MEDIABEAK: 2013

24.12.13

Paedophile mis-linkage: News aggregators need to address issue of identification and verification.

'H' from Steps, as I will choose to call him (and any PR would probably advise he chooses to be called going forward) has been hard hit and unfortunately so by the misfortune of having the same name as a repulsive paedophile who was recently jailed for 35 years (Ian Watkins). Unfortunately for 'H', he shares not only the same name but the same profession and even country of origin as his depraved and reviled namesake.

While 'H' last week secured a High Court apology after the E!Entertainment TV website had previously wrongly pictured him alongside a report of the guilty plea lodged by Ian Watkins (formerly of the Lostprophets) - and E!Entertainment had been quick to spot and correct the error and fully admitted fault - this did not stop the same happening again. This time (see Press Gazette for full reports) Google News had published the wrong (i.e. 'H' from Steps rather than Watkins from Lostprophets) picture alongside a CBS News Story of Watkins' conviction. It appears this matter has not been resolved:
Tweets

What this case highlights is that there is a real danger when it comes to news aggregation that the technological controls are not able to detect and filter out the finer points of identification, jigsaw identification, implication, association, comment, innuendo etc that human intervention (as is the case among us annoying legal types who ruin the fun of many a seemingly good story) can bring to bear. In aggregator terms there was a story about a musician named Ian Watkins and the software coding linked a photograph of 'an' Ian Watkins to the story.

It seems ironic that one of the (many) key points drummed into journalists as part of their training on things legal is the need to identify the specific person in relation to any report, especially in relation to court proceedings [ See CPS guidance on identification ] and that where someone may share a name or address or profession one has to include sufficient detail (where permitted) to correctly identify. So in this case one would ascertain that there were indeed two Ian Watkins who were in the music industry and from Wales and ensure one identified the correct one. But a computer can't do this, it follows an algorithm which, sophisticated as it may be, cannot pick up every distinguishing feature.

So while 'H' from Steps and his lawyers mull over what they can do and who they can sue, the real question is one for news aggregators, namely, how can they build in checks to prevent this sort of mis-identification happening again. To the extent it is great to have a free flow of news and aggregated news from all over the world pulled together and spat out online, there are instances (such as this) where the need for some form of human intervention still seems appropriate and needed. It's the same thing for moderation on websites, chatrooms and twitter, the computer does not always know best.

23.12.13

Nigella. Time to end the media mess and leave them to it. Police should not waste time investigating.

Much as I am loathe to write even more on this subject (given the excessive media exposure as analysed in my previous postings) I do feel compelled to add this short post.

Did Nigella take drugs? Yes - she admitted this under oath. Was she an habitual drug user? We don't know as all we have is circumstantial evidence and hearsay. Does the fact the jury at Isleworth Crown Court acquitted the Grillos mean Nigella is a druggy? No - and one needs to be careful here - their acquittal means they did not find there was sufficient evidence to prove beyond all reasonable doubt that the Grillos fraudulently spent on Saatchi's credit card(s). Yes, a key component of the Grillos' defence was that such spending was permitted spending to cover up Nigella's 'alleged' drug use BUT this was only one element and neither Grillo sister, nor any other witness, including Saatchi himself, actually went as far to say they HAD seen her actually taking drugs -so all is circumstantial. Yes, one can draw the conclusion and make the argument that insofar as the jury believed the Grillo's defence this means they did not believe Nigella's denial of drug use but this is all supposition and none of it proven.

To the supposed special team now being set up as part of a police investigation - really!? First the police said they were not planning on investigating further and then some hours afterwards they said they would be - why? I don't know. What I do know is that aside from an admission of taking drugs on certain past occasions, there appears to be no categorical proof of drug taking or related offences on the part of Nigella and all the evidence that came out in Isleworth Crown Court in relation to her 'drugs habit' was circumstantial. Having (as highlighted in a piece in this weekend's Sunday Times - front page and pps 8-9) been informed that Saatchi did seek to place drug use stories about Nigella in the press, how come he, as the Grillos did not have the same conviction to state under oath in court? So is the egg on face of the Grillo case not enough for a manipulated CPS that they have to go dig deeper and legitimise that (metaphorical omlette) with a 'cause celebre' investigation of Nigella base on purely circumstantial and hearsay evidence?

Let Nigella do the omlettes, the Grillos rebuild their lives and Saatchi can perhaps look to focus his artistic prowess on less of the dark arts.

20.12.13

Grillos cleared, Nigella smeared but the real crime was the process and PR that allowed this to happen

I'm happy to pin a view on this. I think the right result and correct verdict - in light of all the circumstances - was arrived at today. The jury had a tough decision and the judge had to navigate this trial through a media storm that detracted from the alleged crime being tried and focused the attention on a witness who was as much on trial as the defendants. Ultimately though one has to ask the question as to whether it should actually, to some extent, be the legal process that should be on trial here.

