January 7, 2013

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General

Government announces changes to copyright infringement exceptions in response to consultation.

European Commission adopts new digital priorities for 2013-2014.

European Commission adopts Communication urging industry to deliver innovative solutions for greater access to online content.

Government announces new plans to “make sure UK creativity and innovation supports growth”.

Technology

Court of Appeal allows appeal by owners of copyright in certain pornographic films and orders O2 to disclose names and addresses of customers alleged to have committed copyright infringement through P2P file-sharing.

Northern Irish High Court orders Facebook to remove page entitled Keeping Our Kids Safe from Predators, which featured a photograph of the plaintiff, a convicted sex offender, and carried comments threatening to harm him.

Data Protection

Information Commissioner’s Office publishes Activity Report on cookies.

Article 29 Data Protection Working Party launches Binding Corporate Rules for processors.

Broadcasting

Ofcom finds steps taken by BBC to safeguard emotional welfare of Line of Duty child actor insufficient given programme’s highly adult violent nature and sexually explicit language.

BBC acknowledges shortcoming in compliance process as Ofcom finds Good Cop trailer was inappropriately scheduled.

Ofcom considers X Factor performer’s exposed buttocks did not convey overtly sexualised theme.

Ofcom issues Note to Broadcasters on involvement of people under eighteen in programmes.

Court of Appeal upholds pubs’ defence to alleged breaches of Premier League’s right of communication to the public in “film” works contained in foreign broadcasts of live matches.

Film & TV

European Commission report finds one million hours of European film “locked away in cans & cupboards”.

British Board of Film Classification to adjust sexual and sadistic violence policy to take into account key areas of public concern.

Corporate

High Court finds warranties in share sale agreement, specifically as to accuracy of company accounts, did not amount to representations by sellers.

Gambling & Betting

Health lottery ad breaches CAP Code because of implication that participation in a lottery was solution to financial concerns.

Advertising

ASA finds 3G UK ad misleading for failure to make clear significant condition that monthly tariff could potentially be increased.

ASA says ads for crime thriller Savages should have been given post 9pm timing restriction because of images of physical violence and menacing aggressive tone.

Committee of Advertising Practice publishes Guidance on use of children as brand ambassadors and in peer-to-peer marketing.

General

Government announces changes to copyright infringement exceptions in response to consultation.

The Government says that the changes aim to create greater freedom for consumers to use copyright works such as computer games, paintings, photographs, films, books, and music, while protecting the interests of authors and right owners.

The new measures have been announced as a result of the Hargreaves Review of Intellectual Property and Growth, a formal consultation, and numerous discussions with stakeholders and industry representatives. 

In his Review, Professor Hargreaves made the case for the UK making greater use of copyright infringement exceptions, which are currently allowed under EU law.  The Government will make changes for:

• private copying – to permit people to copy digital content they have bought onto any medium or device that they own, such as transferring their music collection or eBooks to their tablet, phone or to private cloud storage, but strictly for their own personal use;
• education – to simplify copyright licensing for the education sector and make it easier for teachers to use copyright materials on interactive whiteboards and similar technology in classrooms, and to provide access to copyright works over secure networks to support the growing demand for distance learning handouts for students;
• quotation and news reporting – to create a more general permission for quotation of copyright works for any purpose, as long as the use of a particular quotation is “fair dealing” and its source is acknowledged;
• parody, caricature and pastiche – to allow limited copying on a fair dealing basis which would allow genuine parody, but prohibit copying disguised as parody;
• research and private study – to allow sound recordings, films and broadcasts (which do not come within the existing exception) to be copied for non-commercial research and private study purposes without permission from the copyright holder.  This includes both user copying and library copying;
• data analytics for non-commercial research – to allow non-commercial researchers to use computers to study published research results and other data;
• access for people with disabilities – to allow people with disabilities the right to obtain copyright works in accessible formats where a suitable format is not already on the market;
• archiving and preservation – to allow museums, galleries, libraries and archives to preserve any type of copyright work that is in their permanent collection which cannot readily be replaced; and
• public administration – to widen existing exceptions to enable more public bodies to share proactively third party information online, which would reflect the existing position in relation to the use of paper copies.

In addition the Government says that it will introduce a “new, non-statutory system for clarifying areas where there is confusion or misunderstanding on the scope and application of copyright law”.  Copyright notices will be issued by the Intellectual Property Office.  These notices are intended to clarify the law, not make new law.  To read the Government’s press release in full, click here.

European Commission adopts new digital priorities for 2013-2014.

The Commission has adopted seven new priorities for the digital economy and society, emphasising “the most transformative elements of the original 2010 Digital Agenda for Europe”.

The new priorities are:

