29.3.11

Libel tourism - a new season opens as Elena Baturina comes to town


The Court of Appeal has allowed a libel (tourism) action to proceed against the Times after TimesOnline upset Russia's wealthiest businesswoman, Elena Baturina, billionaire and wife of former Moscow Mayor, Yuri Luzhko.

The Times published an article speculating she had bought a £50m pied a terre in London and was planning further work on it - supposedly a further £50m - which will get you quite a long way on a Homebase discount weekend. The story turned out to be unfounded and the article was removed and a correction published but that did not prove enough to appease Baturina - why not?

Well where the Times came unstuck was that the story suggested that Baturina was purchasing her property through an offshore company (so presumably anonymously or to tax advantage) which might not seem that objectionable but for the fact that under Russian law officials are under a duty to declare their assets (so a bit like UK MPs and their expenses except more tightly controlled and enforced it would seem). So this left the Times exposed to Baturina, claiming has she has done, that she was the victim of defamation by way of innuendo.

To make that claim stand up Baturina's lawyers will have to show that there were enough readers who would have made the connection between how Baturina was supposedly paying for the property and the fact that it was potentially an offence under Russian law.

At the earlier High Court hearing Mr Justice Eady allowed the defamation action to proceed in relation to potential Russian readers who might have made this connection. The Times questioned whether there were in fact enough or any readers who may have understood the innuendo and therefore thought less of Baturina to the extent that would be defamatory.

The Court of Appeal has allowed Baturina's claim to proceed but they didn't grant her a full tourist visa and confined the claim to the specific categories of reader who might have understood there to be an innuendo and understood that innuendo.

So while the Court of Appeal has granted Baturina a right to roam it has restricted that to being allowed to prove the specific innuendo being relied on as the basis for the defamation action.

Mediabeak thinks this case has probably run its course now and while it does have a sniff of libel tourism about it (which recent developments had us believe was being clamped down on) the case has been allowed to progress on very narrow grounds. It will be interesting to see what happens next - the defamation cases of the Jameel brothers provides a useful pointer as to where the current case might go. If Baturina cannot show that people actually read the article and were capable of understanding the innuendo then her cause of action will fall away.

23.3.11

Lily Allen secures privacy & copyright win against Mail Online


Associated Newspapers has this week reached a High Court settlement to pay undisclosed damages and costs to Lily Allen over an article and photo that it published on its Mail Online website under the headline: "Pregnant Lily spends £3m on stunning Cotswold home".

Allen launched proceedings after the article appeared last September alleging invasion of privacy and copyright infringement. The basis of her claim was that while she is well known she is not a mega-celebrity to the extent that every area of her private life is 'fair game' for the media and that she should be entitled to some privacy over where she makes her home. The other aspect was that of copyright - Mail Online reproduced a picture of Allen's new home that they - it would appear - had obtained via the estate agents (or its website) through which Allen bought the property. Allen had contractually secured the rights to the photographs of the property meaning they could not be used or reproduced without her consent. So in using the photograph without consent Mail Online would have infringed copyright in the image.

From both a privacy and copyright point of view and law it is unlikely Mail Online could have shown sufficient public interest in its story or use of the image to go any distance to defending its actions or infringements.

Allen has been the focus of much media and paparazzi attention and even installed high tech surveillance equipment at considerable cost to keep them at bay - as reported earlier this year She has in the past also had to resort to harassment laws to prevent the paps from preying on her. This coincided with other actions over a story suggesting she'd had a rant about footballers wives - she certainly keeps her lawyers at Atkins Thomson busy.

22.3.11

PCC on privacy regulation


Baroness Buscombe, Chair of the PCC has today addressed the Westminster Media Forum with a talk on privacy and online media and sought to make out the case why the PCC is indeed fit for purpose to regulate and police privacy.

The PCC has in the past been much maligned as a toothless regulator with minimal powers to reign in the excesses of the media - especially when it comes to privacy. Over the past year or so the PCC under Baroness Buscombe has been seeking to fight back and claim its space and relevance.

The problem with privacy has traditionally been that while the PCC may adjudicate that the press may have breached the PCC Code and invaded someone's privacy, there was little more the PCC could do and if someone wanted to secure privacy protection or seek damages for intrusion they would have to go to court. While the courts have in recent years allowed the introduction of a quasi privacy law through a series of judgments - notably Max Mosley's crusade against reporting of his sexual past-times with black pvc-clad women with whips - the PCC has also sought to do more behind the scenes negotiating between media outlets and aggrieved story subjects.

In absence of the law managing to properly get a sensible grip on privacy that balanced the protection of the right and the media's freedom to report, it has been left to the courts to create a privacy law but sadly this has been built around celebrity, political and business claimaints with the power to litigate and desire to suppress. So we have a trend in cases and judgments but still no clear law - beyond the interpretation of European law and human rights provisions in relation to privacy.

Enter the PCC which has an opportunity to respond more quickly than the law, albeit without the same level of sanction, compellability but which does nevertheless have the same potential to publicise its findings. So in delivering her views on privacy and the online environment and why the PCC was well placed to tackle this, Baroness Buscombe said; "In such a swift moving and developing environment I would strongly emphasise that only a flexible, non-bureaucratic and evolutionary system like that offered by the PCC can react deftly enough to change". So while the PCC may not be able to secure injunctions or financial settlements it can still react to and make a noise about privacy related issues - specifically where there has been a breach of the PCC Code in relation to privacy.

