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Media & Entertainment Legal Digest: May - June 2019

01 July 2019

Welcome to the latest issue of our ‘Media & Entertainment Legal Digest’. We have selected the legal and regulatory developments from the past two months or so that we think are most likely to be of interest, with a very brief summary and then a link to the official source or full text of the item.

Broadcasting and Audiovisual Media Services

DCMS consults on UK implementation of the revised Audiovisual Media Services Directive

The UK’s Department for Digital, Culture, Media & Sport has issued a consultation document (responses to be submitted by 22nd August) seeking feedback on its proposed approach to implementing the revisions recently made to the EU’s Audio-visual Media Services Directive. Headline changes introduced in the new version of the Directive include: a) extension of its remit to include Video-Sharing Platform Services such as YouTube; b) increased flexibility in the scheduling of TV ads; c) a more clearly permissive approach to product placement; d) further levelling of the regulatory playing field between linear TV and non-linear video on-demand services; e) enhancing the protection of minors and rules against hate speech and promotion of terrorism; and f) reinforcement of the “country of origin” principle, whereby a service needs only to comply with regulation in one Member State.

The Consultation proceeds on the assumption that the UK will be obliged to implement the Directive, the deadline for Member States to do so (19th September 2020) being likely to fall within any Brexit “transition/implementation period”. Even if the UK leaves the EU earlier than that without a deal, it may well be that the Government chooses to implement so far as possible to remain aligned with the EU, although the UK could no longer be used as a “country of origin” under the Directive.

The Government proposes to tackle the new regulation of Video-Sharing Platform Services as part of its new regulatory approach to tackling “Online Harms” more generally. With regard to TV and VOD regulation, some tweaks will be needed to the Broadcasting Act, Communications Act, Ofcom Code and CAP/BCAP Codes, but the overall impact upon UK law and regulation will not be very great. As the Directive allows Member States to retain more onerous obligations if they wish to, it is likely that the UK will retain its current more-restrictive approach to product placement, and it seems that the Government also remains to be convinced that it should move away from the current clock-hour rules on the scheduling of TV advertising. - Read more

Ofcom concludes that BBC iPlayer changes should be allowed to proceed

One of Ofcom’s regulatory functions is to review strategic changes that the BBC makes to its services to ensure that the BBC is not abusing its position as a public service broadcaster in a way that adversely affects fair and effective competition in the relevant markets. In this case, the BBC is proposing to turn its iPlayer service into more of a “destination” (to compete with Netflix and Amazon Prime) by making most BBC content available for 12 months or longer, rather than the current catch-up focused service with much shorter periods of availability. Ofcom has provisionally concluded that the public benefit arising from the changes to BBC iPlayer would outweigh any adverse effect upon competition. It is consulting on this conclusion for a month, closing on 10th July, and then will announce a final decision in August. - Read more

Information Commissioner’s Office imposes £120,000 fine on TV production company for breach of Data Protection Act (inadequate information & consent procedures) when filming at a maternity clinic

The TV production company in question was filming patients at a walk-in pregnancy clinic in Cambridge, using CCTV-style video cameras and microphones in the examination rooms. It had permission from the hospital trust to film on site (for a Channel 4 documentary on still births), and had posted notices near the cameras and left letters in the waiting room warning patients of the filming. The ICO investigated having become aware of complaints to the press made by some of the patients and their family members who had been filmed, and found that the steps taken to obtain the prior consent of patients to the filming (of a private and potentially distressing consultation that was bound to include sensitive personal data) were inadequate and inaccurate, in breach of legal requirements that such data processing should be fair and transparent. The production company was fined £120,000 given the seriousness of the breach (and the footage was not used in the final documentary). - Read more

Copyright and Music

IP Enterprise Court finds record company liable for making infringing copies but distributor not liable for secondary infringement due to lack of knowledge

The Court found that the claimant in this case was clearly the copyright owner of the sound recording (an early Eminem album), and that the first defendant - a record company that had made vinyl copies of the recording - had clearly infringed by making those copies. The second defendant – a distributor, who had sold the infringing copies – was not found liable for secondary infringement, however, as it lacked the requisite knowledge or reason to believe (under section 23 of the Copyright Designs & Patents Act 1988) that the copies were infringing. The judge looked at a variety of evidence before coming to this conclusion, including for example that the distributor had sought MCPS approval, had not concealed its identity, and reacted swiftly and responsibly to withdraw the records from sale when notified by the claimant that they were infringing. - Read more

