HomeInsightsNeed to Know – 2013.01.21

Contact

+44 (0)20 7612 9612
info@wiggin.co.uk

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. If you do not wish to receive this summary you can contact us at unsubscribe@wiggin.co.uk.

Data Protection

Government publishes response to Justice Select Committee’s opinion on proposed European data protection reforms. Click Here

French data protection authority, CNIL, welcomes European Parliament report on proposed European data protection reforms. Click Here

Industry Coalition for Data Protection says European Parliament report on proposed European data protection reforms “missed an opportunity to reconcile effective privacy safeguards with rules protecting the conduct of business”. Click Here

Incorporated Society of British Advertisers criticises European Parliament report on proposed European data protection reforms. Click Here

Broadcasting

Ofcom fines Playboy £100,000 for failing to protect children from potentially harmful pornographic material. Click Here

Ofcom upholds appeals by BBC Worldwide Ltd against two ATVOD decisions that had found content on Top Gear and BBC Food YouTube channels to be on-demand programme services (ODPS). Click Here

Ofcom rejects appeal by Greystone Media against ATVOD decision that its Business Channel was an on-demand programme service (ODPS). Click Here

Music

Ad with what appeared to be a naked Nicki Minaj is cleared of breaching ASA rules on harm and offence and responsible advertising. Click Here

Featured Artists Coalition and Music Managers Forum criticise decision not to include right to renegotiate contracts at 50 years in Intellectual Property Office’s consultation on extension of sound recording copyright term to 70 years. Click Here

Independent Music Companies Association (IMPALA) asks European Commission to investigate EMI divestment processes by Sony and Universal. Click Here

Publishing

Press Complaints Commission declines to uphold complaint that two articles breached Clause 9 (Reporting of Crime) and Clause 3 (Privacy) of Editors’ Code of Practice. Click Here

Newspaper Society and Newspaper Publishers Association tell House of Lords that proposed amendments to copyright law in Enterprise and Regulatory Reform Bill could “seriously undermine the creative industries including newspapers in the UK”. Click Here

Winslet and RocknRoll’s ‘private peccadilloes’ to remain private. Click Here

Lord Hunt concerned that Leveson proposals will spawn ‘ambulance-chasing’ press compensation culture. Click Here 

Interim Applications Court – new guidance for self-represented litigants. Click Here

Hacked Off launches consultation on its draft Leveson Bill. Click Here

Film & TV

UK Screen Association presses Treasury to reconsider tax break cap. Click Here

Data Protection

Government publishes response to Justice Select Committee’s opinion on proposed European data protection reforms.

The Select Committee had expressed concern that the approach taken by the European Commission to introduce two instruments (a Regulation and a Directive) will “lead to a division of the UK law, set out in the Data Protection Act”, which could cause confusion. 

In its response, the Government says that the Regulation should be re-cast as a Directive.  Having two Directives would mean that they could then be implemented in a single piece of domestic legislation “to help avoid confusion and support consistency where necessary”.  Further, a Directive would allow for harmonisation in the areas where it is advantageous, and flexibility for Member States where required, the Government says. 

The Government also criticises the proposed Regulation for placing prescriptive obligations upon data controllers as to how they will comply, such as completing data protection impact assessments and hiring data protection officers.  “This is a ‘one size fits all’ approach which does not allow data controllers … to adopt their own practices in order to ensure compliance with the legislation”, the Government says.  Further, “The European Commission’s proposal should focus on regulating outcomes not processes”.

As for the impact of the proposed reforms, the Government says that it is “seriously concerned about the potential economic impact of the proposed Regulation”.  As its own Impact Assessment (published in November last year) found, the benefits from the proposed Regulation, such as a reduction in legal fragmentation, would be outweighed by the costs of additional administrative and compliance measures under the draft Regulation.  As for the impact on the Information Commissioner’s Office, the Government says that it agrees with the ICO’s assertion that the system in the draft Regulation “cannot work” and is “a regime which no-one will pay for”.  The Government therefore favours a risk-based model that puts the obligation on data controllers to put the measures in place necessary to comply with the legislation.

