HomeInsightsNeed to Know – 2013.04.15

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Technology

Domain name .JOBS to hold sunrise registration period ahead of open registration.

PhonepayPlus publishes update to Service Specific Guidance Competitions and other games with prizes.

Data Protection

Article 29 Data Protection Working Party publishes Opinion on principle of purpose limitation.

Broadcasting

Ofcom censures BBC for making 11-year-old girl retch in name of children’s entertainment.

Child’s participation in Door to Door challenge on I’m a Celebrity Get me Out of Here! breaches acceptable standards rules.

Ofcom clears The X Factor of falsely portraying contestant as a drunk.

Music

IFPI publishes “The Recording Industry in Numbers 2013” showing rise in music subscription services and promising growth of emerging markets.

Publishing

European Commission clears creation of Penguin Random House, combining publishing businesses of Bertelsmann and Pearson.

Press Complaints Commission upholds complaint against That’s Life magazine for payment to relative of convicted criminal.

Legal Deposit Libraries (Non-print Works) Regulations 2013 come into force.

Gambling & Betting

Gambling Commission publishes consolidated gambling Codes of Practice for all forms of gambling.

Advertising

Committee of Advertising Practice publishes “dos and don’ts” relating to “free trials”.

Technology

Domain name .JOBS to hold sunrise registration period ahead of open registration.

The open registration period for the new gTLD is due to begin later this year.  Ahead of that, .JOBS will use the Internet Corporation for Assigned Names and Numbers’ “Trademark Clearinghouse” database to support a sunrise registration period.

Tom Embrescia, Chairman of .JOBS, said: “Later this year and for the first time, .JOBS intends to open up the types of names that can be registered.  This will allow people around the world to register whatever name they choose on a first come, first serve basis, so long as the types of registrants and types of registrations are consistent with the .JOBS Charter.  As an ICANN authorized solution to rights’ protections in the New gTLD Program, using the Clearinghouse to support .JOBS sunrise registrations is the best approach for the registry, as well as for brand holders before .JOBS launches open registration”.

Fadi Chehadé, President and CEO of ICANN said: “We appreciate and support the .JOBS decision to use the Clearinghouse to support its upcoming planned sunrise period.  Here we have an opportunity with an existing TLD to learn how the Clearinghouse might impact the sunrise registration process.  It will give us a critical perspective just as new gTLDs are coming online”.  To read ICANN’s press release click here.

PhonepayPlus publishes update to Service Specific Guidance Competitions and other games with prizes.

Service Specific Guidance does not form part of the Code of Practice; neither is it binding on PhonepayPlus’ Code Compliance Panel Tribunal.  However, it is intended to help providers understand how compliance with the Code might be achieved.

PhonepayPlus keeps the published Guidance under review and where the law changes or developments arise that affect any particular Guidance, updates may become necessary.  The regulator says that there are two issues, which currently require updates to Guidance on Competitions and other games with prizes:

  1. the Court of Justice of the European Union recently commented on unfair commercial practices that are banned under the Unfair Commercial Practices Directive 2005/29/EC (as transposed into the UK Consumer Protection from Unfair Trading Regulations 2008), which required some explanation at paragraphs 4.5 to 4.7 of the PhonepayPlus Guidance; and
  2. there is an element of the Gambling Act 2005 in relation to “free routes of entry” which has been considered, and the regulator’s expectations clarified, in paragraph 5.2 of the Guidance.

Providers are not obliged to follow the Guidance, but in the event of an investigation, a Tribunal will consider whether any alternative actions that providers may have taken deliver compliance with the Code.

However, PhonepayPlus says that it would “strongly recommend that these amendments to the Guidance are properly considered if you are operating a competition service paid for via premium rate”.  This will be of particular interest to those wishing to operate a free competition in conjunction with a paid for product or subscription service. The Guidance also explains the prohibition against any form of charge or fee for claiming a prize.  For a link to the Guidance, click here.

Data Protection

Article 29 Data Protection Working Party publishes Opinion on principle of purpose limitation.

The principle of purpose limitation protects data subjects by setting limits to the collection and further processing of their data.  When an individual provides his or her personal data to a company or another organisation, he or she usually has certain expectations about the purposes for which the data will be used.  The Article 29 Data Protection Working Party says that: “There is a value in honouring these expectations and preserving trust and legal certainty.  This is why the principle of purpose limitation is an important cornerstone of data protection”.