1. Create a new and stable broadband regulatory environment – the Commission says that more private investment is needed in high speed fixed and mobile broadband networks.  The Commission’s top digital priority for 2013 is therefore to finalise a new and stable broadband regulatory environment.  A package of ten actions in 2013 will include Recommendations on stronger non-discriminatory network access and a “new costing methodology for wholesale access to broadband networks, net neutrality, universal service and mechanisms for reducing the civil engineering costs of broadband roll-out”;
2. Develop the new public digital service infrastructures through the Connecting Europe Facility – with Council support, the Commission says that it will “fast-track the roll out of digital services (especially their cross border interoperability) in eIDs and eSignatures, business mobility, eJustice, electronic health records and cultural platforms such as Europeana”;
3. Launch “Grand Coalition on Digital Skills and Jobs” – the Commission says that a coalition is needed to “take practical steps to avoid one million ICT jobs going unfilled by 2015 because of lack of skilled personnel”.  The Commission will coordinate public and private sector actions to “increase IT training placements, create more direct education-business links, agree standard job profiles and promote skill certification to help job mobility”.  The Commission also says that it will deliver “an action plan to support web entrepreneurs and make Europe more “start-up friendly””;
4. Propose EU cyber-security strategy and Directive – security and freedom online “go hand-in-hand”, the Commission says.  The EU should, it says, “offer the world’s safest online environments, valuing user freedom and privacy”.  The Commission will therefore deliver a strategy and proposed Directive to establish a common minimum level of preparedness at national level, including an online platform to prevent and counter cross-border cyber incidents and incident reporting requirements.  This will, the Commission says, “stimulate a larger European market for security and privacy-by-design products”;
5. Update EU’s Copyright Framework – modernising copyright is key to achieving the Digital Single Market, the Commission says.  Therefore, the Commission hopes to achieve “a solution of copyright-related issues where rapid progress is needed via a structured stakeholder dialogue in 2013”.  In parallel, the Commission will complete its on-going effort to review and modernise the EU copyright legislative framework with a view to reaching a decision in 2014 on whether to table resulting legislative reform proposals (see item below);
6. Accelerate cloud computing through public sector buying power – the Commission says that it will launch pilot actions in the “European Cloud Partnership”, which “harnesses public buying power to help create the world’s largest cloud-enabled ICT market, dismantling current national fortresses and negative consumer perceptions”; and
7. Launch a new electronics industrial strategy – the Commission says that it will propose an industrial strategy for micro- and nano-electronics, to “increase Europe’s attractiveness for investment in design and production as well as growing its global market share”.

To read the Commission’s press release in full, click here.

European Commission adopts Communication urging industry to deliver innovative solutions for greater access to online content.

The Communication sets out parallel tracks of action to be undertaken during this Commission’s term of office to ensure that the EU’s copyright framework stays fit for purpose in the digital environment. 

The Communication states that a structured “stakeholder dialogue” will be launched in 2013 to seek to deliver rapid progress in four areas through practical industry-led solutions:

1)    cross-border access and the portability of services – here, the Commission’s objective is to foster cross-border online access and portability of content across borders.  The Commission says that this work will take stock of current industry initiatives and deliver “practical solutions to promote multi-territory access”;

2)    user-generated content and licensing for small-scale users of protected material – user-generated content often re-uses existing material (such as re-mixes, “mashups” and home-made videos with a soundtrack added), which is usually covered by some form of licensing agreement between the rights holders and certain platforms.  However, it is not always clear to the end user.  In addition, small-scale users of content struggle to identify how to acquire licences.  The Commission’s objective is to “foster transparency and ensure that end-users have greater clarity on the use of protected material”;

3)    facilitating the deposit and online accessibility of films in the EU – the Commission recognises that it can be difficult for online service providers to develop catalogues of European films for online availability, particularly those which are “out-of-distribution” (works whose rights holders are unwilling or unable to exploit them).  The Commission’s objective is to facilitate the deposit and online accessibility of films in the EU.  The Commission says that this work should deliver “concrete solutions for both commercial and non-commercial uses”; and

4)    promoting efficient text and data mining for scientific research purposes – text and data mining (TDM) requires contractual agreements between users and rights holders to establish technical access to the relevant material.  The Commission’s objective is to promote efficient TDM for scientific research purposes.  This work should, the Commission says, explore solutions such as standard licensing models as well as technology platforms to facilitate TDM access”.

The stakeholder dialogue will be invited to present its results before the end of 2013.

In parallel, the Commission says its on-going review of the EU legal framework for copyright will be completed based on “market studies and impact assessment and legal drafting work” (sic) with a view to reaching a decision as to whether to table legislative reform proposals in 2014.  To read the Commission’s press release in full, click here.

Government announces new plans to “make sure UK creativity and innovation supports growth”.

Speaking at The Big Innovation Centre, Business Secretary Vince Cable launched a range of measures that he said will “improve services to business, strengthen enforcement, and help consumers get the most out of creative products and services”.

The plans, which will involve a step change in the way the Intellectual Property Office delivers services, include:

• launching a superfast patent processing service to deliver patents in just 90 days, and a faster trade marks examination service which will deliver a full examination report in five days, instead of ten;
• a campaign to educate smaller businesses about getting the best value from their creativity and innovation;
• action to help consumers and young people understand the importance of respect for IP and the harm counterfeiting or illegal downloading can do; and
• working with key partners, such as the City of London Police, to tackle IP crime such as counterfeiting and online piracy.

The Government says that the new measures, which will come into effect this year, aim to “encourage and help businesses get the best value from their ideas and boost growth”.  The IPO will also expand the way it operates, moving beyond just granting rights and doing more to support businesses in understanding the opportunities available to them at home and abroad.  This will include piloting an IP advisory service for small and medium size businesses with high-growth potential.  The IPO will also work more closely with organisations where businesses already go for advice such as trade associations, UKTI, chambers of commerce, banks and accountants.

As for making sure consumers are protected from counterfeiters and better understand the use and value of IP, a new national consumer campaign will be launched in the Spring to help raise awareness about counterfeiting and piracy and to ensure that the rights of creators and innovators are better enforced.  The Government says that the campaign will focus on young people, “reaching out to them in schools, theme parks and on the web”, to “educate them about their responsibilities in downloading materials and also protecting their own ideas”. 

There will also be further strengthening of the IPO’s IP attaché network, which places a business attaché in challenging overseas markets to help British businesses and encourage improvements to the nation’s IP environment.  In 2013, a new attaché will be placed in Singapore to serve South Asian markets, supporting those already in place in China, India and Brazil.  The UK will host an enforcement summit next summer inviting countries from around the world to share best practice and work together to combat problems.  To read the Government’s press release in full, click here.

Northern Irish High Court orders Facebook to remove page entitled Keeping Our Kids Safe from Predators, which featured a photograph of the plaintiff, a convicted sex offender, and carried comments threatening to harm him. 

In 2005 the plaintiff admitted six charges of indecent assault, six of gross indecency with a child and one of inciting a child to commit an act of gross indecency, all committed between 1982 and 1989.  He was sentenced to six years imprisonment but was released after three.  He then served a further six months for a breach of one of his licence conditions. 