As for the “right to be forgotten”, the Government says that it is in favour of appropriate deletion rights for data subjects.  However, it questions the practicality of the proposals as they stand, noting that it would be “extremely difficult, if not impossible” for data controllers to inform all third parties of a data subject’s request for deletion when information has been posted on the internet.  In the Government’s view, imposing such an obligation on data controllers “raises unrealistic expectations for consumers” that their data will be deleted when it has been passed on to third parties and it may encourage data subjects to be more reckless with their personal data.

As for sanctions, the Government says that supervisory authorities should have more discretion in the imposition of fines.  Removing the discretion element and raising the levels of fines “could create an overly risk-averse environment for data controllers”, which “can be detrimental to economic growth”. 

As for the Directive, the Government shares the Select Committee’s view that there is no pressing need to update the Framework Decision 2008/977/JHA on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.  The Framework Decision has yet to be fully implemented across all Member States, the Government says, and this should come first before new legislation is considered.  To read the Government’s response in full, click here.

French data protection authority, CNIL, welcomes European Parliament report on proposed European data protection reforms.

As reported last week, European Parliament rapporteurs published a report on the proposed reforms which made various suggestions for amendment. 

CNIL has welcomed the report, which it says, “largely meets the concerns expressed by CNIL about the proposed EU regulation on data protection”.  The amendments tabled in the report are, CNIL says, “real progress and an important stepping stone in improving the initial text proposed by the European Commission”.

Key points welcomed by CNIL are:

  • the proposal to use the place of residence of the citizen as the relevant data protection authority.  This will, CNIL says, ensure better protection of citizens’ rights and reduce legal uncertainty for businesses.
  • the proposal for a single point of contact as the lead-authority for controllers and processors who undertake activities in more than one Member State.  Such authority would not have exclusive jurisdiction but would coordinate all relevant authorities in cross-border situations before adopting a decision.  “This is a crucial point if there is to be a balanced co-operation between the supervisory authorities”, CNIL says.
  • the proposal to strengthen the role of the European Data Protection Board by giving it decision-making powers in respect of measures proposed by a supervisory authority.  This would, CNIL says, “create the conditions for a uniform implementation of the European rules”.  Giving the EDPB the power to draft guidelines for supervisory authorities, as well as give opinions on codes of conduct drafted at EU level was also important according to CNIL.  

CNIL says that it also welcomes the suggestion to delete the provision allowing the use of non-binding legal instruments in respect of data transfers to non-EU Member States.

CNIL also supports the report’s emphasis on the use of pseudonymisation and anonymisation of data, the free exercise of a right to object and the need for clarification on what constitutes consent in the online environment.

CNIL says that it will “pursue its efforts to ensure that these key elements … are reflected in the final position of the European Parliament and eventually in the EU Regulation”.  It will also, it says, “continue to promote the insertion of a delisting obligation as a corollary of the right to be forgotten”.  To read CNIL’ press release in full, click here.

Industry Coalition for Data Protection says European Parliament report on proposed European data protection reforms “missed an opportunity to reconcile effective privacy safeguards with rules protecting the conduct of business.

The ICDP, which brings together 15 leading trade associations representing a cross-section of European businesses, issued the following statement in response to the release of the draft European Parliament report on the proposed revisions to the European data protection framework:

The Industry Coalition for Data Protection (ICDP) continues to support the European Union’s (EU) efforts to update privacy rules to 21st century standards.  We regret, however, that after months of consultation, the draft report published by the rapporteur, Jan Philipp Albrecht, MEP, missed an opportunity to reconcile effective privacy safeguards with rules protecting the conduct of business, both fundamental rights under the EU charter.  Going forward, we urge members of the European Parliament, starting with the LIBE Committee, to take into account the important contributions emanating from other committees, and to enact legislation that maintains user trust while encouraging innovation and entrepreneurship in Europe.  Achieving this result will require a thorough examination of the proposal and should not be rushed”.  To read the ICDP press release, including a list of Coalition members, click here.

Incorporated Society of British Advertisers criticises European Parliament report on proposed European data protection reforms.

ISBA says that it is concerned that the draft report imposes “significant new restrictions and definitions for advertisers, and will contradict the EU Charter on fundamental rights”.

