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April 28, 2014
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Introduction
Welcome back after the Easter break. This update reports on the news that the Court of Appeal has overturned the Attorney General’s veto of a journalist’s access to correspondence between Prince Charles and Government ministers, as well as the High Court’s finding that publication of photographs of the singer Paul Weller’s children constituted misuse of private information and a breach of the Data Protection Act 1998. We also report on Ofcom’s research showing a surge in the spread of superfast broadband in the UK, as well as Ofcom’s decision regarding Channel 5’s reality documentary Criminals: Caught on Camera. We also report on the next stage in Ofcom’s review of the “wholesale must-offer” it imposed on Sky Sports 1 and 2 in 2010, and the signing of a film co-production agreement between the UK and China.
Ofcom publishes research showing surge in superfast broadband in UK.
Drunk and disorderly complainant’s privacy not infringed in broadcast of CCTV footage in Channel 5’s reality documentary Criminals: Caught on Camera.
Court of Appeal overturns Attorney General’s veto of journalist’s access to correspondence between Prince Charles and Government ministers.
High Court finds publication of photographs of singer Paul Weller’s children constituted misuse of private information and breach of Data Protection Act 1998.
UK and China sign film co-production agreement.
Government publishes response to consultation on company filing requirements.
ASA upholds complaint against Morrisons following irresponsible placement of alcohol ad during YouTube nursery rhymes video.
Committee of Advertising Practice publishes advice on compulsory costs and charges.
Ofcom publishes research showing surge in superfast broadband in UK.
According to the latest Ofcom research, which measured actual broadband connection speeds as opposed to headline advertised speeds, one in four UK residential fixed broadband connections is now “superfast”.
The research shows that the proportion of superfast connections (those offering headline speeds of 30Mbit/s or more) has risen from 5% in November 2011 to 25% in November 2013 and the average superfast connection speed has continued to rise, reaching 47.0Mbit/s by November 2013 (an increase of 47%, or 15.1Mbit/s since May 2010).
As well as looking at superfast broadband, the report considered ADSL broadband, which accounts for 69% of UK residential broadband connections.
The report reveals that at 17.8Mbit/s, the average actual fixed-line residential broadband speed in the UK is almost five times faster than it was five years ago when Ofcom first began publishing the data (up from 3.6Mbit/s in November 2008).
However, while the growth in average speeds shows that investment in broadband technology is delivering benefits for most consumers, the UK picture is uneven. A significant number of households, especially those in rural areas, can experience considerably slower speeds.
Ofcom says that improving speeds in rural areas is a priority for the Government, which has committed funding to ensure superfast broadband is more widely available across the UK. It has reported that it is on course to reach 90% superfast coverage by early 2016 and recently announced an extra £250 million investment to extend superfast coverage to 95% of premises by 2017. To access the research in full, click here.
Drunk and disorderly complainant’s privacy not infringed in broadcast of CCTV footage in Channel 5’s reality documentary Criminals: Caught on Camera.
Criminals: Caught on Camera examined the use of CCTV cameras to monitor crime across the country. The “coming up teaser” and the programme itself featured identifiable footage of Miss C who was clearly intoxicated, walking along a road receiving assistance from two members of the public and some street pastors (on the feet of one of whom she vomited). Miss C appeared to be uncooperative with those trying to help her and she was eventually arrested by the police and led away.
Following Miss C’s complaint that CCTV footage of her was included in the programme without her consent, Channel 5 submitted that the European Court of Human Rights’ decision in Axel Springer AG v Germany, in particular the statement that, “Article 8 cannot be relied on in order to complain of loss of reputation which is the foreseeable consequence of one’s own actions such as, for example, the commission of a criminal offence”, applied.
Ofcom did not agree with Channel 5’s application of Axel Springer however, saying that, while it would be unlikely that an individual filmed committing a serious criminal offence (such as throwing a petrol bomb in a riot) would be able to rely upon any Article 8 rights, the footage filmed and broadcast of Miss C was not of her committing a serious criminal offence.
Ofcom nonetheless found that while Miss C did have a legitimate expectation of privacy it was limited because the filming had been conducted in a public place. It considered that the public interest in broadcasting footage showing the work of the CCTV control room operators and the police outweighed Miss C’s expectation of privacy which, it concluded, was not unwarrantably infringed in the programme as broadcast. To read Ofcom’s adjudication on a Complaint by Miss C published in Issue 252 of the Broadcast Bulletin, click here.
Court of Appeal overturns Attorney General’s veto of journalist’s access to correspondence between Prince Charles and Government ministers.
