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November 13, 2013
Internet Corporation for Assigned Names and Numbers launches new “one-stop” online WHOIS directory service.
Ofcom introduces changes to accreditation scheme for price comparison websites.
Ofcom publishes outcome of assessment of whether UK’s major mobile phone networks are meeting 3G coverage obligations.
Ofcom dismisses complaints of stereotyping in Big Fat Gypsy Weddings and Thelma’s Gypsy Girls.
European Parliament and Council negotiate draft Directive on collective management of copyright.
High Court awards the exclusive licensee to Eva Cassidy’s recordings £758,127 in distribution profits pursuant to oral agreement between the licensee and the distributor and finds that distributor did not own any copyright.
New Police Intellectual Property Crime Unit (PIPCU) makes its third arrest.
Media Standards Trust welcomes agreement of Royal Charter on press self-regulation but calls for British equivalent of First Amendment.
Newspaper and magazine industry lodges appeal against refusal of permission for judicial review of Privy Council’s decision to reject industry’s Royal Charter on press regulation.
Press Complaints Commission dismisses complaint that an article in the Daily Mirror about the judge in the Stuart Hall case was discriminatory and breached privacy.
Gambling Commission issues Public Statement entitled “Important lessons for the gambling industry on anti-money laundering and social responsibility controls”.
Gambling (Licensing and Advertising) Bill receives second reading in the House of Commons.
Advertising Standards Authority finds claims in London Comedy Club tickets ads incapable of robust substantiation and questions genuineness of testimonial.
Internet Corporation for Assigned Names and Numbers launches new “one-stop” online WHOIS directory service.
ICANN says that the new information website provides a “clear and easy-to-understand” explanation of how to access existing WHOIS information. It also makes it easy to notify relevant parties of a data accuracy issue.
To date, it has been difficult to get a holistic understanding of WHOIS, as information is distributed over many different websites. The new website, www.whois.icann.org, will be a centralised location for all WHOIS information, making it easier to learn about WHOIS, raise accuracy issues about WHOIS information and how to contribute to WHOIS policies. ICANN expects to launch an integrated search function in January 2014 as part of the website’s second phase.
In addition to identifying domain name holders, WHOIS data also allows network administrators and others to find and fix system problems and to maintain internet stability. With it, they can determine the availability of domain names, combat spam or fraud, identify trade mark infringement and enhance accountability of domain name registrants. WHOIS data is sometimes used to track down and identify registrants who may be posting illegal content or engaging in phishing scams.
The Affirmation of Commitments requires ICANN to “maintain timely, unrestricted and public access to accurate and complete WHOIS information….” It also calls for a review of WHOIS policy and its implementation every three years to assess its effectiveness in meeting legitimate needs of law enforcement and promoting consumer trust. The new website is the result of recommendations made by the last review panel.
Members of the community are invited to view the website and provide comments via feedback forms. ICANN will then consider all comments and suggestions as it continues to work on the site. To read the ICANN press release in full, click here.
Ofcom introduces changes to accreditation scheme for price comparison websites.
Ofcom says that the aim of the changes is to help consumers who use price comparison websites when choosing a new service or switching services. Such websites can apply to Ofcom for independent accreditation, which gives assurances to consumers that they are receiving accurate, transparent and comprehensive pricing information.
Ofcom has decided that accredited websites will now face “spot checks” every three months. Accredited websites must also now update their price comparison data at least every two weeks (down from every eight weeks) and have in place a fair and timely process for handling complaints.
Ofcom is also requiring accredited websites to:
- provide information on any data usage limits that apply to the services listed in their comparison search results;
- explain that internet traffic management policies may apply and include links to communications providers’ policies where available;
- explain that actual and “up to” broadband speeds may vary;
- provide tools, or links to tools, for consumers to test the speed of their broadband connection; and
- alert consumers that their provider may increase the price of services and packages and that they should be allowed to exit their contract without penalty if this happens.
Accredited websites will also carry a new logo so that consumers can recognise their Ofcom-approved status:
To read Ofcom’s press release in full, click here.
Ofcom publishes outcome of assessment of whether UK’s major mobile phone networks are meeting 3G coverage obligations.