Ian Twinn, ISBA’s Director of Public Affairs, said: “The EU’s Data protection proposal just got much worse.  Advertisers will be concerned about the widening of the definition of ‘personal data’ and the extension of the need for ‘explicit consent’.  The ‘right to be forgotten’ is also included… without any acknowledgement that it is in fact undeliverable”. 

ISBA says that it supports the work of the Brussels-based Industry Coalition for Data Protection and welcomes the statement made by the Coalition, which includes the World Federation of Advertisers, in response to the draft report (see item above).

Mr Twinn concluded: “We will continue to lobby Brussels, with the WFA, to bring some common sense back into the debate and try to mitigate the harm that these ill-thought out proposals represent to our members”.  To read ISBA’s press release in full, click here.

Broadcasting

Ofcom fines Playboy £100,000 for failing to protect children from potentially harmful pornographic material.

Two websites owned by Playboy (Playboy TV and Demand Adult) allowed users to access hardcore videos and images without having acceptable controls in place to check that users were aged 18 or over, Ofcom said.

Unlike other pornographic websites, these websites are regulated by Ofcom and ATVOD because they provide access to videos in a similar way to adult services broadcast on television. 

Ofcom concluded that Playboy’s failure to protect children from potentially accessing these sites was “serious, repeated and reckless”.

There are a number of controls that websites can use to verify the age of users, Ofcom said, including asking for credit card details before any adult content is made accessible as credit cards (unlike debit cards) are not available to under 18s.  Playboy TV and Demand Adult had breached Rule 11 of the ATVOD Rules, Ofcom found, by having no effective systems in place to protect under 18s from unsuitable free and paid-for content.  Rule 11 states: “If an on-demand programme service contains material which might seriously impair the physical, mental or moral development of persons under the age of eighteen, the material must be made available in a manner which secures that such persons will not normally see or hear it”.

The homepage of Demand Adult displayed hardcore pornographic material that could be viewed by clicking on a button labelled “Enter I am over 18”.  In order to access additional paid for content, users could pay using a debit card.  Neither of these controls constituted an effective age verification system, Ofcom found.

Playboy TV also required users to self certify their age before accessing the main site.  However, unlike Demand Adult, the material on the homepage showed sexual activity without explicit detail.  In order to access the website’s hardcore pornographic material users could register using a debit card.

Due to the serious nature of these breaches, Ofcom fined Playboy £65,000 for the Demand Adult service and £35,000 for Playboy TV.  To read Ofcom’s press release in full, click here.

Ofcom upholds appeals by BBC Worldwide Ltd against two ATVOD decisions that had found content on Top Gear and BBC Food YouTube channels to be on-demand programme services (ODPS).

ATVOD’s decisions had been based on the findings that the form and content of the programmes in question were comparable to the form and content of programmes normally included in television programme services under s 368A(1)(a) of the Communications Act 2003.  Therefore, they constituted ODPSs and BBC Worldwide should have notified ATVOD and paid the appropriate fee in both cases.  BBC Worldwide appealed the decision to Ofcom.

Ofcom found on the contrary that, in both cases, looking at the services as a whole, whilst the content of many clips did contain elements of high quality broadcast, their presentation as disjointed short clips, even within autoplay playlists, meant that they were not comparable in form and content to television programmes normally found on linear television.  This was so, Ofcom said, despite the fact that much of the audiovisual content had previously appeared on linear television as part of longer programmes.

Ofcom also considered whether the relevant audiovisual material was likely to compete for the same audience as linear television broadcasts, and whether the nature of that material, and the means of access to it, would lead users to reasonably expect regulatory protection within the scope of the AVMS Directive.

Ofcom noted that cookery content features regularly on linear services.  Further, the familiarity of BBC presenters and BBC brands such as Masterchef and Top Gear, as well as the heritage of much of the content from the BBC as a linear broadcaster, might create an expectation of regulation in respect of its content.  However, Ofcom did not consider that these elements outweighed the differences it had found in form and content.  The differences, in Ofcom’s view, would lead users to distinguish clearly between that type of web content and the linear catch-up service offered by the BBC on which viewers would watch full-length BBC Food and Top Gear programmes.  

Accordingly, Ofcom found that the form and content of the audiovisual material in question, provision of which was the principal purpose, were not comparable to the form and content of linear television programme services.  The services were not, therefore, ODPSs within the meaning of section 368A(1) of the Act, and the appeals were upheld.  For links to the full decisions, click here.

