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September 9, 2014
It is intended for reference purposes only and does not constitute definitive advice. Links to the original source materials are included where there are no restrictions in terms of access. References may also be made to sources that require separate registration or subscription. A link to a source does not necessarily imply endorsement of the source or the material provided through the link. For further information on any of the matters discussed in this summary please contact Alexander Ross. If you have any comments, queries or suggestions please contact us at comments. All suggestions and comments are most welcome.
General
Court of Justice of European Union finds that if parodied work conveys discriminatory message, rights holder in original work may demand that it should not be associated with that message.
Theatre tax relief comes into effect.
Technology
National Crime Agency launches Joint Cybercrime Action Taskforce (J-CAT).
Data Protection
English High Court will hear claim for injunction against Google Inc concerning processing of personal data.
Lords’ EU Committee publishes report criticising Court of Justice of European Union’s judgment in Google Spain case.
Information Commissioner’s Office publishes update on response to Google Spain case and letter to Lords’ Committee in response to Committee’s report finding Google Spain decision “unworkable”.
Information Commissioner’s Office publishes consultation on privacy seals.
Information Commissioner’s Office consults on data sharing code of practice.
Information Commissioner’s Office publishes guide for media on data protection.
Broadcasting
Recent Ofcom adjudication reminds broadcasters to ensure that “trailers for post-watershed content scheduled pre-watershed include only content that is appropriate for a pre-watershed audience”.
Music
Prime Minister and BPI announce pilot scheme to trial age ratings for music videos.
Publishing
High Court considers discretion to order trial by jury under new Defamation Act 2013.
High Court considers “serious harm” test under Defamation Act 2013 for first time.
Film & TV
Ofcom rejects appeal against ATVOD Determination that adult service “Frankie and Friends” was, at relevant time, an on-demand programme service (ODPS).
Gambling & Betting
Government seeks views on plans to modernise horseracing levy to benefit both racing and betting industries.
Computer Games
Cultural Test (Video Games) Regulations 2014 come into force.
ASA rules Zenimax trailer of PEGI 18 rated video game featuring graphic violence and swearing was responsibly targeted on gaming website.
Advertising
ASA rejects Youth Alcohol Advertising Council complaint that Estrella beer promotion was irresponsible.
Court of Justice of European Union finds that if parodied work conveys discriminatory message, rights holder in original work may demand that it should not be associated with that message.
At a reception held by the city of Ghent to celebrate the New Year, Mr Deckmyn, a member of the Vlaams Belang (a Flemish political party), handed out calendars for the year 2011. The cover page of those calendars featured a drawing that resembled the cover of one of the Suske en Wiske, known in English as Spike and Suzy,comic books with the original title “De Wilde Weldoener” (“The compulsive benefactor”), produced in 1961 by Willy Vandersteen. The original drawing represented an allegorical character in the series wearing a white tunic and surrounded by white people trying to pick up the coins he was scattering. In the drawing appearing on Mr Deckmyn’s calendars, that character was replaced by the mayor of the city of Ghent, while the people picking up the coins were replaced by people wearing veils and ethnic minority black people.
Taking the view that the drawing and its communication to the public constituted an infringement of their copyright, several of Mr Vandersteen’s heirs and other rights holders to that comic book series brought proceedings in Belgium against Mr Deckmyn. Mr Deckmyn asserted that the drawing at issue constituted a political caricature and, therefore, a parody, with the result that the exception established by the Copyright Directive (2001/29/EC) for that type of work applied. By contrast, Mr Vandersteen’s heirs and the other rights holders asserted that a parody must itself display originality, which was manifestly not the case here. They also alleged that the drawing in issue conveyed a discriminatory message.
The Brussels Court of Appeal requested the CJEU to clarify the conditions that a work must fulfil in order to be classifiable as parody.
The CJEU noted that “parody” must be defined in accordance with its usual meaning in everyday language, while account must also be taken of the context in which it is used and of the objectives pursued by the Directive. In everyday language, the CJEU found, the essential characteristics of parody are “to evoke an existing work while being noticeably different from it” and “to constitute an expression of humour or mockery”.
