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August 11, 2014
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Government publishes response to House of Lords Select Committee on Communications Report into Media Plurality.
High Court finds implied duty of good faith in long term commercial agreements.
Ofcom publishes statement on its Review of Metering and Billing Direction for communications providers.
Ofcom publishes revised guidance for communications providers on measures to take into account to protect security and resilience of networks and services.
Information Commissioner’s Office warns barristers and solicitors to keep personal information secure.
House of Lords Select Committee on Communications publishes inquiry into women in news and current affairs broadcasting.
Court of Appeal upholds High Court decision to decline privacy injunction where appellant was arrested but not charged.
Christ the Redeemer ad for betting service breaches CAP Code rules on offence and linking gambling with sexual success.
High Court finds bank liable for negligent reference given by employee confirming that one of its customers had funds and was trustworthy to play high stakes at London casino.
Gambling Commission reminds offshore gambling operators they have until 16 September 2014 to apply for licence to continue operating in UK following introduction of new legislation.
Gambling Commission seeks views on proposed new social responsibility controls.
ASA finds Nicofresh electronic cigarette poster had potential to cause offence on grounds of race and age.
Government publishes response to House of Lords Select Committee on Communications Report into Media Plurality.
The report sets out the Government’s response to both its July 2013 consultation on media ownership and plurality, and the House of Lords Select Committee on Communications’ report and recommendations on media plurality published in February 2014.
The Government has welcomed the Committee’s “thorough and considered report and recommendations”, calling it “a rigorous assessment of the current media plurality framework which recognises the challenges of both measuring plurality and ensuring the regulatory framework is adequately able to respond to changing market conditions”.
The July 2013 Government consultation followed Lord Justice Leveson’s recommendations. The consultation sought views on:
- the types of media a measurement framework should cover;
- the genres it should cover;
- the types of organisation and services to which it should apply;
- the inclusion of the BBC; and
- the audience with which it should be concerned.
The Government says that it will not consider changes to the existing policy or regulatory framework for media plurality until the measurement framework and baseline assessment have been delivered by Ofcom. Therefore, its response to the consultation does not seek to review existing regulatory and policy levers, nor does it seek to propose potential remedies. It simply sets out the proposed scope and objectives of a measurement framework and confirms the next steps that Government is taking to commission this.
A brief summary of respondents’ views appears below, together with the Government’s conclusion on each question in light of its consideration of the consultation responses.
- Do you agree that online should be included within the scope of any new measurement framework?
Respondents overwhelmingly considered that online content should be included in any consideration of media plurality. The Government agreed;
- What type of content is relevant to media plurality? Do you believe that scope should be limited to news and current affairs, or widened to consider a wider cultural context? If so, how might a wider context be defined?
There were mixed views on which genres should be included. Whilst some respondents considered that all genres have the potential to influence consumers, for practical reasons many respondents felt that it was necessary to limit the scope. The Government concluded that the type of content that was most relevant to media plurality was news and current affairs and that, for reasons of practicality, the scope should be limited as such. This could, however, be kept under review, it said;
- What sorts of organisations and services are relevant to media plurality? Do you believe that scope should be limited to publishers or include services that affect discoverability and accessibility? Do you agree that the BBC’s impact on plurality should be assessed as part of a plurality review?
Respondents largely agreed that organisations that exercise an active editorial function should be included in an assessment, though the practicalities of including social media was questioned by some. The majority of respondents considered that the BBC should be included in any assessment of the market. Having examined the range of views expressed, the Government concluded that all parts of the news value chain (from collection to dissemination and aggregation) should be included in an assessment. The Government also agreed that the impact of the BBC should be assessed.
- Are there specific factors that you think a measurement framework needs to capture in order to provide a picture of plurality in local communities? Do you agree that a measurement framework should also seek to assess the plurality of media serving other audiences or communities of interest? If so, which ones?
On local communities, respondents noted that there were key differences between local and national media. There was also a range of views expressed on whether a distinction should be drawn between only against the four nations of the UK, or also across smaller regions. The Government concluded that the first baseline assessment of plurality should include some consideration of local and regional markets, but this need not include a forensic examination of every locality.
