HomeInsightsNeed to Know – 2013.07.08

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General

Government publishes The Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013, exempting certain entertainment events from the authorisation requirements under the Act.

Design and Artist Copyright Society (DACS) says draft copyright exceptions legislation does not consider visual artists. 

Technology

Mobile Broadband Group (MBG) appoints British Board of Film Classification (BBFC) to take over from Independent Mobile Classification Board (IMCB) in providing independent framework underpinning Mobile Operators’ code of practice for self regulation of new forms of content on mobile. 

Ofcom proposes new measures to promote competition among superfast broadband providers. 

European Commissioner Neelie Kroes says cloud computing has a lot of potential, but is nothing if people do not trust it. 

European Parliament adopts new EU legislation to fight cyber crime, such as large-scale cyber attacks. 

European Commissioner for Home Affairs welcomes new EU rules to fight cyber crime. 

Government announces Defence Cyber Protection Partnership (DCPP). 

Culture Secretary Maria Miller writes to small broadband providers seeking to roll out superfast networks to rural parts of the UK, encouraging them to work with BT to identify areas needing most help. 

Internet Corporation for Assigned Names and Numbers (ICANN) approves 2013 Registry Agreement for new generic top-level domain names. 

Ofcom consults on its review of fixed access markets. 

Nominet launches revised proposal for .uk domain name registrations at second level. 

High Court finds that Microsoft’s SKYDRIVE trade marks for cloud storage services infringe Sky’s trade marks for SKY.

Broadcasting

Ofcom finds Sky News’ accessing of emails for Canoe Man programme and related reports justified in the interests of revealing serious crime. 

Ofcom finds Channel 5’s Super Casino teleshopping feature misleading because conditions attached to “bonus” offer were not sufficiently clear.

Music

British Phonographic Industry (BPI) welcomes police unit to tackle online piracy. 

Publishing

Press Complaints Commission upholds complaint that article identified woman as victim of sexual abuse.

Computer Games

Association for UK Interactive Entertainment (Ukie) calls on European Commission urgently to approve games tax relief. 

General

Government publishes The Licensing Act 2003 (Descriptions of Entertainment) (Amendment) Order 2013, exempting certain entertainment events from the authorisation requirements under the Act.

Under The Licensing Act 2003 a person may not carry on a specified activity otherwise than under and in accordance with an authorisation. 

Article 2 of the new Order amends the descriptions of entertainment so that an authorisation for an indoor sporting event or a performance of a play or dance may be required only when the audience exceeds a specified number or the entertainment does not take place between 8am and 11pm on any day.  Authorisation may also be needed if a performance of dance is “relevant entertainment” within the meaning of the Local Government (Miscellaneous Provisions) Act 1982 and is not exempt.

The effect of the amendments is, the Government says, to make clear that a contest, exhibition or display which combines boxing or wrestling with one or more martial arts is licensable under the Act as a boxing or wrestling entertainment rather than an indoor sporting event.

The Government has also published a full impact assessment as to the effect that the Order and other proposals to amend the way that entertainment is regulated under the Act will have on the costs of business, the voluntary sector and the public sector.  For a link to the new legislation and the impact assessment, click here.

Design and Artist Copyright Society (DACS) says draft copyright exceptions legislation does not consider visual artists.

A technical review of the draft copyright exceptions legislation is currently underway.  DACS says that it is preparing a response on behalf of visual artists.

DACS says that it is concerned that the legislation has been drafted with predominantly music and film in mind and that: “There is no evidence that visual artists have been considered at all in the drafting of the exceptions, nor in the impact assessments or research”.  In DACS’ view: “This could create a number of consequences for visual artists”.  The absence of definitions within the legislation means creators may be forced to take cases to court, something that visual artists do not have the resources to do, it says.

DACS says that the proposed private copying exception impacts visual artists in very different ways to music artists.  In DACS’ view, the draft legislation, which allows someone who owns a copy of an artwork to copy the work into a different medium, could mean allowing them to make t-shirts, merchandise items and posters for their own use.  All of this would undermine an established, licensed market, it says.