Nevertheless, data that have already been gathered may be genuinely useful for other purposes, which are not initially specified.  Therefore, the Working Party says, “there is also value in allowing, within carefully balanced limits, some degree of additional use”.  The principle of purpose limitation is designed to offer a balanced approach: one that aims to reconcile the need for predictability and legal certainty regarding the purposes of the processing on the one hand, and the pragmatic need for flexibility on the other.

The aim of this latest Opinion is to offer guidance on the practical application under the current legal framework of the principle of purpose limitation.  The Opinion also highlights areas for improvement and provides recommendations with regard to the revision of the general data protection legal framework, currently being discussed in the European Parliament and Council.

The principle has two main building blocks: i) personal data must be collected for “specified, explicit and legitimate” purposes (purpose specification); and ii) personal data must not be “further processed in a way incompatible” with those purposes (compatible use).  Further processing for a different purpose does not necessarily mean that it is incompatible, but compatibility needs to be assessed on a case-by-case basis, taking into account all relevant circumstances.

In particular, the following key factors need to be taken into account:

  • the relationship between the purposes for which the personal data have been collected and the purposes of further processing;
  • the context in which the personal data have been collected and the reasonable expectations of the data subjects as to their further use;
  • the nature of the personal data and the impact of the further processing on the data subjects; and
  • the safeguards adopted by the controller to ensure fair processing and to prevent any undue impact on the data subjects.

The Opinion points out that the processing of personal data in a way that is incompatible with the purposes specified at collection is “against the law and therefore prohibited”. A data controller cannot, therefore, legitimise incompatible data processing by simply relying on a new legal ground, such as, for example, in the context of a new privacy policy or another government task.  For a link to the Opinion, click here.

Broadcasting

Ofcom censures BBC for making 11-year-old girl retch in name of children’s entertainment.

Two complainants alerted Ofcom to an edition of Dick and Dom’s Hoopla!, which featured an item called “Gypsy Rose Dick”.  The complainants objected to the girl and boy involved in this competition being encouraged to drink “vile concoctions” in front of a live audience and appearing distressed while participating in this item.  They also complained about a very brief section at the end of the item, which they described as showing the girl vomiting into a bucket.

The BBC outlined the precautionary measures it had taken prior to and during production including a safety briefing to the chosen contestants and an explanation of how the filming would take place.  The BBC added that the two children “were reminded that they could refuse at any time to eat or drink any item” and that the Executive Producer was observing from the studio floor and would have halted recording if it had appeared to her that the girl was becoming distressed.  On the issue of offence, the BBC accepted that, “the spectacle of [the girl]’s obvious discomfort would have struck some viewers as going beyond acceptable boundaries, even though her subsequent participation in the programme made clear that her discomfort was temporary”.

Ofcom had a number of concerns relating to child welfare including the combination of presenter and audience pressure and the propensity of children to follow the instructions of adults, which could compromise a contestant’s ability to opt out.  Ofcom highlighted the lack of risk assessment on the potential negative impact of participation, such as a contestant’s discomfort, as well as the lack of evidence of whether the children were provided with meaningful, child-friendly information on any likely negative consequences of appearing in the programme.  Ofcom was concerned that the BBC did not involve anyone who was independent in assessing whether it was appropriate for them to take part and said that it had relied on its own opinions, the girl’s apparent assent and the consent of her parents to too great an extent.  Finally, Ofcom was very concerned that production staff did not intervene during filming and found that due care had not been taken over the girl’s physical and emotional welfare.  The eating competition therefore breached Rule 1.28 of the Broadcasting Code.

Ofcom also found that the material was clearly capable of causing considerable offence made worse by the sometimes aggressive presenting style of Dick and the fact that viewers would not have been aware that there was no obligation on the contestants to eat the food if they did not want to.  Since there was no contextual justification for the offence caused Ofcom decided that the BBC did not apply generally accepted standards and that this content was in breach of Rule 2.3.  To read Ofcom’s adjudication on Dick and Dom’s Hoopla! published in Issue 227 of the Broadcast Bulletin (8 April 2013), click here.

Child’s participation in Door to Door challenge on I’m a Celebrity Get me Out of Here! breaches acceptable standards rules.

The Door to Door challenge involved two celebrities, Charlie Brooks and Eric Bristow.  The aim of the challenge was for the pair to pick one of five differently coloured doors situated in a row in a jungle clearing, behind which there was either a surprise “treat” or a sign saying that the game was over.  Charlie Brooks’ seven-year-old daughter, Kiki, and Eric Bristow’s 19-year-old son, James, were behind the yellow door.  The yellow door was not picked and shots with Kiki hanging her head and waving in disappointment were shown.

