Media & Entertainment Legal Digest: March - April 2019

Copyright

Directive on Copyright in the Digital Single Market adopted by EU Council

With the adoption of the Directive on Copyright in the Digital Single Market by the EU Council on 15th April 2019, the instrument is now confirmed in its final form and is due to be transposed by the EU Member States into their national laws within two years.

The finalised Directive includes amended versions of the hotly-debated “value gap” provision (now at Article 17 – Use of protected content by online content-sharing service providers) and “press publisher right” (now at Article 15 – Protection of press publications concerning online uses), but also a range of other important changes relating to copyright exceptions, the availability of out-of-commerce works, and strengthened rights of fair remuneration for authors and performers. TV and film production companies may wish to look particularly closely at Article 20 which gives creatives and performers a potential second bite at the cherry in terms of remuneration if “the remuneration originally agreed turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works or performances”.

Given the current Brexit uncertainties about the UK’s relationship with the EU, including whether there will be a transitional period before the exit date, one cannot be sure whether the UK will be obliged to implement the Directive or not. Even if the UK has left the EU before the required implementation date in two years’ time, it seems quite likely that the UK will choose to implement most of the Directive’s provisions so as to keep UK copyright law broadly aligned with that of the EU. - Read more

High Court refuses injunction in copyright dispute over script for TV pilot-episode

The BBC was successful in persuading the Court that the balance of convenience lay clearly in its favour, so as to reject the claimant production company’s application for an interim injunction to prevent the BBC from airing of a comedy drama which allegedly infringed copyright in a script owned by the claimant. While there were certain similarities between the BBC programme and the script, the judge felt the “imaginative idea” underlying the two was very different, and was not convinced that the claimant would be able to adduce sufficient evidence that copying had taken place. Even if that had not been the case he would still have refused an injunction as he felt that the claimant could be adequately compensated by a monetary award (notwithstanding that it might not be easy to put a value on their loss), whereas leaving a gap in the BBC’s schedules a day before the broadcast date would do reputational damage and make it more difficult for the BBC to fulfil its obligation to broadcast Welsh content. The judge also mentioned the last-minute nature of the application, and uncertainty as to the claimants’ ability to pay the BBC’s costs, as reasons for refusing the injunction. - Read more

Data Protection

ECJ ruling explores potential application of journalistic exemption under Data Protection rules to “citizen journalists”

Responding to a referral from the Latvian Supreme Court, the European Court of Justice has ruled that an individual who filmed police officers going about their duties whilst he was being interviewed in a police station and then published the video online (in this case on YouTube) was prima facie processing personal data without consent or legitimate reason, but that the exemption in respect of use of personal data “solely for journalistic purposes” might be available as a defence, notwithstanding that the individual was not a journalist by profession. It was for the national court to make the final decision, but it would be in favour of the processing being treated as “solely journalistic” and thus benefiting from the exemption if it could be shown that the whole purpose of the recording had been with a view to publication online i.e. with “the disclosure of information, opinions or ideas to the public” as its sole object. - Read more

Defamation and Online Harms

Supreme Court emphasises importance of Facebook context in finding the (non-defamatory) meaning of “he tried to strangle me”.

The Supreme Court has unanimously allowed an appeal by a Mrs Stocker in a defamation action against her by her ex-husband relating to statements she addressed via Facebook to his new partner, including an allegation that “he tried to strangle me”. It held that the High Court judge had incorrectly determined the meaning of the statement by using the Oxford English Dictionary definition of the verb “to strangle”, thereby coming to the erroneous conclusion that “he tried to strangle me” had meant that he had tried to kill her.

The Supreme Court judges emphasised that the meaning of an allegedly defamatory statement must be interpreted in the context of its publication, and that in this case the ordinary reader of the Facebook post would not have interpreted the words according to a dictionary definition. Instead, the court held that the statement made by the ex-wife would have been understood to mean that Mr Stocker had grasped her by the throat, rather than that he had tried to kill her. The former meaning was a true description of what had happened, and therefore Mrs Stocker could rely on the s.5 defence of justification. - Read more

Government publishes Online Harms White Paper

The Government is proposing to establish a new regulatory framework for online safety, with a new statutory duty on service providers (broadly, those that allow discovery or sharing of user-generated content, or interaction between users) to take responsibility for the safety of their users (in particular children and other vulnerable users) and to be pro-active in tackling harmful content or activity on their services. This new duty of care would be promoted through Codes of Practice and enforced by an independent regulator (potentially a new body, but with the possibility also that Ofcom might take on this role), backed up by powers to impose substantial fines. Particular focuses of the new duty of care will include tackling obvious illegality such as terrorist activity, child sexual abuse or exploitation, incitement of violence and the sale of illegal goods and services such as weapons, but it will also aim to tackle less easily defined problems such as cyber-bullying and disinformation, and to reduce behaviours that are harmful without necessarily being illegal. (It should be noted that the duty does not cover harms to companies, as opposed to individuals, for example by IP-infringement; while data privacy harms are also excluded as the government feels that the existing framework enforced by the ICO is adequate in that area). The consultation began on 8th April and closes on 1st July 2019. - Read more