One area that the PCC has been developing its regulatory response to is in relation to social media where it has developed a five stage test:
•First, what is the quality of the information? How private is it in itself?
•Second, what is the context of the information? Material that has been uploaded as a joke between friends, for example, may not be suitable for journalistic use in a story about a tragedy.
•Who uploaded the material, or consented for it to be uploaded?
•How widely available is the material online; or, to put it another way, what privacy restrictions were placed on it?
•And finally what is the public interest in publication?

The key point is that just because something has become public or is in the public domain does not automatically mean that it is not private in nature and therefore deserving of privacy protection.

Mediabeak would argue that the true position is that as things stand the courts recognise (as they are forced to via the European Convention on Human Rights) that there are privacy rights and where they have cases before them have invariably in recent years upheld privacy rights - of those rich enough to bring or risk a case. But this does not create a balanced, workable or rational privacy law that balances the competing rights of drug taking models, sexual pracitces of business people or politicians or philandering footballers against the right of the media to expose where there has been drug taking, philandering, lying.

Meanwhile the PCC can adjudicate over cases involving normal people who have been intruded on by the press - it might not have the power and compellability of the courts but it can nevertheless effectively and quickly deliver a 'telling off'. So perhaps what one should take away from Baroness Buscombe's address today and the state of privacy law in general in the UK is that maybe we should be satisfied that there is a workable system that delivers an arguably old-fashioned 'telling off' but take comofrt in the fact that such system is accessible and responsive even though - if one is not a deep-pocketed celebrity - one can do little more without incurring significant court costs.

21.3.11

Rapist not granted anonymity after media challenge


The Hull Daily Mail (or its reporter) has successfully challenged an anonymity application to ensure a convicted rapist was able t be named.

David Bullock had raped a girl at knifepoint back in 1982 and was after nearly 30 years finally caught up in a police cold case operation after his DNA was matched from another crime scene in 2007. Bullock admitted the crimes but sought an anonymity order based on Article 8 of the European Convention on Human Rights (ECHR)that provides for the protection of privacy in relation to respect for a private and family life. His argument was that his anonymity should be preserved to protect his children.

This is a tricky area in that there is a rationale for protecting his children and their right to privacy being preserved - its not their fault and will have come as a shock to them that their father is a rapist. On the other hand it is an essential cornerstone of the legal process that justice is seen to be done and that someone like Bullock should not be allowed to hide behind the privacy rights of his children to protect himself being rightfully named and shamed for his crime.

The exception his lawyer was looking to invoke on his behalf was section 11 of the 1981 Contempt of Court Act that provides: “In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld”. In other words a court could order anonymity if it considered the purpose of the order to be to protect Bullock's children - as it happens it did not.

Hull Daily Mail reporter Nicky Harley was particularly persuasive in her petitioning of the Crown Court as to why anonymity should not be granted. She produced a note from a law firm that detailed why the anonymity order should not be granted and that note equally persuasively cited the Court of Appeal decision in a 2008 judgment Re Trinity Mirror - [2008] EWCA Crim 50 [2008] 3 WLR 51 - for those (like Mediabeak) who like reading the actual law reports - in that case an order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children. The Court of Appeal held however that the order should not have been made. The ability of the media to report criminal trials embodied open justice; an important part of the administration of criminal justice was that the identity of those convicted and sentenced for criminal offences should not be concealed. The shame brought to innocent family members, and the perhaps considerable difficulties which they would face, were the consequences of the commission of the offence, and could not warrant anonymity for a defendant save in wholly exceptional circumstances.

The judge was duly persuaded and rejected the anonymity order.

Mediabeak thinks this is the right solution in what is a difficult balance between the rights of the public to know and freedom of expression under Article 10 of ECHR balanced against the right to Article 8 privacy rights. What the Court of Appeal in the Trinity Mirror case concluded (and which has been cited in subsequent cases) is that the gravity of the original crime will provide direction as to the liklihood of Article 10 trumping Article 8 except in 'wholly exceptional circumstances' such as where it could be shown that there was an imminent danger to others the was proportionately serious to merit granting anonymity for their ultimate benefit.

19.3.11

PCC censures Scottish Daily Mail for harassment


The Press Complaints Commission (PCC) has censured the Scottish Daily Mail for its harassment of the parent of a student demonstrator.

The student had been one of many protesting over tuition fees in London when things got out of hand and there were violent clashes with police. Various photographs emerged including one where the student was seen to attempt to get hold of a police officer's hat. The Scottish Mail ran various stories including two that featured the student in question. Around the same time it sent a reporter to try and get the family's comment on their son's activities but the family made it clear that they did not wish to comment and wanted to be left alone.

The paper tried to suggest that its attempts at questioning the family - four times in a 24 hour period - were justified in the 'public interest' but the PCC concluded that the persistence in seeking to question against their will someone "not at the centre of the story, and against whom no allegations of impropriety had been made" did amount to harassment and breached clause 4 of the PCC Code

Full adjudication HERE

17.3.11

Court on camera - should we televise trials?


The question of whether cameras have a place in the courtroom has been debated for well over a decade with US show trials such as that of OJ Simpson cited as a major reason why they should not. Fast forward to today and we alrady have accepted and allowed television cameras into the Supreme Court and parliamentary inquiries.

The real question has shifted from whether we should televise trials to which trials are appropriate for televising.