The offending Facebook webpage was created around August 2012.  It was an open site, accessible by anyone.  The contents, the plaintiff said, were frightening and distressing for him, in particular the unauthorised publication of his photograph and a threat that he would be “burned out” of his rented accommodation. 

Granting interim relief to the extent that it required Facebook to remove the page, Mr Justice McCloskey held that the plaintiff, as a member of society governed by the rule of law and a person equal with all others before the law, was entitled to seek the protections of the law.  Specifically, he was entitled to protection afforded by the Protection from Harassment (NI) Order 1997, which prevents a person from pursuing a course of conduct amounting to the harassment of another and which the perpetrator knows or ought to know amounts to such harassment.  He also, by virtue of the Human Rights Act 1988, had the right to freedom from inhuman and degrading treatment under Article 3 of the European Convention on Human Rights and a right to respect for private and family life under Article 8. 

The judge was satisfied that the contents of the Facebook page constituted, prima facie, unlawful harassment of the plaintiff and that the perpetuation of the webpage created a real risk of infringing his rights under Articles 3 and 8.  The judge also considered that the plaintiff’s case, on the evidence, had “compelling prospects of final success at trial”.  In reaching this conclusion the judge took into account both the present content of the offending webpage, which was less extreme, and its earlier incarnation, which he described as “unbridled, a veritable runaway train”.  Some of the “comments” were, in the judge’s view, “threatening, intimidatory, inflammatory, provocative, reckless and irresponsible”. 

The judge was satisfied that the grant of injunctive relief at this stage would entail at most minimal inconvenience for Facebook and no evidence of financial loss.  In contrast, it would provide the plaintiff with a measure of protection against further prima facie unlawful conduct, the consequences of which could, realistically, be highly detrimental to him.  The judge accepted that while the plaintiff’s offences were repulsive, he had been punished appropriately, including being subject to substantial daily restrictions on his liberty, such that the “pendulum of the rule of law” had swung in his favour to the extent that he qualified for temporary form of relief sought. 

McCloskey J did not, however, consider it appropriate to grant the wider form of injunction requiring Facebook to monitor the webpage in order to prevent republication of offensive material.  He considered that such an order would lack the requisite precision, could impose a disproportionate burden and, further, would potentially require excessive supervision by the court (see Cooperative Insurance v Argyll [1997] 3 All ER 297). 

The judge also considered it appropriate to grant the plaintiff anonymity in the proceedings.  He considered that granting the plaintiff anonymity would constitute a relatively modest dilution of the principle of open justice.  He accepted that some of the information relating to the plaintiff’s identity was already in the public domain but factors to be balanced against that included the risk that the plaintiff’s access to justice would be thwarted if anonymisation was not granted and his right to freedom from inhuman or degrading treatment and to privacy would be undermined.  (XY v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012) – to read the judgment in full, click here).

Technology

Court of Appeal allows appeal by owners of copyright in certain pornographic films and orders O2 to disclose names and addresses of customers alleged to have committed copyright infringement through P2P file-sharing.

Golden Eye (International) Ltd, the exclusive licensee of the copyright in certain pornographic films pursuant to an agreement with Ben Dover Productions (owner and licensor of the copyright), and 13 other claimants, also owners of the copyrights in certain pornographic films and who had each also entered into an exclusive licence agreement with Golden Eye, applied to the court for a Norwich Pharmacal order against Telefónica UK Ltd trading as O2.  All the licence agreements purported to grant to Golden Eye the right to control and conduct litigation on behalf of the licensors.  The object of the claim was to obtain disclosure of the names and addresses of customers of O2 who were alleged to have committed infringements of copyright through P2P file-sharing using the BitTorrent protocol.  Here, Golden Eye was the first applicant and stated that it was acting for Ben Dover Productions and the other 13 claimants. 

Mr Justice Arnold in the High Court had granted the Norwich Pharmacal order in respect of Golden Eye and Ben Dover Productions, but had found that it was not appropriate, when balancing the competing interests, to make an order which endorsed an arrangement under which the other 13 claimants surrendered total control of the litigation to Golden Eye and Golden Eye received about 75% of the revenues in return.  On the contrary, Arnold J had considered that that would be “tantamount to the court sanctioning the sale of the Intended Defendants’ privacy and data protection rights to the highest bidder”.  Accordingly, he had said, to make such an order “would not proportionately and fairly balance the interests of the Other Claimants with the Intended Defendants’ interests”.  If the other claimants wanted to obtain redress for the wrongs they had suffered, they must obtain it themselves, he had said. 

The 13 other claimants appealed Arnold J’s decision arguing that it was both illogical and inconsistent for the judge to have denied the relief merely because they had chosen to pursue their claims with the assistance of Golden Eye under arrangements that he had found to be lawful.  They said that Arnold J’s finding that to grant the order would amount to the court sanctioning the sale of the intended defendants’ privacy and data protection rights to the highest bidder was not only wrong in itself but also contradictory to his previously expressed view that their arrangements with Golden Eye were legitimate.

The Court of Appeal held that these arguments were well-founded and that Arnold J’s refusal to grant relief to the 13 other claimants had been based simply on his disapproval of the recovery sharing arrangements with Golden Eye.  It said that the court was not, as Arnold J had held, sanctioning the sale of anything.  In fact, its ability to control the process and ultimately to refuse relief had been the primary reason why Arnold J had found that the litigation arrangements between Golden Eye and the 13 other claimants did not jeopardise or undermine the proper administration of justice.  If the arrangements were not unlawful and not simply a money-making exercise designed to take advantage of the vulnerability of the subscribers rather than a genuine attempt to protect the rights of the other claimants, there was no justification for refusing relief based on a disapproval of those arrangements.  “Indeed it is difficult to articulate what that disapproval can be based on”, the court said.