As for the parody, caricature and pastiche exception, DACS says that the current draft allows for an artwork to be parodied, but also to be used to parody something else, without needing to seek the permission of the creator.  DACS says that it is concerned that the draft legislation does not define what parody, caricature and pastiche are, which could lead to the exception having a wider application, covering anything that is “funny”, potentially undermining existing licensing.  DACS is concerned that artists will not have the opportunity to object to their artwork being associated with something they do not agree with, prior to the artwork being used.

DACS is also concerned that, in replacing what it calls “the long-established exception for criticism and review”, with a new exception, the Government will be allowing an artwork to be used in almost any context of criticism and review.  Therefore, DACS says, an artwork could be used to criticise anything from politics to an individual’s style choice.  This could significantly undermine existing licensing streams where publications have an overall critical or reviewing character, like newspapers in general.  DACS is also concerned that the provision might infringe an artist’s moral rights.

DACS says that it is preparing responses to the Government’s technical review over the summer and that it will be publishing more information about the issues on its website in due course.  To read DACS’ press release in full, click here.

Technology

Mobile Broadband Group (MBG) appoints British Board of Film Classification (BBFC) to take over from Independent Mobile Classification Board (IMCB) in providing independent framework underpinning Mobile Operators’ code of practice for self regulation of new forms of content on mobile.

The mobile operators’ code of practice for the self regulation of new forms of content on mobile was originally published in 2004.  It is administered by MBG, whose members are EE, Telefonica UK (O2), Three and Vodafone.  To date, the independent framework for mobile commercial content underpinning the code has been provided by the IMCB, a subsidiary of PhonepayPlus, the premium rate services regulator.

MBG has now decided to appoint the BBFC to take over from IMCB to assist it in providing a suitable framework for its code of practice on mobile commercial content.  The BBFC Classification Framework will enable mobile operators to restrict access to commercial content (such as video and audio/video material or mobile games) that is unsuitable for customers under the age of 18.  The Framework will also be used by mobile operators to calibrate the internet filters that parents can use to restrict content accessible by children via a mobile operator’s internet access service.

Hamish MacLeod, chair of MBG, commented: “We are very grateful for the excellent work that the IMCB has done over the last 8 years to support our code.  However, with customers increasingly consuming content via mobile networks, we feel that the BBFC’s unparalleled expertise will be best suited to provide us with the independent framework and guidance for the future”.

Premium rate voice services or premium rate SMS (text only) services are not covered by the BBFC Classification Framework and will continue to operate under the PhonepayPlus Code of Practice.

Over the coming weeks, the parties involved will put in place the necessary transition arrangements and the BBFC Classification Framework will come into use in respect of mobile content on 2 September 2013.  To read the BBFC press release in full, click here.

Ofcom proposes new measures to promote competition among superfast broadband providers.

The proposals are part of a major review of wholesale telecoms services that Ofcom is undertaking.

Under proposals for consultation, the wholesale cost of switching a customer from one superfast broadband supplier to another would fall by up to 80%.  In addition, the minimum length of the wholesale contract between BT and the switched customer’s new supplier would be reduced from a year to just one month.

Ofcom says that the proposals are designed to promote competition in the superfast broadband market at the wholesale level.  This would be expected to flow through to consumer benefits in the form of lower retail prices and easier switching between superfast broadband providers.

Ofcom is also consulting on ways to ensure that the performance of BT’s network access division, Openreach (which installs and maintains connections to BT’s network on behalf of competing telecoms providers), is maintained at acceptable levels.  These proposals are intended to establish clear targets for fault repairs and the installation of new lines for the millions of telephone and broadband users who rely indirectly on Openreach.

The measures form part of Ofcom’s Fixed Access Market Reviews, a wide-ranging consultation on the wholesale telecoms markets used by a range of companies to offer telephone and broadband services to UK consumers.

Ofcom will later this month issue a further consultation on its approach for setting any future charge controls on “wholesale line rental” products, which allow competing providers to offer a telephone service over BT’s network and “local loop unbundling” products, where providers install their own equipment in an exchange to offer telephony and broadband over BT’s lines.

Ofcom will also shortly consult on its proposals for wholesale broadband access, including what regulation should apply in different geographic markets.  Ofcom expects to publish its conclusions on all these reviews in spring 2014.  The consultation on the Fixed Access Market Reviews closes on 25 September 2013.  To read Ofcom’s press release in full, and for a link to the consultation documentation, click here.

