HomeInsightsNeed to Know – 2014.11.03

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General

Ofcom invites comments on how best to measure media plurality. 

Orphan Works Regulations 2014 come into force and UK licensing scheme for orphan works is launched. 

Ofcom publishes Citizens and Communications Services report. 

Government and industry join together to tackle late payment and promote Prompt Payment Code. 

Technology

Ofcom publishes Programme Making and Special Events Strategy for video PMSE applications. 

Ofcom consults on increasing the supply of Reseller Identification Codes (RIDs). 

Broadcasting

Ofcom publishes consultation on small-scale DAB digital radio trials.

Publishing

Royal Charter Press Recognition Panel comes into existence. 

High Court grants interim injunction to prevent continued online harassment of casework managers in Independent Police Complaints Commission. 

High Court awards special damages as well as general damages for loss of business and revenue as result of defamatory campaign. 

Sport

FIFA, FIFPro and INTERPOL launch joint campaign to fight match manipulation. 

Gambling & Betting

ASA publishes review of gambling advertising. 

Committee for Advertising Practice publishes advice on gambling ads post introduction of new gambling laws.

General

Ofcom invites comments on how best to measure media plurality.

The Secretary of State for Ofcom has asked the regulator to lead the development of a measurement framework for media plurality.  This request follows the conclusions of a consultation by the Department for Culture, Media and Sport, which determined the scope of the measurement framework.  Ofcom is now asking for input from stakeholders.

Media plurality contributes to a well-functioning democratic society by ensuring a diversity of viewpoints and by preventing any one media owner having too much influence over public opinion and the political agenda.  In September 2014, the Secretary of State asked Ofcom to develop a set of indicators for this framework and to decide on the most appropriate metrics for these.

As well as asking for input now, Ofcom plans to issue a consultation in 2015 on the proposals for the indicators to include in the measurement framework.  Developing this measurement framework will allow a future baseline assessment on the state of media plurality in the UK, Ofcom says.

Responses must be submitted by 27 November 2014.  To access the consultation documentation, click here.

Orphan Works Regulations 2014 come into force and UK licensing scheme for orphan works is launched.

The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 and the Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014 have been made by the Secretary of State and, as of 29 October 2014, come into force.

The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014 allow for the licensed use of orphan works, for both commercial and non-commercial use, within the framework of UK copyright law, subject to appropriate safeguards and remuneration for absent rights-holders.  

The Intellectual Property Office will be administering the new UK licensing scheme.  It is the first scheme to use an electronic application system and will include a searchable register of orphan works licences that have been granted.  Users will pay a fee to obtain a licence to use the work, which will be kept for the copyright owner should they come forward.  Those applying for a licence will need to evidence that they have undertaken a diligent search for the right holder in order to submit an application.  The IPO has a responsibility to satisfy itself as to the quality of the diligent search undertaken before a licence can be issued. 

The Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014, which implement the Orphan Works Directive (2012/28/EU), allow for the digitisation of orphan works by certain cultural organisations for non-commercial use across the EU. 

To read the Regulations in full, click here and here.  To read the IPO’s press release on the launch of the new UK licensing scheme, click here.  To read the IPO’s guidance on how to apply for a licence to use an orphan work, click here.  To read the IPO’s guidance for rights holders, click here

Ofcom publishes Citizens and Communications Services report.

Ofcom’s Citizens and Communications Services report looks at the availability, accessibility and affordability of communications services in the UK.  It highlights the progress made over the last ten years in ensuring that communications services have kept pace with the changing needs of UK citizens, as well as developments in technology.  It also assesses the challenges facing Ofcom, Government and industry in ensuring the benefits of the communications market are shared across society and the growing expectations of UK citizens are met.