The Attorney General was wrong to veto a Guardian journalist’s right of access under the Freedom of Information Act to correspondence on various matters including environmental issues between the Prince of Wales and Government ministers to the extent that the Upper Tribunal determined it should be disclosed. The Master of the Rolls held that the Attorney General had no reasonable grounds for issuing a certificate under s 53(2) FOIA overriding the Tribunal’s decision and that, in any event, his power to issue the certificate was incompatible with the Environmental Information Directive (2003/4/EC) insofar as the information concerned was environmental information.
Guardian journalist Rob Evans sought disclosure under the FOIA and the Environmental Information Regulations (EIR) of a number of letters between Prince Charles and Government Departments written over a seven month period. The Departments refused disclosure and their decisions were upheld by the Information Commissioner. The Upper Tribunal, however, ruled that the letters should be disclosed to the extent that they fell into a category defined as “advocacy correspondence”, specifically correspondence in which the Prince advocated certain causes which were of particular interest to him, including environmental causes. The Attorney General, as an “accountable person” within s 53(8) FOIA, issued a certificate pursuant to s 53(2) overriding the Tribunal’s decision.
The Master of the Rolls said that what constitutes “reasonable grounds” must be determined objectively depending on the context and the circumstances in which the decision is made. In the present case, the Attorney General had disagreed with the decision of the Upper Tribunal, which was an independent court chaired by a High Court judge, on the very question which the Tribunal had examined in meticulous detail. Further, the Attorney General did not have any additional material and there was no suggestion that the Tribunal made any error of law or fact. Simply disagreeing with the Tribunal’s evaluation was insufficient to amount to “reasonable grounds”.
The Master of the Rolls also considered that s 53(2) was incompatible with the Environmental Information Directive insofar as the information, which was the subject of the decision notice, was environmental information. The right under the Directive to a review of the acts or omissions of the “public authority concerned” was not satisfied by a right of judicial review of the certificate. A judicial review of the certificate of an accountable person was substantively different from a review by a court or other independent body of the acts or omissions of “the public body concerned”. Additionally, s 53(2) offended the principle of legal certainty and breached basic principles of the rule of law, access to court, finality and fairness, and also the right to equality of arms (R (Evans) v Attorney General [2014] EWCA Civ 254 (12 March 2014) – to read the judgment in full, click here).
High Court finds publication of photographs of singer Paul Weller’s children constituted misuse of private information and breach of Data Protection Act 1998.
The claim arose in respect of an article published online on 21 October 2012 by Associated Newspapers Limited, as publishers of the Mail Online. The article was headed “A family day out” and showed photographs of Paul Weller and some of his children. The photographs were taken in October 2012 by an unnamed photographer in Santa Monica, Los Angeles, California, USA. The photographs were of Paul Weller and the children out shopping in the street and relaxing at a café on the edge of the street.
The Weller family contended that the pictures of the children’s faces should have been pixelated. They brought proceedings for damages for misuse of private information and breach of the Data Protection Act 1998 and an injunction. The Mail Online denied that publication of the unpixelated photographs was wrongful or that the Weller family was entitled to any relief.
The court found that the photographs were published in circumstances where the children had a reasonable expectation of privacy. This was because the photographs showed their faces, one of the chief attributes of their respective personalities, as they were on a family trip out with their father going shopping and to a café and they were identified by surname.
Further, the court found, the photographs were different in nature from crowd shots of the street showing unknown children. The photographs showed how they looked as children of Paul Weller. The photographs also showed how the children looked on a family day out with their father.
Although it was lawful to take the photographs of the family and it would have been lawful to publish them in California, the court said that this did not prevent the family having a reasonable expectation of privacy in relation to their publication in the UK. Whether the publication was unlawful depended on the outcome of the ultimate balancing test between Article 8 and Article 10 ECHR.
The court concluded that the Weller family’s Article 8 rights overrode the Mail Online’s Article 10 rights. The photographs showed the expressions on faces of children on a family afternoon out with their father. Publishing such photographs, which showed a range of emotions, and identifying them by surname was an important engagement of their Article 8 rights, even though such a publication would have been lawful in California. There was no relevant debate of public interest to which the publication of the photographs contributed. The balance of the general interest of having a vigorous and flourishing newspaper industry did not outweigh the interests of the children. The court considered, therefore, that such a conclusion was consistent with the approach set out in the Editors’ Code, which recognised that private activities can take place in public, and that editors should not use a parent’s position as sole justification for the publication of details of a child’s private life. Therefore, the Claimants had established their claims for misuse of private information.
As for the Data Protection Act claim, it was common ground that the claim for infringement of the 1998 Act stood or fell with the claim for wrongful misuse of private information. Therefore, the court found that the claims for breach of the Data Protection Act were established.