European Commissioner Neelie Kroes says cloud computing has a lot of potential, but is nothing if people do not trust it.

Speaking following a meeting of the European Cloud Partnership Board in Tallinn, Estonia, Commissioner Kroes said that there are many consequences to living in an age of total information, ranging from data protection issues to cyber security and spying issues.

Commissioner Kroes said that cloud computing “is a gift to our economy”.  However, it depends on two things, more than anything else: efficiency through scale; and trust that data is stored securely.

If cloud services are denied scale, she said, they become more expensive.  Therefore, if individual countries work disjointedly on separate national clouds, then the potential is lost.  The EU therefore has a critical role to play, Ms Kroes said, in creating scale and forging co-operative links.  “[It] is about giving customers more reasons to use cloud services and helping cloud services reach maximum scale”, she said. 

As for trust, Ms Kroes said, in some cases it may be legitimate for authorities to access, to some degree, information held online; child protection and terrorism are good examples.  Such access must be based on the transparent rule of law, however, and is the exception to the rule, she said.

Further, if businesses or governments think they might be spied on, they will have less reason to trust the cloud, and it will be cloud providers who ultimately miss out, Ms Kroes said.  Since the leaders in the provision of cloud services are currently American, it will be those US companies that miss out.

As for the recent allegations about US government surveillance concerning European partners and allies, Ms Kroes said: “If European cloud customers cannot trust the United States government or their assurances, then maybe they won’t trust US cloud providers either.  That is my guess.  And if I am right then there are multi-billion euro consequences for American companies”.

Ms Kroes emphasised that:

  • concerns about cloud security can easily push European policy makers into putting security guarantees ahead of open markets, with consequences for American companies; and
  • privacy is not only a fundamental right, it can also be a competitive advantage.  European companies should take advantage of customers’ desire for services with better privacy protection.

Ms Kroes concluded by saying, “The cloud has a lot of potential. But potential doesn’t count for much in an atmosphere of distrust. European cloud users and American cloud providers and policy makers need to think carefully about that”.  To read Ms Kroes speech in full, click here.

European Parliament adopts new EU legislation to fight cyber crime, such as large-scale cyber attacks.

The draft Directive, already informally agreed with Member States, also aims to facilitate prevention and to boost police and judicial cooperation in this field.  In the event of a cyber attack, EU countries will have to respond to urgent requests for help within eight hours.

The draft Directive requires EU countries to set their maximum terms of imprisonment at not less than two years for the crimes of illegally accessing or interfering with information systems, illegally interfering with data, illegally intercepting communications or intentionally producing and selling tools used to commit these offences.  “Minor” cases are excluded, but it is up to each country to determine what constitutes a “minor” case.

The text sets up a penalty of at least three years’ imprisonment for using “botnets”, i.e. establishing remote control over a significant number of computers by infecting them with malicious software.

Attacks against “critical infrastructure”, such as power plants, transport networks and government networks, can lead to a five-year prison sentence.  The same applies if an attack is committed by a criminal organisation or if it causes serious damage.

Member States will be required to respond quickly to urgent requests for help in the event of cyber attacks, so as to render police cooperation more effective.  They will have to make better use of the existing 24/7 network of contact points to respond to urgent requests within eight hours.

Legal entities, such as firms, would be liable for offences committed for their benefit (e.g. for hiring a hacker to get access to a competitor’s database).  Penalties could include exclusion from entitlement to public benefits or closure of establishments.

The text, adopted by 541 votes to 91, with nine abstentions, is expected to be formally adopted by the Council shortly.  Once adopted, Member States will have two years to transpose it into national law.  To read the European Parliament’s press release in full, click here.

European Commissioner for Home Affairs welcomes new EU rules to fight cyber crime.

Cecilia Malmström said: “This is an important step to boost Europe’s defences against cyber-attacks.  Attacks against information systems pose a growing challenge to businesses, governments and citizens alike.  Such attacks can cause serious damage and undermine users’ confidence in the safety and reliability of the Internet.

I am therefore pleased that formal approval has been reached on new rules concerning the definition of criminal offences and the sanctions in the area of cybercrime.  The perpetrators of increasingly sophisticated attacks and the producers of related and malicious software can now be prosecuted, and will face heavier criminal sanctions.  Member States will also have to quickly respond to urgent requests for help in the case of cyber-attacks, hence improving European justice and police cooperation.