Ofcom’s principle that plurality is not a goal but a means to an end was also widely supported. It was also noted that there are many other Government policy areas that contribute to media plurality, including net neutrality, competition, Public Sector Broadcaster funding, and PSB prominence. The Government said that it recognised that effective policies in other policy areas, such as competition, were key to ensuring that it could maintain media plurality.
The Government says that it will now look to commission Ofcom to develop a suitable set of indicators to inform the measurement framework for media plurality. These indicators will subsequently allow for the first ever baseline market assessment of media plurality in the UK to be conducted. For a link to the full report click here.
High Court finds implied duty of good faith in long term commercial agreements.
The case concerned two agreements in writing between IDC and BGS relating to training for pilots, under which IDC agreed to provide content for course materials. The agreements dealt with ownership of intellectual property rights in a manner that provided for many of the issues in dispute, most of which were decided in favour of BGS on a true construction of the relevant provision in the agreements.
In a discussion as to whether certain self-help remedies undertaken by BGS amounted to repudiatory breach, Richard Spearman QC, sitting as a deputy High Court judge, approvingly referenced the decision of Leggatt J in Yam Seng PTE Ltd v International Trade Corporation Ltd [2013] EWHC 111 (QB) in holding that certain “relational” contracts (such as these agreements) contained an implied term as to good faith. In this instance he found that the conduct complained of was “commercially unacceptable” and in breach of that implied duty of good faith. However, while he found that the behaviour here was “commercially unacceptable”, it did not amount to repudiatory breach as the breaches did not “strike at the heart of the trust which is vital to any long-term commercial relationship” due to a number of extenuating circumstances (such as a genuine belief that the other side intended to cause him harm).
The decision is hard to reconcile with Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd [2013] EWCA Civ 200, in which the Court of Appeal warned against allowing express terms as to good faith to “cut across” all obligations under a commercial contract, and subsequent High Court judgments, namely Hamsard 3147 Ltd v Boots UK Ltd [2013] EWHC 3251 (Pat) and TSG Building Services plc v South Anglia Housing Ltd [2013] EWHC 1151 (TCC), in which the court rejected the approach adopted in Yam Seng (Bristol Groundschool Ltd v Intelligent Data Capture Ltd [2014] EWHC 2145 (Ch) (2 July 2014) – to read the full judgment click here).
Ofcom publishes statement on its Review of Metering and Billing Direction for communications providers.
The document concludes Ofcom’s review of the Metering and Billing Direction and sets out the changes being made to it.
The Direction is a technical standard intended to ensure that communications providers systems deliver accurate bills to customers. All communications providers with a turnover of more than £40 million a year for providing landline and mobile voice services are required to comply with the Direction.
The statement confirms the main proposals that Ofcom made in its consultation in February 2014. The new Direction will continue to be mandatory in respect of retail and wholesale services and voluntary for data services. Ofcom says that the other targeted changes will ensure providers have the appropriate processes and controls in place to produce accurate bills for customers. To read the statement in full, click here.
Ofcom publishes revised guidance for communications providers on measures to take into account to protect security and resilience of networks and services.
The guidance relates to providers’ compliance with statutory obligations.
The document replaces Ofcom’s previous guidance published in May 2011. The new guidance includes changes to the process by which incidents are reported to Ofcom. It is designed, Ofcom says, to improve the quality of information and reflect changes in the relative importance of different types of services over recent years. The guidance also takes account of developments at a European level.
The new guidance, which followed a Call for Inputs issued in December 2013, came into effect on 8 August 2014. For further information, click here.
Information Commissioner’s Office warns barristers and solicitors to keep personal information secure.
The warning follows a number of data breaches reported to the ICO involving the legal profession.
The ICO reminds barristers and solicitors that it can serve a monetary penalty of up to £500,000 for a serious breach of the Data Protection Act provided the incident had the potential to cause substantial damage or substantial distress to affected individuals. In most cases these penalties are issued to companies or public authorities, but barristers and solicitors are generally classed as data controllers in their own right and are therefore legally responsible for the personal information they process.
In the last three months, 15 incidents involving members of the legal profession have been reported to the ICO. The information handled by barristers and solicitors is often very sensitive. This means, the ICO says, that the damage caused by a data breach could meet the statutory threshold for issuing a financial penalty. Legal professionals will also often carry around large quantities of information in folders or files when taking them to or from court, and may store them at home. This can increase the risk of a data breach.
