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Legal Developments in the The Legal 500 United Kingdom 2012
In the wake of the News of the World (NoW) phone-hacking controversy, this article analyses the law on journalistic newsgathering, and the prevalence of illegal activities more widely on Fleet Street, the applicable criminal and civil law, and the remedies available to the wide range of public and non-public figures who suspect they may have been targeted.
In this digital age of social media and 24/7 rolling news, the need for a company to manage and maintain a positive image has never been more important. Today’s increasingly competitive commercial landscape can make correctly managing a reputation vital to commercial success. However, getting it right can be a tough challenge. Managing the reputation of a brand is difficult enough, but what happens when a company decides to associate their brand with another?
Some say that the age of celebrity is dead. That the birth of the reality star has killed off what it is to be a celebrity in the true sense. Not so. Celebrity will always be around, but just like technology and fashion, the concept of what a celebrity is will develop, adjust and adapt to the times.
The recent trend in the media for reporting on greed and corporate failure has led to a hive of activity in media circles for unearthing the next business scandal. With the rise in social media and the growing number of instances in which the media are courting ‘insiders’ with a story to sell or an axe to grind, effective risk management is more important than ever. The in-house lawyer should be particularly aware of the need for reputational management when dealing with disgruntled employees. Smear campaigns and negative media coverage initiated by these individuals can do untold damage to a company’s reputation, business relationships and its financial value. There follows some of the most common areas of risk.
Generally speaking, 2010 has not been a good year for the M&A market. According to recent data published by Dealogic, global M&A volumes have dropped to their lowest levels in six years, reaching only £785bn in the first six months of the year, a mere 3% increase on the same period last year.1
There have been several recent cases and developments in the law of defamation that have affected the realm of permissible comment and opinion in publications, whether in the media or in a business context. In defamation law this is the defence of fair comment.
Fair comment is the implement of the law that protects the dissemination of ideas and opinions in society, whether disseminated in the personal, literary or artistic and corporate worlds, or in the general media itself.
There have been several recent cases concerning the laws of confidence and defamation that address important procedural issues relevant to litigators practising in all spheres. This article discusses decisions by the Court of Appeal, a Queen’s Bench judge and a Master.
Depending on which newspaper you read, the Digital Economy Act 2010 (the 2010 Act), which became law on 8 April 2010 after a speedy parliamentary ‘wash-up’ procedure, is either going to kill or cure the digital ills of the nation. Certain quarters of the press would have us believe that it is only a matter of time before threatening letters drop through the doors of millions of pensioners, accusing them of illegally downloading hardcore pornography. These poor souls will have their internet cut off within seconds by demonic record or film executives, cackling maniacally as they do so. This, of course, is fantasy. At the time of writing, nobody, not even Ofcom, has a large red button with which to turn off internet connections at will.
The threat from modern methods of communication is that the potential damage to an individual, company or brand’s reputation is fast and global. As international companies and their brands grow, so does the need for a trusted reputation and the need to protect the brand. The speed at which information travels, especially in this internet age, means that damage to reputations can be swift and far-reaching. Clients doing business worldwide need advice on an international scale. A media crisis affecting a brand’s product in Spain can rapidly spread online through the EMEA region, or even globally, and can then be picked up by the mainstream media in newspaper articles across many different countries. Having a proactive cross-border media strategy is a vital element in damage control.
It is well recognised that the Internet has made the world a smaller place. Not just by the easier methods of communication and the exchange of information, but also to commerce and the availability of new, larger markets to buy and sell to. These changes have provided opportunities for small businesses to reach a potential global audience, but beware, when a small business competes on the world stage, they can find themselves unprepared for the infringement of copyright or passing off in any number of jurisdictions.
When we think of reputation, particularly corporate reputation, we are really thinking about trust in an organisation. A successful company must gain the trust of its employees, suppliers, shareholders and customers to help win a commercial advantage over its competitors and protect the value of its business. Losing stakeholder trust can result in the failure of a business, as recently demonstrated by a host of high-profile corporate scandals. Enron, Xerox and Barings Bank are all examples of brands that failed their stakeholders and lost the trust of consumers. Good governance should be at the heart of any business and not just a reaction to a reputational or media crisis. It is vital to the long-term prosperity of a business and there have been several recent changes in the law aimed at improving corporate governance.
The rising divorce rate and some well-publicised settlements running into tens of millions of pounds have focused attention on a growing issue in divorce cases: just how far can spouses go to obtain information about their partner’s financial affairs?