The court awarded the Weller family £10,000 in damages. To read the judgment in full, click here.
UK and China sign film co-production agreement.
The film co-production treaty, which was negotiated for the UK by the British Film Institute with support from the DCMS and UK Trade & Investment in Beijing, will allow qualifying co-productions to access national benefits including sources of finance and an easier passage to audiences. In the UK this includes the Film Tax Relief and the BFI Film Fund, which is the UK’s largest public film fund. In addition, eligible co-productions will not be subject to China’s quota on foreign films, which only permits a limited number of non-domestic titles to be shown in Chinese cinemas each year.
China’s film entertainment sector (including cinema, Video on Demand and DVD) was estimated to be worth US$3.26 billion in 2012. Films made as China/UK co-productions will be able to access the second highest box office audience in the world, worth US$2.7 billion and forecast to grow to US$5.5 billion by 2017.
Culture Minister Ed Vaizey said: “The treaty will strengthen ties between our countries’ film industries, encouraging the sharing of knowledge and ideas as well as driving economic growth through film production. It will also enhance our respective cultural understanding and awareness through the making of films that reflect, enhance and convey the diversity of culture and heritage in both countries”. To read the Government’s press release in full, click here.
Government publishes response to consultation on company filing requirements.
Last year, the Government reviewed company law as part of its commitment to reducing unnecessary regulatory burdens under the Red Tape Challenge in order to simplify the processes for filing information at Companies House and to remove duplication of effort for companies. It ran a consultation from 7 October to 22 November 2013.
It has now published its response, and plans to proceed with the following policies:
- replacing the annual return with more flexibility to confirm companies’ basic information is correct and complete at any point;
- allowing companies to keep certain information on the public register instead of company registers;
- providing a new a means of resolving disputes about directors’ appointments;
- simplifying the removal of inaccurate registered office addresses from the public register; and
- reducing the strike off period down from approximately 6 months to 3 months.
To read the Government’s response in full, click here.
ASA upholds complaint against Morrisons following irresponsible placement of alcohol ad during YouTube nursery rhymes video.
A complainant challenged whether it was irresponsible to show a video ad featuring images of bottles of spirits accompanied by a voice-over stating “These litre bottles of spirits are £15 each”, during a series of nursery rhymes on YouTube which was clearly targeted at young children.
Morrisons said the restrictions applied by Clearcast in respect of the broadcast ad (it was also to appear on TV), had been provided to the organisation that was responsible for placing its ads online, but it did not appear that those restrictions had been adhered to in this instance.
YouTube said it had mechanisms in place that should prevent alcohol content from being served during content that was family-friendly, but it did not recommend that users should log in with an account that declared they were over 18 years of age if they were watching YouTube with a minor.
The ASA noted that both Morrisons and YouTube had processes in place that were intended to ensure that ads for alcohol were not directed at those under 18 years of age. However, it considered that the YouTube video in question was very unlikely to be viewed by an adult unless they were watching with a young child. It concluded that although Morrisons had taken all reasonable steps to ensure that the ad was targeted responsibly, it had not been targeted responsibly and therefore breached CAP Code rules 1.3 (Social responsibility), 5.1 (Children) and 18.15 (Alcohol). To read ASA Adjudication on Wm Morrison Supermarkets plc (16 April 2014), click here.
Committee of Advertising Practice publishes advice on compulsory costs and charges.
The advice reminds advertisers that rule 3.18 of the CAP Code states that quoted prices must include non-optional taxes, duties, fees and charges that apply to all or most buyers. However, VAT-exclusive prices may be given if all those to whom the price claim is clearly addressed pay no VAT or can recover VAT. Such VAT-exclusive prices must be accompanied by a prominent statement of the amount or rate of VAT payable.
In essence this means that all quoted prices must include all non-optional fees or charges that apply to all or most buyers, for example compulsory delivery charges or credit card fees. They must also include VAT unless all of the individuals the price claim is addressed to pay no VAT or can recover it, in which case the amount or rate of VAT needs to be stated prominently. The aim of this rule is to ensure that all price claims are accurate and are not likely to mislead private or business consumers.
Similarly, the CAP advice states, telecommunications packages often have further applicable charges such as rental fees or installation costs. Such costs should be made clear upfront in order to avoid ads for such products being considered misleading. For example, offering line rental for £8.99, but failing to mention an additional non-optional charge of £1.49 for a “care package” would be considered problematic.
The advice also reminds advertisers that rule 3.19 states that if a tax, duty, fee or charge cannot be calculated in advance, for example, because it depends on the consumer’s circumstances, the marketing communication must make clear that it is excluded from the advertised price and state how it is calculated. To read CAP’s advice in full, click here.
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