When 3G mobile spectrum licences were awarded in 2000, they included an obligation to roll out services to 80% of the UK by population. In 2010 this was increased to 90% of where the UK population lives. EE, Three, O2 and Vodafone agreed to reach this new coverage obligation by a deadline of 30 June 2013.
Once the deadline had passed, Ofcom conducted an assessment of each operator’s compliance with the new coverage obligation. The outcome of this revealed that mobile phone operators EE, Three and O2 have successfully met this obligation. However, Vodafone failed to meet the obligation, falling 1.4% short of the 90% coverage requirement.
Following discussions with Ofcom, Vodafone has put in place a plan to bring itself into compliance with the 3G coverage obligation by the end of 2013.
Ofcom says that it is leading or supporting initiatives to improve mobile coverage as part of a five-point plan. The plan outlines a number of initiatives that are designed to improve mobile coverage as well as providing consumers with quality, reliable and transparent information relating to mobile reception. To read Ofcom’s press release in full, click here.
Ofcom dismisses complaints of stereotyping in Big Fat Gypsy Weddings and Thelma’s Gypsy Girls.
Ofcom was alerted to potential issues under the Broadcasting Code in relation to the observational documentaries, Big Fat Gypsy Weddings (BFGW) and Thelma’s Gypsy Girls (TGG), by a complaint from the Irish Traveller Movement in Britain (ITMB) and four co-complainants. The main complaint was that the broadcasts were unfair, presented negative stereotypes and endorsed prejudice against the ITG&R communities.
Rejecting the complaints, Ofcom found that the steps taken by Channel 4 were sufficient to ensure that due care was taken of the emotional welfare of under-18s featured in the programmes, including the young women contributors featured involved in “grabbing” – a “courtship” practice engaged in by some people in the ITG&R communities, whereby ITG&R boys will physically “grab” an ITG&R girl in order to kiss her.
Additionally, while Ofcom recognised that some of the portrayals of ITG&R contributors (e.g. showing them engaged in behaviour that some viewers might regard as inappropriate) had the potential to cause some offence, it considered that there was sufficient context to justify any potential offence that might have been caused by this material.
Ofcom added that the portrayals of ITG&R communities in the programmes were not materially misleading. It said that BFGW and TGG were observational documentary series highlighting aspects of the life of particular ITG&R people and did not depict negative stereotypes applicable to ITG&R communities as a whole.
Finally, Ofcom was satisfied that the programmes presented a reasonably accurate portrayal of how some young ITG&R people of both sexes behaved. This was because viewers would have seen a number of examples where young ITG&R people were shown in a positive light. Ofcom therefore considered that Channel 4 had taken reasonable steps to ensure that the programmes did not present the ITG&R communities in a way that was unfair. To read the adjudications on the complaints by the Irish Traveller Movement in Britain published in Issue 241 of the Broadcast Bulletin (4 November 2013), click here.
European Parliament and Council negotiate draft Directive on collective management of copyright.
The draft Directive means that online music service providers will be able to obtain licences from a small number of authors’ collective management organisations operating across EU borders instead of having to deal with separate organisations in each EU member state.
The new rules are intended to stimulate the creation of EU-wide online music services for consumers and ensure that creators’ rights are better protected and their royalties are paid more quickly.
Under the draft Directive, smaller and less popular repertoires would have access to the markets by requiring collective management organisations to issue licences under the same conditions for all repertoires. The agreed text also provides for royalties to be distributed to artists as quickly as possible and no later than nine months from the end of the financial year in which the rights revenue is collected.
In addition, rightsholders would have a say in the decisions on the management of their rights and the freedom to select the collective management organisation of their choice. Further, rightsholders would be able to grant licences for non-commercial uses.
The draft Directive also imposes increased transparency and better governance on collective management organisations.
The agreed text still needs to be adopted formally by Parliament and EU Ministers. The Legal Affairs Committee vote is scheduled for 26 November 2013 and the full Parliament is expected to vote in February 2014. To read the Parliament press release in full, click here.