Ofcom rejects appeal by Greystone Media against ATVOD decision that its Business Channel was an on-demand programme service (ODPS).

ATVOD had found that the form and content of the Business Channel service were comparable to the form and content of programmes normally included in television programme services under s 368A(1)(a) of the Communications Act 2003.  Therefore, the service constituted an ODPS and Greystone Media should have notified ATVOD and paid the appropriate fee.  Greystone Media appealed the decision to Ofcom.

Ofcom agreed with ATVOD, finding that the service included longer form documentary material, which was closely comparable, in terms of style, subject matter, duration and scheduling with content available on linear television.  Further, some of these programmes were “watch again” opportunities for programmes available through linear television services and this was advertised on the service.  In other words, not only were the programmes comparable with programmes on linear television, but the programmes were in several cases repeats in complete form of programmes which had appeared on linear television.

Although the service did include some short form content, Ofcom considered that material to have a promotional focus (to a degree akin to advertising) and to be ancillary to, and supportive of, the longer form programmes on the service.  Ofcom considered that the shorter form audiovisual was more likely to be arrived at, and understood in context, after the user had watched the associated long form content.  The shorter form material was therefore supplementary to the longer form documentaries.  This supported the view that the principal purpose of the service was the provision of the longer form material. 

Ofcom also considered whether the audiovisual material was likely to compete for the same audience as linear television broadcasts, and whether the nature of that material, and the means of access to it, would lead users to reasonably expect regulatory protection within the scope of the AVMS Directive.

Ofcom found that business documentaries often feature on linear services.  The programmes available on the Business Channel covered a wide spectrum of economic subject matters, had the same type of analysis and exposition and high quality production standards of such business documentaries.  Consequently, they could appeal to and compete for the same type of audience who watch business documentaries on linear television. 

Accordingly, Ofcom found that the form and content of the audiovisual material in question, provision of which was the principal purpose, were comparable to the form and content of linear television programme services.  The service was, therefore, an ODPS within the meaning of section 368A(1) of the Act, and the appeal was rejected.  For a link to the full decision, click here.

Music

Ad with what appeared to be a naked Nicki Minaj is cleared of breaching ASA rules on harm and offence and responsible advertising.

A poster promoting a concert featured an image of Nicki Minaj from the bust up, with her arms in the air, leaning against a wall. She appeared to be naked but was moderately covered in body paint.  Her breasts were partially exposed.

Someone who saw the ad on the platform of a metro station in Newcastle complained about it on two counts.  First, that it was irresponsible because it featured nudity and was therefore unsuitable for display in an untargeted medium where it could be seen by children; and second, that it was offensive because it objectified women.

Live Nation (Music) said that Nicki Minaj was in fact wearing a nude bikini and the ad did not include any allusions to sex.  It also said that the ad did not objectify women because contrary to having little or no regard for her personality, Minaj’s persona was central to the image and the ad.

The ASA said that despite Nicki Minaj’s pose, and the fact that most consumers would believe that her breasts were partially exposed, the image was only mildly sexual in nature.  It therefore considered that it was not unsuitable to be shown on a poster site that could be seen by children.

The ASA did not consider that the image or the ad as a whole was sexually suggestive and it therefore considered that the ad was not degrading to women and did not objectify them.  Whilst it acknowledged that the ad might be distasteful to some, the ASA concluded that it was unlikely to cause serious or widespread offence.  Accordingly, the ad was not in breach of CAP Code rules 1.3 (Responsible advertising) and 4.1 (Harm and offence).  To read ASA Adjudication on Live Nation (Music) UK Ltd (16 January 2013), click here.

Featured Artists Coalition and Music Managers Forum criticise decision not to include right to renegotiate contracts at 50 years in Intellectual Property Office’s consultation on extension of sound recording copyright term to 70 years.

The FAC and MMF say that the plans “signify a big boost for session musicians, a massive windfall for large record labels but a mixed bag for featured artists”. 

