometheus promotions shown in programme breaks on Channel 4 were insufficiently distinguished as advertising.

In advertising breaks during an episode of Homeland, Channel 4 transmitted two pieces of content about the film Prometheus.  These included the film’s trailer, an invitation to viewers to tweet their views and a number of viewer tweets referring to the trailer and film in a positive way.

Ofcom received a complaint that the material “totally confuses the viewer about whether they are watching an impartial continuity announcement or a paid advertisement”.  Ofcom considered whether the material complied with Rule 11 of its Code of Scheduling of Television Advertising, which requires broadcasters to ensure that television advertising is readily recognisable and distinguishable from editorial content. 

Ofcom accepted that there was unlikely to be doubt in viewers’ minds that the scheduled programme Homeland had been interrupted for a break.  However, it considered that the presentation style of the Prometheus material risked confusing viewers in respect of its status.  The fact that the material appeared in a break between programmes was not, in Ofcom’s view, of itself sufficient to identify it as advertising.  Breaks contained non-advertising material such as programme trailers as well as advertising, albeit to a lesser degree.

Ofcom noted in particular that the material in this case also contained elements more usually associated with editorial content.  These included the channel’s logo, which was displayed prominently during the beginning of the advertisement; the distinct voice of the channel’s continuity announcer; language that suggested the channel’s ownership and endorsement of the material (e.g. “Now on Channel 4”, “we bring you a worldwide exclusive” and “we’d love to know what you think”); and a call to action to viewers (in the channel’s own typeface) to submit, to the channel, their views on the content.  As regards viewer tweets, Ofcom considered that while, in the context of advertising, statements about the advertised product are expected to be promotional, the status of this material was ambiguous and therefore it may have been unclear to viewers whether they were viewing a selection of tweets selected for editorial reasons by Channel 4 or for advertising purposes.

For these reasons Ofcom said it was “concerned” about the degree to which the material was recognisable as advertising.  Although Channel 4 did not believe the material to be in breach, it told Ofcom that it had taken specific measures to prevent the issue from recurring.  In particular similar advertisements would in future feature a caption stating, “This is a Channel 4 advertising premiere”, or something similar at the start, to avoid any potential confusion.  As a result of these policy changes, Ofcom was prepared to consider the matter resolved.  To read Ofcom’s adjudication on Prometheus promotion (Channel 4) published in Issue 216 of the Broadcast Bulletin (22 October 2012), click here.

Ofcom finds matter of Sky voting app failure during Got to Dance final is resolved thanks to swift remedial action.

For the 2012 series of Got to Dance, viewers could vote via telephone, red button service or a downloadable smartphone application.  Users of the app could purchase a bundle of 14 votes for 69p once a week for use during any voting period in the series.  The application had to be withdrawn as a means of voting in the final, which meant that viewers who had purchased bundles of votes with the intention of using them in the final were unable to place their vote.

Ofcom asked Sky for its comments on whether the programme complied with rule 2.14 of the Broadcasting Code, which states that “Broadcasters must ensure that viewers are not materially misled about any broadcast competition or voting”.

Sky said that there had been a virus attack that randomly selected complex systems across the web to bombard and disrupt and was not therefore the result of negligence or oversight on its part.  It added that the firewalls in place “did their job in so much as they prevented the virus from manipulating any voting figures”.  Sky said that it and its third party operator had undertaken testing phases before and during the series and that contingency plans in the event of failure were in place.  Sky also questioned what steps it could have reasonably taken to prevent such an attack given its complex nature.  Finally, Sky stated that there was no reason or ability to foresee that there would be any kind of failure before or during the final at the time the bundles were being sold to the public, and therefore “there could have been no “misleading” of viewers at the time the votes were actually sold.” 

While Ofcom acknowledged that votes were not charged at premium rate, it noted that votes were only available to purchase in 69p bundles of 14.  Therefore, viewers who had purchased votes solely for use in the final were charged the equivalent of a premium rate but were nevertheless unable to use any of those votes.  Ofcom accepted that Sky had not intended to mislead viewers in any way. Nevertheless, the effect of the invitation to purchase votes and the subsequent failure of the application was that viewers were materially misled. 

Ofcom noted Sky’s efforts to test capability and functionality of the voting methods and accepted that the application’s failure was due to a malicious external attack rather than an error on the part of Sky or the third party operator.  Because of Sky’s swift action to withdraw the application from use and provide details of how users could obtain a refund, Ofcom considered the matter resolved.  To read Ofcom’s adjudication on Got to Dance, published in Issue 216 of the Broadcast Bulletin (22 October 2012), click here.