By contrast, the CJEU Said, a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied. In the same way, it was not necessary that it could be attributed to a person other than the author of the original work itself, or that it should relate to the original work or mention the source of the work parodied.
The CJEU also noted that the application of the exception for parody, as established by the Directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wished to rely on that exception. Therefore, if a parody conveyed a discriminatory message (for example, by replacing the original characters with people wearing veils and black people), the rights holders in the work parodied had, in principle, a legitimate interest in ensuring that their work was not associated with such a message.
In conclusion, the CJEU said, it was for the Belgian court to determine whether the application of the exception for parody struck a fair balance between the differing interests of the persons concerned. (Case C-201/13 Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen (unreported) (3 September 2014) – to access the judgment in full, go to the curia search form, type in the case number and follow the link).
Theatre tax relief comes into effect.
The Finance Act 2014, Schedule 4 (Tax Relief for Theatrical Production) (Appointed Day) Order 2014 was made on 22 August 2014. The tax relief took effect on 1 September.
The relief means that touring theatre shows can apply for 25% relief and non-touring productions will be eligible for a 20% tax credit on qualifying production costs.
It will apply to plays, musicals, opera, ballet, dance and circus shows and, the Government says, is expected to bring in up to £120 million for touring and commercial productions in future years. It is expected to benefit around 250 production companies a year. For more information, click here. Back to top
National Crime Agency launches Joint Cybercrime Action Taskforce (J-CAT).
The NCA says that the aim of J-CAT is to strengthen further the fight against cybercrime in the EU and beyond.
The J-CAT, which is being piloted for six months, will coordinate international investigations with partners working side-by-side to take action against key cybercrime threats and top targets, such as underground forums and malware, including banking Trojans.
Initiated by the European Cybercrime Centre (EC3), the EU Cybercrime Taskforce, the FBI and the NCA, the J-CAT comprises a team composed of Cyber Liaison Officers from committed and closely involved Member States, non-EU law enforcement partners and EC3. Key contributors to the intelligence pool will be the EU Member States via EC3, and other law enforcement cooperation partners. Thus far, Austria, Canada, Germany, France, Italy, the Netherlands, Spain, the UK and the US are part of the J-CAT. Australia and Colombia have also committed to the initiative.
Cybercrime affects citizens, business and governments regardless of their national borders or jurisdictions. Police forces across the world face similar crimes and criminal targets. For that reason, the NCA says, more than with any other type of crime, “it is crucial to share intelligence and align priorities”.
The J-CAT will gather data on specific criminal themes from national repositories and from relevant government and private partners, as well as transforming this raw data into actionable intelligence, and proposing targets and networks for investigations. It will cover all relevant areas like malware coding, testing, distribution, Botnets, Crime-as-a-Service, online fraud, intrusion and similar top-end crimes.
In addition, it will organise dedicated consultation meetings with key actors in the private sector and the Computer Emergency Response Teams for the EU institutions, bodies and agencies to obtain their input on cybercrime threats that affect them and society in general. To read the NCA’s press release in full, click here. Back to top
English High Court will hear claim for injunction against Google Inc concerning processing of personal data.
Following the recent judgment of the Court of Justice of the European Union in Case C-131/12 Google Spain SL v Agencia Española de Protección de Datos, the High Court has granted the claimant in this case, former Morgan Stanley banker Daniel Hegglin, leave to serve proceedings against Google Inc in the USA in relation to his claim for an injunction to prevent the processing of certain of Mr Hegglin’s personal data by Google that he claimed was inaccurate and/or causing him substantial damage or substantial distress.
Mr Hegglin was a businessman and investor who previously lived and worked in London, but was resident in Hong Kong. He had close connections with the UK, however, where he had a house and carried out substantial business.
An anonymous individual or group of individuals had been posting on a large number of internet websites abusive and defamatory allegations about Mr Hegglin. It was alleged, for example, that he was a murderer, a Nazi, a Ku Klux Klan sympathiser, a paedophile, a corrupt businessman who had accepted bribes from state officials, an insider trader, and that he had laundered money on behalf of the Italian Mafia. There was no evidence to suggest that any of this was true.