The Court of Appeal also rejected the submission of intervener, the Open Rights Group, that disclosure would be unlawful for data protection reasons as Golden Eye would become privy to the intended defendants’ protected data, finding that Golden Eye would not be able to use any of the disclosed information except for the purpose of enforcing the IP rights of the 13 other claimants.  “Since their enforcement does justify the disclosure sought, the interposition of Golden eye on those terms does not affect the balance to be struck”, the court said.  (Golden Eye (International) Ltd v Telefónica UK Ltd [2012] EWCA Civ 1740 (21 December 2012) – to read the judgment in full, click here).

Data Protection

Information Commissioner’s Office publishes Activity Report on cookies. 

The report summarises concerns reported to the ICO and how the ICO is dealing with websites that are falling short on compliance or failing to take steps to obtain informed consent for the use of cookies to store information on a user’s computer, as required (with limited exceptions) by Article 5(3) of the E-Privacy Directive (2002/58/EC) as amended. 

Between 25 May and 6 September 2012 the ICO received 388 concerns in relation to about 207 websites.  The ICO did a “basic visual audit” and between October and December wrote to 106 of these websites asking them to ensure they are compliant where they had not already taken steps to comply.  In response 13 sites have now taken significant steps to make users aware cookies are in use and to obtain consent, 12 sites have taken more limited steps which the ICO says are still likely not to be fully compliant, and eight were outside the jurisdiction.  One did nothing at all. 

The report states that it is important that operators seeking consent satisfy themselves that the user’s actions are both an explicit request for content or services and an indirect expression of the user’s agreement that the provider may store or access information on the user’s device.  To be confident about this, operators “must ensure that users can see clear and relevant information explaining what is likely to happen while they are accessing the site, and their choices as regards controlling what happens”.

The ICO is setting deadlines for compliance.  If an organisation refuses to take steps to comply, or has been involved in a particularly privacy-intrusive use of cookies without telling individuals or obtaining consent, the ICO says it will consider using formal regulatory powers in line with the criteria set out in the Data Protection Regulatory Action Policy and Guidance on the issue of monetary penalties.  To read the Activity Report in full, click here.

Article 29 Data Protection Working Party launches Binding Corporate Rules for processors.

The Working Party explains that BCRs for processors are internal codes of conduct regarding data privacy and security to ensure that transfers of personal data outside the European Union by a processor, who acts on behalf of his clients and under their instructions, take place in accordance with EU rules on data protection.

The Working Party clarifies that the use of BCRs for processors is not obligatory, and each data processor can decide whether to file an application with the relevant data protection authority.  The Working Party says BCRs will, however, “bring benefits to both processors and controllers”.  Once BCRs for processors are approved they can be used by the controller and processor, thereby ensuring compliance with EU data protection rules without having to negotiate safeguards and conditions each and every time a contract is entered into.

BCRs for processors form part of a controller’s guarantees to the relevant data protection authorities that adequate protection is in place and that the necessary authorisation for the transfer of personal data to different entities (for example sub-processors and data centres) has been obtained.  The Working Party has adopted a Working Document and an application form, which will be available on its website as well as on the websites of the relevant national data protection authorities.  The Working Document contains a checklist and guidance as to which issues should be dealt with in BCRs for processors.

The application procedure for BCRs will be the same as the one for BCRs for controllers, which means it will be based on a process with a lead data protection authority and a system of mutual recognition involving a substantial number of European data protection authorities.  The application form is also drafted on the same basis as the existing one for BCRs for controllers.  To read the Working Party’s press release in full, click here.

Broadcasting

Ofcom finds steps taken by BBC to safeguard emotional welfare of Line of Duty child actor insufficient given programme’s highly adult violent nature and sexually explicit language.

Two episodes of the post-watershed police drama Line of Duty attracted Ofcom’s attention because of violent scenes in one episode including a gang member played by a 13 year-old boy actor attempting to sever a police officer’s fingers using a bolt cutter.  In another episode, the boy is seen being questioned by a police officer who states with reference to prison: “They knock your teeth out Ryan; they do that so you give a better blow job”. 

The BBC said it had taken steps pre, during and post production to ensure the child’s well-being, including assessing his ability to cope with the emotional demands of the role, consulting his parents and minimising the time spent on set.  It did however concede that in accordance with the BBC’s Editorial Policy Unit and with reference to the blow job, “…it would have been preferable for the contributions from [the child actor] and the character DC Fleming to have been filmed separately to avoid his exposure to the language that was used”.

Ofcom found the episodes in breach of rule 1.28 of the Broadcasting Code which states that “Due care must be taken over the physical and emotional welfare and the dignity of people under eighteen who take part or are otherwise involved in programmes.  This is irrespective of any consent given by the participant or by a parent, guardian or other person over the age of eighteen in loco parentis”.  

Ofcom was particularly concerned that no expert opinion was sought on whether it was appropriate for the child to participate in such violent and linguistically inappropriate scenes.  Ofcom was also alarmed to note that the BBC did not consider that any ongoing formal risk assessment of the potential emotional impact of the child actor’s participation, which may have included a third party assessment, was required for either episode because it was of the view that this matter had been given full consideration prior to production.

Ofcom did not, however, find the episodes in breach of rule 1.29 (“under 18s must not be caused unnecessary distress or anxiety by their involvement in programmes”) in light of representations made by the child’s mother almost a year after participation in the series that the experience had been positive.  To read Ofcom’s adjudication on Line of Duty published in Issue 220 of the Broadcast Bulletin (17 December 2012), click here.

BBC acknowledges shortcoming in compliance process as Ofcom finds Good Cop trailer was inappropriately scheduled.

A complainant alerted Ofcom to excessive violence in a trailer for the drama Good Cop which centred on the murder of a policeman in the line of duty and the revenge which a fellow officer takes against the killers.  The trailer was shown at 6.40pm on BBC1 HD on 6 August 2012.