Availability

  • Broadband: now almost universally available, average speeds have increased to 18.7Mbit/s, while superfast broadband has been rolled out to 78% of the country and is increasing.  The report shows that the UK picture is uneven, however, and a significant minority of households, particularly those in rural areas, receive poor speeds and are currently unable to upgrade to faster services.
  • Mobile: Over 99% of UK premises now receive both 2G and 3G outdoor mobile coverage from at least one operator.  Seventy-three per cent of premises currently receive 4G outdoor coverage from at least one operator.  Coverage “not-spots” persist in certain locations, however, particularly in some rural areas.  Mobile emergency call roaming was introduced in 2009 to ensure callers can contact the emergency services in areas in which their own mobile network is not available.
  • DTT: following digital switchover, over 98.5% of people in the UK can now watch at least 20 free-to-view TV channels on digital terrestrial television (including all the main public service broadcasting channels).

Accessibility

  • Emergency SMS: the introduction of emergency SMS in 2011 ensures that deaf and hard-of-hearing citizens can contact the emergency services easily;
  • “Next generation” text relay: this allows people with hearing or speech impairments to hold faster, more fluent telephone conversations on a wider range of mainstream devices; and
  • TV access services: UK viewers now receive significantly higher levels of subtitling, signing and audio description than they did in 2004.

Affordability

  • Price decreases: over the past ten years, consumers have benefitted from significant reductions in prices across most communications services.  The average amount spent on broadband services decreased by 48% between 2004 and 2012, while the average spend on mobile and landline services decreased by 23% and 28% respectively.

Current and future challenges

The report also considers current and future challenges facing Ofcom, policymakers and industry.  These include:

  • delivering wider availability of quality broadband services;
  • improving mobile coverage and reliability;
  • protecting the interests of disabled consumers;
  • helping low income households; and
  • maintaining resilient and reliable access to emergency services.

To read Ofcom’s press release in full and for a link to the report, click here

Government and industry join together to tackle late payment and promote Prompt Payment Code.

Representatives from Aviva, Barclays, Bury Council, City of London Corporation, Fujitsu, Greggs, Skanska and Stort Chemicals will be forming a new advisory board tasked with strengthening the Prompt Payment Code.

The Prompt Payment Code sets out principles for businesses to follow when dealing with and paying their suppliers.  More than 1,700 businesses and public authorities have so far committed to these principles.  This includes the representatives on the new board, who were selected because of their good reputations on payment practices.

The new Prompt Payment Advisory Board will:

  • improve monitoring and enforcement of the Code;
  • promote awareness of the Code; and
  • provide advice on whether there is a need to update the Code.

Business Minister Matthew Hancock said: “Late payment continues to plague businesses, putting a strain on cash flow and preventing plans for growth.  We have committed to tackling this problem, but there is no silver bullet.  This is about a change in culture, which needs businesses and government to work together.  The new Advisory Board will strengthen the Prompt Payment Code, cracking down on poor practice and showcasing good practice”.

The Advisory Board had its first meeting on 28 October 2014 and will aim to implement concrete proposals in Spring 2015.  The Government is also taking action to curb late payment through the Small Business, Enterprise and Employment Bill, which is currently going through Parliament.  The Bill contains proposals to create a duty for large companies and listed firms to report on their payment practices, as well as reforms to public procurement.  To read the Government’s press release in full, click here.

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Technology

Ofcom publishes Programme Making and Special Events Strategy for video PMSE applications.

Programme Making and Special Events (PMSE) refers to the use of wireless technology such as wireless cameras and video links, as well as wireless microphones and in-ear monitors in the production of multi-media content and live events.

The aim of Ofcom’s Strategy is to ensure that users of wireless cameras and video links in the PMSE sector continue to have access to sufficient spectrum to support their activities. 

The Strategy sets out long-term access to video PMSE users in the 2 GHz to 2.3 GHz band, as well as greater use of spectrum in the 7 GHz band.  This follows a likely reduction in spectrum available to these users after the proposed award of spectrum in the 2.3 GHz and 3.4 GHz bands in late 2015 or early 2016.

Ofcom says that there will be continued access to the awarded bands where possible through coordination with new licensees in order to support major events.

As well as showing how these plans meet current demand, Ofcom has also published an independent study into technology developments in the PMSE sector and potential future demand.  Ofcom says that the conclusions of this study provide evidence that the long-term needs of the sector can be met.  For links to the Strategy and the independent study documents click here.