The FAC and MMF welcome the main features of the proposed new legislation, but are disappointed at the decision to exclude the right to renegotiate contracts after 50 years.  “This extension was meant to benefit featured artists in their old age and the omission will leave countless creative artists earning pennies from the sales of their work whilst record labels reap large windfall profits”, the FAC and MMF say.

The FAC and MMF welcome the key features of the proposals, which are:

  • a “use it or lose it” clause (which they say “still needs improvement”);
  • a “clean slate” provision that means featured artists will receive income without deductions after 50 years whatever their contracts say; and
  • a fund for session musicians (non-featured performers) “whose creativity has embellished many classic recordings”.  The money will come from 20% of the income generated by the sales and use of recorded music in the extension period.

Brian Message, Chairman of the MMF, said: “To be clear we are not looking to further enrich artists who have become worldwide megastars who have had the means to renegotiate their contracts over the years.  We are talking about artists who in their teens made some of the classic music of the 60’s, who have influenced generations since and who need some incomduring the last years of their lives”.

The FAC and MMF are now calling upon rights holders to introduce minimum royalties (without any deductions) for featured artists in the extended copyright term.  It could mean the change in share of income of a 79 pence download moving from 1 pence for the featured artist to 9.4 pence whilst a record company income would fall from 46 pence to 37.6 pence.

Mark Kelly and Crispin Hunt, co-CEOs of the FAC, said: “We want artists to be sitting at the table not on the menu.  Hopefully a decent royalty will mean artists will be able to eat a meal as well”.  To read the FAC press release in full, click here.

Independent Music Companies Association (IMPALA) asks European Commission to investigate EMI divestment processes by Sony and Universal.

Following the Commission’s approval of the acquisition by Sony and Universal of EMI, the trade body IMPALA has asked the Commission “to make sure the outcome promotes competition and does not strengthen the duopoly that exists between Universal and Sony”.

IMPALA says that it has submitted the request following the news that Sony and BMG made a joint bid for Parlophone and other Universal/EMI assets.  According to IMPALA’s press release, BMG was Sony’s choice of buyer for the publishing catalogues Virgin and Famous, with the deal announced on the same day as BMG was declared the buyer of Mute Records from Universal.

The Commission approved the deal on the basis that the divestments Universal and Sony would make would compensate for the reduction in competition in an adequate way.  IMPALA is concerned that, in light of the above, the processes being followed may not comply with competition rules.

Helen Smith, Executive Chair of Impala, said: “Our position from the start has been that music must not be allowed to become a two horse race and making sure the independents are able to compete effectively is crucial.  All interested companies should be treated equally as bidders for any assets to be sold off. Properly strengthening the independents should be part of the outcome.  The divestment processes must not be conducted in a way that simply comforts the market leaders’ view of how competition should, or should not, develop”.  To read IMPALA’s press release in full, click here.

Publishing

Press Complaints Commission declines to uphold complaint that two articles breached Clause 9 (Reporting of Crime) and Clause 3 (Privacy) of Editors’ Code of Practice.

Mrs Sally Johnson complained that the two articles published on the website of the Hull Daily Mail, headlined “Police officer charged with sex attacks”, and “Hull PC Mike Johnson admits sex assault on night out”, had identified her in breach of Clause 9 (Reporting of Crime) and Clause 3 (Privacy) of the Code.

The articles were, the PCC said, contemporaneous reports of legal proceedings against the complainant’s husband, who had faced (and subsequently admitted) charges of sexual assault whilst a serving police officer. 

The complainant was concerned that in both reports the newspaper had identified her as a solicitor who worked for the Crown Prosecution Service, although neither had identified her by name.  The complainant said that the publication of this information had been highly intrusive and had unjustifiably focused attention on her in connection with her husband’s crime.  She was irrelevant to the proceedings against her husband and had not been present during the incident.

The newspaper did not accept that it had identified the complainant: the reference had been deliberately vague, it said.  The CPS employed a large number of people at locations across the country, and the complainant’s surname was common. It believed that only those with prior knowledge of the circumstances would have been able to connect it to the complainant. In any case, it argued that the complainant’s profession was relevant to the case because higher standards of conduct could be expected from the complainant’s husband because of the nature of her employment.