Uncertainty about legal outcomes adds to the temptation for well-heeled spouses to disregard their obligation to provide full and frank disclosure in divorce and ancillary proceedings. Meanwhile, the ease of copying electronic data from a partner’s laptop or accessing online bank accounts is prompting some spouses to actively hunt evidence that their estranged partner has the wherewithal to fund a sizeable settlement.
Yet those contemplating separation and divorce must tread a careful line. The boundary between harmless duplication of confidential financial information belonging to an estranged spouse and wrongful interference with their property is not very elastic. As battles intensify over assets, courts are starting to provide firmer indications of what is – and what is not – acceptable in the search for convincing evidence.
Out of the blue, you receive a call from a broadcaster proposing to feature your company in a prime-time documentary. The broadcaster tells you that they have footage covertly filmed inside the company by a former employee, accompanied by sensational stories from the same source. After carrying out initial enquiries, you ascertain that the former employee left on bad terms, the footage is staged and the stories are, in some instances, untrue and, in others, wildly exaggerated. You must stop the broadcast. Your next two calls are to your PR or communications team and your media lawyers. These teams will work alongside each other to apply just the right amount of pressure on the broadcaster to ensure that the story is dropped. You gather your team around you and prepare as much information as possible to hand over to the media lawyers.
Reynolds v Times Newspapers Ltd & ors  established a new defence for libel claims in which the story is in the public interest and the publisher acted ‘responsibly’. The Reynolds defence is designed to protect serious investigative journalists acting in good faith and reporting on matters of public interest. Even where allegations are false and hugely damaging to the subject of the publication, publishers can make use of this defence. However, Reynolds has also provided a useful tool for subjects to delay, if not prevent, publication of defamatory allegations.
With every year seemingly bringing a new way for reputations to be tarnished instantly and globally online, it’s easy to blanch at the scope and expense of dealing with such threats. The situation is not helped by an abundance of lawyers proffering radical legal steps that appear to resolve any unpleasant situation, when the truth of the matter is that no measure is guaranteed to succeed and the real skill lies in deciding when to pounce and when to remain poised.
The Internet is a growing threat to corporate and individual reputations, and with more than 1.46 billion people worldwide using the internet, with access to a myriad of social networking sites, wiki sites and blogs, it would appear that anyone with a computer can become a publisher – the age of the ‘citizen journalist’ is upon us.
The battleground for protecting reputations has historically been print media. All eyes were focused on the news-stands. With the advent of the internet, the battleground has changed immeasurably.
Within the internet, there is an abundance of fora in which an individual or company can be defamed, a person’s privacy invaded, a person harassed by an unknown source or a trade mark infringed. Social networking sites such as Facebook, MySpace and Bebo, or the plethora of blogs on every subject imaginable, are just some of the recently established mediums. New ones, such as Twitter, frequently pop up.
Since 2007, Experience Hendrix LLC(Hendrix) and Times Newspapers Ltd (Times) have been litigating over the intellectual property rights (IPR) in a recording of a Jimi Hendrix concert that took place at the Royal Albert Hall in February 1969. In September 2006 Times distributed a free CD, or covermount, with each edition of The Sunday Times. A claim was issued against Times in March 2007 for infringement of copyright and performers’ rights under the Copyright, Designs and Patents Act 1988. In March 2008 the High Court held that Times had infringed the IPR in the recording and Hendrix elected to have an inquiry as to damages in respect of that infringement. The case has given rise to some complex issues as to the basis for the quantification of damages, and the inquiry is due to be heard next year, but the case is also a reminder of more general considerations in relation to remedies in IPR cases, and why the basis for quantification of those remedies can have far reaching consequences for a successful claimant.
The music industry received an unexpected Christmas present in December, when the Secretary of State for Culture, Media & Sport, Andy Burnham, announced a volte-face by the government in its position on extending the term of copyright for sound recordings. This is a signifi cant development in the debate on how long copyrights should last, an issue that is increasing in importance as more and more ‘modern’ copyright works reach the end of their term of protection.
The trading of information is a key element of the modern media and entertainment industry. But when the information at the heart of the transaction is personal or private, such as revelations of an intimate nature, this gives rise to considerations that do not apply to other transactions. This article explores the interaction between the developing law of privacy and the law of contract, and the issues that arise in practice, both for those participating in the making of productions and for media organisations who rely upon agreements with contributors.
