Need to Know – 2014.11.17

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Film & TV

Audiovisual Media Services Regulations 2014 amend s 368E of Communications Act 2003 to ensure certain VOD material is put behind access controls to protect children.

Broadcasting

Ofcom puts TV Novosti on notice following breach of impartiality rules relating to RT’s coverage of unfolding events in Ukraine.

Music

BPI announces conviction and sentencing of two individuals behind illegal music forum, Dancing Jesus.

Government announces further funding boost to UK independent labels.

Publishing

Performing artist applies to Supreme Court to appeal Court of Appeal’s decision banning worldwide publication of his semi-autobiographical work on grounds it would cause psychiatric harm to his son.

New trade body for the newspaper industry, News Media Association, launches.

Technology

ASA rules that TalkTalk exaggerated broadband router performance in the absence of appropriate substantiation.

European Patent Office and India sign Memorandum of Understanding on bilateral co-operation.

Ofcom publishes data from tests examining co-existence between wireless microphones and other equipment used in Programme Making and Special Events (PMSE) and White Space Devices (WSDs).

Ofcom publishes research into consumers’ experience of mobile broadband in UK since 4G auction in 2013.

Ofcom publishes joint report with the Payment Systems Regulator (PSR) examining how new technologies are supporting emerging payment methods for consumers.

Advertising

High Court finds food products with different provenance, sustainability and other ethical qualities “sufficiently interchangeable” for purposes of lawful price comparative advertising.

Film & TV

Audiovisual Media Services Regulations 2014 amend s 368E of Communications Act 2003 to ensure certain VOD material is put behind access controls to protect children.

The purpose of the new Regulations, which come into force on 1 December 2014, is to ensure that: i) VOD material that has been or would be rated R18 by the British Board of Film Classification is put behind access controls; and ii) VOD material that has been or would be refused a BBFC classification is banned.

Section 368E(2) of the Communications Act 2003 provides that VOD material that might seriously impair the physical, mental or moral development of persons under the age of eighteen must only be made available in a manner which secures that such persons will not normally see or hear it.  The Regulations amend this provision to ensure the protection of children from harmful VOD material.

Therefore, any material for which the BBFC has issued a R18 classification certificate (or any material that would have been issued such a certificate) must not be included in a VOD service unless it is behind effective access controls that verify that the user is aged eighteen or over.  Further, any material for which the BBFC has refused to give a classification certificate must not be included in a VOD service at all.

According to the Explanatory Memorandum, the Regulations have the effect of “removing any uncertainty from the regulatory framework providing clarity to consumers and providers of video-on-demand services”.  They also provide the same level of protection that exists on the high street in relation to the sale of hard-copy DVDs to the provision of VOD services.  “In a converging media world these provisions must be coherent. The BBFC classification regime is a tried and tested system of what content is regarded as harmful for minors”.  To access the legislation, click here.

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Broadcasting

Ofcom puts TV Novosti on notice following breach of impartiality rules relating to RT’s coverage of unfolding events in Ukraine.

Following complaints and after further monitoring, Ofcom investigated four news bulletins on RT (formerly Russia Today), which reported on matters relating to public policy in the Ukraine against the backdrop of various issues, such as the legitimacy of the interim Ukrainian Government, the degree to which Right Sector might be “an extremist and violent group” and the degree of control the interim Ukrainian Government had in parts of Ukraine.  The bulletins contained various comments that were from a Russian perspective and critical of, or in opposition to, the interim Ukrainian Government on all these issues.

Ofcom noted that there was only one brief example that could be reasonably characterised as the view of the interim Ukrainian Government being reflected to some degree and with due weight.  It concluded that RT had not adequately reflected the viewpoint of the interim Ukrainian Government in response to the various criticisms and allegations made about it in the four news bulletins.  Ofcom said that RT had not ensured that it had included an appropriately wide range of significant views in its reporting on a major political controversy and as such had failed to preserve due impartiality as required by Broadcasting Code rules 5.1 (all news must be reported with due impartiality), 5.11 (due impartiality and major political matters) and 5.12 (due weight to wide range of significant views).  Ofcom has warned RT licence holder TV Novosti that any future breaches of the due impartiality rules could result in a statutory sanction.  To read Ofcom’s adjudication on RT, published in Issue 266 of the Broadcast Bulletin (10 November 2014), click here.  

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Music

BPI announces conviction and sentencing of two individuals behind illegal music forum, Dancing Jesus.

On 10 November 2014, two individuals were sentenced at Newcastle Crown Court to a total of four years and five months in prison for illegally distributing thousands of music files on the Dancing Jesus website.