Together with the launch of the European Cybercrime Centre and the adoption of the EU Cyber-security Strategy, the new Directive will strengthen our overall response to cybercrime and contribute to improve cyber security for all our citizens”, said Ms Malmström.   To read the Commission’s press release in full, click here.

Government announces Defence Cyber Protection Partnership (DCPP).

The Defence Cyber Protection Partnership, made up of leading defence and security companies working with the Government, aims to meet the emerging threat to the UK defence supply chain by increasing awareness of cyber risks, sharing threat intelligence, and defining risk-driven approaches to applying cyber security standards.

By sharing experience of operating under the constant threat of sophisticated cyber attack, the DCPP will identify and implement actions that have a real impact on the cyber defences of its members and the UK defence sector as a whole.  The DCPP model is intended to lead the way in industry collaboration and action on cyber security, and to act as a useful template to be followed by commercial sectors to improve resilience across UK industry.

Working with the trade associations ADS and Intellect, the DCPP will raise awareness and improve the understanding of cyber security risks.  It will highlight the need for protective measures which should increase the security of the wider defence supply chain and define an approach to implementing cyber security standards across its members and supply chain partners.

The DCPP will be able to provide guidance to organisations in the defence supply chain and complement the work on organisational standards being led by the Department for Business Innovation and Skills.

Organisations within the DCPP will also share threat intelligence and wider expertise on tackling cyber threats from the defence sector with other industry sectors and the Government through the recently announced national Cyber Security Information Sharing Partnership.

The DCPP includes the Centre for the Protection of National Infrastructure, Government Communications Headquarters, the Ministry of Defence and nine companies: BAE Systems, BT, Cassidian, CGI, Hewlett Packard, Lockheed Martin, Rolls-Royce, Selex ES and Thales UK.  To read the Government’s press release in full, click here.

Culture Secretary Maria Miller writes to small broadband providers seeking to roll out superfast networks to rural parts of the UK, encouraging them to work with BT to identify areas needing most help.

In the letter Maria Miller said: “The Rural Community Broadband Fund has been established to help provide funding to ensure we reach some of those hardest to reach areas.  However, we are aware there is widespread concern that projects have not been able to identify the 10% areas necessary to enable applications under the Fund to be progressed.

I am determined to find a way of remedying this situation, by ensuring you have access to the information you need.  I would therefore like to invite you to a session with myself, Ed Vaizey and senior representatives from BT to see what can be done to provide you with the relevant information, and the support, you need to determine how your applications should be progressed”.  To read the Government’s press release in full, click here.

Internet Corporation for Assigned Names and Numbers (ICANN) approves 2013 Registry Agreement for new generic top-level domain names.

The new agreement was approved by the New gTLD Program Committee of the ICANN Board of Directors.  New gTLD approved applicants will soon see their names online.

The new Registry Agreement includes:

  • a Trademark Clearinghouse that will serve as a one-stop shop where trade mark holders can protect their rights;
  • a process for a rapid, efficient way to take down infringing domain names;
  • a procedure where trade mark rights holders can assert claims directly against a registry operator for domain name abuse if that operator has played an active role in the abuse; and
  • a requirement that registry operators have a single point of contact responsible for handling abuse complaints.

The New gTLD Registry Agreement is intended to enhance the security and stability of the Domain Name System while bolstering competition in the domain name industry.  The security provisions include:

  • a requirement that registry operators implement Domain Name System Security Extensions, reducing so-called “man-in-the-middle” attacks and spoofed DNS records; and
  • a requirement for an enhanced WHOIS service at registry level with a common interface and more rapid search capabilities, facilitating efficient resolution of malicious activities.

To read ICANN’s press release in full, click here.

Ofcom consults on its review of fixed access markets.

The consultation document sets out the preliminary conclusions of Ofcom’s review of fixed access markets (wholesale local access, wholesale fixed analogue exchange lines, ISDN2 and ISDN30) in the UK.  The review considers whether and to what extent regulation is needed for the period 1 April 2014 to 31 March 2017.

Ofcom has assessed the state of competition in these markets and, where it has found that any of them is not effectively competitive as a result of any communication provider having significant market power in those markets, it has proposed regulatory obligations to address the competition concerns it has identified.  Ofcom explains that this may include, for example, requirements to provide services and, in some cases, controls on the prices charged for such services.  In each case, Ofcom explains the approach it has adopted, the analysis that has been undertaken and its proposals.