Pulicising the antisocial or drink or drug infused antics of the malfeasants who typically appear in magistrates courts on a Monday morning might compete with Jeremy Kyle or Oprah for ratings and voyeurism of the dysfunctional but adds little to the administration of justice or understanding of its place in society. Having fraudulent corporations, negligent bankers or corrupt politicians beamed to television screens across the country does however have its place.

In delivering the Judicial Studies Board Annual Lecture for 2011 this week, Master of the Rolls, Lord Neuberger has - as part of his theme of 'Open justice unbound' - said that there is a place for cameras in court, subject to proper safeguards and selectiveness over the type of trial being broadcast. He recognised that if the legal system and its judiciary wished to increase engagement and confidence in its activities then insofar as there is a "wish to increase public confidence in the justice system, transparency and engagement, there is undoubtedly something to be said for televising some hearings, provided that there were proper safeguards to ensure that this increased access did not undermine the proper administration of justice.."

He did point out that although the televising of Supreme Court deliberations has been allowed broadcasters have not rushed to stream the proceedings across their channels:
"The Supreme Court televises its hearings in its impressively renovated building. As yet,though, there appears to have been little appetite for broadcasters to televise its hearings. I can see that there may not, from a commercial perspective, be an interest to do so. But from a public interest perspective might there not be an argument now for its hearings, and some hearings of the Court of Appeal, being televised on some equivalent of the Parliament Channel, or via the BBC iPlayer. Brazil’s Federal Supreme Tribunal now has its own TV channel. The channel, TV Justi├ža, does not only show recordings of its sessions, but it also shows a whole host of educational programmes about the justice system."

The problem is that as it has always been with print media, the more slacious, shocking or controversial the case, the hgher the chance that it would be headline material. So too for broadcasters, televising hours of procedural wranglings or counsel's deliberations on finer points of the law are not going to push up ratings or demystify the justice system. The viewers will want to see cameras zooming in on the witness who buckles, the killer question from counsel, the celebrity suspect etc and so it is that which will attract the cameras.

As Lord Neuberger suggests, maybe it will require a dedicated High Court or Supreme Court channel along the lines of the Parliament Channel to service the needs of open justice through the medium of television. But to the extent that this may satisfy the public interest in a democratic sense it will not satisfy the interest of the public and accompanying journalistic interest in covering the scandals, horror stories, corrruption, crime and strife that have traditionally fed the front pages.

It is great that the judiciary are on board, the challenge is to find a way of embracing their engagement in a resposible yet engaging manner that can be package up as commercially viable TV without succumbing to sensational sell-outs.

More from BBC

16.3.11

TV format right spat as Games accuses Twenty Twelve of copying


The authors of an Australian TV comedy 'The Games', a parody about the Sydney Olympic Games that originally aired on Australian television in 1998 and 2000, have claimed that the BBC mockumentary Twenty Twelve (which follows the progress or lack thereof of the crack team in charge of London's 2012 Olympic Games)substantially copied their original show.

John Clarke and Ross Stevenson say that their programme had been pitched to the BBC and that one of the eventual writers of the BBC series, John Morton had been lent a copy of the DVD of The Games. Although they admit they have themselves not seen an episode of Twenty Twelve, they say that the BBC programme, even if it does not actually copy the scripts or scenes from The Games, is based on exactly the same format. Its now with the lawyers and both sides are claiming they have a strong case - but do they?

What we have here is an original concept, scripts and show in the form of The Games. We now have a further programme, Twenty Twelve, that is based on essentially the same scenario except that it relates to a mockumentary or parody of those running the London 2012 Olympics as opposed to the Sydney Olympics.

The legal question

Has there been a copying amounting to infringement of The Games?

Copyright law exists to protect and reward creative endeavour. Its protection, as its name suggests, is based on its control over and prevention of copying of a copyright work. What is recognised as a copyright work varies slightly across jurisdictions – in the UK it is governed by the 1988 Copyright Designs and Patents Act which sets out what qualifies as a ‘copyright work’.

Under UK law there are four types of copyright ‘work’ that can be applied to television – literary (eg scripts), dramatic (stage plays/choreography), musical (theme tunes or background music), artistic (the set or stage designs). In the UK and other jurisdictions the law operates to prevent copying or, where copying has occurred, provide for damages for infringement.

In relation to these copyright works the law will not protect their underlying ideas, its protection relates to how these ideas are expressed. List it, record it or package it up and copyright protection will apply to it in its listed, packaged or recorded form. Where an idea for a particular television programme or format has not been expressed and remains as a mere ‘concept’ then it will not be recognised by copyright law.

Turning to conventional legal analysis this means that either, the television programme taken as a whole is recognised and given protection as a copyright work, or, it derives its protection through its constituent elements.

For copyright infringement to arise there would need to have been actual copying of the original work. While this is possible it seems less likely to have arisen in this case.

What is possible is that there may have been an infringement of the format rights in the original work of The Games. The concept of format rights has been around since the 1950s but it has not been until the last couple of decades and fights over high profile TV shows such as Big Brother that these rights have become recognised in law and protected by the courts.

In the current case there would - as with traditional copyright infringement - have to have been a copying of the actual format as opposed to merely the idea of the format. To establish protection in their format, Clarke and Stevenson would have to show that there was a unique combination of elements in the format they created. So if it can be shown that there has been a substantial copying or borrowing of the substantive parts of the process or the packaged format itself then the BBC could have a case to answer.