The PCC determined that the newspaper’s argument that the complainant’s profession was “genuinely relevant” to the proceedings because it meant higher standards could be expected of her husband was “totally without merit”.  This justification was particularly implausible given the fact that her husband had been a serving police officer at the time of the crime, a role that in itself demands high standards of conduct.

The central issue for the PCC was therefore whether the complainant had been “identified” by the publication of this information within the terms of Clause 9 (Reporting of crime).

The PCC noted that publications are generally entitled to identify those concerned in court proceedings.  It is inevitable that this will enable members of the community with prior knowledge of the individuals concerned to connect innocent family members with the proceedings.  For this reason, Clause 9 could not reasonably be interpreted as imposing an obligation on publications to avoid the publication of any information that might contribute to the identification of family members in such circumstances: “identification” must mean something more, it said.

The coverage under complaint had not identified the complainant by name, and nor had she been photographed; the nature of her work had been mentioned, in general terms, in the text of the articles, but beyond this there had been no further reference to her.  The PCC concluded that this reference had not “identified” her in a manner that breached the terms of Clause 9.  In addition, the PCC did not consider the reference to the complainant’s role as a public servant represented an unjustified intrusion into her private life in this context.  The complaints under Clause 3 and Clause 9 were therefore not upheld.  To read the PCC adjudication on Sally Johnson v Hull Daily Mail (11 January 2013) in full, click here.

Newspaper Society and Newspaper Publishers Association tell House of Lords that proposed amendments to copyright law in Enterprise and Regulatory Reform Bill could “seriously undermine the creative industries including newspapers in the UK”.

The Newspaper Society reports that, in a briefing paper to members of the House of Lords, the NS and NPA stressed the importance of intellectual property rights to the newspaper industry saying: “The existence of IP rights incentivises the substantial investments that drive creativity and consumer choice.  Newspaper publishers are both beneficiaries of copyright and users of copyright-protected material.  In our view, copyright law remains fundamentally fit for purpose.

According to the NS and NPA, “There is a real risk that unwarranted changes could undermine the creative industries, where the UK is world class and which are an increasingly significant contributor to UK GDP.  It is important for government to support and nurture the ability of the market to survive and thrive without imposing commercial models or constraining its ability to evolve”.

The NS says that the briefing paper also counsels against the use of secondary legislation for any changes or additions to copyright, arguing that any changes should be included in primary legislation, thereby making them subject to full Parliamentary scrutiny.  It also calls for a solution to the problem of orphan works, which “affords adequate protection to the interest of relevant copyright holders’ and calls for additional safeguards for rights holders around extended collective licensing.

The NS also reports that, separately, a consortium of international media and archiving bodies, including The Associated Press, Reuters, The Press Association, and the Federation of Commercial and Audiovisual Libraries, sent a letter to Business Secretary Vince Cable warning that it would consider challenging the amendments through Judicial Review if they proceeded.  To read the NS press release in full, click here.

Winslet and RocknRoll’s ‘private peccadilloes’ to remain private

Further to last week’s N2K report on Ned RocknRoll’s successful injunction application against publication of semi-naked photographs of himself, Briggs J handed down his full judgment last week. Although it now transpires that Mr RocknRoll in fact owned the copyright in the photographs, the judge’s thorough consideration of privacy issues makes for a useful and interesting judgment.

In coming to the decision that Mr RocknRoll had a reasonable expectation of privacy in relation to the photographs, Briggs J found in favour of Mr RocknRoll on every point. The photographs were, he said, plainly private within the sphere of article 8 of the European Convention on Human Rights as they were taken at a private party on private premises. The fact that Mr RocknRoll was naked in the pictures was taken by the judge to show that he was behaving in a way which he would not in public. He found it irrelevant that the photographs had been taken with the consent of Mr RocknRoll, because this consent did not extend to their being published in a national newspaper. Mr RocknRoll had not, according to Briggs J, done anything to seek publicity about his relationship with Miss Winslet and even if he had, according to the now seminal cases of Von Hannover and McKennitt, public figures are entitled to the enjoyment of article 8 rights of privacy on the same basis as anyone else – although it has been found in some cases that those who have courted publicity have waived their right to privacy, this was in respect of particular aspects of life and such cases do not give rise to some general principle that celebrities have waived article 8. Briggs J lastly concluded that the fact that the photographs had been on a Facebook page and visible to 1500 people did not mean that they were in the public domain to the extent that there was no privacy left to be protected. The judge highlighted that the publication of photographs is particularly likely to engage article 8. Although this did not apply to the description of what was in the photographs, he concluded that Mr RocknRoll had an expectation of privacy in relation to descriptions of the photographs also, and so The Sun was prevented from publishing commentary on the photographs as well as the photographs themselves.