Dancing Jesus was an online forum that allowed members to post tens of thousands of illegal links to music that they had uploaded to cyberlockers like Rapidshare, Filesonic and Mediafire.  The music tracks were often distributed before they were officially released, which is known as “pre-release piracy”.  The BPI says that this causes particular damage to musicians and the music labels, large and small, which support them because it undermines the huge effort and investment that goes into carefully planned marketing campaigns for a release.

Richard Graham was sentenced to 21 months in prison.  He illegally distributed thousands of files on the Dancing Jesus site including more than 8,000 tracks, two thirds of which were pre-release.  His guilty plea followed that of Kane Robinson, the owner and administrator of the Dancing Jesus site, who on 8 January 2014 also pleaded guilty to illegally distributing music.  Kane was handed down a prison sentence of 32 months, reduced from 4 years for his early guilty plea.

More than 22,500 links to 250,000 individual titles were made available via Dancing Jesus between 2006 and 2011.   The site welcomed more than 70 million user visits during its life span.

The BPI reports that, in the course of her comments, Judge Sherwin noted that it would be easy to consider such activities a victimless crime, but reaffirmed that piracy only serves to reduce the ability of the industry to promote and fund new artists.

Commenting on the investigation, the Director of BPI’s Copyright Protection Unit, David Wood, said: “Today’s sentencing sends a clear message to the operators and users of illegal music sites that online piracy is a criminal activity that will not be tolerated by law enforcement in the UK or overseas.  Piracy – particularly pre-release – can make or break an artist’s career, and can determine whether a record label is able to invest in that crucial second or third album.  In this day and age with so many quality digital music services available offering access to millions of tracks through free and premium tiers, there is no good reason to use pirate sites that give nothing back to artists and offer a sub-standard experience for consumers.  Speaking as a music fan, it just doesn’t make sense to help criminals when you can support artists”.  To read the BPI’s press release in full, click here.

Government announces further funding boost to UK independent labels.

British music companies behind some of the UK’s most up and coming artists are to receive Government funding to support the promotion of the nation’s music around the world and increase the industry’s contribution to the economy, the BPI reports.

The £2.5 million Music Export Growth Scheme was announced by the Prime Minister, David Cameron, in October 2013 and is a partnership between the BPI and UK Trade & Investment to boost sales of British music overseas.  This fourth round of the Scheme brings the total amount of grants given to 60 independent labels, artists and management companies across the UK to more than £1 million this year.

The financial assistance forms part of the Government’s efforts to get 100,000 small and medium-sized businesses exporting.  Independent music companies can apply for amounts between £5,000 and £50,000 to support touring, international marketing and other overseas activities.

The Scheme will re-open for applications on 17 November 2014.  To read BPI’s press release, click here.

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Publishing

Performing artist applies to Supreme Court to appeal Court of Appeal’s decision banning worldwide publication of his semi-autobiographical work on grounds it would cause psychiatric harm to his son.

The case concerned the potential publication by a well-known, young performing artist (MLA), of a semi-autobiographical work describing his traumatic childhood, in which he was the victim of sexual abuse.  The work described the writer’s psychological trauma caused by the abuse, which had led him to have episodes of severe mental illness, resulting in self-harm, breakdowns and periods of hospitalisation.

The work was dedicated to the writer’s young son (aged 11) (OPO) from his first marriage.  OPO, the claimant in the proceedings by his litigation friend, suffered from significant disabilities including ADHD, Asperger’s, Dysgraphia and Dyspraxia.

OPO brought the proceedings to seek to prevent publication of MLA’s account of his traumatic early life.  At first instance, Mr Justice Bean rejected the claim.  OPO appealed and the Court of Appeal allowed the appeal on the grounds that publication of the work would constitute intentional conduct on the part of MLA to cause psychiatric harm to OPO in accordance with the 19th Century principle in Wilkinson v Downton [1897] (QB) 57, which makes it a wrong in certain circumstances intentionally to inflict mental suffering.

The Court of Appeal’s decision has since been widely criticised by freedom of expression campaigners who have expressed concern at the use of an obscure tort to prevent publication of a work that is in the public interest. 

English PEN members, including Stephen Fry, David Hare and Tom Stoppard, have voiced concerns over the ruling saying: “The Court of Appeal’s injunction last week preventing publication of a memoir poses a significant threat to freedom of expression. … The memoir deals with the author’s past experiences of sexual abuse and explores the redemptive power of artistic expression.  It has been praised, even in court, as striking prose and an insightful work.  The author’s earlier public discussions of sexual abuse have previously led to the arrest of one of his abusers.  Its publication is therefore clearly in the public interest and may encourage those who have suffered abuse to speak out.  As writers, and members of English PEN, we are gravely concerned about the impact of this judgment on the freedom to read and write in the UK.  The public is being denied the opportunity of reading an enlightening memoir, while publishers, authors and journalists may face censorship on similar grounds in the future”.