Ofcom consults on increasing the supply of Reseller Identification Codes (RIDs).

Ofcom is proposing to modify the National Telephone Numbering Plan to change the format of RID codes.  RIDs are allocated by Ofcom to communications providers for administrative purposes.   Each RID is used to identify a reseller of BT’s wholesale services.  Changes to the process for customers switching providers may lead to an increase in demand for RIDs from resellers and, in their current format, there may not be sufficient unique RIDs to satisfy demand.  Ofcom is therefore consulting on proposals to change the format of RIDs to accommodate expected increases in demand.

As designated in the National Telephone Numbering Plan, RIDs are currently three character alpha-only codes used to identify the communications provider placing an order with BT Openreach for the transfer of a line from another communications provider.

Typically, Ofcom issues around 300 RIDs each year.  The use of RIDs to date has been limited to communications providers migrating fixed voice and fixed line services on the Openreach network.  However, as a result of Ofcom’s decision to harmonise the switching process for fixed voice and broadband services on the Openreach network Ofcom expects the demand for RIDs to increase as broadband only providers will need a RID for the first time.  There is therefore a risk that Ofcom may run out of RIDs in their current format.

Accordingly, Ofcom is consulting on whether to extend RIDs to a three character alphanumeric format (i.e. using both alphabetic characters and numbers such as AA1) to increase the number of RIDs available to approximately 40,000.  This would require a modification to the Telephone Numbering Plan to bring it into effect.

Ofcom is seeking responses to its proposals by 5pm on 28 November 214.  Once the consultation has closed, Ofcom will take account of all submissions received and reach a decision.  It plans to publish the decision and revised Telephone Numbering Plan in Spring 2015.  To access the consultation documentation, click here.

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Broadcasting

Ofcom publishes consultation on small-scale DAB digital radio trials. 

The consultation seeks views on the approach to issuing new short-term licences to support small-scale digital radio trials being run by Ofcom next year.

The consultation focuses on the conditions and award processes for trial Wireless Telegraphy Act licences needed to test small-scale DAB multiplexes in three locations.  If successful, the new technology could allow smaller radio stations to go digital at a lower cost, Ofcom says.

The technology was first trialled in the UK by an Ofcom engineer in Brighton between September 2012 and January 2013.  This experimental DAB multiplex showed it could be feasible to deliver infrastructure capable of supporting digital radio transmission at a lower cost than the current systems used.

The trials will help inform a wider programme of work Ofcom is undertaking on the possibilities for enabling smaller radio services to broadcast on digital radio.  The closing date for responses is 10 December 2014.  To access the consultation documentation, click here.

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Publishing

Royal Charter Press Recognition Panel comes into existence.

The appointment of five initial members of the Press Recognition Panel established by the Royal Charter on self-regulation of the press has been announced and will come into existence on 3 November 2014. 

The Recognition Panel’s function is to recognise press industry self-regulators in accordance with the Royal Charter, which was granted in October 2013 following the Leveson Report into the culture, practices and ethics of the press.  The five members are: Harry Cayton, Emma Gilpin-Jacobs, Carolyn Regan, Harry Rich and Tim Suter.  They will join David Wolfe QC, the Chair of the Board, whose appointment was announced in June. 

According to the Panel’s own website, following the Leveson Report the Government committed to implementing the Report’s recommendations, including one of Leveson’s key recommendations: that the press industry should regulate itself, but that there should be some independent verification (or “recognition”) of the regulatory arrangements the press puts in place.

The Recognition Panel will, among other things, consider whether self-regulatory bodies set up by the press that want to be “approved regulators” comply with the criteria set out in the Royal Charter.

The members of the Press Recognition Panel have been appointed by an Appointment Committee, itself appointed (as required by the Royal Charter) by the Commissioner for Public Appointments.  That appointments process was entirely independent of the Government, Parliament, the press or any other such interest.

The Recognition Panel will be entirely independent of the Government, Parliament, the press or any other such interest, as required by the Royal Charter.  To access the Press Recognition Panel’s website, click here.