Prize Draws, Promotions and Competitions

Ofcom finds Channel 5 competition to win a holiday at a “luxury” resort gave undue prominence to the resort and was more akin to advertising than editorial.

The competition was described in a voiceover as follows:

Would you like to jet off to the stunning Maldives for a 7 night stay of luxury and relaxation?  We’re giving you and a friend the chance to win an unforgettable getaway to this natural haven, courtesy of Hilton Maldives Iru Fushi Resort & Spa.  You’ll enjoy a full board stay at this luxury five star resort to relax and unwind by the infinity pool and enjoy a pampering session at the resort spa, the largest in the Maldives.  And for those who wish to be more adventurous, we’ll include a luxurious sunset cruise”. 

The description was accompanied by video footage of the resort and location.

Ofcom was concerned by the manner in which the prize was described and sought comments from Channel 5 as to how the presentation of the prize complied with rule 9.5 of the Broadcasting Code which prohibits undue prominence of products, services or trade marks.

Channel 5 said that editorial justification for including a description of a prize in a competition is that it assists viewers to decide whether or not they wish to enter a competition and in this case it wanted to provide viewers with sufficient information to make an informed decision about whether to incur the cost of entering the competition.  Channel 5 added that the audience would want to know about the resort and said that references to the resort being “luxury” and of a five star standard were acceptable because it was appropriate to inform viewers of the standard of accommodation.

Ofcom accepted that there was sufficient justification for providing details about the key features of the prize such as the name and type of destination, the rating of the resort, the board basis, the type of holiday, and the inclusive extras such as the spa session and cruise.  However, it considered that the repeated use of the word “luxury” (or “luxurious”) and the superlative reference to the size of the resort’s spa went beyond what was justified by the editorial requirements of the piece.  Because in Ofcom’s view the overall tone of the material was more akin to advertising than editorial and because the resort included in the prize was given undue prominence, the programme was found in breach of rule 9.5.  To read Ofcom’s adjudication on The Hotel Inspector published in Issue 216 of the Broadcast Bulletin (22 October 2012), click here.

Committee of Advertising Practice updates guidance on sales promotions.

According to the CAP, marketers can “trip themselves up” by inadequately explaining the conditions of their sales promotions.  The CAP says that failing to provide significant information at the crucial point “is likely to cause unnecessary disappointment”.  In addition, if the ASA upholds a consumer complaint regarding a sales promotion, the result is the opposite of what the marketer set out to achieve: spreading positive awareness of a brand or product.

Significant conditions, as described in Rule 8.17 of the CAP Code, should be set out in the initial advertising material.  They include: how to participate; any closing date, any restrictions and nature of the prize or gift.  The list in Rule 8.17 is not exhaustive and promoters should “take to care to consider whether there are any other major factors reasonably likely to influence a consumer’s decision or understanding about the promotion”.  Some conditions, such as any intention to use winners in post-event publicity, do not need to be in the initial ad but should
be stated before, or at the time of entry (Rule 8.28).

The CAP reminds marketers that if the initial ad is severely restricted by time or space it must include as much information about significant conditions as practicable (Rule 8.18).  In such online marketing communications it may be considered sufficient to have conditions of entry one click away from the display, banner or tweet ad.  In traditional media there may be circumstances where limited space available precludes it from being an appropriate medium to advertise a complicated competition.  In those circumstances advertisers should consider more general trailer copy such as “go to our website for all our prize draws and special offers”.  For a link to the updated guidance, click here.

Publishing

High Court fines Daily Mail and Daily Mirror £10,000 each for findings of contempt of court in respect of articles published about trial of Levi Bellfield.

In June 2011 Levi Bellfield was put on trial for kidnapping and murdering Milly Dowler and for the attempted kidnap of Rachel Cowles. Before reaching a decision as regards Rachel Cowles, the jury convicted Bellfield of the kidnap and murder of Milly Dowler.

Due to what was described as an “avalanche of publicity adverse to the defendant” following his conviction in respect of Milly Dowler, the jury was dismissed and the trial in respect of Rachel Cowles collapsed.  Essentially, the court had concluded that articles published in the Daily Mail and in the Daily Mirror had set out key matters that were not before the jury; that these were highly prejudicial to Levi Bellfield; and that they created a distinct substantial risk of serious prejudice.  The court had found that there was little doubt that if the jury had not been discharged the articles would have created a seriously arguable point that any conviction as regards the kidnapping of Rachel Cowles would have been unsafe.

In June 2012, the publishers of the Daily Mail and the Daily Mirror were found to be in breach of the strict liability rule for publishing articles before the jury had reached their verdicts on all the counts in the indictment.  They were therefore found to be in contempt of court.