High Court awards the exclusive licensee to Eva Cassidy’s recordings £758,127 in distribution profits pursuant to oral agreement between the licensee and the distributor and finds that distributor did not own any copyright.
Following Eva Cassidy’s death in 1996, the first claimant, Mr Straw, obtained an exclusive licence to her recordings. Mr Straw’s company, Blix Street Records Inc, subsequently became the exclusive licensee. Mr Straw, and later Blix, became the owner of the worldwide distribution rights to Eva Cassidy’s catalogue.
In 1998, Mr Straw entered into an oral agreement with Mr Jennings, the first defendant. The essential provisions of the oral agreement were that Mr Jennings or his companies would distribute the recordings in certain territories outside North America, principally in the UK and Australia, but also other European countries excluding the Republic of Ireland. The profit would be shared equally.
The parties did not expressly agree what items would be brought into account in ascertaining the profit of their joint venture. It was subsequently agreed that not only would the direct costs of the non-distribution aspects of the business be deductible as an expense in ascertaining profits, but also that an apportioned share of the indirect costs, i.e. overheads including wages, would be deductible.
The venture therefore had two elements: 1) the creation, promotion and exploitation of recordings; and 2) the distribution of recordings, principally in the form of CDs to retailers or other purchasers.
Mr Straw and Blix issued a claim for £1,625,332 against the defendant distributors pursuant to the distribution element of the joint venture following the defendants making certain deductions to payments that the claimants disagreed with. The defendants counterclaimed for copyright infringement in relation to the compilation and sequencing of some of the albums and the liner and track notes for one of the albums.
Mr Straw and Blix contended that the agreement to share profits related solely to profits, and not to losses as well. The defendants argued that it related to both profits and losses. There was also a dispute over which period the profits (and possibly losses) should be ascertained.
The court found that no term should be implied into the oral agreement that Mr Straw and Blix should share in any loss in the carrying out by the defendants of the distribution business. Further, it found that in order to give business efficacy to the agreement, a term should be implied that Mr Straw and Blix would be entitled to payment from time to time during the course of the agreement. The court also examined the methodology for ascertaining distribution profits.
As for the copyright infringement counterclaim, the defendants argued that during the course of the joint venture, a number of original sound recordings, literary, artistic and/or film works were created by both parties for the purpose of performing the JV. These included graphic works on the CD packaging, text on the CD packaging, a video to promote Eva Cassidy’s recording of Over the Rainbow and the compilation and sequencing of the recordings into albums.
The defendants alleged that Mr Straw and Blix infringed the defendants’ copyright by continuing to reproduce and issue to the public copies of the works and/or authorising the same without the defendants’ consent. The claimants denied the claims, most importantly on the grounds that Mr Jennings was not an author or joint author of the works and that none of the defendants had ever owned any copyright in them.
The court found that, with the exception of the track notes for American Tune, Mr Jennings was not joint author of the works and therefore did not own any copyright. The same applied to Mr Jennings’ companies. The counterclaim was therefore dismissed.
The court ordered that payment of £758,127 should be made to the claimants, subject to some small adjustments. (Bill Straw v Graeme Martin Jennings [2013] EWHC 3290 (Ch) (1 November 2013) – to read the judgment in full, click here).
New Police Intellectual Property Crime Unit (PIPCU) makes its third arrest.
Detectives from PIPCU have arrested a man at his Reading home on suspicion of operating a website that was illegally selling music albums, singles and films.
The operation followed a referral from PRS for Music and is the third arrest made by PIPCU since its launch last month.
PRS for Music says that the 33-year-old man is believed to have been using a website to sell discs containing music and films, which he does not hold the copyright licence for, for a small fee of only a few pounds. Each disc can contain up to 40 music albums and is estimated to be worth hundreds of pounds.
PIPCU was set up to protect UK industries that produce legitimate, high quality, physical goods and online and digital content. Over the next two years PIPCU will be working with a wide range of national and international partners from public authorities and private industry to build a comprehensive UK policing response to the threat of online intellectual property crime. The unit will also be focused on influencing online behaviour by site owners, service providers and consumers through education, prevention and enforcement activity, and providing offenders where appropriate with opportunities to accept restorative justice.