High Court grants interim injunction to prevent continued online harassment of casework managers in Independent Police Complaints Commission.

Following unsuccessful complaints made against West Yorkshire police, the defendants, Mr Wilby and Mr Hofschröer, posted online various hurtful and offensive allegations against the claimant IPCC casework managers. 

Using a website at www.upsd.co.uk, which stood for “unprofessional standards department”, Mr Wilby posted articles referring to one of the claimants as corrupt, malicious, dishonest and amoral.  The same website described another of the claimants as dishonest, incompetent and corrupt by reason of her supposed relationship with a senior policeman, and labelled the third claimant as guilty of habitual lying, dishonesty, dereliction of duty and corruption.  Mr Wilby had also posted photographs of the first two claimants, which he had illicitly acquired from their “closed” Facebook profiles. 

Using a blog, Mr Hofschröer had posted allegations against the first claimant accusing her of covering up for child abusers, of lacking any sense of decency, morality or integrity and of being a known, habitual liar.

The claimants issued proceedings under the Protection from Harassment Act 1997 and applied for interim injunctive relief to restrain the defendants from harassing them and to compel them to take down the internet postings.

On the evidence, the court found that publication of the allegations had been continuous, causing the claimants distress each time they had come across them.  All of the allegations had plainly been calculated to cause alarm and distress and went a long way beyond that which was merely unattractive and unreasonable.  In fact, the court said, the allegations should properly be described as “utterly oppressive, and as tormenting the claimants, who are public servants deserving of protection from those who launch campaigns of personal vilification against them”.

Further, there was no defence to the claim of harassment.  Although in principle the conduct of officials performing an important public service was capable of being a matter of substantial public interest, there was no evidence to suggest that such a public interest was present in this case.  In any event, if there was such a public interest, it did not extend to the “deeply unpleasant personal abuse and vilification” that had been levelled against the claimants.  Therefore, the court was satisfied that the claimants were each likely to establish at trial that publication should not be allowed.  Accordingly, the court granted the interim relief sought.  (Anthony Coulson v Neil Wilby [3014] EWHC 3404 (QB) (21 October 2014) – to read the judgment in full, click here).

High Court awards special damages as well as general damages for loss of business and revenue as result of defamatory campaign.

The claimants, both part of the ReachLocal group of companies that provide online advertising and marketing services, including search engine optimisation services, took proceedings for defamation against a rival company, which described itself as a boutique online marketing agency providing search engine optimisation services, social media marketing, pay per click and other marketing services.

ReachLocal claimed that the defendant had launched a campaign of denigration against it, which had primarily been directed at ReachLocal’s customers.  ReachLocal claimed that the campaign, which consisted of emailed material backed up by telephone calls alleging that ReachLocal had, since 2008, been cheating its customers, had resulted in substantial losses by way of lost business.

The claimants applied for interim injunctions against the defendant to retrain it from any further publication of the defamatory allegations complained of.  Injunctions were granted in March 2014, at which hearing the judge also directed that a defence should be served by 22 April 2014.  No defence was served, which eventually resulted in ReachLocal obtaining judgment in default of defence.  ReachLocal then claimed general and special damages for defamation as well as for final injunctive relief.

The evidence showed that 71 customers had informed ReachLocal that they no longer wished to continue their business relationships with it, having seen the defendant’s allegations.  The court found that ReachLocal had suffered “very substantial loss” as a direct result of the publication by the defendant of defamatory communications.  Therefore, there was no reason of principle why it should not recover the sums lost by reason of the decision of customers not to proceed with cycles of advertising that had been booked, but not paid for.  This amounted to a loss of £302,431.78.  However, the court applied a 20% discount to this figure as the defendant’s communications were only one of the reasons why customers had said that they were leaving ReachLocal, the other two being harassment by the defendants and concerns over security.  The sum awarded therefore came to £241, 945.42.

ReachLocal also sought to recover special damages arising from attempts to mitigate its loss.  The court awarded £60,728 for the amount that ReachLocal had paid to customers to encourage them to stay and not to cancel their campaigns as a result of hearing the defendants’ allegations.  The court also awarded £66,000 being the amount ReachLocal had paid a public relations consultant to manage the damage to its reputation caused by the defendants’ actions.