The court then had to decide on the penalty to issue to both publishers.  In doing so, the court took into account the following aggravating features:

  • the risk that at the date of publication the jury would be discharged and no re-trial sought, which had a serious impact on the family of Rachel Cowles;
  • the fact that publication of material not before the jury when verdicts had not all been returned can have a particularly serious effect; and
  • the fact that publication was made after the CPS had issued an advisory. 

The court also took into account the following mitigating factors:

  • in the case of the Daily Mail, the associate news editor had telephoned the CPS and pointed out that the judge had not given any guidance when the verdicts had been taken.  He had enquired whether the CPS would give guidance and noted that the CPS advisory did not exalt (sic) publishers to a particular course of action;
  • this was a difficult judgment call in the particular and unique circumstances of this case given the public interest;
  • the material had been reviewed by lawyers as part of their standard practice;
  • much was publicised at the same time by others who had not been brought before the court;
  • neither counsel nor the judge had referred to these particular articles when discharging the jury; and
  • the finding of contempt was based on only part of the articles and not on the full material put before the court.

The court also took into account that both parties had agreed to contribute £25,000 each to the costs of the Attorney General thereby significantly meeting the public costs of the proceedings.

It was clear, the court said, that both newspapers “went further than what was permitted” and that “they should have appreciated the risk under the strict liability rule at the particularly sensitive point in time at which the decision was made to publish”.  The court concluded that this was a case where there was “an error of judgment through a failure to properly analyse the articles – an analysis which was nonetheless essential at that point in time”.  It appeared, the court said, that the importance of precise and careful conduct where one verdict has been returned but others are outstanding has “not been fully appreciated by those in the media”.  The case was therefore important, it said, in pointing out the necessity of very careful analysis of material that is to be published as part of a background when one verdict (or more than one) has been delivered but others are outstanding.  Arguing that those making the decision whether to publish or not were not aware of the need for careful and detailed analysis “can no longer be seen as an excuse”, the court said.

Bearing in mind the amount of costs paid, the court said that it could “take the course in this case of fining each newspaper at the very bottom end of the scale, namely £10,000 each”.   However, it said, for the future, “the message is clear and the court’s observations, we hope, will ensure others exercise the most scrupulous care at the critical time in a case where only some verdicts have been returned and others remain outstanding”.  (Her Majesty’s Attorney General v Associated Newspapers Ltd [2012] EWHC B19 (QB) (16 October 2012) – to read the judgment in full, click here).

Newspaper Society says it is against statutory regulation of the press.

In a letter to Nick Clegg, the Deputy Prime Minister, the president of the Newspaper Society, Adrian Jeakings, says that it is “vital that the Government resists any form of political or statutory control of the press in order to safeguard freedom of expression”.

In the letter, Mr Jeakings, writes: “The local press is vehemently opposed to any form of statutory involvement or ‘underpinning’ in the regulation of the press, however arms-length from government it might appear to be.  No government could ever guarantee non-interference nor prevent its successors from tightening or extending statutory controlsIt is inconceivable that any statutory regime could be established to regulate just a small section of the popular national press, imposing special controls and penalties on some publications and not on others.  In practice, hundreds of responsible national, regional and local newspapers and magazines would find themselves swept up into a costly and wholly unnecessary system of legal controls and constraints which would have an enormous impact on their freedom to publish in the UK.  Similarly, newspaper and magazines websites would be handicapped while our online competitors in the form of other websites, bloggers and social media would remain unfettered”.  For a link to the letter, click here.

Gambling & Betting 

European Commission sets out action plan for online gambling.

Online gambling in the EU is characterised by diverse national rules.  An increasing number of Member States are seeking to address the challenges they face and are reviewing their national regulations and practices.  However, the Commission says, the prevailing regulatory, societal and technical issues in the EU cannot be tackled adequately by Member States individually.  This is especially true given the cross-border dimension of online gambling.

The Commission’s action plan includes a series of initiatives to be developed over the next two years aimed at clarifying the regulation of online gambling and encouraging cooperation between Member States.  The Commission is not proposing EU-wide legislation on online gambling.  Instead, it is proposing “a comprehensive set of actions and common principles on protection”.

The Commission will establish an expert group this year to facilitate exchanges of experience on regulation between Member States.  “This will help to develop a well-regulated, safer online gambling sector in the EU, which will help turn consumers away from unregulated sites”, the Commission says.

To protect children, the Commission is encouraging the development of better age-verification tools and online content filters.  It is also pushing for more responsible advertising and increased parental awareness of the dangers associated with gambling.

