MEDIA BULLETIN
Edition 35 - Spring 2010
Defamation:
Two recent cases have given hope that good sense, robustly applied, may restrict the number of unmeritorious defamation claims which are brought often to restrict unfavourable comment rather than truly to protect reputation. Both cases have been widely reported but each are worth examining in a little detail.
British Chiropractic Association -v- Singh:
BCA sued for libel in respect of an article by Singh in the “Comment and Debate” section of The Guardian. The words complained of referred accurately to BCA’s claim that its members could help treat children with certain childhood disorders, asserting: “…although there is not a jot of evidence. This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments.” The Defendant pleaded fair comment and justification. At the trial of preliminary issues on meaning and comment the Judge upheld BCA’s argument on meanings, namely, that the words imputed that BCA knew that there was no evidence to support its claims and that the organisation therefore knowingly promoted bogus treatments. The judge described this as “the plainest allegation of dishonesty” ruling that the words were accordingly fact not comment. As the burden of proof would fall on Singh to prove this dishonesty he faced an almost impossible task. Not surprisingly Singh appealed.
Allowing the appeal the Court of Appeal concluded that the material words were expressions of opinion. The statement that there was not a jot of evidence to support the BCA’s claims was a statement of opinion, and one backed by reasons. The natural meaning of the passage was not that BCA was promoting what it knew to be bogus treatments but that it was promoting what Singh contended were bogus treatments without regard to the want of reliable evidence of their efficacy.
The Court stressed that in the context of debate about a subject such as medical science, the words are likely to be highly value-laden and thus readily characterised as opinion not fact. The decision highlights the importance of the words complained of being considered in their overall context not just the context of the article itself.
The Court indicated that the tradition of referring to the comment defence as ‘fair comment’ should be abandoned in favour of ‘honest opinion’ as it “better reflects the realities”. This approach hopefully signals a shift of emphasis which will apply to robust debates on issues, both scientific and non-scientific, where strongly divergent opinions are held and expressed in ways that can be interpreted either as factual allegations or opinion. Particularly important for the Court (and therefore for programme makers journalists contemplating such material) was that the reasons for the Defendant’s contentious assertions were expressed in the article.
Dee -v- The Daily Telegraph:
The professional tennis player Robert Dee, who had lost 54 consecutive professional matches during his three years on the professional tennis circuit, complained about the Daily Telegraph’s description of him as the “World’s worst professional tennis player”. The story was repeated by several other media outlets and Mr Dee brought a number of claims all of which, apart from the Telegraph, were apparently settled on the payment of damages to Mr Dee. The Telegraph applied to strike out Mr Dee’s claim on the basis that the article was not capable of being defamatory and in any event he had no real prospect of rebutting the justification and/or fair comment defences.
The Judge was prepared to accept that the words were capable of being defamatory on the grounds that they imputed “incompetence or on the basis of ridicule” i.e., that the claimant was made to look absurdly bad at tennis. However the incontestable facts were that Mr Dee had lost 54 consecutive professional tennis matches which was the world record equalling worst ever run of losses on the professional circuit and the allegation he was the world’s worst tennis player was linked to this poor run of results. The newspaper had no additional obligation to prove that Mr Dee is “objectively the worst professional tennis player in the world”. A reasonable and sensible reader would not think that the suggestion that Mr Dee was the world’s worst tennis professional was “a free standing and objectively verifiable allegation, independent of his record of losses in the 54 matches played all around the world”.
This Judgement is a resounding success for common sense. It may therefore be churlish to wish that the newspaper had prevailed solely on the basis that this statement was no more than an hyperbolic statement of ‘honest opinion’. It is true that Mr Dee was the object of ridicule contained in the article but the reason for this was his astonishingly poor record in professional tennis tournaments.
Privacy
Terry v Persons Unknown
Considerable publicity was given to the refusal to grant John Terry an Injunction restraining the publication of information about an extra marital relationship. Some of the reporting suggested that this reflected a change in judicial approach to “kiss and tell” stories. This, regrettable or not, is not the case. The decision was taken on a mixture of evidential and highly technical legal grounds. Among the reasons given for not continuing the injunction which had initially been granted was the fact that the information was widely known already and therefore the potential adverse consequences for Terry were not particularly grave. The Judge also concluded that the nub of Terry’s complaint was to protect his reputation and as such the defamation rule in Bonnard and Perryman precluded the grant of an injunction; in any event damages would be an adequate remedy (particularly in relation to any loses he suffered from sponsorship deals).