Mr Hegglin’s claim against Google was for an injunction pursuant to s 10 (right to prevent processing likely to cause damage or distress) and/or s 14 (rectification, blocking, erasure and destruction) of the DPA and the Directive. First of all, however, the court had to decide whether to grant leave to serve out of the jurisdiction.
Mr Justice Bean held that Mr Hegglin’s cause of action for the statutory torts created by the DPA was clearly established in principle and there was at least a good arguable case for the grant of some form of injunction against Google. He also held that, on the information available to him, England was, in all the circumstances, clearly or distinctly the appropriate forum for the trial of the dispute.
As for where the damage was sustained, Bean J noted that Mr Hegglin had business interests as well as a home within the UK jurisdiction, and the defamatory material in question damaged, or risked damaging, his reputation here.
Further, Bean J found that following the CJEU’s decision in the Google Spain case, in which Google was found to be a “data controller” within the meaning of the Data Protection Directive (95/46/EC), there was at least a good arguable case that Google was under an obligation, enforceable in this jurisdiction, to comply with the requirements of the Data Protection Act 1998 when processing Mr Hegglin’s personal data. Leave to serve out was granted and a trial date set for November 2014. (Daniel Hegglin v Person(s) Unknown and Google Inc [2014] EWHC 2808 (QB) (31 July 2014) – to read the judgment in full, click here).
Lords’ EU Committee publishes report criticising Court of Justice of European Union’s judgment in Google Spain case.
In Case C-131/12 Google Spain SL v Agencia Española de Protección de Datos (Google Spain) the CJEU found that Google was obliged to remove links in its lists of results to web pages published by third parties that contained personal data that was inadequate, irrelevant, no longer necessary, or excessive in relation to the purposes for which it was processed. Some have understood the ruling to mean that the CJEU had effectively introduced a “right to be forgotten”.
The Lords’ Home Affairs, Health and Education EU Sub-Committee heard evidence from data protection experts, the Information Commissioner’s Office, the Minister for Justice and Civil Liberties, Simon Hughes and Google itself. In its subsequent report, it said that the CJEU judgment was “unworkable”, as it did not take into account the effect the ruling would have on smaller search engines, which, unlike Google, were unlikely to have the resources to process the thousands of removal requests they were likely to receive.
The Committee also said that it was “wrong in principle” to leave to search engines the task of deciding whether to delete information or not, based on “vague, ambiguous and unhelpful criteria”.
In addition, the Committee said that there were “compelling arguments” that, in the new European Data Protection Regulation, search engines should not be classed as data controllers, as the CJEU had found them to be in the Google Spain case. “We do not believe that individuals should be able to have links to accurate and lawfully available information about them removed, simply because they do not like what is said”, Baroness Prashar, Chair of the Committee said. In effect, the Committee found that the judgment had led to results that were “misguided in principle and unworkable in practice”. For a link to the Committee’s full report, click here.
Information Commissioner’s Office publishes update on response to Google Spain case and letter to Lords’ Committee in response to Committee’s report finding Google Spain decision “unworkable”.
The ICO has published an update to the response it published in May to the judgment in Case C-131/12 Google Spain SL v Agencia Española de Protección de Datos (see item above). The ruling has attracted strong criticism not least from the Lords’ Home Affairs, Health and Education EU Sub-Committee, which reported that the judgment had led to results that were “misguided in principle and unworkable in practice” (see item above). The ICO has therefore also published the letter it wrote on 31 July 2014 to the Rt Hon Baroness Prashar, Chair of the Sub-Committee, in which it maintains its position to the contrary.
The Information Commissioner, Christopher Graham, says in his letter that the CJEU judgment is “workable” and that the work the ICO is doing to implement it “is going well”. He notes that the judgment did not say that links can be removed simply because someone does not like them or simply wants them removed. “The judgment is about making some personal information less readily accessible when data protection law is breached and when there is a clear impact on an individual’s privacy”, the letter states. In Mr Graham’s view, overall, “the judgment is working”.
Mr Graham contends that there is no evidence that smaller search engines have been or will be inundated with requests. In terms of the potential impact on the ICO of what Mr Graham calls “this unexpected and unplanned workload”, he says that his office is committed to make it a manageable, “business as usual”, activity. Moreover, Google is coping with the impact as it is a multi-billion pound corporation.