The BBC did not seek to argue the case but did explain that the trailer was not produced by the department which normally produces its trails and “it was therefore not subject to the usual compliance procedure”. 

Ofcom noted that the build up to the attack was full of suspense and menace and the attack itself (although filmed or edited in such a way so as not to show the actual points of impact on the policeman being attacked) was quite lengthy, intense and threatening.  In Ofcom’s view, this material conveyed realistic and menacing violence which was clearly not suitable for children to view.

As for appropriate scheduling of the content, Ofcom did not consider that viewers, and in particular parents, would have expected this level of intense violence to be shown on BBC1 HD at about 6.40pm during the Olympic Games period, especially in a trailer which viewers would have come across without warning. 

Because this violent material was transmitted in the early evening on a high profile BBC HD television channel, Ofcom concluded that children were not protected from unsuitable material by appropriate scheduling, and there was a breach of rule 1.3 of the Broadcasting Code.

Additionally, because the trailer featured an intense, sadistic, and unprovoked attack unsuitable for a pre-watershed trailer, Ofcom concluded that there was a breach of rule 1.11 which requires violence to be appropriately limited in material broadcast before the watershed.  To read Ofcom’s adjudication on Good Cop (Trailer), published in Issue 220 of the Broadcast Bulletin (17 December 2012), click here.

Ofcom considers X Factor performer’s exposed buttocks did not convey overtly sexualised theme.

One of the participants in an early auditions episode was a Britney Spears impersonator named Lorna Bliss.  Before her performance, when she was warming up backstage, she bent over to touch her toes and her buttocks (covered by a fishnet body stocking) were briefly visible in a mid-shot.  By the end of the performance, when she briefly sat astride the judge Louis Walsh, pushing his head into her breast, her body stocking had slipped below her breasts, exposing her bikini top.  The programme started at 8pm and the material in question was shown at 8.50pm.

Thirty-five viewers considered the performance was inappropriate for broadcast during a family show because Lorna’s outfit and performance were unsuitable for a child audience.

ITV considered Lorna’s audition throughout to be “saucy” rather than overtly erotic or sexualised.  It did not believe that the inclusion of the performance exceeded the expectations of the family audience for this long-established programme, or that it was unsuitable for children.

Despite considering certain images, including the exposed buttocks and the straddling, potentially problematic given this was a pre-watershed programme, Ofcom noted the performance was mostly shot from a wide angle, so minimising the potential impact of the flirtatious or limited sexualised overtones of the act.

Ofcom considered that the performance, taken as a whole, was presented in a style which sought to derive humour from the participant’s conduct and interaction with the judges and the audience and did not convey an overtly sexualised theme.  Taking into account the types of act in previous series, Ofcom did not consider that the performance would have exceeded the likely expectations of the vast majority of the ITV1 or ITV2 audience – either when originally broadcast or when repeated.

In Ofcom’s view, ITV had taken adequate steps to limit the images of Lorna’s outfit and provocative dancing and to ensure the pre-watershed material was suitable for the reasonably high number of children in the audience.  Ofcom nevertheless took the opportunity to remind ITV to ensure that careful consideration is given to the use of such images in the broadcast of programmes scheduled before the 9pm watershed.  To read Ofcom’s adjudication on The X Factor, published in Issue 220 of the Broadcast Bulletin (17 December 2012), click here.

Ofcom issues Note to Broadcasters on involvement of people under eighteen in programmes.

Following its adjudication against the BBC in relation the police drama Line of Duty (see above) Ofcom has issued a note reminding all broadcasters of the paramount importance of ensuring their compliance with rules 1.28 and 1.29 of the Broadcasting Code which relate to children who participate in any way in programmes and which aim to balance children’s right to participate in programmes against the requirement that broadcasters take appropriate care of them.

The note suggests that broadcasters consult the guidance published in this area which sets out the key points of best practice in relation to rules 1.28 (“due care must be taken over the physical and emotional welfare and the dignity of people under 18 who take part or are otherwise involved in programmes”) and 1.29 (“people under 18 must not be caused unnecessary distress or anxiety by their involvement in programmes or by the broadcast of those programmes”).

Amongst other things, appropriate background checks should be made on an under 18’s social, family, health and educational circumstances.  Broadcasters should also consult appropriately qualified experts on the likely impact of participation where they reasonably can, especially in extreme or unusual cases.

The guidance advocates appropriate, child-friendly delivery of information to under 16s about the nature and likely consequences of participation (to allow for “informed assent”) and states that this will vary according to the child’s age, maturity and capacity to understand.  While Ofcom accepts that programme makers may not be able to predict every outcome, it suggests that the delivery of clear information on likely outcomes is a core element of “due care”.

The guidance also states that, depending on the programme genre, it may be beneficial to seek advice from an appropriately qualified professional, such as a child counsellor or psychologist, who does not have a vested interest in the child’s participation.

The guidance warns makers of “live” or “as live” programmes that springing high-impact surprises on under 18s in such programmes where conflict or highly emotional situations may be involved could cause harm and/or distress.

Finally, the guidance suggests that post-production it may, in some circumstances, be helpful for production staff to provide access to sources of professional help or support.  To read the Note to Broadcasters published in Issue 220 of Ofcom’s Broadcast Bulletin (17 December 2012) in full and for links to further information including detailed guidance on rules 1.28 and 1,29, click here.

Court of Appeal upholds pubs’ defence to alleged breaches of Premier League’s right of communication to the public in “film” works contained in foreign broadcasts of live matches.

The court refused to overturn Lord Justice Kitchin’s decision that the publican defendants in this high-profile litigation had a defence under s 72(1)(c) of the Copyright, Designs and Patents Act 1988 to infringement of FAPL’s copyright insofar as it related to various “film” works contained in foreign broadcasts of live Premier League matches screened in the pubs using foreign satellite decoder cards.  This, notwithstanding that the Copyright Directive (2001/29/EC) does not permit such a defence.