Copyright
Journalists are often surprised by advice from their lawyers about the limited use they can make of other copyright material. Often it is suggested to us that the use of anything up to 50-100 words or so must be alright. It is not; length itself is not a deciding factor. Indeed the European Court of Justice has recently held that the storing and printing out of eleven-word extracts from newspaper articles amounted to copying for the purpose of copyright if the elements reproduced were the expression of the author's intellectual creation. (Infopaq International A/S v Danske Dagblades Forening)
REGULATORY
Privacy
Although recent Ofcom decisions on privacy have not involved major changes in approach there are a number of decisions which are worth reviewing as they include some basic but sensible guiding principles to issues which arise on a regular basis.
Complaint by Ms Emma Makey
Dispatches: MPs, Planes and Gravy Trains, Channel 4, September 2009
In a programme that investigated the cost of travel expenses of parliamentarians to the UK taxpayer, Ms Makey’s work contact details were incidentally disclosed in a document included in the programme that advertised notices for parliamentary delegates to take part in various fact finding trips abroad. Ms Makey complained that this disclosure was superfluous to the argument being made in the programme and that her privacy was infringed by such disclosure. In summary Ofcom found that the information disclosed, i.e. Ms Makey’s work contact details, were already in the public domain and hence not private and that nothing of a personal or sensitive nature was revealed in the programme. Ofcom therefore considered that Ms Makey had no legitimate expectation of privacy with regard to the incidental broadcast of those details.
Complaint by Mr G
Big Trouble in Thailand, Bravo, October 2009
This episode included a story about Mr G, who attended a police station in Thailand to report that he had been the victim of fraud. A programme making team had obtained permission to film at the police station and, whilst he was there, Mr G gave an interview to them in which he described his ordeal. He said that he had been visiting Thailand for eight years and had befriended a local woman working as a hotel manageress. The woman asked Mr G to contribute money to a property venture and he paid a total of £50,000 into a bank account created by the woman, who subsequently absconded with the money. Mr G said that the interview was not to be broadcast and so complained that his privacy had been infringed in the subsequent broadcast of the programme. In summary Ofcom found that, given the nature of the subject matter together with the express indication Mr G had given to the programme makers for his interview not to be broadcast, he had a legitimate expectation of privacy in relation to the interview footage. His privacy had been infringed as a result of the broadcast of the interview. Ofcom did not consider that there was a sufficient public interest in the broadcast of the footage of Mr G, or any other justification which outweighed his right to privacy.
Complaint by Miss Dawn Brown
Brit Cops: Frontline Crime, Bravo, September 2009
This edition of “Brit Cops: Frontline Crime” included a report of a police investigation of a man suspected of being in possession of a firearm. Officers arrested the man and then attempted to locate the weapon. During their search for the weapon, police officers raided the address at which the man was known to be living. Footage of this property, which was the home of Miss Dawn Brown, was included in the programme. Miss Brown complained that her privacy was infringed in both the making and broadcast of the programme. Ofcom found that Miss Brown did not have a legitimate expectation of privacy in relation to the making or the broadcast of the programme, as the footage shown was all filmed from the public highway and her home was not identifiable to viewers.
Complaint by Mr David Edwards on behalf of Mrs Lisa Edwards
EastEnders, BBC1, September 2009
In an episode of EastEnders, Ricky receives a text message from his ex-wife, Sam, who had been on the run in Brazil. A close up shot of Ricky’s mobile telephone showing Sam’s message was broadcast. Immediately above her message, two further messages were visible, along with the mobile telephone number from which they had both been sent. This number was seen on screen for approximately four seconds. The telephone number shown was that of Mrs Edwards’ business mobile telephone. In summary, Ofcom found that Mrs Edwards would not have expected her business mobile telephone number to appear on screen during an episode of a soap opera. In the absence of information about the extent to which Mrs Edwards had made her number publicly available at the time of the broadcast and in the absence of any justification for its inclusion, Ofcom found that the footage was an unwarranted infringement of Mrs Edwards’ privacy.