Mr Graham agrees, however, with the Committee’s finding that it is important to ensure that the forthcoming EU Data Protection Regulation does not seek to provide an unrealistic and undeliverable “right to be forgotten”. However, Mr Graham continues, it is “equally important”that a “workable and practical”way for citizens to gain more control of their personal information when it is processed online is found. This must, he says, include a “right of erasure”, with the right qualifications.
Mr Graham says that the ICO believes that search engines should indeed be classed as data controllers in the light of their sophisticated use of personal information and the value they derive from it in their business models. To read the ICO update click here. To read the ICO’s letter to Baroness Prashar, click here.
Information Commissioner’s Office publishes consultation on privacy seals.
The ICO explains that a privacy seal scheme acts as a “stamp of approval” highlighting an organisation’s commitment to maintaining good privacy standards. The ICO says that it will be endorsing at least one privacy seal scheme, operated by an independent third party in the UK.
The ICO’s endorsement is conditional on the scheme’s operator achieving official accreditation by the UK Accreditation Service. The ICO will invite proposals for a privacy seal scheme in the Autumn 2014, with a view to selecting a proposal in early 2015. The ICO is aiming to launch the first round of endorsed schemes in 2016.
The consultation allows organisations to provide their views on the framework criteria that proposals for schemes will be assessed against. This will inform the final version of the framework criteria, which will be published with the invitation for proposals. The consultation is open until 3 October 2014. To access the consultation documentation, click here.
Information Commissioner’s Office consults on data sharing code of practice.
The ICO published its data sharing code of practice in May 2011 and now wants to assess its impact over the past couple of years. It is interested in knowing how organisations use the code and how it helps them comply with their data protection and freedom of information obligations.
The ICO is asking organisations to complete its survey, which is open until 5 October 2014.
The ICO says that having feedback is “crucial in ensuring that the code, and ICO guidance in general, is effective in fulfilling users’ requirements”. To access the survey, click here.
Information Commissioner’s Office publishes guide for media on data protection.
In a blog posting, the Information Commissioner, Christopher Graham, says that the guidance is a “thoroughly practical tool, designed to help those who work in the news media, at all levels, to understand their obligations under the Data Protection Act”. It also seeks to reassure citizens as to their right to privacy in appropriate circumstances.
Mr Graham says that the ICO is publishing the guidance now “in the light of the considerable confusion, highlighted in recent high-profile court cases and at the Leveson inquiry, around what data protection law says about journalism and the media”. In fact, the publication of the guidance is itself a response to one of the Leveson recommendations.
Press freedom is not, and never has been, an absolute, Mr Graham says. “Editors have always had to balance the competing rights of individual privacy and the right to know”, he says. The important thing is to find “the right balance”, deciding where the public interest is to be found, given the circumstances of each situation. It is about balancing the rights, under Human Rights law, between Article 8 and Article 10. “Neither of these can automatically trump the other. It depends on the facts of each case”, Mr Graham says.
Alongside publication of the guidance the ICO has also published its response to the consultation it carried out, as well as advice to the public. For links to the publications and to read Mr Graham’s blog posting in full, click here. Back to top
Recent Ofcom adjudication reminds broadcasters to ensure that “trailers for post-watershed content scheduled pre-watershed include only content that is appropriate for a pre-watershed audience”.
Ofcom was alerted by a complaint to scenes of violence in trailers broadcast in the daytime for the films Hostel 2 and Behind Enemy Lines 2 on PRO4, which is a general entertainment channel licensed by Ofcom for transmission in Europe and broadcast in Hungarian. The licence is held by CEE Broadcasting Ltd.
Ofcom considered that the cumulative effect of images in the trailer for Hostel 2, a film about backpackers being tortured for sport, conveyed a level of violence and themes of an adult nature that were unsuitable for child viewers. Ofcom also considered that while the violence in the trailer for Behind Enemy Lines 2 was limited to one brief act, this conveyed a strong image of a nail being driven into a man’s hand by a hammer, which was not suitable for child viewers. This meant that both trailers required “careful scheduling” to comply with the Broadcasting Code.