The ICO has published the following top tips to help barristers and solicitors keep the personal information they handle secure:
- keep paper records secure; do not leave files in your car overnight and do lock information away when it is not in use;
- consider data minimisation techniques in order to ensure that you are only carrying information that is essential to the task in hand;
- where possible, store personal information on an encrypted memory stick or portable device. If the information is properly encrypted it will be virtually impossible to access it, even if the device is lost or stolen;
- when sending personal information by email consider whether the information needs to be encrypted or password protected. Avoid the pitfalls of auto-complete by double checking to make sure the email address you are sending the information to is correct;
- only keep information for as long as is necessary. You must delete or dispose of information securely if you no longer need it; and
- if you are disposing of an old computer, or other device, make sure all of the information held on the device is permanently deleted before disposal.
Information Commissioner, Christopher Graham, said: “The number of breaches reported by barristers and solicitors may not seem that high, but given the sensitive information they handle, and the fact that it is often held in paper files rather than secured by any sort of encryption, that number is troubling. It is important that we sound the alarm at an early stage to make sure this problem is addressed before a barrister or solicitor is left counting the financial and reputational damage of a serious data breach”. To read the ICO’s warning in full, click here.
House of Lords Select Committee on Communications publishes inquiry into women in news and current affairs broadcasting.
The Committee is inviting any interested organisation or individual to submit written evidence to the inquiry by 12 noon on 1 October 2014.
The Committee expects to hear oral evidence from invited witnesses in October and November 2014. The Committee intends to report before the end of the year. Reports are made for the information of the House but may also make recommendations. The Government has undertaken to respond in writing to reports from select committees.
A number of studies have indicated concern about the representation of women in television and radio news and current affairs broadcasting in terms of employment, casting and participation. For example, one recent study reported that in a typical month, about 72% of BBC Question Time contributors were men and 84% of reporters and guests on Radio 4’s Today programme were men. Another study found that male experts interviewed on flagship news programmes outnumbered female experts by four to one.
Concerns are also regularly expressed about the employment of women in public-facing and behind the scenes and editorial roles in news and current affairs broadcasting. For example, although not specific to these genres, the percentage of women in editorial, journalism and sport was 39% in 2012, down from 43% in 2009 and obviously lower than men. Women are under-represented in flagship news where there are 2.5 male presenters and/or reporters to every female presenter and/or reporter. There are also issues to do with the employment of women and their age. While TV presenters under 50 in general programming are broadly representative of the gender balance in the population, (48% are women) women over 50 are under-represented both on and off screen.
The Committee says that views are unlikely to diverge on the question of whether women should be represented in news and current affairs broadcasting. There may, however, be different perspectives on the urgency and on the realisable practical routes to achieving a more equal footing between women and men as presenters, expert guests, employees in production teams and in editorial roles in news and current affairs broadcasting on television and radio.
The Committee is focussing on news and current affairs, but those offering evidence are welcome to offer lessons from and for other areas of broadcasting, especially serious factual. For further information as to the questions the inquiry is specifically asking, click here.
Court of Appeal upholds High Court decision to decline privacy injunction where appellant was arrested but not charged.
In October 2013 Mr Justice Tugendhat refused an application for an interim non disclosure order by the appellant, described in these proceedings as PNM, an individual living in the Oxfordshire area. The application was made on 15 October 2013 against the publishers of The Times and one of its senior journalists, Andrew Norfolk, and against the publishers of a local newspaper, the Oxford Mail, and one of its journalists, Ben Wilkinson.
The non-disclosure order sought to prevent the disclosure of a number of categories of information. Essentially, however, the appellant wanted to prevent publication of the fact of his arrest on 22 March 2012 on suspicion of committing serious sexual offences against children and associated information, which would lead to his identification as the person so arrested because of his fear of the damage that such publications may cause to him and members of his family, including his children.
The information had already been referred to on a number of occasions in open court in earlier criminal proceedings relating to seven other people prosecuted in relation to the same police operation, but to which the appellant had not been a party.