How did this case ever make it to court? how come people more qualified than the average observer couldn't see through the claim of fraud (misusing Saatchi's credit card) and defence (because Nigella said it was ok) with the convenient common peg - because she was allegedly on drugs.

This case is remarkable insofar as those in court as defendants and key witness were neither the victim nor the perpetrator of the actual crime. Rather, they were the victims of an abuse of legal process to get the drug allegations out in the public domain without them being blatantly defamatory.

Nigella made a very valid point today - what protection is there for witnesses (ok she is very high profile and can hire very clever and expensive people to help her BUT the same principle and point is true in general) in situations such as this? the legal process uses witnesses for its own purpose but does it pay proper and sufficient regard to the person and their life that lies beneath the testimony they provide?

As to the Grillos, they have spent an obscene amount of money and enjoyed lavish luxuries but as emerged during the trial, what they enjoyed and spent was not inconsistent with the lifestyle and spending of the household they were so closely a part of. Leaving aside the drug taking smear angle, which I will deal with, their case is a simple one - they were part of a ridiculously high spending household and were living a lifestyle as lavish but not inconsistent with that of the household.

From the evidence coming out of their trial there is no proof that the Grillos sought to conceal their spending - the shoes they bought, the holidays, the spa treatments, the taxis etc - all were on a credit card and details of what was spent on that card (or cards) would have been apparent from the statements for the card account. Here we had the interesting moment of tension and realisation in court that the accountants for Mr Saatchi did process payments on the card accounts and indeed arrange for the authorisation of payment but they did, conveniently though not necessarily surprisingly (for that was not within their job description) scrutinise what exactly was being spent on the credit card. What seems to be the case and may have had some bearing on the verdict is that to the extent the Grillos spent large amounts of money, beyond not drawing it to the attention of their employers, they did not seek (as far as was ascertained in the proceedings) to conceal it. Nor did they, it seems, spend or use or obtain monies with a view to obtain or use these monies in a way that was fraudulent within the true sense of that meaning. To the extent their spending may not have been consensual it was not concealed.

Nevertheless, and this was not lost on the jury, if someone was going to fraudulently misuse a credit card or abstract monies, it is not very likely they would do it by spending on a card that would be (capable of even if it was in reality not done) scrutinised and reviewed by an accountant/accounts department and have (as credit cards do) very specific itemised accounts of spending. In the context of both the household's general spending and the spending seemingly granted to the Grillos - and taking into account the time period (5 years or so) over which the spending took place - would calling the police and seeking to push a file to the CPS be the first port of call? More likely would be that, having ascertained that trusted employees had been spending (even more) than one thought they might be, one would have that conversation with them and seek to resolve it. As came out in evidence, the Grillos did issue an apologetic email but the terms offered by Saatchi for resolving the issue accompanied with a threat to 'hunt them down' did not diffuse the situation.

After the verdict was delivered media reports suggest that Nigella was 'disappointed but not surprised' at the outcome. Come on! Here is where my sympathy for 'Team Cupcake' steps to one side (and message to Cameron - get better PR advice). Why is Nigella disappointed at the verdict? it's ok coming from her position not to be surprised but 'disappointed' is not so clever as this suggests she agreed with the Grillos having been charged and IF that is the case this means that she must believe their spending was excessive and unauthorised to the extent of it being fraudulent. This relies on her NOT having had the drugs smear suggestion which means she must be very confident on this point. This throws up the mirrored point in that to the extent Nigella's (trial by media) drugs defence stacks up, it means the Grillos' defence that they were able to spend large amounts as they turned a blind eye to Nigella's drugs use has to fall down. The difficulty here is that the jury has today delivered its verdict that the Grillos are not guilty of fraud and what was (on the face of it) the key evidence here - the fact that their spending was allowed as an offset to covering off drugs use. Here we have a real difficulty - the defence re the Grillos has stuck to the extent they have been found not guilty but that verdict relies on the belief that Nigella had a drugs habit going on. While this alleged drugs habit was dragged across court and the world's media it was never proved and no one gave evidence that Nigella had actually been seen taking drugs.

We are faced with three key points:

(1) If and to the extent that Nigella did allow the Grillos to spend what they wanted on Saatchi's credit card (which in the context of the evidence would not be implausible) why should she be disappointed that they had not been brought to book (or indeed found guilty) for abusing their privilege in terms of use of the credit card IF she had indeed allowed them to do so to cover up her 'drug habit'. So this does pose an issue - if Nigella truly believed the Grillos were taking advantage to the extent of being fraudulent in terms of credit card spending then she can't (surely) have encouraged or condoned their doing so - if, as the evidence in court heard, it was for the purposes of covering up her drug use.