More from Sydney Morning Herald

For good information on Format Rights see the website of the IFLA - International Format Lawyers Association

15.3.11

Libel law reform - the long awaited levelling of the playing field


The Ministry of Justice has today published its long awaited draft Defamation Bill which brings a well overdue and much anticipated shake up of the much maligned and media unfriendly libel laws.

Key provisions in the draft Bill include:
•A new 'public interest' defence which can be used by defendants in defamation cases.
•A requirement for claimants to demonstrate substantial harm before they can sue.
•Reducing so-called “libel tourism” by making it tougher to bring overseas claims which have little connection to the UK in the English courts.
•A single publication rule, meaning repeat claims for libel cannot be made every time a publication is accessed on the internet.

These measures are good news for the media and level the playing field in terms of being able to expose wrongdoing without fear that celebrities and politicians or footballers can call foul without making out a real case, proving actual damage and engage in forum shopping.

The public interest defence will be a welcome inclusion as 'public interest' has been a component in mounting a defence but not properly defined and given the extent to which the public's perception of reality gets maniputlated by those in power or with celebrity status on a daily basis, it is time there is a proper measure that allows the media to expose such manipulation and question what truly IS in the public interest or discuss issues that the public may be interested in by virtue of the stories they have previously been fed by those seeking to enhance their public profile.

Requiring claimants to demonstrate not just substantial but actual harm is another levelling measure. Under the existing law the mere fact that a statement is 'capable' of being defamatory will engage the law and claimiants do not have - other than for slander - have to show any actual loss. So a move from potential to defame to actual defaming and attendant harm makes much sense and again, will prevent the law being used to punish justified exposees.

The introduction - echoing a recent Supreme Court judgment the Bill also introduces a 'right to comment' or 'honest opinion' defence. This develops and restates - with necessary refinements - the existing 'fair comment' defence and recognises that there is a 'right' that exists as opposed to defaulting to a 'defence' that one has to prove.

Consultation on the Bill is open until 10 June after which it will move forward from draft to final version. Hopefully much of the welcome provisions and clarifications in the draft Bill will make it through and there are still some further refinements that can be made to many of the existing draft provisions. All in all though Mediabeak thinks this is an overdue and welcome acknowledgement that the law needs to be changed and that there needs to be a fairer balance between the right to scritnise and comment and the protection of those who are subject to such scrutiny.

So the draft Bill does not give carte blanche for the media to pick off people's indiscretions to chase headlines but it does give the press the added security that where there is wrongdoing, indiscretion, lying, cheating and general dodgy dealing then it can ply its trade without the odds being unfairly stacked against exposing those with low morals and deep pockets.

14.3.11

Politician punished for libellous political Tweeting


The Tweetosphere is coming increasingly under the spotlight of libel laws and the Uk has seen its possibly first High Court action following an electoral spat between by-election candidates in Wales that supposedly left a Caerphilly councillor 'open to ridicule'.

The allegation and story are actually more mundane than the potential precedent this case sets. A competing council candidate had tweeted that his opponent had been 'removed by police from a polling station' without elaborating on or substantiating the tweet which his opponent argued was libellous.

This isn't the first Twitter related libel - or Twibel - action - Courtney Love's case stole the lead on this - but what is interesting is that while this settlement was considerably less than the Courtney Love action ($430,000) and was for libel actions a paltry £3,000 - part of the settlement involved publishing an apology on the offending Twitter site.

More from BBC

US judge orders access to Wikileaks Twitter records


A US court has upheld a previous decision allowing the US Government access to the IP addresss of Twitter accounts linked to Wikileaks.

The ruling turns on semantics seeking to justify itself by not seeking disclosure of the contents of the Tweets rather than just seeking to show the fact there was a tweet and link between that tweet and wikileaks.

More from The Register

11.3.11

Why its ok to call Fred the Shred a *anker


If ever there was proof that the 'super injunction' is as flawed as it is ridiculous here we have the case of Fred the Shred aka Sir Frederick Anderson Goodwin, former head at the time of the collapsing Royal Bank of Scotland - seeking and obtaining an injunction to - supposedly - prevent him being referred to as a banker.

So let's start with the obvious - he was in charge of the Royal BANK of Scotland ....so no association with a bank there. Next and related to the same if one looks at his Wikipedia page he is described (correctly and generously one could argue) as an accountant and banker.

As reported in the Telegraph and the Guardian Sir Fred - the BANKER - Shred obtained this spurious legal construct that is meant to prevent the media from referring to him as a BANKER.

He was in charge of a BANK that collapsed and had to be bailed out by the public purse. It was - among other things a BANK and he was in charge of that BANK. So while he could arguably complain and secure an injunction about being called a wanker, how a court could have agreed to grant an injunction preventing him being referred to as a BANKER seems absurd. Because of the nature of the super injunction we do not even know the terms upon which it was granted. What Mediabeak would say is that given we do not know the terms of this injunction nor, for its secrecy do we know about it, how can we supposedly be bound by it and how can it seek to prevent the description of someone as a banker when clearly, obectively, publicly and factually they are one.

Maybe that's where it all went wrong - Fred the Shred is NO BANKER - so why was he in charge of a BANK?