MLA’s application to the Supreme Court states that the Court of Appeal should have held that: i) the requirement of “false words or threats” was an essential element of the tort under Wilkinson v Downton; ii) the tort should be confined to targeted conduct; and iii) the tort should require actual intention to harm, not imputed intention.  In the alternative, the application claims that: i) the Court of Appeal failed properly to analyse the concept of “lack of justification” and to take into account MLA’s, the publisher’s and the public’s Article 10 rights; and ii) the Court of Appeal took the wrong approach to an injunction severely restricting freedom of expression.  For further information, click here.

New trade body for the newspaper industry, News Media Association, launches.

The NMA is being formed by the merger of the Newspaper Society, the voice of local media, and the Newspaper Publishers’ Association, which represented national publishers.  The NMA will represent the interests of its member publishers on a range of issues affecting the news media industry from press freedom and public sector competition to routes to market, copyright and IP.

When the NS was launched in 1836, the trade association represented both local and national newspapers, but in 1906 the NPA was formed as a separate organisation to represent the nationals.  Although the two associations have worked closely together over the years, the NMA formally reunites them for the first time in over 100 years.

NMA chairman and former NS president, Adrian Jeakings, said: “Free speech and independent news are the building blocks of a healthy democracy.  Newspapers embody this by holding the powerful to account, exposing corruption, and giving a voice to the unheard.  Newsbrands – national, regional and local newspapers in print and digital – are by far the biggest investors in news in the UK, accounting for more than two-thirds (69 per cent) of the total spend on news provision.  The NMA will provide this important sector with a clear voice on the issues which affect it”.

NMA Chief Executive, David Newell, said: “Press freedom is under attack on multiple fronts and defending this fundamental right to free speech will be central to the NMA’s mission”.  To read the NMA’s press release in full, click here.

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Technology

ASA rules that TalkTalk exaggerated broadband router performance in the  absence of appropriate substantiation.

A circular for TalkTalk Telecom Ltd included the heading “Why our fibre broadband is Superpowered … Unbeatable Wi-Fi connection … Our new Super Router gives you an unbeatable signal strength and has the UK’s fastest Wi-Fi technology”.  Complainants challenged whether the claims could be substantiated.

The ASA acknowledged that the results of the testing appeared to indicate that TalkTalk’s Super Router performed better than their competitors, but noted that the independent report was conducted in laboratory conditions.  The ASA considered that consumers would understand the claims “unbeatable” and “UK’s fastest” to reflect conditions of use in the home that would be influenced by variables such as the placement of the router in the home and where it was being accessed from, the time of day and the number and type of devices linked to it.  It was therefore concerned that the testing did not reflect typical consumer use and concluded that the ad was misleading.  As such, the ad breached CAP Code rules 3.1 and 3.3 (Misleading advertising), 3.7 (Substantiation), 3.11 (Exaggeration) and 3.38 (Other comparisons).  To read the ASA’s Adjudication on TalkTalk Telecom Ltd (12 November 2014), click here.

European Patent Office and India sign Memorandum of Understanding on bilateral co-operation.

The EPO and the Intellectual Property Office of India have agreed to renew their co-operation on patents in an effort to support innovation in both regions.

The EPO and the Government of India have signed a Memorandum of Understanding on bilateral co-operation establishing a framework for structured work relations between the EPO and the IPO India for at least four years.  The overriding objective is to support the development of the patent system in terms of service delivery and efficiency, particularly by means of technical co-operation and exchange of best practices in areas such as patent examination, administration and information.  On this occasion, the EPO and the Indian IPO also signed the first biennial work plan under the MoU.

EPO President Benoît Battistelli said: “This is an important step forward in our relations with India, which is becoming a major player in global innovation.  Through this agreement Europe and India are reinforcing their efforts to create new opportunities for innovating businesses that will be able to benefit from improved conditions for the protection of intellectual property in India.  This will encourage European businesses to take their inventions to the Indian market, whereas higher quality patents are making it easier for Indian inventors to access the European market.  In this respect, the agreement also aims to stimulate the promotion of economic development and the transfer of technology between both regions”.  To read the EPO’s press release in full, click here.

Ofcom publishes data from tests examining co-existence between wireless microphones and other equipment used in Programme Making and Special Events (PMSE) and White Space Devices (WSDs).

Ofcom says that this data will help it design rules for the future operation of WSDs to help prevent harmful interference with PMSE equipment.

Ofcom is currently piloting a new type of technology called “dynamic spectrum access”.  Use of dynamic spectrum access technology could allow WSDs to use the same spectrum as PMSE and digital terrestrial television, but at frequencies, locations and times that mean that existing users would not be adversely affected.