(2) If Nigella had suspected the Grillos would use her 'alleged' drug use as a defence then, in any case, she would not have risked this happening from a PR or a legal perspective and not been supportive of the case being brought in the first place.

(3) So how did this case get to court and for what purpose? Herein lies the mystery and probing question for the CPS (who should take cases on basis of there being a 'reasonable prospect' of conviction.) To distill the case:

A PA as then joined by her sister, spent big amounts on a credit card(s), the transactions on which were all traceable.
Within a high spending, lavish household the two sisters both had jobs that required, permitted and enabled them to spend large sums of money.
They were allowed to spend on personal items and indulge in luxuries (hotels, taxis tec) as a question of fact (though the question of degree may be questionable).
The accountants did not scrutinise line items and individual purchases on accounts.
Between monies spent and potential for scrutiny there appeared to be no concealment.
So we have lots of spending but nothing that legally seems to prevent it (other than credit card misuse if the name etc on card did not match up to the person using etc).

In relation to all the points there does not appear to be an obvious or satisfactory answer.

So what are the outstanding points?

Someone pushed this case in the direction of the police and CPS but why?
Would the Grillos like any media heat or a lawsuit given the lifestyle they enjoyed? No. Would they be able to be manipulated if all that were taken away from them? Yes.
If their bond was as close as reported with Nigella then why upset this?
To what extent have the Grillos been threatened?
To what extent have they been provided with (and had financed) defences that rely on the trashing of Nigella?

There is a sniff about this case

The excessive extent to which Nigella has been 'vilified' during the Grillo prosecution is as bizarre as it may seem - to a cynic - that the level of extremity does indeed signal a 360 job insofar as the negativity (or potential negativity) set up vis-a-vis Nigella is so extreme that it is actually there to flip sentiment and make one sorry for Nigella so, legal process aside, she wins the sympathy vote.

Abuse of process

If you want to attack someone or trash their reputation without the undue interference of legal and regulatory process, then the key is to use that process to do just that. The past weeks have seen numerous headlines (most using parentheses) about Nigella and alleged drug use but when it came to actual witness evidence none of them actually was able to confirm (on oath) that they had actually seen use of drugs.

What this case and the resultant media coverage smacks of is a deliberate campaign to set up a trial so one can unpack a range of issues and seek to defame someone without actually doing so due to the 'privilege' that attaches to court proceedings.

While we await the coming into force of the Defamation Act 2013 (and endure the existence of the old 1986 Act) there remains the ability to use the law to get around what is said in court due to the spectre of privilege - in other words, you can defame Nigella as much as you want (within reason and context) provided that all the negative things being said are done so within the course of active court proceedings..

What's said in proceedings in court remains privileged in terms of its application to that court. Basically it means - as has been all too prevalent in this case - is that what's said in court is and remains part of those court proceedings and relate to them.So in using the law as it stands, one can exploit it to leak a stream of defamatory comments relating to someone.

So where does this case take us?

The Grillos get to walk after what (public/individual sentiment aside) must have been a harrowing experience.
Nigella has been smeared - but will it ultimately prevent/deter her from existing and continued profile progression?
Saatchi has emerged as an embittered puppeteer
The machinations of the media in response to what it has been fed highlight the problems rather than assist in getting to solutions.

What's needed?

A review of the laws that attach to the media in relation to cases such as these.
A harder line by the CPS re opportunistic cases aimed at unpacking non core issues.
Less game playing - or ability to abuse the system to play games.

No surprise at Grillo verdict as trial was an abuse of process to use as a vehicle to get at Nigella

Now that the verdict is out the gloves can come off and we can really analyse this case - to which I will provide a follow-up posting later today (once checked more detail from today).

It all seemed to convenient. You had a high spending household (in the monetary sense) and assistants who were part of that spending and allowed to do some of that spending on themselves. The lines seem to have been a bit blurred and the Grillos do seem to have got a but greedy (one might argue) BUT that does not mean they were guilty of fraud. The accountants always had the bills, even if they didn't scruitinse them, and so its not as if their spending was not capable of detection. It is also the case that the spending was not in one go but over a period of time.

Who actually pushed for the case against the Grillos? who reported them to the police? who would gain from this and who might be damaged?