Libelling a Lord Justice - how the Telegraph got it wrong


Libel actions invariably feature a footballer or lower grade celebrity and the higher circulation tabloid press but here we have a case of a conservative broadsheet - the Telegraph - deciding and failing to check - that it was acceptable to call into question the ruling of one of the country's top judges in relation to a care home.

While it is part of the remit of the press as part of the democratic process to scrutinise the administration of justice and so judges, such scrutiny does not extend to repeating what had already been found to be untrue allegations in a national newspaper. In the current case there had already been a complaint made to the OJC - Office for Judicial Complaints - about Lord Justice Sedley's handling of the particular case. Such complaint had been dismissed as entirely unfounded yet the Telegraph decided to report and so repeat the unfounded complaint which - given it was calling into question not just a judgment but the consequences of such judgment -was particularly defamatory.

Mediabeak considers that to the extent the judiciary are reluctant to contribute to their workload by initiating cases, this was an instance where the decision to publish the report seems as unconsidered as the original complaint to the OJC. The dismissal of the complaint by the OJC should have alerted the Telegraph to the fact that what it decided to report was unfounded and therefore in proceeding to publish it was in fact proceeding to libel.

More from Telegraph
The Lawyer
The Statement in Court from 5RB Chambers

10.3.11

Assange: more revelations of dodgy dealings in Sweden


The extradition hearing and pending appeal has heard argument and evidence over the procedural propriety and motives surrounding the Swedish extradition case against Julian Assange but reports out this week from Swedish paper Expressenclaim that the investigating police officer who initiated the case against Assange was in fact a friend an politically allied to one of the two accusers in this alleged case.

According to the report in Expressen, the police officer and victim had been in contact for over a year before the allegations first materialised. There is a further suggestion that the police officer in question had also posted negative commment about Assange online before his having proceeded with a case against him.

While extradition has been granted on legally (Mediabeak would argue sustainable though questionable) legal grounds - these latest revelations, if true, do call into question the integrity and credibility of the charges underlying the extradition request. Assange's private life may prove not to be angelic but that does not preclude his right to the proper administration of justice, due process and a fair hearing. Just because certain persons and their associated political forces may not like the leaks he has facilitated, does not of itself mean he is - as is being suggested - a sexual malfeasant - nor does it mean he can be randmomly charged and extradited for a not proven allegation/crime in a bid to seek to snare him into the net of a wider audience that may seek to suppress the true facts his network may seek to publish.

8.3.11

Star Wars copyright battle hits the Supreme Court


This week could finally see the concluding episode of one of George Lucas' longer running off-screen battles as his copyright infringement action over Stormtrooper helmets gets heard by the Supreme Court.

Backstory
The prop designer - Andrew Ainsworth - who had built the original props for the original Star Wars film in 1977 - had produced some replicas and sold these. George Lucas got all upset and claimed that Ainsworth did not have or own the right to produce and sell the replicas and was infringing copyright in the original drawings of the helmets.

Protracted legal action through the High Court and Appeal Court ended up with a finding in favour of Ainsworth. Lucas, not giving up the fight, appealed to the Supreme Court which earlier this week heard argument from his counsel, Jonathan Sumption QC that it had been an "impled term" of Ainsworth's working agreement back in the 1970's that he would not acquire any right to copyright in the models he made.

What's the issue
Mediabeak thinks that implied terms are a legal construct to help lawyers who have forgotten to include something relevant in a contract. If a term is as fundamental as is being argued in this case then it ought to have been a contractually defined term.

What is being argued is that the 2d drawing (which is in itself copyright protected) from which Ainsworth produced the 3d Stormtrooper helmet transfers to the 3d artefact such that the 3d artefact is similarly copyright protected. Not so. Under UK copyright law the creation of a 3d representation of the 2d image would constitute a new 'work' that attracts its own copyright protection. A 3d representation of a 2d image is not an infringement of the original work nor is it an adaptation in the same format - rather it is a translation into a different format which attracts its own copyright. Just as an architectural drawing is copyright protected but will not cover the final construction as a 3d object.

So this is more a matter of contract law rather than copyright law which is why Jonathan Sumption is seeking to advance the 'impled term' argument.

If Lucas and the studios had wanted to exercise such wide-ranging controls over all Star Wars related artefacts and merchandise then they should have provided for this contractually. Copyright law exists to protect individual artistic creations not suppress them or derivatives of them for purely commercial as opposed to artistic reasons.

The modest amounts Ainsworth may be making be exploiting his own artistic creations are minute in relation to the overall Star Wars licensing and royalties revenue streams.

Sue Breen supreme - NUJ pays out for libelling own journalist


The NUJ is normally there to support and uphold journalists' rights but in this case it - or its publication - got the article and tone horribly wrong and ended up with a justified libel action.

What makes this case worse is that the journalist in question - Suzanne Breen - was actually standing up for one of the most fundamental journalistic principles namely protecting ones sources. Quite what possessed the NUJ to run an article in its magazine about Breen's quest to protect her sources is for its staff to know but the result was serious enough for Breen to bring her action.

If the NUJ had continued to stick by one of its journalists rather than seek to disparage them to make for an edgy story in its magazine this case could have been avoided.

More from BBC
Belfast Telegraph

7.3.11

Judge right not to allow identification of disabled boy


A child who had suffered severe disability after being starved of oxygen during treatment has had his anonymity preserved in relation to a personal injury settlement secured on his behalf against Cambridge University Hospitals NHS Trust.