Ofcom says that it intends to finish its review in time for any new rules, including, if appropriate, any new charge control remedies, to take effect when the current set of charge controls expire in April 2014.

At the same time, Ofcom is also carrying out a review of the Wholesale Broadband Access Market.  It says that the consultation for that review will be published shortly after this one.  To access the consultation documentation, click here.

Nominet launches revised proposal for .uk domain name registrations at second level.

Nominet believes that a new second level domains policy is necessary “to keep the namespace competitive alongside the introduction of over 1,000 new top level domains from 2014”.  Combining a shorter suffix with the trust of the .uk brand would offer a wider choice for existing .uk registrants and the millions of consumers and businesses who do not yet have their own online space, it says.

Following a public consultation last year, Nominet put its initial plans for second level .uk domain registrations on hold, whilst feedback and suggestions were considered in depth.  Nominet has responded by making significant changes to the original direct.uk proposal.  The key elements of the new proposal and consultation are:

  • enhanced checks on data supplied for all registrations. The process would ensure that the named individual resides, or the named business trades, at the specified address;
  • for registrants not based in the UK, a UK address for service would be required.  This would be displayed in the WHOIS database;
  • a “right of first refusal” would give registrants of existing .uk domain names at the third level (e.g. .co.uk, .me.uk, .org.uk etc) the opportunity to secure the corresponding registration at the second level.  In the event of two competing claims, the oldest current, continuous registration would be given priority.  The proposal is to run the right of first refusal for a six month period from launch;
  • domains not covered by a right of first refusal would be available to register from launch on a first-come, first-served, basis;
  • a competitive price point, with a proposed wholesale fee of £5.50 for one year or £4.50 per year for multi-year registrations;
  • bodies currently using .gov.uk domains would no longer be able to do so under the Government Digital Transformation Programme, which will consolidate the domains under gov.uk; and
  • a commitment to offer services to improve security across the whole .uk namespace.

The proposed service would sit alongside the existing portfolio of third level of domains administered by Nominet. 

The consultation will run until 23 September 2013 and responses will be published in November after the Nominet board has had the opportunity to review all the feedback.

If a decision to go ahead is taken, Nominet says that it would notify existing registrants by email, and would run an awareness campaign to ensure that existing registrants have every opportunity to exercise their right of first refusal.  Nominet would also offer existing .co.uk, .me.uk and .gov.uk registrants the opportunity to validate and verify their data for a nominal fee.  However, this would not be mandatory.  To read Nominet’s press release in full, and for access to the consultation documentation, click here.

High Court finds that Microsoft’s SKYDRIVE trade marks for cloud storage services infringe Sky’s trade marks for SKY.

Microsoft’s SKYDRIVE product was launched in the UK, the USA and India in August 2007 and in the rest of the EU in 2008.  The product provided users with an online storage facility for document files, photos etc, which they could access from anywhere on the internet and make available for sharing with others.  It formed part of the “Windows Live” online service alongside Hotmail email and the Messenger messaging service. 

Since 2012, the SKYDRIVE product featured as one of the main start-up “tiles” on Microsoft’s Windows 8 operating system.  SKYDRIVE apps then became available for platforms including Windows Desktops, Macs, iPhones, iPads, Android Phones, Windows Phones and the Xbox games machine.

By June 2011, when the action was commenced, the SKYDRIVE product had over three million users in the UK, nearly 20 million in the EU and 92 million worldwide. 

Sky contended that Microsoft’s use of the SKYDRIVE signs in all their forms in relation to cloud storage services amounted to: a) infringement of its various UK and Community registered trade marks for SKY in relation to, amongst other things, “computer software; computer programs; communications by means of or aided by computers; telecommunication services relating to the Internet”; and b) passing off.  Microsoft counterclaimed by seeking a declaration of partial invalidity on the grounds of descriptiveness for cloud storage services.

The court found that the SKYDRIVE marks did indeed infringe the SKY trade marks under s 10(2)(b) and 10(3) of the Trade Marks Act 1994. 