Part of this multi-faceted action concerned claims against the licensees or operators of four pubs that had shown live Premier League matches broadcast on channels produced by Arab Radio and Television Network (ART).  The reception of those channels was enabled by an ART satellite decoder.  They were transmitted by an uplink through Italy.  One of the claims was that those defendants had infringed FAPL’s “communication to the public” right of various film works, including the opening video sequence and pre-recorded highlights, by transmitting the ART broadcasts via television screens and speakers to customers in their pubs.  The defendants argued that the claim was misconceived.  They accepted that a communication to the public was involved in the satellite broadcast but said that the acts took place solely in the Member State of transmission, which in this case was Italy.  As such there could be no infringement of UK copyright law. 

At first instance Kitchin LJ was inclined to agree with the publicans but referred the issue to the Court of Justice of the European Union.  The CJEU held, contrary to Kitchin LJ’s provisional view, that a publican does effect a communication when he intentionally transmits broadcast works, via a television screen and speakers, to the customers present in his pub.  The court said that for there to be a “communication to the public” within the meaning of Article 3(1) of the Copyright Directive, two further requirements had to be satisfied.  The first was that it was necessary for the broadcast work to be transmitted to a new public, i.e. a public that was not taken into account by the authors of the protected works when they authorised their use by communication to the original public.  The second was that the work must be transmitted to a “public not present at the place where the communication originates” within the meaning of Recital 23.  The CJEU held that both requirements were satisfied in this case.

When the case came back to Kitchin LJ, he was satisfied that s 20 CDPA (communication to the public) was an effective transposition of Article 3(1) and that the reference in s 20 to communication by “electronic transmission” was “entirely apt to encompass the activities of the publicans”.  He then concluded, however, that s 72(1)(c) was a complete defence to the FAPL’s film copyright claim under s 20.  Section 72(1)(c) provides that “The showing or playing in public of a broadcast to an audience who have not paid for admission to the place where the broadcast is to be seen or heard does not infringe any copyright in …any film included in it”.  He acknowledged that the Copyright Directive does not permit a defence in the terms of s 72(1)(c) and that the “Marleasing” principle requires Member States, so far as possible, to interpret national legislation in the light of the wording and purpose of a European Directive in order to achieve the result pursued by it (see Case C-106/89 Marleasing SA v La Commercial Internacional de Alimentation SA [1990] ECR 4135).  Nevertheless, Kitchin LJ considered it would exceed the limits of that principle to limit the defence under s 72(1), as FAPL contended, to the acts restricted by s 19(3), namely the “showing or playing” in public of the film works as opposed to “communication to the public”.  FAPL appealed.

Lord Justice Etherton accepted that prior to the implementation of the Copyright Directive, s 72(1)(c) had no application to s 20, that it was the Government’s intention to fully implement the Directive and that at that time the Government did not appreciate that “communication to the public” within the amended s 20 would include the act of showing or playing a broadcast in public within s 72(1).  However, Etherton LJ did not accept that it was therefore in accordance with the Marleasing principle to interpret s 72(1)(c) as implicitly limited to the act restricted under s 19(3) on the ground that such an interpretation would give effect both to the Government’s intention to comply with the Directive and also to the Government’s belief that s 72(1)(c) would continue to be limited to restricted acts within s 19(3) as before.  Such a conforming interpretation would go beyond the principles of legitimate statutory interpretation. 

The starting point, Etherton LJ said, was that the wording of s 72(1) was clear and unambiguous in embracing within its ambit any “showing or playing in public of a broadcast” to an audience who has not paid for admission to the place where the broadcast is to be seen or heard.  While not necessarily an insuperable obstacle to a conforming interpretation in accordance with the Marleasing principle, Etherton LJ considered the clear intention of the Government apparent from content in the documentation, including its published conclusions on the consultation leading up to implementation of the Directive, was to maintain to the fullest extent possible the UK’s existing exceptions to copyright infringement.  The retention of the same clear and unambiguous introductory language in s 72(1) after implementation of the Directive was, in Etherton LJ’s view, a strong indication of the Government’s intention to make no alteration to its ambit (except insofar as it did so in relation to “excepted sound recordings”). 

Etherton LJ noted, in particular, that an implied limitation of s 72(1)(c) to restricted acts within s 19(3) would in practice mean no defence to a breach of copyright in the case of pre-recorded films broadcast to the public, without the copyright owner’s consent, where the public has not paid for admission to the place where the broadcast was seen or heard.  That would have been a major change from the previous statutory regime because broadcast output is regularly pre-recorded but s 72(1), on the FAPL’s interpretation, would only apply in practice to live broadcasts.

Moreover, the FAPL’s suggested limitation would affect, for example, shops, hotel lobbies, restaurants, pubs and other public places where televised programmes are shown, and would concern not just satellite channels but also terrestrial channels.  In Etherton LJ’s view, if the Government had intended such consequences, it would have “flagged up” the issue expressly on consultation prior to implementation.

Furthermore, the suggested limitation was at odds with the Government’s intention to provide in s 72(1B) a defence to copyright infringement in respect of an excepted sound recording where the broadcast was necessary to repair equipment, to demonstrate that a repair had been carried out or to demonstrate equipment prior to its sale or hire.  The FAPL’s conforming interpretation would therefore negate to a significant extent a limitation on liability in s 72(1B) to which the Government undoubtedly did direct its mind. 

In conclusion, all of these matters indicated clearly to Etherton LJ that to limit the clear and unambiguous introductory words in s 72(1) as the FAPL suggested would go beyond legitimate interpretation by the court and would encroach on Parliament’s legislative role. 