The trailers for Hostel 2 and Behind Enemy Lines 2 were broadcast before the watershed on a Friday at 16:00 and a Monday at 12:45, respectively. Ofcom accepted that the adjacent programmes, and the channel generally, were not targeted at or likely to attract many child viewers. However, Ofcom noted that the licensee had provided evidence that demonstrated that some children aged 4-17, albeit a small share, had watched the channel in 2014. Ofcom also noted that the trailers, particularly the Hostel 2 trailer, were broadcast at times when children were around to view. Ofcom did not consider that the broadcast of this material at those times of the day would be in line with the likely expectations of viewers generally, and in particular those of parents. As such the content was not appropriately scheduled to protect children and Rule 1.3 of the Code was breached on both occasions. To read Ofcom’s adjudications on Hostel 2 (trailer) and Behind Enemy Lines 2 (trailer), published in Issue 260 of the Broadcast Bulletin (18 August 2014), click here. Back to top
Prime Minister and BPI announce pilot scheme to trial age ratings for music videos.
Speaking at the Relationships Alliance Summit at the Royal College of GPs on 18 August, the Prime Minister said that, from October, “we’re going to help parents protect their children from some of the graphic content in online music videos by working with the British Board of Film Classification, Vevo and YouTube to pilot the age rating of these videos”.
The BPI has responded by saying that it “agrees with government that, with so many more music videos now being released online through such sites as YouTube and Vevo, it is important this content is made available to the public in a responsible way, that is sensitive to the needs and concerns of younger viewers and their parents”.
The BPI announced that it is working with the British Board of Film Classification, Digital Service Providers and with the support of government on a pilot scheme that will trial age ratings for music videos released online through the UK. Technical details are still being developed, but the scheme will see UK record labels voluntarily submit content likely to be rated 12 or above to the BBFC for classification into 12, 15 or 18 age categories. Labels will then include this data with a “parental advisory” style alert in its feed to the Digital Service Providers so that users, including parents, can make a more informed viewing decision.
The pilot will commence on 1 October coinciding with changes to the Video Recordings Act that will require physical music videos deemed to include 12-rated-plus material to go through the same age-classification process. The pilot is expected to run for at least three months, followed by a period of evaluation to assess the voluntary scheme. If, as hoped, the pilot proves successful, then as a next step the BPI will call on Digital Service Providers to introduce filters linked to those age ratings so that families have the additional option to block video content they consider unsuitable viewing for children. To read the BPI’s press release in full, click here. Back to top
High Court considers discretion to order trial by jury under new Defamation Act 2013.
Mr Tim Yeo MP sued Times Newspapers Ltd for defamation in respect of articles published in The Sunday Times on 9 and 23 June 2013. Times Newspapers applied for an order that the case be tried with a jury. That application was resisted by Mr Yeo.
Mr Justice Warby found that the issue fell to be decided under the law as recently amended by the Defamation Act 2013. That Act made a fundamental change to the law relating to the mode of trial of actions for defamation by abolishing the long-standing right to jury trial. It did so by amending s 69 of the Senior Courts Act 1981.
The starting point for actions that include libel or slander claims had been reversed, Warby J said. No longer was there a right to jury trial, subject to a timely application and exceptions with a residual discretion. Instead, such actions were subject to the general rule contained in s 69(3) of the 2013 Act that an action “shall be tried without a jury unless the court in its discretion orders it to be tried with a jury”. The CPR had also been amended, Warby J noted, with effect from 1 January 2014 so that CPR 26.11(2) now provides: “A claim for libel or slander must be tried by Judge alone, unless at the first case management conference a party applies for trial with a jury and the court makes an order to that effect”.
Times Newspapers accepted that “jury trial in libel will be the exception rather than the rule under the new statutory regime”. However, it submitted that the fact that Parliament had retained the “bare discretion” in s 69(3) without adding any statutory guidance “suggest[ed] that the sorts of considerations discussed in the pre-amendment case law should continue to apply”.