Mr Justice Tugendhat ruled that anonymity should be granted as it was possible that the boy could see his condition improve and have the capacity to make his own decisions and be aware of and adversely affected by publicity surrounding this case and as such was entitled not to be identified in relation to the current proceedings. He also said there was not sufficient public interest in the name being disclosed.

Mediabeak thinks this is a perfectly reasonable and sensible ruling in the current case. To the extent it is desirable to be able to report on and scrutinise such cases, it is not a requirement of such scrutiny and reporting to be able to name the individual - in this case the boy - who has suffered as a result of the mistake which is being compensated for through the litigation. Scrutiny is served by uncovering and knowing that the relevant health authority is having to pay a settlement as a result of a medical procedure that resulted in oxygen starvation. In this sense the public interest is served in the fact of the case having been disclosed. Knowing the boy's name does not add to the scrutiny to an extent that merits the potential risk of him subsequently reading a report about the case that names him and the hurt or suffering that may cause.

So the right result is being able to report the case while being able to preserve the anonymity of a vulnerable person - in this case the boy.

6.3.11

Twibel Tweets: Courtney Love's Tweet settles at $430,000 - more to come?


Exactly what fashion designer Dawn Simorangkir did to upset Courtney Love is not clear though reports suggest there may have been an unwelcome bill for some clothing but whether it was the bill or value for money, Courtney Love vented her displeasure online both on the designers website and on Twitter, branding her a lier and thief. Simorangkir issued proceedings in Los Angeles in 2009

News of the settlement has filtered out this week ahead of what would have been the scheduled jury trial in Los Angeles. So we won't get to have a court decision on the boundaries of Twitter in relation to libel but we do get a guideline amount relating to a Twitter-based defamation settlement - and its not cheap!

But this isn't the first Titter action to hit the courts, another case involving New Zealand cricketer Chris Cairns and Lalit Modi who is Commissioner of the Indian Premier League is already listed for trial in the High Court later this year.

Lalit Modi had accused Cairns of being a match fixer via Twitter. The offending tweet was subsequently deleted but - joy of the internet - resurfaced on several sites including this one

Cairns brought proccedings in the UK but Modi sought to have these set aside claiming they were not substatial or 'pubished' enough to constitute a libel. So the interesting question arose as to whether a Tweet was a publication for the purposes of libel.

In a High Court ruling in November last year Mr Justice Tugendhat did not didmiss a Tweet as being a publication and - significantly - also acknowedged that in relation to libel it was not necessarily how many people actually saw/read the words complained of but how many people could potentially see them. This is a departure or develops the previous argument in Jameel v Dow Jones & Co [2005] QB 946 where the amount of people who had actually read a syndicated online article was deemed to be relevant.

4.3.11

Baby Gaga in battle with Lady Gaga: sublime meets ridiculous


Oh to be instructed on this case! - Pop ikon who is not averse to sporting a costume made up of processed cured meats is apparently outraged at London ice cream vendor for serving up a choice scoop of ice cream made out of breast milk. Mediabeak loves this and will happily act for either party for free.

What's ths issue:
The self-styled Lady Gaga is well known as a pop celebrity who masquerades behind various guises while delivering her varous tunes.

On the other side we have a small business entrpreneur who is making Haagen Dasz seem so 1980s and is taking the development of ice cream flavours to new limits by seeking breast milk donors (for a fee) to enable the production of breast milk ice cream.

There have been complaints about this concept and health and safety fears etc but in terms of a product - while not to everyone's taste - if it were produced in a safe and controlled way - then it should be no more objectionable than beluga caviar.

Lady Gaga does not like the idea of breast milk ice cream.

Why is Lady Gaga upset:
She perceives the name - Baby Gaga to be a play on her stage name Lady Gaga - and considers the novel product offering to trade off her name association and be detrimental to it. The fact the ice cream may have been served up by a waitress in a conical bra looking as whaky as Lady Gaga sometimes does may have contributed to her perception. BUT says shop owner Mr O'Connor - the outfit of his waiting staff is actually a take on the Madonna Gaultier outfit rather than a copy of a possible Lady Gaga outift.

What's the deal:
Lady Gaga claims that Baby Gaga is a word play on her name and associates to her name and as such the breast milk ice cream stunt - which she dislikes - maybe associated with her - she does not want the association but is she also seeking to claim that she owns anything with 'Gaga' in it?

Here's the real issue:
If Lady Gaga is seeking to protect and have control over the use of anyting with 'Gaga' in it then she needs to seek to register a trade mark for 'gaga' - and it is unlikely she would be able to do so. 'Goo Goo Ga Ga' is a sound combination that has for decades been associated with babies so to secure the right to use just 'Ga ga' would seem to be a long shot (which Lady Gaga has not as far as can be ascertained so far sought to do). SO Lady Gaga does not have monopoly or control over everything with 'Gaga' as a suffix.

Meanwhile the ice cream maker - the Icecreamists - say they are confident they will actually secure a trade mark for their unique type of ice cream.

Mediabeak sniffs the scent of lawyer in that Lady Gaga's legal claim accuses the Icecreamists of 'riding on the coat-tails' of Lady Gaga's fame - which in trade mark law is a clear reference to a key judgment in the case of L'Oreal v Bellure. That case dealt with unfair advantage which arises where there is a transfer of the image of the original (or protected) mark - in this case Lady Gaga (except she has not secured this as a mark) - or of the characteristics which it protects - TO the goods (the ices cream) related to the Icecreamsits 'Baby Gaga'.