In terms of s 10(2)(b), Mrs Justice Asplin found that there was a risk that consumers, confronted by computer software for the storage of files on a remote drive under the SKYDRIVE name, might believe that the two were from the same source, or one that was economically linked. 

SKY had to be seen as the dominant element of the mark, even though DRIVE was descriptive, the judge said.  Further, the average consumer would see the SKY part of the mark as fulfilling a trade mark function rather than as a composite part of the SKYDRIVE mark as a whole.  The way the SKYDRIVE mark was used was also significant as it was free of any Microsoft background.  Since 2011, the judge said, those who saw the tile on a laptop, a Windows phone or an Xbox, would have no reason to associate SKYDRIVE with Microsoft.  The evidence also showed examples of actual confusion by consumers who had contacted the Sky helpline complaining about the shortcomings of the SKYDRIVE product.  They were not numerous, the judge said, but there were enough examples to give rise to the conclusion that confusion was “sufficiently likely to warrant the court’s intervention”.   

As for s 10(3), Asplin J found that, given the strength of the SKY trade mark in the UK, the requirement to show that a mark has a reputation in the relevant territory was satisfied.  She noted that case law has already found that, in an appropriate case, the territory of a single Member State may suffice to satisfy the requirement that the mark is known by a significant part of the public in a substantial part of the EU territory.  Further, she said, it was “clear”, given her conclusions in respect of s 10(2)(b), that the average consumer would make a link between the marks such that SKDYDRIVE would call to mind the SKY brand.  In addition, dilution of the SKY brand was an “obvious inference from the facts of [the] case, and Microsoft’s use of the SKYDRIVE mark was “without due cause”, as required by s (10)(3).

In terms of the passing off claim, the existence of goodwill was not in dispute.  As for misrepresentation, Asplin J found that there was sufficient evidence to satisfy her that there was a likelihood of confusion amongst a substantial number of the public.  Therefore the misrepresentation element of the claim was made out.  As to damage, the judge noted that: “Damage is inherently likely where frequently the customers of a business wrongly connect it with another”.  Given the evidence of customers calling the Sky helpline in connection with the SKYDRIVE product, this part of the claim was also made out.

Asplin J rejected Microsoft’s argument that SKY was descriptive of cloud storage services as the evidence did not show that the average consumer would have understood, at the time of registration (2002 and 2006), the word SKY as either a reference to or an allusion to online data storage.  (British Sky Broadcasting Group Plc v Microsoft Corporation [2013] EWHC 1826 (Ch) (28 June 2013) – to read the judgment in full, click here).

Broadcasting

Ofcom finds Sky News’ accessing of emails for Canoe Man programme and related reports justified in the interests of revealing serious crime.

On 21 March 2002, John Darwin staged his own apparent drowning at sea in a canoeing accident.  Mrs Darwin made claims on insurance and pension policies and, in total, approximately £250,000 was paid out to her.  However, shortly after his disappearance, Mr Darwin had returned home in disguise.  Following a trial, both Mr and Mrs Darwin were each sentenced to over six years’ imprisonment.

One of the news reports suggested that Sky News “supplied a considerable amount of the information that was used in court”.  It went on to explain that Sky News, in particular, journalist Gerard Tubb, had uncovered correspondence – emails showing that John and Anne Darwin were partners in marriage and in fraud – and handed it to the police.

The essential facts of what occurred were not disputed by BSkyB.  It acknowledged that it accessed the emails and that this was done on the authority of the then Deputy Head of News and Managing Editor, who did not take legal advice.  It acknowledged too that it did not have written guidelines concerning the authorisation of potentially unlawful conduct.

Ofcom had significant concerns about the particular facts of this case, in that the accessing of the email accounts had taken place while a police investigation and a criminal prosecution were ongoing and there was no suggestion that Mr Tubb had been investigating a failure in either the police investigation or the criminal prosecution.  The lack of formal procedures for authorising the activity was also a matter of concern.

Ofcom also found that Mr and Mrs Darwin had a legitimate expectation of privacy, which was infringed by the accessing of their emails without their consent.  Ofcom said that, while ordinarily it would be unlikely to consider it warranted for a broadcaster to allow its journalists to access private email accounts and subsequently disclose email correspondence without permission or authority from the account holder for such programme content, the emails were accessed with a view to detecting or revealing a serious crime in circumstances where there appeared to have been a real prospect that the relevant evidence would go unnoticed by investigating authorities. 