In Warby J’s view, however, the amendment to s 69(1) had to be treated as affecting the considerations to be taken into account by the court to the “important” extent that: “a principle identified in the pre-amendment authorities cannot hold sway after the amendment to the extent that it rests on the existence of a constitutional right to trial by jury, or a presumption in favour of such a mode of trial”.
Times Newspapers submitted that in deciding the issue the court should not only hear argument on meaning, but also allow “the thinking of the court on meaning”, and in particular on whether the case was about factual allegations or value judgments, to inform the decision about whether to grant a jury trial. Warby J did not believe that that was appropriate. The main question was, he said, whether and if so why and to what extent, strong public interests, and the prominent status and powerful position of Mr Yeo, provided support for an order for trial by jury as opposed to the preferred mode of trial without a jury. Warby J did not believe, however, that such factors were to be regarded as “inherently important” in favour of trial by jury. In order to displace the presumption of non-jury trial it was necessary, he said, not only to identify specific considerations of this kind that arise in any particular case, but also to examine whether they made jury trial more appropriate than trial without a jury.
Warby J noted that some of the important issues in the action were matters allocated to the judge to decide and not to a jury in any event. Times Newspapers did not explain why it was that the respective roles of Mr Yeo and Times Newspapers meant that a jury was better placed than a judge to reach conclusions on the other issues raised by the action. In Warby J’s view their roles, both of which were undoubtedly important in public life, could at least equally well be said to make it more appropriate to have a trial by a judge.
Finally, Times Newspaper had not identified any skills, knowledge, aptitudes or other attributes likely to be possessed by a jury which would make it better equipped than a judge to grapple with the issues that arise and may need to be tried. The application was dismissed. (Tim Yeo MP v Times Newspapers Ltd [2014] EWHC 2853 (QB) (20 August 2014) – to read the judgment in full, click here.)
High Court considers “serious harm” test under Defamation Act 2013 for first time.
Ms Ruth Cooke and Midland Heart Ltd, a housing association for which Ms Cooke was Chief Executive, sued MGN Ltd in relation to an article published by the Sunday Mirror on 26 January 2014 in connection with the Channel 4 programme, Benefits Street.
The article in question referred to a particular well-off, private landlord providing damp, mouldy and inhabitable accommodation on the street in question. It also stated: “Three more homes in the road where residents claim they have been portrayed as scroungers and lowlife by Channel 4 are owned by the Midland Heart housing association. Its chief Ruth Cooke, 45, earns £179,000 a year and lives in a large house in Stroud, Glos”.
MGN published an apology in the next edition of the Sunday Mirror after the original article, on 2 February 2014.
Mr Justice Bean found that the natural and ordinary meaning of the words complained of was that Midland Heart, whose chief executive was Ms Cooke, was one of the well-off landlords of rented properties on a particular street which let houses to people in receipt of housing benefit at rents of up to £650 per month, thereby making money from the misery of those residents and that Ms Cooke was personally responsible for that conduct of Midland Heart, and had herself profited and become rich from it, in that she was paid £179,000 a year and lived in a large house in Gloucestershire.
Mr Justice Bean then had to consider the meaning of “serious harm” under s 1 of the Defamation Act 2013 for the first time since the Act came into force.
Bean J noted that s 1(1) required a claimant to show that serious harm has been caused or was likely to be caused to his/her reputation. It was not enough to show that the publication had caused or was likely to cause serious distress or injury to feelings.
The words “has caused” involved looking backwards in time, the words “or is likely to cause” involved looking forwards, Bean J noted. The Act did not make clear the moment that marked the dividing line between past and future. It could not be the moment of publication, since at that moment no harm had “been caused”. The two logical possibilities were the date of issue of the claim and the date of the trial (or of the trial of the preliminary issue of serious harm). Either of these had the curious effect, however, that whether a statement was held to have been defamatory on the day it was published might depend respectively on the timing of the issue of proceedings, or the timing of the trial.
In conclusion, Bean J found that the date from which one looked backwards (to see whether substantial harm had been caused) or forwards (to see whether substantial harm was likely to be caused) was the date on which the claim was issued. This would also correspond, he said, in so far as past harm was concerned, with the common law rule that, subject to certain exceptions, slander is not actionable unless, by the date on which the writ was issued, special damage had already occurred. However, Bean J said, it did not matter in this case which of the two dates was used.