Tugendhat J had concluded that there was a sufficient general public interest in publishing a report of the court proceedings which identified the appellant and any normally reportable details of those proceedings to justify any resulting curtailment of his right and his family’s right to respect for their private and family life under Article 8 of the European Convention on Human Rights.
On appeal, Mrs Justice Sharp declined PNM’s application on the grounds that most members of the public understand the presumption of innocence and are able to distinguish between the position of someone who has been (merely) arrested, someone who has been charged, and someone who has been convicted of a criminal offence. Once that is understood, it follows that the effect of disclosing the fact of the appellant’s arrest on his Article 8 rights is significantly more limited, the judge said.
Further, Sharp J said, the task the judge had had to carry out was an evaluative one, akin to the exercise of discretion. The Court of Appeal will not, Sharp J said, interfere unless the judge erred in principle or reached a conclusion that was plainly wrong, that is, one outside the ambit of conclusions which a judge could reasonably reach.
In Sharp J’s view, the judge had reached a conclusion that he was entitled to on the facts and it was not a conclusion with which she would interfere. Sharp J therefore dismissed the appeal. However, she decided to keep PNM’s identity anonymous until PNM’s application for permission to appeal to the Supreme Court had been finally determined or until further order. If the application for permission was not to be pursued or was unsuccessful, she said, then the anonymity order should be lifted. PNM v Times Newspapers Ltd [2014] EWCA Civ 1132 (1 August 2014) – to read the judgment in full, click here.
Christ the Redeemer ad for betting service breaches CAP Code rules on offence and linking gambling with sexual success.
Back in June, the ASA published advice on avoiding complaints against World Cup ads, specifically mentioning complaints it had received on the use of the “Christ the Redeemer” statue, with one hand holding alcohol and an arm around a bikini clad female to promote a betting service. The ASA has now considered the complaints, concluding that the ad did indeed breach the CAP Code.
The ad was a press ad for Sporting Index, seen in City AM and the Racing Post, and featured an image of the Christ the Redeemer statue that had been digitally manipulated to show a smiling Jesus with his right arm around a bikini-clad woman, his hand resting just above her bottom, and a bottle of champagne in his left hand. A large caption at the bottom of the image stated: “There’s a more exciting side to Brazil” and a roundel next to the statue’s head stated “£500 IN FREE BETS*”. Further text stated “World Cup excitement guaranteed”.
The ASA found that the ad’s depiction of Jesus was likely to cause offence to a significant number of Christians, regardless of the humorous intention or references to Rio de Janeiro and the World Cup, because it depicted the person of Jesus in a context at odds with commonly held beliefs about the nature of Christ. The ad therefore breached CAP Code rule 4.1 (Harm and Offence). The ASA considered that the woman’s clothing reinforced the implication of sexual contact with the other figure and concluded that the ad linked gambling with sexual success in breach of rule 16.3.8 (Gambling). To read ASA Adjudication on Sporting Index Ltd (6 August 2014), click here.
High Court finds bank liable for negligent reference given by employee confirming that one of its customers had funds and was trustworthy to play high stakes at London casino.
The casino, Playboy Club London Ltd sued Banca Nazionale del Lavoro SPA for negligence by providing a reference for one of its customers, Mr Barakat, whose cheques, which were accepted by the casino thereby allowing Mr Barakat to play before being cashed, turned out to be forgeries, causing the casino losses of £1.25 million.
Before Mr Barakat could play at the casino, the casino requested, through its sister company, a reference from the Italian bank and its opinion as to the means and standing of Mr Barakat, as well as his trustworthiness to meet a financial commitment to the extent of £1.6 million at any one time. An employee at the Italian bank, whose job title was “Business Development”, provided the reference confirming that Mr Barakat had an account with the Italian bank, that he was financially healthy and capable to meet his business commitments and obligations up to £1.6 million.
The court had to consider whether the employee who provided the reference had actual authority to give the reference and, if not, had the act been done during the course of her employment. On the evidence, the court held that she did not have actual authority. However, the court found that the title “business development” might cover a variety of levels of responsibility and they all connoted a degree of executive as opposed to routine activity. The request for the reference had been sent by Natwest to the employee concerned as responsible for Mr Barakat’s account and the fact that she was the one that replied had caused no concern to the bank: there was nothing unorthodox or informal about the approach for or giving of the reference. It was a routine matter.