The defence and its damage to Nigella:

The key pin in the case was that it led to the defence that Nigella knew about the spending and sanctioned or turned a blind eye to it in return for blind eyes being turned to her alleged drug taking and habit - although the Grillos were both careful to say they did not actually see Nigella taking cocaine. As Nigella correctly identified during her evidence, it appeared it was she who was on trial - and indeed it was. The criminal prosecution ended up being a vehicle to play out the allegations over Nigella's drug use - allegations which, had they not been made under the cloak of privilege attaching to the court proceedings, would have been defamatory and likely resulted in libel actions.

Question:

If Nigella had allowed the Grillos to spend huge amounts in return for keeping quiet about her alleged drug use, would Nigella have pushed for them to be prosecuted?

So was this whole case an elaborate abuse of process and PR campaign to use the Grillos and the legal process to smear Nigella?

Full analysis to follow...

Nigella and the Grillo claims, the truth
Nigella's trial by media makes a mockery of contempt and defamation law

17.12.13

Forced caesarian highlights need for scrutiny over family courts

There is more than enough proof, this case providing a pinnacle, that there needs to be scrutiny of the family courts. That does not mean open season for salacious and selective reporting.

What strikes home with this case as no other is that whereas there have been children taken into care, families split up, allegations of abuse etc been made behind closed doors in the past, what we have here is not just a deprivation of family life and association but - let us be frank - a barbaric surgical removal of a child from its mother - and how in a civilised society can this be in any way justified without proper scrutiny?

Without scrutiny in this regard one is only a step removed from justifying the removal of an unborn child from a mother's womb to a scary, paternalistic new order of intervention in and over peoples' lives.

While one would not want to be arguing against safeguarding measures in terms of the vulnerable, protecting people and process in terms of sensitive family or medical issues, that does not and should not mean that these are therefore exempt from and untouchable in terms of scrutiny. Surely it is their scrutiny that legitimises their actions.

So we should not be seeking to exclude scrutiny and restrict the media's ability to scrutinise. What we should be doing is facilitating that while ensuring appropriate measures are in place to safeguard the integrity and confidentiality of that process.

Harry Styles secures court order to protect him and his hair from being pursued by paparazzi - what gives for privacy law?

The ex X Factor contestant and One Direction, or '1D' performer, Harry Styles, has secured an interesting court order aimed at preventing those nasty paparazzi types from hanging around his home or following and papping him in the street.

To many observers this may seem like another in the long line of 'celebrities' and others who are seeking to put a stop to being randomly pictured in the press and who are, in that regard, seeking to protect their privacy.

Yet, appearing in the High Court this week, Styles' lawyer, David Sherborne, stated that the injunction being sought was "not a privacy injunction". So here we have an application for an injunction aimed at preventing the taking and publication of photographs of Styles and this is not meant to be a privacy injunction? So what is it? Much as this fits in with and sits firmly among the raft of similarly framed injunctions that have all been founded upon a desire to protect the photographing of an individual and subsequent use of such photographs under the umbrella of a seemingly developing 'privacy law' (which while hotly debated for over a decade has not found enough support or consensus to find its way onto the statute book), this injunction is, according to Sherborne, different.

Well perhaps it is. The injunction itself focuses not on the photographs and intrusive effect but on the means by which such photographs are obtained. It has been applied for an granted on the basis of loitering outside Styles' home (a place where one would have a reasonable expectation of privacy) or pursuing (aka harassing) him in the street. In other words any form of unwarranted or unsolicited or indeed unwelcome attention.

So it is an anti harassment order. Or is it? It has seemingly been granted against 'a group of photographers' in relation to which four of whom were in the process of being identified. So what Styles has secured here is notable and does impact on privacy law in that a court has been willing to grant an order preventing certain un-named but 'hoping to be identified' photographers who may or may not have been stalking Styles from hanging out near his home or pursuing him in the street. So the injunction applies to a potentially ascertainable class of persons but not to any named individual. This has to be the sort of broad injunction any 'celebrity' could wish for - a 'don't come near me or invade my space unless invited' order. But here the integrity behind it falls down in that, by Styles' lawyer's own admission, the order is not to prevent fans from mobbing and sobbing over him in the street but is to prevent the 'tactics' that have been used by 'a certain type of photographer'. In this regard it is a selective injunction - it's a I should choose how and when I am photographed and engage with others type of engagement.

Well to the defence of paparazzi who will no doubt be up in arms and claim fair game on the likes of Styles, you can't play it both ways and herein lies the tension there is with celebrities and these nasty, hounding, paparazzi types - you need them, welcome them and put up with them when you are 'on the up' or need to place or present a good story but loathe and complain about them when they are not doing your bidding but either helping fuel someone else's story or gratuitously filling a front page.