Distribution Agreements & Competition Law

EU Commission investigates alleged “geo-blocking” infringements by video game publishers

The EU Commission has sent a Statement of Objections to Valve, owner of the “Steam” video game distribution platform, and to five video game publishers, alleging that they have broken EU competition law rules by preventing customers from making cross-border purchases of video games from other Member States. The Commission’s view is that Valve and the publishers entered into bi-lateral agreements requiring the use of activation keys which effectively “geo-blocked” customers from purchasing and using PC video games acquired elsewhere than in their country of residence. Valve and the video game publishers now have a period of time in which to respond to the Commission’s objections. - Read more

EU Commission fines Nike for anti-competitive restrictions in distribution agreements for licensed merchandise

In a further case relating to restrictions upon cross-border sales, the EU Commission has fined Nike 12.5 million Euros for including provisions in its licensing and distribution agreements which restricted traders from selling licensed merchandise (e.g. branded football scarves, jerseys, etc) across Member State borders and online within the EEA. Both direct wording (such as prohibitions, or the imposition of double royalties, on out-of-territory sales) and indirect measures such as threatening licensees with termination, withholding “official product” holograms and carrying out audits to enforce the restrictions, were imposed by Nike either on traders directly or via networks of master licensees. These were all held to be in breach of EU competition law rules. - Read more

Regulatory (Broadcast Advertising)

Government consults on further HFSS ad restrictions on TV and online (responses by 10th June)

In a promised follow-up to its June 2018 action plan on Childhood Obesity, the Government has now published a consultation on whether to introduce further legal restrictions – in particular a 9pm watershed - in an attempt to reduce the exposure of children to ads for food and drinks high in fat, sugar and salt (HFSS). The proposals focus solely upon TV and online ads, those being the “main sources of children’s media consumption”, and aim to target “products of most concern to childhood obesity” while not dis-incentivising brand owners from promoting more healthy formulations of their existing products. Any new rules would be brought in for both TV and online ads simultaneously to avoid “displacement” from one type of media to another.

The consultation does not propose any changes to the existing advertising rules prohibiting ads for HFSS products/brands around TV programmes directed to or of particular appeal to children. Instead it canvases the possibility of a blanket ban on all advertising of HFSS products in the 5.30am to 9.00pm time period, with an exemption only for programmes with a demonstrably low child audience. A refined option would make adjustments to the applicability of the restrictions according to how high the advertised products score on the Nutrient Profiling Model system (i.e. how “high” in fat, sugar and salt they are considered to be).

The Government also proposes a similar clock-based watershed for online advertising, but admits it would be a “world first” and “may be difficult to apply to particular types of advertising [such as] viral marketing, some influencer marketing” and “claims on advertisers’ own websites and social media space.” Alternatively, the consultation suggests a tightening of existing CAP Code rules so that the HFSS prohibition applies to online audiences with 10% or more of children, rather than the existing 25% limit, perhaps in association with a watershed just applied to video-on-demand and VSPs such as YouTube, rather than all online ads.

Responses to the consultation must be submitted by 10th June 2019. - Read more

ASA ruling of 13th March 2019 on TV ad for Sky Bet - emphasis upon sporting knowledge encouraged irresponsible gambling by over-stating impact this could have upon chances of success

In a ruling of January 2017, the ASA had previously held that the use of the strapline “Luck is No Coincidence” in the context of betting on the outcomes of sporting events was not misleading. The ASA accepted that “having relevant information about sporting events may help consumers make more well-informed choices about their bets, therefore potentially leading to more wins”, and on balance was satisfied that the ads in question “did not go so far as to imply that having such knowledge would guarantee wins.”

By contrast, in this more recent ruling regarding Sky Bet, the ASA felt the ad encouraged irresponsible gambling behaviour “by creating an unrealistic perception of the level of control consumers would have over betting success.” As with the 2017 ruling the ad referenced the role of sports knowledge in betting, using the phrases “spark your sports brain” and “how big is your sports noggin”, to encourage consumers to use the Sky Bet “Request a Bet” feature. It is not obvious what in particular led the ASA to rule against this ad but not the ad in 2017 however deciding factors may have been the use by Sky Bet of a well-known football presenter and on-screen graphics to reinforce the expertise message. - Read more

Trade Marks

Oppositions to “Game of Vapes” and “Game of Stones” marks at UKIPO based upon “Game of Thrones” EUTM fail

One might be tempted to assume that the global fame of Home Box Office’s TV series “Game of Thrones” might render its related EU trade marks (both word marks and figurative marks for the series title) similarly powerful. But in recent opposition hearings at the UKIPO two figurative marks, one for “Game of Vapes” and one for “Game of Stones”, have both survived challenges from Home Box Office based upon its “Game of Thrones” marks. The UKIPO acknowledged that the two applicants were no doubt making comedic or parody references to the TV show in their marks, but nevertheless the similarity was only moderate to low and consumers were unlikely to be confused, while there was no deliberate intent to damage HBO’s mark. - Read more