Broadcasting standards are soon going to extend onto the internet. Companies running corporate websites will have to ask themselves over the coming year whether the Audiovisual Media Services (AVMS) Directive (2007/65/EC) will extend to them from 19 December 2009, the government’s target date for implementation.
FOR THE PAST THREE YEARS STAGECOACH THEATRE Arts, the national performing arts school franchise, has been leading a campaign to persuade the government to undertake a review of the entertainment licensing structure for children. The campaign culminated in May this year with Stagecoach’s delivery of a petition to Ten Downing Street. The petition featured more than 10,000 signatures demanding that new guidelines on the child licensing legislation be issued or that the existing legislation be overhauled.
SEQUELS, PREQUELS, REMAKES AND SPIN-OFFS EACH involve the re-use and adaptation of pre-existing characters and/or literary or dramatic plots. The economic potential of such ‘sequel rights’ in the literary and entertainment world (and other ancillary benefits of exploiting sequel rights, such as the increase in goodwill in the original character or plot and the effect on the reputation of its creator), mean that sequel rights can command a high value and are extremely sought after amongst publishers, producers and broadcasters alike.
IN APRIL 2008 THE HOME OFFICE TASK FORCE ON child protection on the internet published a guidance note offering good practice recommendations for the providers of social networking sites. The aim of the guidance is to enhance the online safety of children and young people and was drawn up in consultation with websites, mobile phone operators, children’s charities and academics. As well as providing an educational resource for parents, the guidance seeks to provide service providers with practical advice on how they should operate social networking sites to adequately protect young people.
THE RECENT COURT OF APPEAL DECISION IN BROOKER & anor v Fisher  will undoubtedly have caused a much welcomed sense of relief across the music industry. However, following that judgment, some questions do remain unanswered, and have the potential to cause further problems for those in the music business.
TELEVISION ADVERTISING IS WORTH AROUND £3.5BN annually in Britain. Individual prime-time slots can cost over £50,000, and it is anyone’s guess what fee a 30-second commercial during the Olympics might command. But, despite the scale of the advertising industry, advertising revenues in commercial television have taken a battering in recent years, as advertising spending migrates to the internet, slumping 5% to a five-year low in 2006. It is time to rethink the funding of the commercial channels.
It is a common gripe in the music industry that record companies include seemingly unfair provisions in their recording agreements, apparently to inflate their own profits. The most common of these provisions is the application of a ‘packaging’ or ‘format’ deduction. Whether an artist’s royalty should be subject to a packaging/format deduction, the level of that deduction and the circumstances in which it should be applied have always been contentious issues when negotiating a record deal.
In September 2007 a common position was reached in Europe for an Audiovisual Media Services Directive. Its main purpose was to extend television broadcasting regulation to video on demand (VOD) services and to allow some relaxation of television advertising rules. The final text of the Directive has now been settled with no material changes and was published as Directive 2007/65/EC on 18 December 2007. Its compulsory elements must be implemented by member states by 19 December 2009.
Time runs out for everyone in the end, even 'the boy who wouldn’t grow up'. First performed in 1904, and published as a book in 1911, Peter Pan by JM Barrie remains a major commercial success. On 31 December 2007, however, the copyright in Peter Pan will expire across most of Europe, 70 years after Barrie’s death.
Theatre producers will need to be more careful about misquoting (or at least making selective use of) critics’ reviews on posters, frontof- house billboards, press adverts and other show advertising when the Consumer Protection from Unfair Trading Regulations 2007 (Consumer Protection Regulations) come into effect by April next year. The Consumer Protection Regulations implement the Unfair Commercial Practices Directive and may make illegal the widespread practice in the theatre industry of extracting a positive word or phrase from a theatre review for use in a show’s publicity material even if it paints a misleading picture of the article as a whole.
It's a truism to say that for many businesses in the media and entertainment industries, their value lies in their content and intellectual property; their copyright in particular. It is uncontroversial to add that successful (old and new) media companies often grow at a pace so rapid that systems, paperwork and housekeeping can get left behind.
Sport and gambling have enjoyed a long and, at times, colourful relationship. With recent transformations in both industries, that relationship is under increasing pressure from outside influences and the impact of new self-regulation proposed by the gambling industry may prove to be crucial to the continued longevity of their association. Whether the outcome of such self-regulation will have the desired effect or will prove to do quite the opposite remains to be seen.