The court noted that, as Lord Justice Etherton had said in Kevin So v HSBC Bank Plc [2009] EWCA Civ 296, referring to the observation of Lord Nicholls in the House of Lords decision in Dubai Aluminium Co ltd v Salaam [2002] UKHL 48 that “liability for agents should not be strictly confined to acts done with the employer’s authority”, the conduct for which the employer is sought to be held liable must be so closely connected with acts the employee was authorised to do that the wrongful conduct may fairly and properly be regarded as done by the employee in the course of the employee’s employment. That was, the court said, the case here.
In addition, the court found that the Italian bank did indeed owe
the casino a duty of care, even though the reference had been addressed to the casino’s sister company, rather than the casino itself because, the proximity between the companies was sufficiently close. The bank had breached that duty of care as Mr Barakat’s account had, in fact, had a nil balance. The bank had therefore not exercised reasonable skill and care in preparing the reference. The chain of causation was therefore complete and the bank had caused the casino’s losses.
The court did find some contributory negligence on the part of the casino, as it should have examined the cheques more carefully to realise that they were forgeries. (Playboy Club London Ltd v Banca Nazionale Del Lavoro Spa [2014] EWHC 2613 (QB) – to read the judgment in full, click here).
Gambling Commission reminds offshore gambling operators they have until 16 September 2014 to apply for licence to continue operating in UK following introduction of new legislation.
The Gambling (Licensing and Advertising) Act is expected to come into force on 1 October 2014. Offshore gambling operators, currently regulated overseas but transacting with consumers in Britain, wishing to continue to provide services in Britain beyond this date have until 16 September to make an application and pay a fee to ensure their business is not impacted. Licence applications must be made through the Commission’s website.
The Act will ensure that all remote gambling operators offering services to consumers in Britain are subject to consistent regulation and will bring the 85% of the remote gambling market in Britain currently regulated overseas within the Commission’s remit. The Commission says that this means that it will be better placed to protect players and to respond to and advise the government on emerging player protection and consumer risks and issues.
If an application made by an operator currently legally transacting with consumers in Britain has not been determined by commencement of the Act, the applicant will be issued with a continuation licence to enable them to continue to trade until completion of the application process. For further information, click here.
Gambling Commission seeks views on proposed new social responsibility controls.
The Gambling Commission has launched a consultation asking for views from the public and the industry on the levels and nature of social responsibility protections that gambling operators must provide.
The Commission says that the consultation comes at a key point for gambling regulation in Great Britain. Public concern about gambling is heightened. Advances in technology and changes in consumer preference are offering new opportunities to target gambling-related harm while not unduly constraining safe leisure gambling. Operators are coming to terms increasingly with taking prime responsibility for their products, which are fun for most but pose real risk of serious harm for some. The new laws on online gambling mean that effective and proportionate harm prevention measures can be implemented across the board without licensees being undercut by operators from less demanding jurisdictions.
The consultation proposes a number of specific changes to social responsibility provisions in the light of experience, for example, participation in a national self-exclusion scheme for online gambling and the introduction of compulsory third party testing for the majority of operators. It also invites informed public debate on how far to constrain the leisure pursuits of the many to prevent serious harm to the few. The consultation is open until 31 October 2014. To access the consultation documentation, click here.
ASA finds Nicofresh electronic cigarette poster had potential to cause offence on grounds of race and age.
A billboard poster featured an elderly white woman sitting on a sofa alongside a young black man. The man had his arms around the woman and his eyes were closed, whilst the woman held an electronic cigarette and was looking directly at the camera. Text alongside the image stated “NO TOBACCO. NO TABOO.”
Following complaints that the ad was offensive, the ASA considered that consumers would believe that the ad was indeed presenting a relationship between an older and younger individual and a couple of different races, as something that was unusual or socially unacceptable. Because of that, it concluded that the ad was likely to cause serious or widespread offence on the grounds of race and age and therefore that it breached CAP Code rule 4.1 (Harm and offence). To read ASA Adjudication on Nicofresh Ltd (6 August 2014), click here.
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