Detective Inspector Rob Stirling, from PIPCU, said: “Today’s arrest forms part of just one of the many investigations PIPCU is currently pursuing. Since the launch of PIPCU we have seen a wide range of businesses come forward with referrals for the unit and today’s operation shows how this information can swiftly be turned into live investigations and arrests. We urge any UK organisation who believes they may be victim to intellectual property crime in the UK or overseas, to get in touch and submit evidence to the unit so we can get right to work”. To read the PRS for Music press release in full, click here.
Media Standards Trust welcomes agreement of Royal Charter on press self-regulation, but calls for British equivalent of First Amendment.
The Media Standards Trust says that it welcomes the agreement of a Royal Charter on 30 October 2013 to establish a recognition body and a recognition process for independent self-regulation of the press.
The MST says that it did not support the use of a Royal Charter to establish a recognition body, and that it made this clear when it was first proposed. Rather, it says, it supported Lord Justice Leveson’s recommendation to use legislation to give authority to the recognition body.
However, the MST says, it appreciates that a Royal Charter was proposed in order to “assuage newspapers’ concerns” and that it was the Government’s intention to put Leveson’s recommendations into practice without using legislation.
The MST says that it has closely analysed each of the eight versions of the Royal Charter published since December 2012. According to the MST, the analysis shows that the final Royal Charter, agreed on 30 October 2013, is “very close to the recommendations made by Lord Justice Leveson in his report of 29 November 2012” and “significantly closer” to Leveson’s recommendations than the first cross-party draft, or the industry’s version.
In the MST’s view, the final Charter “creates a framework that ensures that no recognized regulator can be established that can stop anyone from publishing anything”. At the same time it ensures that any recognised regulator will have to work for the public as well as the press.
The MST also welcomes the final amendment made to the Charter, which means that any future change to it must be unanimously approved by the Recognition Panel, approved by a two-thirds majority of the House of Commons, and approved by a two thirds majority of the House of Lords (and, where relevant, approved by the Scottish Parliament).
Further, the MST notes, s 96 of the Enterprise and Regulatory Reform Act 2013 protects the Charter from interference by Ministers and Privy Councillors. Separately, the Charter itself excludes all politicians from the Recognition Panel, its staff, its appointments panel and from any regulators’ Board.
In the MST’s view, the system established by the Charter “does not represent a threat to press freedom”. There are, however, it says, other threats to press freedom. “There is still, for example, no general public interest defence in law, as we called for in our submission to the Leveson Inquiry. Terrorism laws, not intended for use against the media, are being used by the government against the media”.
For this reason, the MST says, it has renewed its call for the Government to introduce the protection for press freedom in law that Lord Justice Leveson recommended in his report. Leveson wrote:
“In passing legislation to identify the legitimate requirements to be met by an independent regulator organised by the press, and to provide for a process of recognition and review of whether those requirements are and continue to be met, the law should also place an explicit duty on the Government to uphold and protect the freedom of the press”.
In order to “show its commitment to press freedom”, the Government should, the MST believes, accept Leveson’s recommendation and introduce Britain’s equivalent to the First Amendment. To read the MST’s press release in full, click here.
Newspaper and magazine industry lodges appeal against refusal of permission for judicial review of Privy Council’s decision to reject industry’s Royal Charter on press regulation.
The newspaper and magazine industry has formally lodged its appeal against the decision by Lord Justice Richards and Mr Justice Sales to refuse it permission to seek judicial review of the Privy Council’s decision to reject its application for a Royal Charter to oversee press regulation.
The industry’s trade associations, through the Press Standards Board of Finance (PressBof), applied for an injunction to prevent a meeting of the Privy Council sealing the Government’s rival Royal Charter pending hearing of the industry’s case for judicial review.
The Court decided to treat the case as an application for permission for judicial review, as well as for an injunction. It dismissed both.