Overall, although BSkyB’s conduct was “at the boundaries of what is appropriate”, Ofcom came to the view that the broadcaster’s conduct was warranted.  It did not consider that BSkyB could have obtained consent from Mr or Mrs Darwin to access the emails and said that it behaved responsibly once it had obtained the emails, passing them to the police and ensuring that there was no publication until after proceedings had concluded.

Because detecting and revealing crime may be a public interest reason for the infringement of privacy and because the public interest outweighed Mr and Mrs Darwin’s legitimate expectation of privacy, Ofcom found that BSkyB, in obtaining and subsequently broadcasting material accessed improperly by gaining unauthorised access to the Darwins’ email, was not in breach of rule 8.1 of the Broadcasting Code.  To read Ofcom’s adjudication on “Canoe Man” and news items relating to Mr John Darwin and Mrs Anne Darwin, published in Issue 233 of the Broadcast Bulletin (1 July 2013), click here.

Ofcom finds Channel 5’s Super Casino teleshopping feature misleading because conditions attached to “bonus” offer were not sufficiently clear.

The bonus, promoted many times in the course of the teleshopping feature, was a “300% bonus offer” which was described as increasing a deposit by a customer by 300%, i.e. three times the customer’s deposit would be added to the deposit – a £50 deposit would result in £200 of credit, and so on, with a maximum deposit of £200 (to make a maximum credit of £800).  A small scrolling “ticker” included the statement “Betting requirements apply to bonuses.”

Netplay explained that the player was required to opt in to the bonus scheme and referred to the attendant link to its general terms.  It argued that a transactional decision must be made before Ofcom’s rules on misleadingness are triggered.  Netplay also said that because the advertised calls to action for specific bonuses must be made within a short one-and-a-half minute window between the live spins of the roulette wheel, constraints of time and space only allowed for a “terms and betting requirements apply” alert.  Finally, Netplay asserted that “a player does not necessarily need to commit more funds through depositing; all bets placed from cash, bonus or winnings, count towards the accumulative total.”

In Ofcom’s view some very substantial conditions applied to the bonus offer.  For example, the amount of the bonus and deposit had to be played through, i.e. wagered, 25 times within 30 days of receiving the bonus and the bonus and any winnings accrued would be removed from the account if either (a) the “play through” amount was not reached within 30 days or (b) any cash amount was withdrawn.

As for Netplay’s arguments, Ofcom said that it is sufficient that an advertisement is judged to be capable of leading to a transactional decision that would not have been taken otherwise.  It also considered that each edition of Super Casino being at least two-and-a-half hours long, there was ample time for the advertiser to spell out the conditions in sufficient detail and if roulette games needed to be delayed that should have happened.  Ofcom also said that the use of “not necessarily” in the assertion relating to committing more funds through depositing was very optimistic indeed given that this assertion was only true to the extent that a given consumer did actually win in order to have funds to re-bet.

Ofcom said that, by omitting sufficiently full and clear references to the wagering conditions and the effect of withdrawal from the account, the advertising breached BCAP Code rules 3.1 (misleadingness), 3.2 (omission of material information), and 3.10 (failing to state significant limitations and qualifications).  To read Ofcom’s adjudication on Super Casino, published in Issue 233 of the Broadcast Bulletin (1 July 2013), click here.

Music

British Phonographic Industry (BPI) welcomes police unit to tackle online piracy.

The BPI has warmly welcomed the creation of a Police Unit dedicated to protecting creative businesses from criminals who steal their IP, as previously reported.  The trade body, which represents UK record labels, hopes the move will “encourage investment in music, help artists and protect consumers who want to get music online”.

The Intellectual Property Crime Unit will have the power and resources to shut down pirate sites, seize criminal assets, and prosecute organised crime gangs running illegal services online.  In an innovative new strategy, it will also work with the online advertising industry, payment service providers and overseas law enforcement to disrupt the revenue streams that fund major illegal websites.

Welcoming the initiative, BPI Chief Executive Geoff Taylor said: “The IP Crime Unit is the first of its kind in Europe.  It will help make the Internet safer for consumers and boost the UK’s world-leading music and creative industries.  We are encouraged that Government is beginning to support innovative music businesses that will create jobs and growth for the future”.  To read the BPI’s press release in full, click here

Publishing

Press Complaints Commission upholds complaint that article identified woman as victim of sexual abuse.