Ofcom received 66 complaints that the challenge was “exploitative” of Kiki and caused her “emotional harm”; she could not give consent to participate; and it was upsetting for Charlie Brooks subsequently to discover that she had had the opportunity to win a meeting with her daughter.

ITV said that it took a number of steps before production to seek to protect Kiki in terms of her involvement and to assess whether she had the intellectual and emotional maturity to handle participating in the challenge.  ITV said that it had obtained the informed consent of Kiki’s grandmother and it had explained to Kiki that she might not see her mother at the conclusion of the challenge.  As for any offence caused to the viewer, ITV maintained that, during the challenge, Kiki displayed “the natural reactions of childish excitement and then disappointment” but at no point was seen “exhibiting real distress”.

In Ofcom’s view, the challenge had similarities with the daily audience “vote off”, in that it held up the possibility of Kiki being reunited with her mother, albeit briefly.  Ofcom considered therefore that, in participating in the Door to Door challenge, and in the context of Kiki being familiar with the production location of I’m a Celebrity… and its production staff over a number of days, Kiki would have demonstrated that she was coping well with the uncertainty of not being reunited with her mother.  It therefore considered that advice from an appropriately qualified professional, such as a child counsellor or psychologist was not required. 

Ofcom was satisfied that ITV had taken the necessary steps to ensure that due care was taken of the emotional welfare of Kiki and the programme was therefore not in breach of Rule 1.28 of the Broadcasting Code.  Nor was it in breach of Rule 1.29 since there was no evidence that Kiki had been caused unnecessary distress or anxiety as a result of her involvement in, or broadcast of, the programme.

Ofcom nonetheless considered that the appearance of a seven-year-old child placed in a scenario in which she was in close proximity to her mother, required to stay quiet, and not allowed to indicate her presence to her mother would have gone beyond the likely expectations of the audience for this programme, which rather would have expected consenting adults to participate in the challenges.  Ofcom also considered that Charlie Brooks’ distressed reaction to the realisation that she had lost the opportunity to be reunited with her daughter served to increase the potential offence caused in this case.   Ofcom said that the presenters did not refer to – and nor did the programme include any details of – the steps ITV had taken to help ensure due care was taken of Kiki’s welfare when participating in the programme itself and considered that without such additional information, viewers would have been likely to have been concerned that a seven-year-old child had been placed in a potentially highly upsetting scenario for the purposes of entertainment.  As a result, the material breached Rule 2.3, which requires that: “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context… Appropriate information should also be broadcast where it could assist in avoiding or minimising offence”.  To read Ofcom’s adjudication on I’m a Celebrity Get Me Out of Here! published in Issue 227 of the Broadcast Bulletin (8 April 2013), click here.

Ofcom clears The X Factor of falsely portraying contestant as a drunk.

An edition of The X Factor featured Miss Hester Bank and her ambitious performance of Wild Thing by The Troggs.  Before she went on stage, she was shown saying, “I could do with a drink right now…If I pass out on stage just somebody bring me a whisky”.  Her performance was cut short by the celebrity judges and she was not put through to the next round.  She said after her performance, “That was terrible…They didn’t like me.”  Dermot O’Leary asked what she was going to do and she replied, “Get drunk” and he commented “Again”.  One of the judges was heard saying, “That was rough”, and as Miss Bank made her way backstage she said “Not good at all” and appeared to burp.

In response to the many aspects of Miss Bank’s complaint of unfair treatment and unwarranted infringement of privacy, ITV did not accept that the psychological assessment she had had prior to auditioning was the only cause of her nerves before going on stage.  It denied that the psychologist had said she would not be able to go through to the next round because of any of her “previous issues”.  ITV also denied that Miss Bank’s voice was dubbed and that the judges’ comments were recorded after the event and included in the audition sequence later.   ITV said that a fake burp was not added to the footage and that a real burp was very clearly present in the original recording.  It added that the comments relating to drink were not included to treat her unfairly or suggest she was an alcoholic.  Finally, ITV explained that the sequence was an accurate reflection of the events of the day and at no point did any of the production team look through Miss Bank’s unattended bags or obtain any information about previous auditions she may have attended in this way.

Ofcom said that because Miss Bank had repeatedly mentioned being nervous about her performance before her psychological assessment, it was unlikely that this was the sole cause of her anxiety about performing her audition.  As for the decision not to put her forward to the next round, Ofcom took the view that the judges believed that Miss Bank’s performance was not good enough to progress further in the competition.  Ofcom also took the view that Miss Bank’s performance at her audition was portrayed accurately and did not consider that there was any evidence that her voice had been dubbed or edited so as to diminish the quality of her singing.  Ofcom considered that the edited version of the audition fairly and accurately conveyed Miss Bank’s performance and the judges’ general reaction to it.  Although there were references to drinking, several made by Miss Bank herself before and during her audition, there was no suggestion in the programme that she was an alcoholic.  Accordingly, Ofcom found no unfairness to Miss Bank. 