So this neatly brings the argument back to one of Mediabeak's original and recurring themes (which was explored as far back as the Douglas v Hello case) namely, what the likes of Styles (understandably I would suggest) are looking for is a control over when they switch on and off public engagement and images of them in public - what they are really after is a distinction between an image and persona right they can exercise control over as against a reportage opportunity and papped shots of their personal sphere over which they have limited control (other than through they type of legal action we are discussing here).

Despite an impressive line up of cases and raft of complaints in relation to privacy, the law still relies on the various associated laws (confidentiality, harassment, misuse of information) to patchwork together privacy protection. Yet the law and the courts seem willing to do so - as evidenced by this injunction which is, we are told, not a privacy injunction. Next to the obviously celebrity cases about unwanted photographs etc we have the far more worrying end of privacy, namely state interference (as seen in the ongoing NSA files debate). So privacy law from the likes of Styles seeking to control how his hairstyle is viewed through to serious issues of identity and data privacy remains in an unsatisfactory state. In this regard what might seem to be a bit of a fatuous and random injunction actually unpacks wider points.

The ultimate question is how is the law going to tackle and legislate for the competing rights and requirements to control, separate and regulate individual human rights related privacy (as per Art. 8 ECHR), the use of and control over image rights (as commercial commodity / IP right) and the public interest / news / freedom of information rights. Answers on an email please!

15.12.13

Express(ly) exploitative front pages

Some seven years on from the disappearance of Madeleine McCann and the Express has still not got over its fixation, opportunism, or, giving it generous benefit of doubt, dogged determination to follow a story it believes in (rather than headline it knows will sell).

Today's 'revelation' is that a random Nato reconnaissance exercise had been going on over Portugal the very night Madeleine McCann disappeared and there could be footage that is capable of visually identifying people on the ground at the very resort on the night. If that is true then this is good news. But news it is not as this was information already made available to the much maligned original investigation and seemingly ignored.

So what translates, yesteryear's piece of evidence into today's front page? - well it's certainly not 'new' and it's certainly not 'news' but yet the Express has made it into a headline. Let's look as some prior examples:

It is a sad indictment on our press and imperative for those managing it that the sales likely to be driven by a front page, as opposed to real news value inherent in it, allow the moral pendulum to be swung in favour of publication.

News, in the (call me old fashioned) sense of providing some new and relevant information, should follow the story and the facts and not seek to lead or distort them. Presenting old information as new, even though it may be new in the sense that it has only come to a particular newsdesk's attention recently, is misleading. The 'spy plane clue' may be new to the headline writers at the Express but it is not a breakthrough in this long running case. When dealing with emotional and high profile stories such as this, there is a need for better consideration as to what to present as news and what not - a regrettable example in this case (courtesy of the BBC) was:

Another example of a misleading strapline that underlines the importance of balancing the desire to publish 'news' against what can actually be stood up as being 'new' or 'news' and sufficiently credible in this regard.

A front page or lead headline or strapline isn't insignificant, there is thought and many experienced journalists behind it so today's message is one of please get over the commercially driven news-angst and keep to the story. Otherwise one ends up with the misleading headlines that give false hope, convey false impression and ultimately undermine the credibility of the messenger's output.

12.12.13

Nigella and the Grillo claims - the truth.

One would have thought that 'real' world news such as the death of Mandela would have managed to monopolise the media agenda but no, even amidst the global news stories the spectre of and questions over Nigella's alleged cocaine use continue to permeate the headlines.

What is essentially a fraud trial at Isleworth Crown Court has been (as Mediabeak has previously commented on) hijacked and turned into a trial by media that sees a witness (Nigella) placed in the position of a defendant. The PR machinations (and, in this regard it appears that all parties are at it) are (as I have commented on) running amok with the legal process.

While the respective parties may decide to ride a PR wave that skirts the boundaries of contempt laws, I shall not go there. To comment on my opinions over the defence in this case could put me in contempt of court. So I won't. To comment on what I think team Saatchi or Cupcake are up to (in relation to these proceedings) could do the same. So, while there is a great opportunity to analyse and state some of the obvious, that is one to reserve until after this case concludes.

What I can say and what this case does show is the danger and the difficulty in dealing with facts and surrounding evidence that are played out in public and create a dramatic tension both in and outside the courtroom - someone is lying but who - and, in relation to the actual proceedings, is that lie relevant.

What I can also say is that Saatchi was alleged to have been behind the suggestion that Nigella was a 'habitual drug user' but then went on to backtrack from that in court. Nigella has not denied using drugs. Her use of drugs, to the extent proven, is not at issue in this trial - which seems to have been forgotten. Today's evidence suggests such use as was evidenced in the 'household' was every three days - does that constitute 'habitual use'...that's one for the trial and jury so the contempt buzzer has been pressed.