In balancing News Group’s article 10 right of freedom of expression against Mr RocknRoll’s right to privacy, Briggs J did not accept that the photographs contributed to any genuine debate in the public interest or went beyond mere titillation. He found no reason for exposing Miss Winslet or her children to further embarrassment or upset by allowing publication of the photographs. He noted in particular that Mr RocknRoll had conducted himself in a reasonable and cooperative manner at all times and that he had by his own admission acted foolishly in allowing for the photographs to be taken in the first place. The judge gives the impression throughout the judgment that the fact that the press had been slow to discover Miss Winslet’s marriage to Mr RocknRoll did not mean that the “private peccadilloes” of Miss Winslet and her new husband were now a matter of public interest. The judgment can be found here.

Lord Hunt concerned that Leveson proposals will spawn ‘ambulance-chasing’ press compensation culture       

At a press conference last week, Lord Hunt, chairman of the Press Complaints Commission, raised concerns that the availability of arbitration as an alternative to the complaints procedure of the new press regulator would allow professional compensation lawyers to chase potential claimants and encourage them to seek pay-outs rather than apologies and corrections from newspapers and magazines. At a recent meeting of 90 industry figures,  concerns were expressed that claims management companies would see the financial opportunity of involving themselves in resolving complaints, giving rise to the expectation of financial compensation to claimants in addition to other forms of redress. Smaller newspapers and magazines may find themselves particularly vulnerable to claims via the arbitration unit, and it seems that the industry is worried that the costs of maintaining such a unit could spiral out of control. Hunt seems particularly concerned that this thorny issue will delay his promise of delivery of the new system by 1 July 2013, but he has recognised that the proposals for an arbitration unit cannot simply be ignored. “I am troubled by the way the argument is developing. I don’t want the industry to hold up signing the contract and setting up the new body”, Hunt said at last Monday’s conference.

Interim Applications Court – new guidance for self represented litigants

The Interim Applications Court of the QBD has issued new guidance for self represented litigants, with the warning that “Although designed for self-represented litigants, we hope that lawyers appearing in this court will consider the contents of the Guide carefully.”  The guidance advises on the conduct of the hearing, notice requirements, the presentation of documents (including skeleton arguments and bundles) and costs.  To read the guidance in full click here.

Hacked Off launches consultation on its draft Leveson Bill

The campaign group Hacked Off has launched a consultation on its draft Leveson Bill.  The Hacked Off draft bill is one of four drafts to be produced so far, draft legislation also having been prepared by Lord Lester, Labour and the DCMS.  For further details on the consultation, which closes on February 15, please click here.

Film & TV

UK Screen Association presses Treasury to reconsider tax break cap.

The UK Screen Association is pressing the Treasury to lower the qualifying spend for the forthcoming high-end TV tax breaks, arguing that the current proposals could limit job growth in the post-production and VFX sectors.

In December, the Treasury published draft legislation for UK-produced TV shows to secure a tax rebate of up to a quarter of 80% of their production budget.

To qualify, they will need to spend 25% of their budget in the UK, but the facilities trade body wants that figure cut to 10% to encourage more post-production work to be done in the UK.

It also warned that an 80% cap on qualifying costs for tax relief could encourage productions shooting in the UK to take the final 20% of their budget away from the UK to qualify for tax relief elsewhere.

UK Screen Chief Executive Sarah Mackey said: “TV tax relief is a good thing, but VFX and post houses are disadvantaged by being at the end of the spending process.  Both are areas where permanent jobs are created.  By maintaining the 80% cap on enhanceable expenditure and the 25% floor for core expenditure in the UK, we are missing a chance to maximise the amount of post and VFX work carried out in the UK, and to increase job creation and skills development”.  To read UK Screen’s press release in full, published on website of Hull Daily Mail click here.

Topics