The data includes tests conducted in controlled laboratory conditions, in theatres during live performances where many wireless microphones were used and during a live outside broadcast event.  These tests are one part of this pilot, which also includes:

  • similar tests in relation to the potential of interference from WSDs into TV reception via Freeview;
  • tests of processes, software and databases required to make the technology work; and
  • trials of services using WSDs.

Ofcom currently expects to publish a statement in early 2015 setting out plans for implementing the use of WSDs in the UHF TV band.  This will also draw on the evidence collected in its on-going TV white space trials and other relevant evidence provided to Ofcom by industry.  To access the published data, click here.

Ofcom publishes research into consumers’ experience of mobile broadband in UK since 4G auction in 2013.

This is the first time since the 4G auction that Ofcom has published research on the subject. 

The research measured the performance of 4G and 3G services on smartphones from the four main mobile operators: EE, O2, Three and Vodafone in Birmingham, Edinburgh, Glasgow, London and Manchester.

Ofcom says that helping to improve mobile coverage and quality of service are important objectives for it.  The report is intended to help consumers understand differences in performance between 3G and 4G and is designed to support consumers in choosing a service that best suits their needs.  Ofcom says that the findings are also “expected to encourage providers to improve their performance”.

Ofcom says that it will continue to monitor and report on how mobile service quality develops over time.  The second phase of this research is under way and Ofcom expects to publish it in spring 2015.  To read Ofcom’s press release and to access the research, click here.

Ofcom publishes joint report with the Payment Systems Regulator (PSR) examining how new technologies are supporting emerging payment methods for consumers.

The study, Innovation in UK Consumer Electronic Payments, considers how developments in communications technologies are driving new approaches in the payments sector.  It looks at how mobile devices are being used for payments, as well as potential barriers to innovation and what more could be done to promote new services.

The document does not contain any policy recommendations, but will instead be used by Ofcom and the PSR to inform their future work programmes.  To access the report, click here.

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Advertising

High Court finds food products with different provenance, sustainability and other ethical qualities “sufficiently interchangeable” for purposes of lawful price comparative advertising.

In early 2013, Tesco ran a regional press advertisement for its “Price Promise” scheme, which is a price comparison scheme under which Tesco compares the price it charges in relation to certain goods with prices at Asda, Sainsbury’s and Morrison’s.  The ad featured various food products and stated:

You won’t lose out on big brands, fresh food or own-label.  If your comparable grocery shopping is cheaper at Asda, Sainsbury’s or Morrisons, we’ll give you a voucher for the difference at the checkout or online.  To qualify, you need at least ten different items including one comparable item in your basket”.

Sainsbury’s complained to the Advertising Standards Authority claiming that: i) Tesco’s advertising in respect of eight own label and fresh food products was misleading; and ii) Tesco had drawn impermissible comparisons contrary to CAP Code rule 3.34.  Sainsbury’s said that non-price elements relating to product quality, corporate responsibility, sustainability and other ethical matters, had not been factored in by Tesco.  The Sainsbury’s products Tesco had chosen to compare with its own “value” end products took no account of the fact that the Sainsbury’s products were differentiated in a non-price way resulting in slightly higher prices.  Therefore, the supposedly “interchangeable” items were not lawfully or fairly comparable.

CAP Code rule 3.34 states that marketing communications must compare products “meeting the same need or intended for the same purpose”.

The ASA found that Tesco had indeed compared products where a non-price element resulted in a difference between them, but only where it believed that the non-price element was not the determining factor in a purchasing decision.  The ASA therefore found that Tesco had rightly taken into account the consumer’s point of view.  Accordingly, the “same need” test had been met and the compared products were “sufficiently interchangeable”, as required by EU case law.  Therefore, there was no breach of the CAP Code.

Sainsbury’s appealed to the Independent Reviewer on the ground that there were “substantial flaws” to the ASA’s decision.

The IR concluded that Sainsbury’s had made a persuasive case about the changing assumptions of many consumers and the value that they increasingly place on provenance and other ethical issues when considering food purchases.  Nonetheless, he concluded that the ASA had interpreted rule 3.34 in a defensible way such that it was difficult to argue that the ASA ruling was substantially flawed.  Sainsbury’s applied to the High Court for judicial review of the IR’s decision.

The High Court found that the IR had not erred in law by finding that the ASA’s decision had not been “substantially flawed’.  The ASA was entitled to find, as a matter of its assessment on matters of fact and degree specifically reserved to it as the national decision making body, that the products were “sufficiently interchangeable”.  The ASA, as the expert in the area of comparative advertising, was entitled to make a common sense judgment based on the information provided to it.  On this basis, the IR was entitled to find that there was no substantial flaw in the ASA’s approach.  (Sainsbury’s Supermarkets Ltd v The Independent Reviewer of Advertising Standards Authority Adjudications [2014] EWHC 3680 (Admin) (10 November 2014) – to read the judgment in full, click here).

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