While Ofcom considered that Miss Bank had a legitimate expectation that she would not be asked about unduly personal or sensitive matters, the questions she was asked during her audition were of a kind a contestant could expect to be asked and there was no evidence that they were asked as a result of the programme makers looking through her personal belongings.  Ofcom therefore found no unwarranted infringement of Miss Bank’s privacy in connection with the obtaining of material included in the programme.  To read Ofcom’s adjudication on Complaint by Miss Hester Bank, published in Issue 227 of the Broadcast Bulletin (8 April 2013), click here.

Music

IFPI publishes “The Recording Industry in Numbers 2013” showing rise in music subscription services and promising growth of emerging markets.

IFPI says that its recent report, “The Recording Industry in Numbers 2013” provides a comprehensive picture of the key trends in today’s global music business, with in-depth statistics and analysis covering 49 markets worldwide.  

The report shows that, overall, global recorded music trade revenues increased by 0.2% in 2012, the first year of growth since 1999.  All the revenue streams that IFPI tracks (physical, digital, performance rights and synchronisation revenues), with the exception of physical sales, increased in 2012.  A total of 21 countries saw market growth in 2012, including nine of the top 20 markets.

The world’s top 20 markets table shows that: the US remains the world’s largest music market; digital sales success in Sweden has made that country the world’s 12th largest music market (up two places on 2011); and India has moved up the rankings.

Digital channels now account for 35% of overall industry trade revenues, while physical sales now represent 57% of record companies’ income.  Downloads remain the biggest source of digital revenues, with combined unit sales of track and album downloads up by 11% in 2012.

Music subscription services are seeing rapid growth.  Music subscription and ad-supported streaming services now account for 20% of digital revenues globally, up from 14% in 2011. Subscription and ad-supported revenues combined now account for almost one third (31%) of all digital music revenues in Europe.

Emerging markets are helping fuel the industry’s recovery.  Brazil, India and Mexico have seen market growth respectively of 24%, 42% and 17% since 2008.  In 2012 revenues in India reached an all-time high while Latin America was the fastest growing region of the year.

Albums continue to hold their appeal, accounting for 56% of recorded music sales value.  Digital album downloads grew faster than singles and vinyl sales hit their highest point since 1997.  Consumer usage on streaming services shows that the album format remains very relevant.  Many of the year’s best-selling albums generated a large streaming volume across all tracks included on the album.

Performance rights revenues (from broadcasts and public performance) were the fastest growing sector in the recording industry in 2012, accounting for 6% of recorded music revenues.  Revenues grew by 9.4% globally, to US$943 million.  Income from synchronisation deals, i.e. music used in TV adverts, films and brand partnerships, grew by 2.1% to US$337 million in 2012.  For a link to the report, click here.

Publishing

European Commission clears creation of Penguin Random House, combining publishing businesses of Bertelsmann and Pearson.

The Commission has cleared under the EU Merger Regulation the proposed creation of Penguin Random House, combining parts of the publishing businesses of the German media company Bertelsmann and the UK publishing company Pearson. The Commission found that the transaction would not raise competition concerns, in particular because the merged entity will continue to face several strong competitors.

The Commission assessed the impact of the transaction on the upstream markets for the acquisition of authors’ rights for English language books in the European Economic Area and worldwide, and on the downstream markets for the sale of English language books to dealers in the EEA, in particular in the UK and Ireland.  The Commission found that on both types of markets the new entity Penguin Random House will continue to face competition from several large and numerous small and medium sized publishers.  As regards the sale of English language books, the merged entity will furthermore face a concentrated retail base, such as supermarkets for print books and large online retailers like Amazon for e-books.  In addition, the Commission’s investigation revealed no evidence that the transaction would lead to risks of coordination among publishers in relation to the acquisition of authors’ rights and the sale of English language books to dealers.

The Commission also assessed the impact of the transaction on third party book distribution, where both Random House and Penguin are active, as well as on the book production market given the vertical relationship between Bertelsmann’s activities in book production (through its Arvato division and BePrinters) and Penguin Random House’s activities in the sale of English language books to dealers.  The Commission found that the parties have low market shares and that many alternative suppliers for book production and third party book distribution services remain active in the EEA.