What is emerging from the trial (subject to the substantive evidence to back this up) is that (a) the alleged sums of money (aside from by whom and with what authority - either direct, implied or inferred) were spent and (b) according to Grillo's testimony, various drugs and drugs related items were seen in the household and it was concluded (by Grillo) that based on this, drug use was taking place every third day.

While tempting to offer my analysis I better not. But what can be said is that according to the prosecution, the sums of money alleged were being spent were either spent or not (as a matter of fact). So with the fact of the spending not in doubt, the key question is about the entitlement to spend (or in agency law terms, bind agent to principal). Irrespective of what drug presence may (on a three day basis) have been observed, the case for the defence is that a desire to 'cover up' the alleged drug use led to an entitlement to spend.

Today also saw court time wasted over the defence's mitigation in terms of anyone having bothered to read the Spectator. The judge was at pains to diffuse the Cameron effect but to be fair to Cameron he was (though his advisors should have intervened) seemingly coming out with a natural response based on Nigella (as seen on TV as opposed to Nigella as appearing in court). If the Spectator was trying to lure him in to be aligned to and supportive of 'Team Cupcake' then it did a good job, otherwise the interview was all a bit too 'led'. The nub of Cameron's piece is that he did reference the court proceedings (so would have been aware proceedings were ongoing) and was also led (by the journalist) into a team cupcake endorsement which, not surprisingly, the Grillo defence pounced on.

As one says, the case continues.

11.12.13

Christmas jumper wars - design infringement claim ends up in court

As if Christmas jumpers were not silly enough, this week sees the Irish High Court faced with the tough decision as to whether one silly jumper infringes another.

As reported in the 'Crime and Law' section (no less) of the Irish Times, an Irish e-retail company, Zatori Results has brought an action claiming that Littlewoods has infringed the design for one of its jumpers that features a snowman, some trees, a few stars and a sleigh (original concept for Christmas there then!).

If one puts aside the preconception that any form of Christmas jumper is naff, unlikely to be unique and as such not worthy of protection, let's compare these wonderful creations (apologies to either Zatori or Littlewoods if I have browsed the wrong ones but my point will remain the same):

Exhibit A: a Zatori jumper

Exhibit B: the closest I could find online for the a Littlewoods jumper

So we can see that the first has some snow going on with a few stars, random reindeer, a jolly snowman and a couple of trees. The second does have the snow, some stars (albeit different) and some reindeer (though travelling the other direction).

The claim states that the jumper complained of is 'almost identical' (which would have to be the case for design infringement to be made out).

In relation to the Zatori design (as the Irish Times reports) it "included a snowman in the middle of the front of a jumper with stars surrounding it and two Christmas trees on either side, set against a navy blue background." (So I think Exhibit A above is the correct one). In relation to the Littlewoods creation this was described as being made of an inferior material and did not include the moon and sleigh. The only example I found online was as above with a sleigh.

In relation to the claim, the materiality of the quality of the material is secondary to the design on the jumper itself but one would have thought that the absence of the moon and the sleigh, not to mention the trees do somewhat distinguish the two jumpers.

As with any IP related claim, the law will protect the actual creation/expression of the idea rather than the idea of the Christmas jumper itself. So, deciding to pack a jumper with Christmas themed cliches will not satisfy the test of originality or necessarily distinguish one delightful Christmas jumper creation from another.

In allowing the claim to be admitted (to be heard next week), the judge, Mr Justice Ryan, commented that the disputed jumper was not like the one he had bought.

In addition to proving that the particular design has been substantially copied and infringed, Zatori will also need to quantify the loss it claims as a result of such infringement. The company claims that sales of its jumpers are down 75% on last year but it would need to show that the dramatic dip in sales was due to the infringing jumper itself and not wider market forces and competition in the Christmas jumper market.

So will a jumper that does not include a moon and sleigh be deemed to be substantially similar to one that does will be one of the challenging issues for the Irish High Court to decide next week.

10.12.13

Is it time to call time on Katie Hopkins?

Following internet outrage over her ill-timed and ill-thought through Twitter remarks in the wake of the Glasgow helicopter tragedy, The Daily Star has now thrown its weight (whatever its readership is) behind a 90,000 strong campaign to close down Katie Hopkins and have her 'banned from TV'.

[Picture borrowed from the Mirror - apologies, will take down if you object]

The sometime 'Apprentice Star' (it seems the Apprentice is more about people trying to get a TV career than ahead in business) and now Sun columnist seems to have ignored the learning from her Glasgow twitter gaffe and topped that with an arguably more offensive posting. While her tweet about Scottish life expectancy was, in the context of what had happened, deeply inappropriate, one could give her the benefit of the doubt that (ignorant of what had happened) she separately tried to be funny about Scottish mortality and retirement age. That suggestion of itself could be seen as offensive enough but she was seemingly blind to two obvious rules of comedy - (1) you need to actually be funny and (2) timing. So on both counts she failed.