The court also awarded ReachLocal general damages of £75,000 as vindication for its reputation.  The court took into account the claim that the allegations were being made out of a sense of high ethical purpose, whereas in reality they were actually designed to enable the defendant to steal ReachLocal’s customers.  In the court’s view, “the use of that tactic is likely to have made the allegations the more persuasive and convincing”. 

Finally, the court granted the final injunction sought by ReachLocal.  (ReachLocal UK Ltd v Jamie Bennett [2014] EWHC 3405 (QB) (21 October 2014) – to read the judgment in full, click here).

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Sport

FIFA, FIFPro and INTERPOL launch joint campaign to fight match manipulation.

The campaign was launched at the FIFPro Congress in Tokyo on 30 October.  The aim of the campaign is to raise awareness of the dangers of match manipulation, to provide positive role models for players, and to educate them, and all other members of the football family, on how to recognise, resist and report any attempts to manipulate matches.

To kick off the joint campaign, the three organisations are distributing a DVD produced by INTERPOL, providing players with the key tools they need to help fight match manipulation and ensure that they understand and trust that the information submitted via the respective reporting mechanisms will be treated as strictly confidential.

The DVD features top football stars such as Frank Lampard, Sone Aluko and Kolo Toure, and two players who have been approached by match-fixers.  The 15-minute video will be used to develop new integrity training programmes, but could also be incorporated into existing programmes delivered through the member associations and player unions.

While primarily targeted towards players, the campaign is also intended to impact on all football stakeholders, including coaches and referees as well as club and association officials.

The campaign launch follows on from various other measures implemented independently by FIFA, FIFPro and INTERPOL in the fight against match manipulation, including FIFA’s confidential reporting system and FIFPro’s “Don’t Fix It” initiative as well as a series of programmes such as the e-learning programmes promoted by FIFA and INTERPOL as part of their ten-year partnership.  To read FIFA’s press release in full, click here.

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Gambling & Betting

ASA publishes review of gambling advertising.

As part of the review the ASA commissioned independent agency, Research Works Ltd, to look into the public’s views on gambling advertising.  The ASA also scrutinised all its decisions on gambling advertising complaints from the past year.

According to the research the ASA’s decision-making is in line with public opinion.  The wider review, however, identified some advertising issues that the ASA says warrant further consideration, including:

  • concerns over whether gambling sales promotions are always clearly and accurately advertised;
  • whether some ads indirectly feature themes that link gambling to toughness, resilience and recklessness (all of which are prohibited by the rules); and
  • whether the ASA can take more proactive steps to challenge potential breaches of the rules not raised by complainants.

In response to these issues, the ASA says it will now: prioritise potential breaches relating to sales promotions in gambling ads; be more proactive on issues relating to social responsibility; and continue to work closely with the Department for Culture Media and Sport and the Gambling Commission to ensure a “joined up approach”.  To read the ASA Gambling Review in full click here.  To read the independent research report Public Perception of Gambling Advertising in the UK click here.

Committee for Advertising Practice publishes advice on gambling ads post introduction of new gambling laws.

As a result of the Gambling (Licensing and Advertising) Act 2014 coming into force on 1 November 2014, only gambling operators licensed by the Gambling Commission will be permitted to advertise to consumers in Great Britain or provide them with remote gambling facilities.  If a gambling operator is licensed, and the ASA receives a complaint about one of their ads, then it will continue to assess the complaint made, provided the ad objected to falls within the scope of the CAP or BCAP Code.

However, if it were to receive a complaint about an ad from an operator who is unlicensed, the ASA will refer the operator to the Gambling Commission, as it will be in breach of the new legislation.

CAP says that, in order to demonstrate whether an operator is licensed, it should provide a link to its licensed status with the Gambling Commission on all pages that are used to access gambling services. 

The change will affect not only gambling operators, but also those who carry advertising such as broadcasters, publishers and sports clubs, CAP says.  For links to further advice, click here.

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