A woman complained to the PCC that an article published in the News Shopper (Bexley and North Kent) and online in February 2013 had identified her as a victim of sexual assault in breach of Clause 11 (Victims of sexual assault) of the Editors’ Code of Practice.

The article reported that police had launched an investigation following an allegation of rape.  The online version of the article (which was published two days before the print version) included a photograph of the site of the incident, which was in fact the complainant’s home, and video footage showing forensic officers entering the property.  Clearly recognisable shop fronts were visible in the images, and the article named the general locality and road where the incident had occurred and mentioned a nearby junction.  The complainant said that the article had been seen by friends and relatives who had then contacted her about the matter.  

Clause 11 makes clear that “the press must not identify victims of sexual assault or publish material likely to contribute to such identification unless there is adequate justification and they are legally free to do so”.

The version of the article published in the newspaper’s print edition included the general whereabouts of the police cordon but omitted any other potentially identifying details about the complainant or the incident.  The PCC said that this was unlikely to have contributed to the complainant’s identification as the victim.  It therefore did not breach the Code.

However, the online article had gone “significantly” further, the PCC found.  The images and footage enabled easy identification of the property’s precise location, with the inevitable, and distressing, result that the complainant had faced inquiries from friends and family who had been unaware of the incident previously.  The images and video plainly had the potential to contribute to identification of the victim.  The PCC therefore upheld the complaint about the online coverage.  To read PCC Adjudication in A woman v News Shopper (Bexley and North Kent) (3 July 2013), click here.

Computer Games

Association for UK Interactive Entertainment (Ukie) calls on European Commission urgently to approve games tax relief.

Ukie has responded to the European Commission’s investigation into the proposed UK tax credit scheme for games and called on it to introduce the tax credit as soon as possible.

Ukie says that there is “a clear and evident market failure” relating to the production of culturally British or European games being made by British studios, which the UK Government’s proposed games production tax credit scheme would address.  Ukie set out the following reasons why the Commission’s doubts are misplaced and why the aid should be approved as soon as possible:

  • games play an increasingly important role in the lives of many consumers across the world and as the Commission itself has previously recognised, games can play an important role in promoting European culture;
  • in the past, games were often regarded as spin-offs from other cultural outputs such as films and music.  Increasingly, successful games are now driving other outputs such as films and television series with the consequence that a lack of European cultural representation in the global games market may in time also reduce Europe’s influence in other culturally important areas;
  • games are one of the most important ways in which children engage with and learn about the world, yet currently little is done to ensure that they are presented with European culture in these experiences;
  • games operate in an intensively competitive global marketplace where non-European culture is the dominant, driving force dictating which games are developed;
  • fewer people are making games in the UK, which means that fewer games are being made here.  Because of the UK’s status as a major European hub for games development, this means that there is less culturally European content being created than should be the case;
  • a significant proportion of games developers who may be eligible for the proposed tax credit currently spend the majority of their time “working for hire” for non-European companies or brands, i.e. developing games based on non-European cultural references for the global market.  As a result, there is an existing and tangible market failure which has resulted in a lack of culturally European games being created;
  • this market failure is being exacerbated year on year, creating a vicious circle: as fewer culturally European games become available, it becomes harder to persuade investors and the marketplace that such games are relevant and can be successful;
  • the UK’s proposed measure offers the opportunity to reverse that market failure.  In particular it is expected that EU-based companies which currently produce culturally non-European games would be able to devote more time to developing European culturally focused games and, just as importantly, are keen to do so;
  • the more such European culturally focused games become successful as a result of the proposed aid, the greater the likelihood that the global industry will in time be prepared to invest in such products, thus removing the need for state intervention in the longer term;
  • contrary to the Commission’s suggestion, most games are developed solely by UK-based teams.  This is particularly true in the case of Ukie’s smaller members; and
  • the UK’s proposed tax credit is a targeted, proportionate solution which represents the minimum intervention necessary to address the relevant market failures.  If the aid is significantly delayed, any subsequent intervention is likely to require far greater resources to achieve similar ends.

To read Ukie’s press release in full and for a link to the full response, click here.

 

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