Having aired her views on children's names on This Morning, testing the patience of Holly Willoughby and doubtless many a viewer, her views on children's names are already in the public domain. However her tweet relating to Kaychanel Willson, a brave 10 year old MRSA sufferer who was featured on X Factor, takes her tweeting and views to another level. Hopkins is reported as tweeting "Kaychanel has enough on her plate without me adding to it. Could have been KayEsteeLauder". Aside from reinforcing why she should rethink any thoughts of a career in comedy, what was Hopkins thinking, how did she think her tweet would be received and who, if anyone, did she think it would be well received by? If she was seeking to test her comic repertoire with irony then to the extent the back reference to her views on children's names may have provided a reference point, her chosen object, namely Kaychanel, was ill judged. Her tweet's rhetorical question is telling - yes, Kaychanel has more than enough on her plate, so why - and here IS the question - does Hopkins seek to exploit that by adding to it with her crass remarks. So are we to take from this that (following Hopkins' views) not only do children's names determine their social class but also their health?

If she was trying to be funny, then again, she was not. So this leads to the other more disturbing suggestion, was she trying to create controversy to gain publicity? She ought to have known (based on the Scottish life expectancy comment) that it is not always what you write or tweet but how those reading it react to it that counts. In this regard her latest tweeting has turned up the heat. Whether it is out of bigotry, lack of comedy talent, or a misplaced attempt at seeking publicity, it has landed badly with a broad audience.

In a society where TV voting attracts greater audiences than political voting then it is correct that the public should decide whether it is time to call time on the public platform Hopkins has been enjoying for her views. She may be entitled to her views but that does not mean one has to listen to them.

9.12.13

Law Commission proposals on juror misconduct are blind to the reality of the digital age

The Law Commission has proposed what, in the digital age, seem draconian measures that use threat of criminal sanction as a deterrent for jurors who turn to socially accepted and public domain technology to find out more about cases they are asked to deliberate on.

In the second of a three-part set of proposals which look at (overdue) reforms to the laws of contempt, the Law Commission has today published its recommendations on 'Juror Misconduct and Internet Publications' which would:

(1) Create a new criminal offence for jurors conducting prohibited research. This would increase clarity and consistency for jurors on the boundaries of prohibited conduct, increase the legitimacy of the offence, which would then emanate from Parliament rather than the courts and introduce the usual criminal procedural and sentencing regime in place of the current civil process of the Divisional Court.

(2) Create and exemption of contempt liability for publishers relating to archived online material. Under the present law, a publisher is liable for prejudicial material which remains online, even when it was posted entirely legitimately before legal proceedings became active. This places an onerous burden on the media to monitor online archives to check whether they relate to newly active legal proceedings. Our recommendations would lift that burden by providing an exemption from liability until and unless the Attorney General specifically notified a publisher of the existence of online prejudicial material.

(3) Create a limited exception to the prohibition on jurors revealing their deliberations. At present any disclosure of the content of jury deliberations is completely prohibited. Our recommendations would create a limited exception to that prohibition, in order to allow jurors to reveal miscarriages of justice to the competent authorities, or to participate in carefully controlled research into how juries operate.

While there is little disagreement over the need to overhaul and modernise contempt law beyond the 1981 Contempt of Court Act and the parameters for interpreting common law contempt, sending jurors back to the information society equivalent of the dark ages and expecting them to live in a google, wikipedia and media free vacuum when called upon to sit on a trial has to be at odds with the reality of society and its interaction with information and technology.

What the Law Commission proposals tell us (and its not as if it could be accused of being uninformed or random) is that unless we strip jurors of all their internet enabled devices, cut them off from the outside world and threaten them with up to two years in prison we cannot trust them to be objective and perform the role the courts and jury system expect of them. This has to be wrong.

If we have to lock juries away in a pre-information age vacuum to ensure objectivity and ultimately justice then it is the jury system itself that is fundamentally flawed rather than the occasional misbehaving juror. Is it realistic to assume that given today's technology and its integrated part in society, jurors are either not going to be aware of or naturally consider doing their own research? Surely research is a good thing? Surely it is only where research is used to seek to unduly influence other jurors or prejudice the proceedings themselves in its application that there is need for restriction or sanction? What is likely at play behind the Law Commission's deliberations is the inevitable floodgates argument. If you acknowledge and allow jurors to access the internet and research cases, how then do you place parameters and rules around that and where do you place them? The easiest approach therefore is, probably that being proposed, namely to prohibit any form of internet interaction. But this does not mean that this approach is right.