Another important objective is to prevent and deter fraud and money-laundering through online gambling.  Due to the cross-border nature, individual Member States cannot effectively apply anti-fraud mechanisms, the Commission says.  An approach that “brings together the EU, Member States and industry is necessary to tackle the problem from all angles”.

A high level of cooperation is also needed to safeguard the integrity of sport.  To try and combat match fixing, the Commission will “promote faster information exchange, whistle-blowing mechanisms, and overall cooperation at national and international level between stakeholders, operators, and regulators to preserve the integrity of sports, as well as better education and increased awareness of sportspeople”.

The Commission will adopt three Recommendations addressed to the Member States: i) protection of consumers; ii) responsible gambling advertising; and iii) the prevention and fight against betting-related match-fixing.  For further information, click here.

Advertising 

ASA clears “unlimited free texts forever” ad.

T-Mobile ran a web and TV advertising campaign offering unlimited free texts forever to customers who “top up £10 a month”.  Two complainants challenged whether “forever” was misleading and could be substantiated, because they did not believe the service offered would be available indefinitely.

The ASA noted from T-Mobile’s written response to the complaints that it had no business plan to remove the offer of unlimited texts for customers who topped up by £10 or more per month and had joined during the offer period.  The ASA also noted that Clearcast had received the same assurance.  The ASA also considered that consumers were likely to interpret the claim as containing an element of advertising puffery and were unlikely to infer that texts would literally be available forever.  Because of that, and because T-Mobile had given their assurance that they had no business plan to remove the offer for customers who joined during the offer period, the ASA concluded that the claim was not misleading.  To read ASA Adjudication on Everything Everywhere Ltd t/a T-Mobile, click here.

Committee of Advertising Practice publishes reminder on advertising to children in run-up to Christmas.

The CAP reminds advertisers that they must “take care to ensure their ads are not seen to encourage or glamorise dangerous, unsafe or socially undesirable behaviour”.  The ASA has, for example, upheld a complaint about a catalogue ad for a “Fire Station” play tent that showed an image of children putting out a real fire.  An in-game ad for an energy drink was also held to be irresponsible because it showed a teenager “surfing” down an escalator and behind a moving underground train.  “When planning your campaigns you should try to gauge the likelihood of children emulating the activity shown”, the CAP says.

Essentially, the CAP says, marketing communications that feature or are directly targeted at children “must not exploit their credulity, loyalty, vulnerability or lack of experience by making them feel inferior for not buying (or encouraging others to buy) the advertised product”.  In addition, advertisers should not put emotional pressure on children to buy or ask for products although advertisers “are, of course, free to present [their] products in an attractive way”.

When presenting a product, advertisers should “make it easy for children to grasp its main characteristics”, the CAP says.  This includes making sure that the language used is suitable and ensuring that the ads are not likely to mislead.

Finally, when advertising toys on television, “remember to include a statement of price (or an approximate price) if the product costs £30 or more”.  To read the CAP’s guidance in full, click here.

ASA finds post-production retouching on Dior mascara ad misleading because of lack of evidence to show the image of Natalie Portman did not exaggerate likely effects of product.

The magazine ad showed an image of Natalie Portman.  The headline stated “Dior Show New Look” and text stated “Lash-multiplying effect volume and care mascara.  The miracle of a nano brush for an unrivalled lash creator effect.  It delivers spectacular volume-multiplying effect, lash by lash”.                   

L’Oreal UK challenged whether the ad misleadingly exaggerated the likely effects of the product.

Dior stated that the ad had used post-production retouching on the eyelashes to stylistically lengthen and curve Natalie Portman’s lashes but considered this immaterial since no claims were made in that regard.  I was so stlthough Dior acknowledged that the text did contain claims regarding the product’s thickness/volume effect, it stated that any retouching in that respect was minimal.

The ASA said that the text, in conjunction with the image of Natalie Portman’s eyelashes, would be understood to mean that the mascara could lengthen the lashes, as well as separate them, increase their thickness and volume, and generally enhance lash appearance.  Although the ASA acknowledged that Dior had provided some before and after photos showing a model’s natural eyelashes and the effects of the product on her lashes, it said that it had not seen evidence that the visual representation of the product’s effects on Natalie Portman’s lashes, as featured in the ad, could be achieved through use of the product only.  This was of particular concern to the ASA since post-production retouching on the lash area had taken place. 

Because the ASA considered that it had not seen sufficient evidence to show that the post-production retouching on Natalie Portman’s lashes in the ad did not exaggerate the likely effects of the product, it concluded the ad breached CAP Code rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 3.11 (Exaggeration).  To read ASA Adjudication on Parfums Christian Dior (UK) Ltd (24 October 2012) in full, click here.

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