New rules on Product Placement:
On 16 April 2010 the Audio Visual Media Services (Product Placement) Regulations 2010 came into force permitting certain types of Product Placement in UK-made television programmes produced after 19 December 2009. This lays the foundations for a review of Ofcom Broadcast Code. The Code currently deals with this issue in Section 10 (“Commercial References”) where product placement is defined as ‘the inclusion of, or a reference to, a product or service within a programme in return for payment or other valuable consideration to the programme maker or broadcaster’. Ofcom will be carrying out a consultation on revisions to the Code to include the new statutory requirements and to provide further advice and guidance for broadcasters. As yet Ofcom have not set a date for such a consultation and the current prohibition therefore remains in force.
The Regulations expressly prohibit product placement in certain areas e.g., in children’s programmes and in relation to tobacco products, medicines, alcoholic drinks, infant formula, food or drinks high in fat, salt or sugar and gambling services. In addition, where product placement is permitted there are specific requirements relating to the protection of editorial independence, prohibition of direct encouragement to buy, prohibition of “undue prominence” and an obligation to notify viewers of the presence of product placement in a programme. Various general obligations are also introduced to ensure that product placement does not promote discrimination, encourage behaviour prejudicial to health or safety, or cause physical or moral detriment to persons under the age of eighteen. In addition, product placement may only occur in certain genres of programming including films or series made for television, sports or light entertainment programmes. Therefore product placement could not occur in news or factual programming.
Readers can register at http://www.ofcom.org.uk/static/subscribe/broadcasting.htm for updates on broadcasting topics currently under consideration by Ofcom and will be notified by Ofcom of the commencement of its consultation on product placement.
Video on Demand
Following the designation by Ofcom of The Association of Television on Demand (ATVOD) as co-regulator, the system of VOD regulation in the UK is finally up and running. Existing VOD Service Providers were required to formally notify their services to ATVOD by 30 April 2010. Failure to do so could result in a fine or other sanction. Future VOD services must be notified to ATVOD at least 10 days prior to commencement. An annual fee is payable in respect of each VOD Service and the amount of the fee is the subject of a joint consultation recently issued by Ofcom and ATVOD.
Ofcom/ATVOD has issued Guidance as to the services that are required to be notified. Basically these are services that provide TV like content to the public on an on-demand basis and which are subject to editorial control both as to the selection of programmes included in the service and the organisation of those programmes in that service.
Once notified, the VOD services will be subject to the new rules introduced by the AVMS 2009 Regulations. These cover editorial content, advertising, sponsorship and they permit product placement in VOD programmes, subject to various safeguards and conditions.
Ofcom estimates that there are presently 150 VOD services that will be required to notify, but the number of services notifying may well be in excess of this having regard to the criteria for notification contained in the Guidance. Further guidance can be found at ATVOD’s website: http://www.atvod.co.uk.
Regulatory Overload?
Following the passage of the much truncated Digital Economy Act 2010 yet another regulatory body has been created with responsibility for classifying video games in accordance with PEGI standards (Pan European Game Information). At first glance, this sounds like a sensible idea although why the Government felt the need to change a system which was working well is difficult to understand. The problem is that the interrelationship between broadcast and film material and games is often so close and convergent that the same material can be subject to various layers of regulation. Therefore a film made for cinema distribution will be subject first to classification by the British Board of Film Classification (BBFC) for viewing in cinemas and separately rated for DVD sales by the same body – a different test being applied because the material is viewed in the home. When seen on television the film will be subject to Ofcom Broadcasting Code requirements which may require edits depending on the time of transmission. When ‘transmitted’ on VOD services the material will be subject to the ATVOD Code, although as a matter of practice that is highly unlikely at present to necessitate changes to material already cleared for broadcast. Finally when the material is included in a spin-off game (as is frequently the case with successful films or franchises) it will be subject to regulation in accordance with the PEGI Code.
The codes to which all this material is subject is a mixture of pan-European (ATVOD and PEGI) and domestic (BBFC and Ofcom). Some argue that distinct areas require distinct and separate regulation and taking account of national and cultural differences, while others argue for common standards across Europe and throughout the media. One of the most compelling arguments for a pan-European approach is the wealth of unacceptable material currently on the internet which would finally be brought within the remit of a single set of regulatory requirements.
If you would like any further information about the issues raised in this newsletter, or any other aspect of media law, please contact please contact Paul Herbert or any other member of Goodman Derrick LLPs Media Department on 0207 404 0606.
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. |
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