IPO publishes report on data management issues in the music industry

Named “Music 2025”, this IPO-commissioned report surveys the issues faced by the music industry in improving data management. Conducted by a team at Ulster University with input from PRS for Music and PPL, the report makes recommendations for improved education as to the importance of data, and (in the absence of a global repertoire database) the need for all players to improve and standardize their approaches to data, including the use of identifiers, so that databases can inter-connect effectively. - Read more

Defamation and related causes of action

Supreme Court clarifies correct approach to 'serious harm' requirement in defamation actions

The Defamation Act 2013 introduced a new “serious harm” threshold requirement for bringing defamation claims. A claimant must now show that the allegedly defamatory statement “has caused or is likely to cause serious harm” to their reputation, and a corporate claimant must show in particular that the harm to their reputation “is likely to cause [it] serious financial loss”. Since the arrival of this new law, the courts have been grappling with how the “serious harm” requirement should be applied, with diverging views expressed at High Court and Court of Appeal levels.

This ruling of the Supreme Court should help to settle matters for the time being. It confirms that the new “serious harm” wording of the Defamation Act 2013 raises the threshold of seriousness from that applied under previous case-law, and that the “seriousness” of the harm is to be determined by reference to the actual facts about its impact upon the claimant, as well as upon an analysis of the meaning of the defamatory words. In the case of corporate claimants, “financial loss” is the measure of the harm’s seriousness to be applied. - Read more

Advocate General's Opinion - under the E-Commerce Directive a court can order a social network to seek and remove content identical to illegal information of which it is already aware

This Opinion, issued by an Advocate General of the European Court of Justice, does not in itself have any binding force – we must await the ruling of the ECJ to see if it follows the line recommended by the Advocate General. However, if followed it would introduce a potentially greater burden upon social network service providers such as Facebook to police content on their platforms. The Advocate General argues that the EU E-Commerce Directive does not prevent a national court of an EU Member State from ruling, in the context of granting an injunction in respect of defamatory or similar illegal content: a) that the service provider should be obliged to remove from its entire platform any identical content to that which the court has ruled defamatory or otherwise illegal (provided that it does not amount to general monitoring); b) that such an order could be made on a worldwide basis; and c) that such an order could also be applied to “equivalent” (rather than identical) content, but only in respect of content posted by the user who had originally disseminated the illegal content. - Read more

Sport and Sponsorship

High Court upholds breach of confidence claim in respect of horse racing data but rejects claims in copyright, database right and conspiracy to injure

The facts of this case are complex, but in broad terms it involved exclusive agreements for the collection and supply of live data relating to betting and race-day information from horse racecourses. The exclusive licensee (claimant) wished to prevent the defendants from collecting and supplying the same data so as to undermine the value of its licence. While the court didn’t find the relevant data to be protected by copyright (insufficiently original) or database right (no systematic extraction was taking place), it did find a breach of confidence as the racing data had substantial commercial value and the defendants knew or should have known that it was subject to exclusive licensing arrangements that effectively rendered it “confidential” information. There was no “conspiracy to injure”, as the defendants were not sufficiently aware that their actions were unlawful. - Read more

ASA rules that the inclusion of two footballers aged under 25 in a tweeted team line-up that also promoted betting with William Hill was in breach of the Code

A match-day tweet from the Tottenham Hotspur twitter account featured an image of the team’s starting line-up which also included the William Hill logo, text stating “Latest odds from @WilliamHill” and a link to the William Hill website. As the line-up included two players who were under 25 years of age, the ASA argued that the tweet amounted to an ad for William Hill in breach of the CAP Code Section 16 rules on gambling ads (which prohibit -except in specific circumstance - individuals who are, or seem to be under 25 years old, from “playing a significant role” in such ads). It was argued in response that the under-25 year old players were not playing a “significant role” as they were not particularly featured as the focus of the tweet, but were simply included as part of a full team of older players. But the ASA disagreed, finding that the two younger players “played an equally significant role in the marketing communication”. - Read more

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