FAPL ran an alternative argument that s 72(1)(c) should be interpreted as implicitly limited to analogue reproduction.  Rejecting this Etherton LJ considered there was nothing in the Directive to support such an interpretation.  Indeed, he doubted whether an implied limitation of this kind would comply with the Directive.  Furthermore, the Government at no stage brought its mind to bear upon the possibility of such a restriction.  (Football Association Premier League Ltd v QC Leisure [2012] EWCA Civ 1708 (20 December 2012) – to read the judgment in full, click here).

Film & TV

European Commission report finds one million hours of European film “locked away in cans & cupboards”.

A new European Commission report has found that most European film heritage institutions have “not yet adapted to the digital revolution and are not yet able to preserve film digitally”.  Some of the EU’s current films are being lost to future generations forever, the report says, just like those of the silent era, of which only 10% have survived.  At the same time films of the early digital era, because of formatting and interoperability issues, also risk being lost forever.  At the moment, only 1.5% of European film heritage is digitised and commercially or freely accessible to the public online.

The report found that current obstacles to digitisation include scarce national and private funding and the complexity of rights clearance.  Sweden and the UK are considered to be examples of current best practice.

European Commissioner Neelie Kroes said: “It is ridiculous that our film heritage is invisible in the 21st century.  Culture is the heart of Europe, and film is at the heart of culture.  I am determined to bring this film legacy online and will make a proposal in 2013 that helps Member States and stakeholders to join forces to get films online”.  To read the Commission’s press release in full, click here.

British Board of Film Classification to adjust sexual and sadistic violence policy to take into account key areas of public concern.

The BBFC says that recent research carried out on its behalf in 2002 and again in 2012 has “helped the BBFC to respond to concerns about depictions of rape, sexual assault and other sadistic violence in films and videos”.

The research shows that members of the film viewing public find unacceptable certain depictions of sexual and sadistic violence, which, in their view, have the potential to cause harm.

Although the research reaffirms views that adults should be able to choose what they see, provided it remains within the law and is not potentially harmful, the public is concerned about young men with little experience, and more vulnerable viewers, accessing sadistic and sexually violent content, which could serve to normalise rape and other forms of violence and offer a distorted view of women.  Overall, the public supports intervention by the BBFC in the adult category to remove certain depictions of violence on the grounds that it considers them to be potentially harmful.

David Cooke, Director of the BBFC said: “There is no ‘one size fits all’ rule for any theme under the BBFC classification guidelines, as long as what is depicted is within the law and does not pose a harm risk.  Once again the public have told us that context, tone and impact, and a work’s overall message, can aggravate a theme, or make it acceptable, even in cases of sexual and sadistic violence.  The decision as to whether and how to intervene in scenes of sexual and sadistic violence is complex, but drawing out and applying these aggravating and mitigating factors is helpful in arriving at a decision which balances freedom of expression against public protection”.  To read the BBFC press release in full, click here.

Corporate

High Court finds warranties in share sale agreement, specifically as to accuracy of company accounts, did not amount to representations by sellers. 

As such, on its otherwise successful claim arising from significant inaccuracies in the target company’s accounts inflating that company’s value, the claimant was not entitled to damages for misrepresentation which would have far exceeded contractual damages for breach of warranty.

The claimant, Sycamore Bidco Ltd, purchased the shares of a private limited company known as Gissings Group Ltd, the principal asset of which was the subsidiary known as Gissings Advisory Services Ltd (GAS).  Sycamore paid over £16 million.  The sellers included the two defendants, namely Mr Breslin and Mr Dawson. 

Sycamore claimed that various items had been included erroneously in the accounts of GAS as part of its turnover, including compensation from a company that provided IT services to the group, and compensation from an insurance company for loss of interest on premiums that GAS had collected as the IT company’s broker.  Sycamore claimed that these inaccuracies gave rise to a breach of the express warranties in the SPA as to the accuracy of the accounts and, further, that the warranties in question were capable of being representations such that Sycamore had a claim in misrepresentation at common law and under the Misrepresentation Act 1967.  Sycamore sought to rely on the warranties as both warranties and representations, there being no reliance on any pre-contract representations.

Mr Justice Mann upheld the claim in contract but dismissed the misrepresentation claim.  As regards the latter, he said there was a clear distinction in law between representations and warranties, and that this would be understood by the draftsmen of the SPA.  It was also apparent from the SPA itself.  The warranties were clearly, and at all times, described as such and were nowhere described as representations.  In order to make the relevant material a representation, Mann J said, one had to find something in the SPA that was capable of doing that.  It was not enough that the subject matter of the warranty was capable of being a representation.  Further, the Disclosure Letter, to which the SPA referred, also distinguished between representations and warranties: “The disclosure of any matter shall not imply any representation, warranty or undertaking expressly given in the Agreement…”.  Additionally, the claimant’s position was not commercially consistent with the limitation terms in the agreement.

There was also, the judge said, a conceptual problem in that a normal case in misrepresentation involved the making of a representation, and as a result the entering into of the contract.  That did not work where the only representation was set to be in the contract itself.  Sycamore expressly disclaimed the relevant representations being made at any earlier time.  There was, therefore, no claim in misrepresentation.  (Sycamore Bidco Ltd v Sean Breslin [2012] EWHC 3443 (Ch) (13 November 2012) – to read the judgment in full, click here). 

Gambling & Betting

Health lottery ad breaches CAP Code because of implication that participation in a lottery was solution to financial concerns.

A national press ad for a lottery had a headline stating “Mortgage? What mortgage?”  Text underneath stated “Now two chances to win £100K*”.

The Gambling Reform & Society Perception Group (GRASP) challenged whether the ad was irresponsible because it believed the ad implied that participating in a lottery was a solution to financial concerns or a way to achieve financial security.

The Health Lottery said that offering options on how a lottery winner could spend their winnings was a standard advertising technique and in no way depicted participation in a lottery as a solution to financial concerns or a way to achieve financial security.  In addition, it believed the top prize of £100,000 was set at a level that was too low to imply financial security.