Given that Lady Gaga does not have the legal ownership over which her lawyers are seeking to exercise rights this is unlikely to go much further. So the argument that her reputation as 'Lady Gaga' will transfer to 'Baby Gaga' is a long shot. So it is unlikely that a claim that Icecreamists have secured an unfair advantage over Lady Gaga is likely to succeed.

More from Daily Mail
Guardian

Don't mess with Mrs Bond: Kiki sues Daily Mail over Taki story


Lady Kristina Moore - also or previously known as 'Kiki' is showing that the wife of former James Bond star Roger Moore may be shaken but not stirred over the Daily Mail's decision to publish a story about her relationships back in the 1950's. Unimpressed by the paper's version of events - which she says are defamatory - Mrs Bond has issued High Court proceedings and is claiming aggravated damages over an article that claimed she had been 'knocking around' the French riviera in the 1950's and had an affair with former 'playboy' and journalist Taki Theodoracopulos.

It would seem that the reference to a Kiki in Taki's life was a reference to someone else and that Tiki had confirmed the same to the Mail. What is being claimed is aggravating in this case is the fact the paper didn't bother to check the facts or give a right of reply to Lady Moore.

The fact there might have been a Kiki in Taki's life does not negate the defamatory association with Lady Moore as being identified or associated as the Kiki in question. If the paper has published an untrue allegation (about a Kiki who could reasonably be taken to be Lady Moore) and this publication could tarnish the reputation then in absence of any defence - which has not been forthcoming and is not readily obvious here - then it seems that it has defamed.

Aside from anything else Mediabeak cannot really see a big commercial interest in this story in the first place so if it has mixed Kikis and not got some magic defence lined up the Mail might as well move to secure a quick settlement and undertaking not to repeat the story/allegations.

Lady Moore has instucted Harbottles who will no doubt be on the Mail's case (or lack thereof)

More on this from Press Gazette

3.3.11

Sun and Mail guilty of contempt - publication as opposed to origination is key


A contempt of court case against The Sun and the Daily Mail has been upheld after a High Court ruling that both the Sun and Daily Mail were in contempt of court for publishing pictures of a defendant in a murder trial seemingly 'posing with a gun.

What is important and carries implications in this case is the fact that the papers -or to be precise, their websites - had obtained the pictures online i.e. they were arguably already in the public domain and publicly available - so not sneaked, staged or in some way deviously obtained by the papers - and merely republished what was already 'out there' for others to see.

While the defendant in the case was ultimately found guilty for murdering his victim with a brick to the head and although the trial judge went to significant lengths to caution the jury against being influenced by external sources and trawling the internet for information on the case AND was satisfied that the publication of the picture by the news outlets did not in fact prejudice the trial the High Court was less forgiving and relied on the strict liability rule under the 1981 Contempt of Court Act to rule that the fact there had been publication of potentially prejudicial material in relation to active proceedings was sufficient to engage the contempt law and give rise to liability.

What this case demonstrates is that it does not matter whether there is already material of a potentially prejudicial manner available in the public domain, it is the fact of publication or republication by a web site or media outlet that can still trigger liability for contempt of court if that publication coincides with ongoing (= instigated or active) court proceedings and could potentially be prejudicial (it does not have to actually prejudice but merely have the potential to pruejduce proceedings where a case is active). This could extend to anyone publishing and is therefore not confined to media outlets as the Contempt of Court Act attaches to anyone publishing potentially prejudicial material and under criminal law this is measured not by circulation but by the fact the material has been published.

The Law
There are two types of Contempt of Court:

Statutory – Contempt of Court Act 1981
Applies to specific cases
Covers ACTIVE proceedings
Intent is irrelevant - its is the fact of publication that counts


Common Law Contempt
Has a wider scope and concerns preserving the integrity of the
administration of justice (but can also be applied to an individual case)
Covers cases which are not yet active but where proceedings can be
foreseen or are imminent

Proceeding become ACTIVE when someone has been:
Arrested
Warrant issued for their arrest
Court summons issued for them to appear
Charged

Proceedings cease to be ACTIVE when:
Person released without being charged (except where on police bail)
No arrest is made in the 12 months following a warrant
Case is dropped
Defendant judged to be unfit to plead or be tried
Defendant convicted + sentenced or acquitted

More on this case from Daily Mail and Press Gazette

Related reading: Does the internet make contempt laws unworkable?

2.3.11

Is providing links to content a breach of privacy in itself


Google has been in litigation with the Spanish data protection authorities over a claim that the search engine was violating privacy.

The key question is whether in providing a link to an online article by a newspaper (or any other third party) the person publishing the link (in this case Google) is violating privacy if the story to which it is linking contains material that could be deemed to violate privacy.

The case that has brought this about is a bit unusual in that the Spanish authorities were not able (under their existing laws) to prevent their own newspapers from publishing content that breached privacy or data protection so they were targeting Google for having - as an aggregator and search engine - linked to the content.

As Google has rightly countered, it is not responsible for the actual content but is merely linking to it - so the question arises as to whether publishing a link amounts to republishing the actual story.

The issue has escalated in Spain where a number of complaints reached court and it raises the interesting point in relation to how technology now preserves articles and keeps them available. In the past something objectionable might have been printed in a paper but it would not have been captured and published online and remain there. So even where someone might accept that a story has been run about them is it right that the story is still available for the pubic to read one or two years down the line?