The next point to consider was what was meant by “likely”. However, this was not an issue that Bean J had to decide, since “likely” serious harm would, generally, only be established where the court was satisfied that it was more probable than not that it would occur in the future.
As for what was required to prove serious harm, Bean J found that not in every case would evidence be required to satisfy the serious harm test. Some statements were so obviously likely to cause serious harm to a person’s reputation that this likelihood could be inferred, he said. If a national newspaper with a large circulation wrongly accused someone of being a terrorist or a paedophile, then in either case (putting to one side for the moment the question of a prompt and prominent apology) the likelihood of serious harm to reputation was plain, even if the individual’s family and friends knew the allegation to be untrue.
In assessing the likelihood of serious harm being caused in the present case, Bean J attached “significance” to the apology made by MGN, which Bean J found had been sufficient to eradicate or at least minimise any unfavourable impression created by the original article in the mind of the hypothetical reasonable reader who read both. That left a residual class of readers of the original article who did not read the apology, Bean J said, but it was important to note that the apology had become far more accessible on internet searches than the original Article.
Both Ms Cooke and Midland Heart accepted that there was no specific evidence that the article had caused serious harm to their reputations so far and Bean J considered that such serious harm could not be inferred. In his judgment the claimants had also failed to show that it was more likely than not to cause serious harm to their reputations in the future. (Ruth Cooke v MGN Ltd [2014] EWHC 2831 (QB) (13 August 2014) – to read the judgment in full, click here). Back to top
Ofcom rejects appeal against ATVOD Determination that adult service “Frankie and Friends” was, at relevant time, an on-demand programme service (ODPS).
Ofcom found that the adult entertainment service at www.frankieandfriends.net was, as at April 2013, an ODPS for the purposes of Part 4A of the Communications Act 2003 and therefore fell within the scope of video-on-demand regulation.
Ofcom found that the characteristics of the material available on the website and the manner in which it was provided support the finding ATVOD made, that the site constituted a service the principal purpose of which was providing audiovisual material. Whilst the large volume of non-TV like material available (including around 12,000 photographic images) demonstrated that the service sought to make use of still images as well as videos in providing its service, Ofcom nevertheless considered that the catalogue of a significant amount of audiovisual material available that did not require accompanying information to be fully appreciated did amount to a service the principal purpose of which was to provide an ODPS. The strong thematic connection between the two bodies of content on the site supported the conclusion that the website as a whole had the principal purpose of providing an ODPS in relation to adult content.
Ofcom also found that the form and content of the video material were comparable to the form and content of programmes normally included in a television programme service providing adult content. While individual videos on the service were not all of comparable length to those found on adult channels, each was self-contained and did not require additional material to be fully understood. Further, the production values of much of the content, as well as the lighting, were aimed at enhancing the viewer experience and creating a more TV-like experience.
Ofcom also considered that the audiovisual material was likely to compete for the same audience as linear TV broadcasts and that the nature of the material, i.e. adult content, and the means of access to it, would lead users reasonably to expect regulatory protection. Accordingly, Ofcom upheld ATVOD’s Determination. To read Ofcom’s decision in full, click here. Back to top
Government seeks views on plans to modernise horseracing levy to benefit both racing and betting industries.
The Government has published a consultation on modernising the horserace betting levy.
The levy is collected from the profits of betting on horseracing and is used to improve the sport and the breeds of horses as well as funding veterinary research and education. The current system has been criticised in recent years for being out-of-date and in need of reform.
The ten-week consultation asks for views on two options: reforming the existing levy and replacing it with a bespoke statutory framework.
Under the current system, the Bookmakers’ Committee recommends an annual levy scheme to the Horserace Betting Levy Board, which they can either accept or refuse. If they cannot agree, the Culture Secretary makes the decision.
The Government has ruled out keeping the levy unchanged as there are too many issues with it. Scrapping it without any replacement has also been ruled out as those benefiting from betting on horseracing should contribute to it.
The Government does not prefer either reforming or replacing the levy at this point and there are no plans to extend the levy to other sports. To access the consultation documentation, click here. Back to top
Cultural Test (Video Games) Regulations 2014 come into force.