The ASA understood that for many people, their mortgage debt was substantial and was the largest debt they carried, and the option of paying that off would be viewed by many as a solution to their financial concerns as it would be a way out of debt and would offer a degree of financial security.

For these reasons, the ASA concluded that the ad was irresponsible because it implied that participating in a lottery was a solution to financial concerns or a way to achieve financial security and that it breached CAP Code rules 1.3 (Social responsibility) and 17.3 (Lotteries).  To read  ASA Adjudication on The Health Lottery Ltd (19 December 2012), click here.

Advertising

ASA finds 3G UK ad misleading for failure to make clear significant condition that monthly tariff could potentially be increased.

A leaflet for Three featured various pay monthly mobile phone contracts, for example “£30 per month … The One Plan … All-you-can-eat data … 2000 any network minutes … 5000 texts … 5000 Three-to-Three minutes … 24 month contract with no upfront cost”.

The complainant challenged whether the ad was misleading because it did not make clear that the provider could increase the monthly price within the term of the contract.

Three said that, within its rights, it had increased the monthly recurring price of contracts in line with inflation in the middle of 2012 for the first time in nine years.  As such, it said that it would not be reasonable to have expected it to reference that contractual term in every piece of marketing it had done for the last ten years on the basis that it may one day exercise that provision.

The ASA noted that the ad did not make any explicit claims that monthly tariffs would remain fixed and it further acknowledged that the advertiser’s right to raise prices in line with inflation, within the term of the contract, was stated in the terms and conditions which consumers would have to agree to prior to taking out a contract with Three.  However, because monthly prices were stated alongside the term of the contract, without any further qualification, the ASA considered that consumers would be likely to understand that those prices would remain fixed for the entire term of the contract. 

Because in the ASA’s opinion the monthly price of the contract was likely to be of significant importance to consumers when deciding on a mobile phone contract, the potential for the monthly tariff to be increased within the term of the contract amounted to a significant term, which should have been made clear.  As such, the ad breached CAP Code rules 3.1 and 3.3 (Misleading advertising) and 3.9 (Qualification).  To read ASA Adjudication on Hutchison 3G UK Ltd (19 December 2012), click here.

ASA says ads for crime thriller Savages should have been given post 9pm timing restriction because of images of physical violence and menacing aggressive tone.

The baseline and chorus from the Eminem and Nate Dogg song Till I Collapse played in the background of both ads which were shown before 8pm and which contained scenes where punches were thrown, masked men wielded guns and defenceless characters were shown screaming in pain.

The complainant challenged whether they were suitable for broadcast at a time when children would be watching.

Clearcast said that, whilst the ads did show interpersonal and aggressive behaviour shots, they were brief and did not linger and as such a post-7.30pm restriction sufficed.

The ASA noted that the ads were for a crime thriller with a 15 certificate.  It said that the majority of the scenes in the ads featured physical violence or the suggestion of it and that, combined with the strong hip hop song, the ads conveyed a menacing and aggressive tone.  It was particularly concerned that, in one scene, a character was shown being punched in the face while seemingly unable to defend herself and, in another scene a man was shown, again defenceless, screaming and dragging himself across the floor apparently having been shot.

The ASA considered that the general tone of the ads and those scenes in particular were still likely to cause distress to some younger viewers watching after the post 7.30pm restriction approved by Clearcast and stated that they should have been given a post-9pm timing restriction to keep them away from times when younger children would be watching.  Accordingly, the ads breached BCAP Code rules 4.1 (Harm and offence) and 32.3 (Scheduling).  To read ASA Adjudication on Universal Pictures (UK) Ltd (19 December) in full, click here.

Committee of Advertising Practice publishes Guidance on use of children as brand ambassadors and in peer-to-peer marketing.

CAP has now completed and published its year-long review into the use of children as brand ambassadors and in peer-to-peer marketing.  CAP says that it considers it “necessary and proportionate to publish new guidance for marketers in the first quarter of 2013 to ensure the responsible use of such techniques”.

The Guidance makes clear that brand ambassador or peer-to-peer marketing activities that fall within the scope of the CAP Code continue to be subject to it.  Further, such activities must:

• be obviously identifiable as marketing (examples of how that can be achieved are included);
• do nothing that is likely to result in the physical, mental or moral harm of children;
• not make children feel inferior or unpopular if they do not have a product or do not engage in peer-to-peer marketing and confirm that all rules in CAP’s dedicated Children’s section apply; and
• be prepared with a sense of social responsibility.

For communications or practices that fall outside the scope of the CAP Code, marketers are encouraged to seek parental consent before engaging a child in the role of a brand ambassador.

CAP says that during its review, it invited relevant academics and stakeholders to submit research about brand ambassador and peer-to-peer marketing techniques in order to understand their potential impact on children and their peers, particularly in the online environment.  CAP also considered how brand ambassador and peer-to-peer marketing techniques sit within the existing legal and regulatory framework, the effect of the industry “pledge” not to engage children as brand ambassadors, and the extent to which they are subject to the existing protections afforded to children in the CAP Code, including that advertisements must be clearly identifiable as such and not encourage children to pester their parents.  This is in addition to the range of rules that prevent advertising from being misleading, harmful or offensive.

CAP found that the use of under-16s as brand ambassadors was limited.  Examples that were identified occurred before the industry best practice was developed, commonly required parental consent and included use by Government organisations and charities.  Marketing techniques where there was a reward or incentive for a child to engage with the marketer, or “incentivised peer-to-peer marketing,” were found to be more prevalent. 

However, CAP was presented with research, expert opinion and case studies that suggested that these practices could be carried out responsibly.  CAP was therefore assured that existing regulatory constraints, supplemented by new guidance for advertisers on how best to comply with those constraints, would act to prevent irresponsible practices and address the reasonable concerns expressed by parents during the Bailey Review.  To read the Guidance in full, click here.