Lord Black of Brentwood, Chairman of PressBof said: “The imposition by the Privy Council of a Royal Charter on our industry raises hugely significant questions about a free press, a free society and the quality of our democracy. Quite apart from the threat to press freedom in the UK, it will have terrible reverberations across the Commonwealth and the developing world. The stakes are extremely high. We do not believe that a hastily convened hearing for an emergency injunction application is an appropriate venue for giving proper consideration to these vital issues. We are confident our appeal will succeed”. To read the industry press release as published on the Newspaper Society’s website, click here.
Press Complaints Commission dismisses complaint that an article in the Daily Mirror about the judge in the Stuart Hall case was discriminatory and breached privacy.
Dr Nicholas Russell complained to the PCC, with the consent of his brother Judge Anthony Russell QC, that an article headlined “Stuart Hall judge visited gay brothel”, published by the Daily Mirror on 24 June 2013, had discriminated against the judge and intruded into his privacy in breach of Clause 12 (Discrimination) and Clause 3 (Privacy) of the Editors’ Code of Practice.
The front-page article reported that Judge Russell, whose sentencing of Stuart Hall had been criticised as unduly lenient, had in 1996 resigned his position as a Recorder following the publication of allegations that he had visited a “gay brothel”. The complainant said that the story insinuated, entirely unjustifiably, that his brother’s sexual orientation was relevant to, or had influenced, his judgement in the sentencing of Mr Hall. The coverage was grossly offensive, intruded into his brother’s privacy and referred to his brother’s sexual orientation in pejorative terms, in breach of the Code, he said.
The newspaper said that the article had made no explicit or implicit claim that the judge had given Mr Hall a lenient sentence because of his own sexual orientation. Nor had it accused him of any professional impropriety. There had been considerable public debate concerning Mr Hall’s sentence, which had ultimately been increased by the Court of Appeal. The newspaper believed that it was relevant to this debate that a judge involved in a high-profile case concerning sexual misconduct had in the past himself faced allegations of sexual activity, albeit of a very different kind, which had led to his resignation.
Clause 12 (Discrimination) (i) prohibits “pejorative or prejudicial” references to an individual’s sexual orientation; the clause also provides that (ii) “details of an individual’s … sexual orientation … must be avoided unless genuinely relevant to the story”.
The front-page article under complaint included a large photograph of the judge next to the headline “Stuart Hall judge visited gay brothel”. The story had not made a specific claim about the judge’s sexual orientation and had contained little detail regarding the allegations in the original report regarding his supposed activities at the establishment. Nonetheless, given the prominence afforded to the nature of the establishment in the headline, and the outline of the original allegations that was included in the text, the PCC concluded that the terms of Clause 12 (ii) were engaged in this instance. The newspaper was therefore required to demonstrate that the fact that it was a “gay” brothel was “genuinely relevant”.
The PCC said that this was “an extremely finely balanced decision” and it was acutely aware of the purpose of Clause 12 (ii): to prevent the risk that prejudice may arise when an individual’s characteristics (sexual orientation, in this case) are juxtaposed with their acts (allegedly excessively lenient sentencing decisions) in a context that may imply to readers, wrongly, that a causal relationship links the two.
Nonetheless, the PCC said, the newspaper was entitled to bring to its readers’ attention the fact that a serving judge who was the subject of present controversy had previously had cause to resign from a judicial post. The direct cause of the Judge’s resignation was the visit to an establishment that was allegedly the site of sexual activities that were regarded, at least at the time of the original incident, as worthy of comment. While the PCC made clear that it might have taken a different view had the report included gratuitous sexual details, which would clearly have been irrelevant to a report of the circumstances of the resignation, it concluded that the newspaper had been entitled to publish the fact that the establishment had catered for gay men. The PCC had reservations about the manner in which the material had been presented and, in particular, the prominence given to the nature of the establishment, but Clause 12 (ii) did not provide for the PCC to uphold a complaint solely based on the prominence given to information in a story which might be held to identify an individual’s sexual orientation. The PCC did not uphold the complaint under Clause 12 (ii).
The PCC noted also that the article had recounted the incident in a factual manner, without ridiculing the judge’s sexuality or employing offensive terms. It concluded that the article contained no “prejudicial or pejorative reference” to the judge’s sexual orientation. There was therefore no breach of Clause 12 (i).