Mediabeak suggests that ultimately if the link is still available - i.e. the relevant publication that originated the story is still carrying the story and keeping the link to it live online then it is responsible as the primary publisher and Google, in making available the link, is merely linkning to what is out there rather than creating or continuing to make it available.

The problem for Spain and other countries in this context is deciding how to address the issue - in criminal law there is the principle of 'spent' convictions - i.e. depending on the crime, after a certain time the conviction is deemed to be 'spent' such that it can no longer be referred to or used against an individual - so what this case highlights is that there may be a sense among the public (and certainly celebrities and others) that to the extent they may have done something worthy of a media feature (be it sex, drugs etc) they should be entitled for that not to be readily retrievable via an internet search. In the context of the internet and online media this is a big ASK and not necessarily a reasonable one.

Mediabeak thinks the position should be that where there is a legitimate complaint in relation to online coverage then the legal mechanisms exist to force a publisher to take the objectionable content down from their site. If they do this then Google or anyone else cannot link to it. So there is existing legal process in most countries to deal with this without trying to compensate for loopholes in the law by seeking to impose sanctions on search engines.

Spain has now referred the case to the European Court of Justice for guidance - hopefully they will come back with a sensible solution.

More on this from MediaGuardian

Galliano - amid the storm he wins a cybersquatting case


Some consolation from cyberland for the now seemingly outcast Galliano - an arbitrator from WIPO (the World Intellectual Property Organisation)has determined that John Galliano does have trademark rights in his name and the domain name galliano.fr should be transferred over to him.

Whether he will still have need for a French domain name remains to be seen - the Paris prosecutors are charging him in relation to his video nasty rant - which if proven could result in up to six months in the slammer and a fine of over 22,000 Euros.

More from Reuters

1.3.11

Kids TV presenter gets libel award for not being drunk or getting gaffer-taped


The Independent newspaper has today agreed to pay undisclosed libel damages to Lizo Mzimba over a story that orignated from a Cambridge University student magazine and claimed that Mzimba had perhaps had too many drinks and ended up taped to a wall when on a visit (that it was alleged was work related) to Cambridge.

After some legal clarification from Mzimba's lawyer (Jonathan Coad) it appears that none of the allegations published about Mzimba's outing to Cambridge were in fact true (or proven to be true) and High Court Judge Mr Justice Tugendhat acknowledged the Independent's undertaking not to repeat the libellous allegations and pay over substantial damages.

So the Independent got the rap for this one and is paying the price for not checking its primary source while that primary source in the form of Cambridge student publication 'The Tab' has got off lightly for dreaming up such a story...

Motto of the story for student editors is don't imagine someone in gaffer-tape unless you can prove it while the Indy should have known better than to expose itself to such sticky tape scandal.

Secrecy lifted on care proceedings


As reported on Mediabeak - the father of an autistic boy has been battling with Hillingdon council to be allowed to care for him at home. Previously such cases would be shrouded behind closed doors and not subject to the scrutiny they need.

In delivering his decision today Mr Justice Jackson allowed the collective media's application to attend the court proceedings and identify those involved.

Normally those connected with the proceedings would be granted anonymity but - in what may be the first reported case in relation to this - the judge agreed that It is thought to be the first time that a judge in the Court of Protection has agreed at the start of a media application relating to reporting a case that all the parties could be identified.

The council had been battling against the now identified Mark Neary and his bid to be allowed to care for his autistic son Steven (aged 20).

More from Press Gazette

Sun sets on Galliano as Dior closes door and defamation action dies


OK so the benefit of the doubt got blown out of the window courtesy of The Sun which had got hold of a 'rant' captured on videophone. This does for Galliano on three fronts:

First - he can't deny what he said and the fact it is totally out of order (if not illegal)

Second - while Dior (LVMH) might have moved prudently to suspend him they - as any corporate - would have had no choice other than to 'fire' him - they needed to disassociate themselves from his actions and words.

Third - his (or his lawyers) hopes of a defamation action are severely diluted if not extinguished by the revelations The Sun provided. He's not going to be able to prove that what has been said about him is defamatory in the circumstances insofar as it appears to be true.

Why DIOR had to drop him:

While an exceptional designer and personality (aside from these recent revelations) and a very difficult design act to follow, a brand such as Dior and any corporation for that matter - cannot stand by one of its brand champions that is such a liability in terms of coming out with such a vile rant.

There have been numerous examples in recent years where corporations have had to review their sponsorship arrangements following the behaviour of their 'stars' - e.g. Tiger Woods or Kate Moss (though in the latter case while she was dropped by some labels following allegations of drug taking she was promptly signed up by others) - it will be a feature of all the sponsorship contracts that the 'face' (star) promoting the brand will undertake not to bring the brand into disrepute or behave in a certain way.

Bottom line is that if you are in the public eye and the face of a brand or associtated with one then even having one drink too many or getting a parking ticket can spell trouble.

What has been the killer fact in this case is not that Galliano might have been drunk or taken exception to people or even verbally abused them BUT the content and sentiment of what he said. It is not defensible and no matter who you are and how great a designer you might be, you are not exempt from the moral mores of society and beyond the law. So the best case scenario for Galliano is losing his Dior gig - the worst case is doing some time in a French jail.