The television production supply market has always operated within a regulated framework. The establishment of Channel 4 in the early 1980s as a 'publisher broadcaster' encouraged the development of an independent production industry. Although the Broadcasting Act 1990 provided preferential terms for those dealing directly with ITV, under most commissioning agreements the broadcaster took a complete assignment of copyright in the programme (in exchange for cashflowing most or all of the budget), with producers being left with a small share in net revenues, and no real influence on the distribution of their programmes.
Publishers and authors may be breathing a collective sigh of relief following the recent confirmation by the Court of Appeal in Baigent and another v The Random House Group Ltd (the Da Vinci case) that The Da Vinci Code does not infringe the copyright in an earlier work, The Holy Blood and the Holy Grail.
Many publishers of fictional books assume that the classic phrase 'any similarities to actual persons, living or dead, or to any actual events, firms, institutions or other entities, is coincidental and unintentional' will protect them if a claim of defamation is made against them. This is not correct. The simple fact of the matter is that if members of the public associate a character in a book with a real-life person, even if that is not the intention, then they may be subject to a claim if an association can be made and defamatory allegations are published. Below are two examples of publishers that have faced such claims.
Recent decisions in the High Court and Court of Appeal reveal a judiciary keen to address the current gap in the law relating to the protection of private information. The decisions will no doubt send a shiver down the spines of the editors of tabloid newspapers and celebrity magazines as well as book publishers because they will have an impact on the type of material that can be published in the future. No longer will publishers be able to seriously claim that information that is simply gossip can be considered to be in the public interest.
The Charities Act 2006 received Royal Assent on Wednesday 8 November. The Act has many important provisions and makes welcome changes, especially of a technical nature. There are a number of areas where its provisions are of particular interest to arts charities, and these are outlined below. Although making welcome changes, the Act does fail to address some important issues at large in the sector and in that respect it is a missed opportunity.
Over the past year there has been a noticeable change in attitude by many tabloid newspapers and ‘celebrity' magazines towards the publication of photographs of the children of famous people. As a result, fewer photographs of children are being published and many of those that are published have the children's faces pixellated.
A new tax relief for British films came into force on 19 July 2006 and will apply to films that commence principal photography on or after 1 April 2006.
Bluetooth was the name of a Viking king who was best known for his diplomatic skills. Although his efforts have done little to soften the image of the Vikings, they have been belatedly recognised through the adoption of his name for the short-range communication technology that enables wireless devices to exchange messages and content.
Scotland's smoking ban caused controversy at the Edinburgh Festival Fringe this August when actors, producers and theatre managers threatened to rebel against it, claiming that it limited their freedom of artistic expression.
When in 1942, some three years into the Second World War, Churchill was asked whether the end of the conflict was in sight, he answered:
'This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.'
With analysis predicting that by 2010 Europe will have a 3G handset penetration in excess of 50%, what does the future hold for rights owners and operators alike in the febrile markets of mobile TV and video?
The Gambling Act 2005 (the Act) received Royal Assent on 7 April 2005. Implementation began in October 2005, when provisions introducing the fundamental concepts used in the Act and creating the Gambling Commission came into force. The full effects are not yet in place - the government aims to implement the Act gradually until September 2007, when the old legislation will be repealed.
The rise and rise of reality television has once again put the issue of format rights into the spotlight. The most recent dispute concerned Simon Cowell's show, The X Factor. 19TV made Pop Idol with FremantleMedia Ltd, a production company that also worked on The X Factor. It issued proceedings for copyright infringement against FremantleMedia Ltd, Simon Cowell and his production company, Simco Ltd, claiming that The X Factor was a blatant copy of Pop Idol and American Idol. In the UK, Pop Idol was a huge hit for two series and, in the US, American Idol, which is now into its fifth series, has had the highest ever ratings on Fox Television. The case settled before trial and so the precise ambit of format rights remains untested in an English court since the 1989 case of Green v Broadcasting Corporation of New Zealand.
Immigration has always been a political animal. Only three years after the Nationality, Immigration and Asylum Act 2002 was introduced the Home Secretary, Charles Clarke, announced yet another overhaul of UK immigration in February 2005 as part of the government
Artist's Resale Right Regulations 2006: justice for artists or a devastating blow to the British art
The new law on resale rights, which came into force on 14 February, is one of the most controversial pieces of legislation to hit the art world in recent years. The Artist's Resale Rights Regulations 2006 implement an EC directive, requiring the payment of royalties to artists when their work is resold.
It is hard to escape the changes that have taken place in the music industry over the last 20 years or so, both in terms of how music can be delivered to consumers (for example on-line and via digital means), and also in terms of the availability and diversity of the music itself.