Finally, the coverage contained minimal details about the allegations, which had been previously published, and no further information or speculation that could be said to relate to the complainant’s private life. The complaint under Clause 3 (Privacy) was also not upheld. To read Adjudication in Dr Nicholas Russell v Daily Mirror (7 November 2013) in full, click here.
Gambling Commission issues Public Statement entitled “Important lessons for the gambling industry on anti-money laundering and social responsibility controls”.
The Commission published the Statement following its engagement with Ladbrokes Group in relation to a number of compliance and policy matters. It says that it wished to draw to the attention of the gambling industry a number of important lessons around the issues of potential money laundering and social responsibility in identifying players at risk.
The Commission engaged with Ladbrokes from late 2012 to summer 2013 to investigate its operations and controls and identified three areas of learning for Ladbrokes and the wider industry:
- managing trading and the competitive nature of the trading room in combination with meeting regulatory obligations, including managing risk to the licensing objectives;
- identification of player risk across a range of products and platforms; and
- managing anti-money laundering controls, including in connection with criminal investigations, and responsible gambling obligations.
The Commission says that the Ladbrokes Board has been “open and co-operative throughout this investigation, making clear its determination to identify and remedy any weaknesses and to do so in a way that enables the Commission to share the lessons more widely”. Further, the Commission says, Ladbrokes have made clear their intent to co-operate further in helping work with other industry organisations and the Commission to ensure better policy and compliance across the betting sector and the gambling industry more widely. The Commission will further engage with Ladbrokes to assure itself that the specific work in hand is effective in addressing the issues raised. For a link to the full Public Statement, click here.
Gambling (Licensing and Advertising) Bill receives second reading in the House of Commons.
Following consultation on improving the application process and information requirements for remote operating licence applications, the Gambling (Licensing and Advertising) Bill has now received its second reading in the House of Commons.
The Bill will mean a large number of overseas based operators wishing to target UK consumers will be required to make an application for a Gambling Commission remote operating licence. This is to prevent overseas operators, whose equipment is based outside the UK, from avoiding UK regulations and duties.
The Bill will now be considered in a Public Bill Committee on 11 and 12 November 2013. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on 19 November 2013. To track progress of the Bill, click here.
Advertising Standards Authority finds claims in London Comedy Club tickets ads incapable of robust substantiation and questions genuineness of testimonial.
A leaflet and two websites promoting tickets for the London Comedy Club included images of Jimmy Carr, Adam Bloom and Omid Djalili and stated: “All our shows are with award-winning professional acts…With over 100 recommendations from all forms of the media, and with even more 4 star and 5 star reviews…Over 50% Off Tickets Bought Inside the Venue…The Comedy Club has put on more shows in a single venue than any other comedy club over the last twenty years” and “We only select the finest acts for our shows. From acts that have been in BAFTA nominated TV shows to established headline acts”. Testimonials were also included, for example, “This is the most upmarket venue for comedy in the country.”
The Top Secret Comedy Club challenged whether the claims were misleading and could be substantiated and whether the testimonial highlighted was genuine. It also said that the featured images of the comedians misleadingly implied that they performed at the club when they did not.
Although the advertiser stood by the claims, the ASA found that documentary evidence to support them was lacking. It said that because it had not seen sufficient evidence to substantiate all the claims, the ads breached CAP Code rules 3.1 (Misleading advertising) and 3.7 (Substantiation). These same rules were breached in relation to the images in the ads. The ASA considered that consumers were likely to interpret the ads to mean that Jimmy Carr, Adam Bloom and Omid Djalili performed at the club recently. Because it had seen no evidence to demonstrate this, it concluded that the ads were likely to mislead.
As for the testimonial, the ASA considered that this was presented in a manner that implied the comments related to the venue at which the shows appeared and said that because the screenshot did not identify the venue to which the comments related, there was insufficient evidence to demonstrate that the testimonial was genuine. As such, the ads breached CAP Code rules 3.1, 3.7 (Substantiation) and 3.45 (Endorsements and Testimonials). To read ASA Adjudication on londoncomedyclubtickets.co.uk (6 November 2013). click here.
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