Video games companies across the UK will be able to begin claiming tax relief on their production costs from 1 April 2014, now that the cultural Regulations, which ensure that the tax relief supports the production of culturally British games, are in force. This marks the completion of the tax relief legislation.
Video games must achieve a level of points that they are awarded based on their cultural content, cultural contribution and the location of the game’s development and nationalities of key personnel working on the project.
From 19 August 2014 formal certificates for games that pass the cultural test can be issued by the BFI, which administers the cultural test process for the Government.
Video games tax relief builds on the successful model of the film tax relief. Like the High-End TV and animation tax reliefs, development companies are eligible for a payable tax credit worth 25% of qualifying costs.
95% of UK video games developers are SMEs. The Government estimates that the new corporation tax relief will provide around £35 million of support per year to the sector.
Dr Jo Twist, CEO of Ukie, said: “It has taken years of hard work and dedication by many people in the industry and government to create the most innovative, inclusive, and future proof games tax relief scheme in the world at a time when it is most needed. We worked very closely with government to make sure this scheme benefits every type and size of developer, and that it recognises the importance of post-release production in games. This is a historical and exciting moment for our sector, and we will continue to work with our partners, such as the UKTI, to make sure we spread the word nationally and internationally”. To read the Government’s press release in full, click here.
ASA rules Zenimax trailer of PEGI 18 rated video game featuring graphic violence and swearing was responsibly targeted on gaming website.
Following a complaint about an ad for the video game Wolfenstein: The New Order which was displayed on www.eurogamer.net and which featured graphic scenes of violence, including a man being shot in the head, the ASA found that although the content of the ad had the potential to cause offence or distress, it had been targeted responsibly because it had appeared on a website where only 3% of its users were aged 18 or under. The ASA also considered that because the ad shown on the home page included the name of the game, a PEGI 18 symbol and pictured two figures holding guns, it indicated the video trailer was likely to include violent content. Further, the ASA noted that the trailer also included a prominent warning of the nature of the video’s contents. Users who did not wish to view such material were therefore able to avoid doing so. The ASA concluded that the ad was unlikely to be seen by children and unlikely to cause offence or distress to those adults who viewed it. To read ASA Adjudication on Zenimax Europe Ltd (27 August 2014), click here. Back to top
ASA rejects Youth Alcohol Advertising Council complaint that Estrella beer promotion was irresponsible.
A TV ad for Estrella beer showed a band playing at a party before cutting to scenes from earlier in the day. A man was shown preparing a paella for a group of friends at a villa. Various scenes showed the group enjoying an afternoon in the sun, playing table tennis, whilst drinking and holding bottles of Estrella. As the man cooked the paella, the others helped prepare additional food and the garden for dinner. At dinner the whole group was shown drinking Estrella. As evening fell the band was again shown performing to the group, who were drinking and dancing together. At the end one couple were shown kissing as the voice-over, and on-screen text stated “Mediterraneamente. Estrella”.
The Youth Alcohol Advertising Council (YAAC) challenged whether the ad was irresponsible because (i) it encouraged irresponsible and immoderate drinking and (ii) it linked alcohol to seduction, sexual activity and sexual success.
Whilst the impression created by the ad was that some characters had consumed a couple of drinks, the ASA considered it was clear that they had done so over a prolonged period of time. Those drinking were shown doing so in a responsible manner, as they took occasional and controlled sips, and whilst all the characters were clearly enjoying the day and each other’s company, no one appeared to be intoxicated or drinking to excess. The ad did not therefore encourage irresponsible or immoderate drinking.
Further, the dancing scenes were brief and not sexually suggestive, whilst the kiss at the end of the ad was playful and flirtatious in tone, as opposed to sexually charged. The ASA therefore concluded that the ad did not link alcohol with sexual activity, sexual success or seduction. For these reasons the ASA was satisfied that there was no breach of BCAP Code rules 1.2 (Responsible advertising) and 19.6 (Alcohol). To read the ASA Adjudication on Wells & Youngs Brewing Company Ltd (27 August 2014), click here.
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