As a result, the Commission concluded that the transaction would not significantly impede effective competition in the EEA.  To read the Commission’s press release, click here.

Press Complaints Commission upholds complaint against That’s Life magazine for payment to relative of convicted criminal.

The story in question was an account of the murder of a man by his stepson, Christopher Hodgson, which was told from the perspective of Mr Hodgson’s sister, Louise Hodgson.  The complainant, Treena McIntyre, was the sister of the victim.  She complained to the PCC that the magazine article had presented Mr Hodgson in an inappropriately sympathetic light; in her view, the account ought not to have been published.

The magazine said it had made a payment for the feature to Ms Hodgson, whom it viewed as a victim rather than as an “associate” of Mr Hodgson, only after careful consideration.  It argued that Ms Hodgson had not sought to glorify or glamorise the crime in her account, which it said could not be understood as having “exploited” the crime under the terms of Clause 16 (Payment to criminals) of the Editors’ Code of Practice.

Although the PCC noted that it had some sympathy with Ms Hodgson’s position, it did not accept that she was a “victim” of the crime.  As Mr Hodgson’s sister, she was clearly his “associate”.  The magazine had not sought to argue that the payment was justified in the public interest.  The PCC ruled that the material “related specifically to the crime and to his criminality”.  By receiving payment for the story, Ms Hodgson had “directly benefitted” from her brother’s crime in breach of Clause 16.

A separate complaint made under Clause 5 (Intrusion into grief or shock) of the Editors’ Code was not upheld.  To read PCC Adjudication on Ms Treena McIntyre v That’s Life (5 April 2013), click here.

Legal Deposit Libraries (Non-print Works) Regulations 2013 come into force.

The Legal Deposit Libraries (Non-print Works) Regulations 2013 came into force on 6 April 2013. 

The objective of the Regulations is to allow the preservation of non-print publications for future generations.  Under the current legal deposit regime every printed work that is published in the UK is deposited with the British Library and, upon request, with five other legal deposit libraries.  The new Regulations extend that regime so that, in addition to printed works, it also covers non-print works, i.e. works published in a medium other than print, such as digital works.

The Government has also published guidance to help publishers and deposit libraries to interpret their obligations under the new Regulations.  For a link to the new Regulations, click here.  For a link to the Guidance, click here.

Gambling & Betting

Gambling Commission publishes consolidated gambling Codes of Practice for all forms of gambling.

The consolidated Codes of Practice are primarily aimed at licensing authorities and other regulatory partners that grant permits or permissions.  The Codes apply to all operators, whether licensed by the Commission or provided with a permit/permissions by the licensing authority.  The Gambling Commission says that the document should not be confused with the Commission’s Licence Conditions and Codes of Practice, which apply only to licensed operators.  For a link to the consolidated Codes, click here.

Advertising

Committee of Advertising Practice (CAP) publishes “dos and don’ts” relating to “free trials”.

CAP has published advice setting out various “dos and don’ts” for marketers who want to entice new customers to their product or service by offering a “free trial”.

DON’T:

  • Charge anything other than the true cost of delivery when offering a “free trial”.  That means that only the genuine un-inflated cost of postage can be charged. Nothing else may be charged for when offering a free trial, even if the charge is stated in the ad, and that includes packing, handling and administration charges.  If an advertiser wants to charge more than the postage the product cannot be offered as a “free trial”.
    • Describe any offer that involves a non-refundable purchase as a “free trial”.  That includes offers such as “Buy one, get one free”.  If the consumer has to pay upfront and will later be refunded the cost of the product or service, this should also be prominently stated.
    • Use the term “free trial” to describe “satisfaction or your money back” type offers.

DO:

  • Make the extent of the consumer’s commitment clear.  If they are signing up to an ongoing financial commitment after the trial period, that must be stated prominently and clearly in the ad so that it won’t be missed by consumers.  If consumers need to cancel within a particular period to avoid being charged that should also be stated prominently.  Hiding this information at the bottom of the webpage, in terms and conditions or in smallprint is not acceptable.  Getting consumers to tick that they “agree” with the terms and conditions is also insufficient – any ongoing commitment and cancellation period must still be stated clearly in the ad.
    • Make exclusions to the offer clear. If not all products or elements of a particular service are included, marketers must not imply that they are.
    • Make sure that there is evidence to support any claims in relation to the free trial.  If the ad states that the number of free trials is limited then that must actually be the case and a reasonable estimate of the likely demand must be made.  Finally, marketers must be capable of meeting such demand. 

For a link to the CAP advice, click here.

 

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