The key issue is this

If you cannot trust a juror to be objective because of what they may have read or researched online then how can you trust them to be any more objective in the confines of a court room. Their reaction to the facts, the witnesses, the pontifications or protestations of counsel on either side need to be weighed up as much as any online report. The only difference between the two is that under the old model they are presented with the facts whereas in the new and socially reflective model they themselves look for and access facts. What is circumstantial in court is also circumstantial online.

Perhaps what is required is not to scare and threaten jurors with longer sentences than would likely apply to many of the criminals they are being asked to sit in judgment over but to provide them with better guidance and a process that recognises the role of information and media in modern society rather than seeks to suppress it.

The Theodora Dallas case could provide some insight but it will probably take a European Court decision (insofar as the UK courts would feel bound to acknowledge it) to provide more clarity on this point.

In relation to the proposal for an exemption on liability for publishers this has to be welcomed as a sensible move. Publishers from mainstream media to commentators, bloggers and occasional social media users would otherwise face and unduly onerous task of tracking all the subjects and subject matter they have reported or published to ascertain if, to they extent they may be aware, any proceedings exist that could result in previously published material being engaged in terms of contempt. So the proposal that if the Attorney General identifies a case as being important enough to merit flagging up then it is right that publishers be put on notice that there may be an issue. But the debate does not stop here in that there is a valid argument for saying what is out there and has been published is out there and to seek to claw it back and retrospectively suppress it has to be wrong and a retrospective form of censorship or restraint on free speech.

Does the argument stand that says that something that has been previously published within the law in terms of the then prevailing circumstances can retrospectively be pulled because of new circumstance? Surely that is wrong? Once in the public domain it is out there. It is how one evaluates that against the new circumstances that should be the focus. So while to some extent the Law Commission's recommendations in this regard are welcome, there is some conceptual difficulty around the Attorney General being able to red flag any pre-existing publication where it is felt it may - due to new events - be viewed in a different light.

While an attempt at a step forward, the proposals as published do seem at odds with the reality of how jurors are likely to think and behave. They are also not without conflict when it comes to seeking retrospective take down notices over freely expressed media coverage that was free from objection at the time of its publication.

Nigella's trial by media makes mockery of contempt and defamation law

While the past weeks have supplied the media with ample headlines and the behind-the-scenes legal and PR advisers with handsome fees, there is a serious question that lies beneath the perfectly executed PR veneer of trial by media.

Is it right that what is ostensibly a criminal prosecution can be hijacked to seek to defame by shielding comment under the veil of legal privilege while at the same time see contempt laws ignored as evidence that could be prejudicial to the case for the defence (or the administration of justice in the fraud trial itself) gets paraded in public.

While he was careful to retract comment in his actual testimony, it has been suggested that Charles Saatchi was behind the allegations (hungrily adopted by the Mail and helpfully reported by the Mirror and most other media outlets) that Nigella was an 'habitual drug user'. This headline served Saatchi's attempt to sully Nigella's character well. The headline was also of use to the Grillo sisters who claimed that Nigella had let them 'blow £685,000' as she sough to cover up her coke habit. To the extent this all seems to mutually self serving and convenient in a PR sense, it should also ring alarm bells in terms of its legal implications. Interestingly it has, as yet, not. So I am ringing that bell.

The question here is where does one draw the line between orchestrated PR and abuse of legal process?

First, if one wanted to sully the character of Nigella (as we are told Charles Saatchi wanted to do), what better way to do it than feed it into the public domain and then have it be translated into a point of discussion as to a witness's (Nigella's) character in court? This neatly gets around defamation law in that the discussion of her alleged drug use is played out in court under the cloak of legal privilege. Here we have the defamatory allegations fed from a convenient blog site through to the courtroom meaning the media can freely publish what is said in court with regards to Nigella's drug use.

Second, whether viewed from a strict liability or common law perspective, the resulting coverage created by trial by media is skating on thin ice in regard to the criminal proceedings around the Grillo sister's spending habits. To the extent the fact of their spending is not in issue then their means of doing so are fairly central to the case being heard at Isleworth Crown Court.

In this regard a YouGov poll now seems pivotal to proving not just the 'lessening of character' (of Nigella) in terms of defamation but, insofar as Nigella's character or evidence is not lessened, then in terms of the criminal proceedings, it is the defence based on the same allegations of drug taking that could potentially be harmed. It is here that contempt law becomes engaged. How far and to what extent can the trial by media play out before it actually impacts the criminal case? Even if the jurors were all very well behaved and read no newspapers, watched no TV and resisted the temptation to browse on their smartphones, it would be naive to suggest the theatre that has played out in court would be lost on them.

What started as fraud trial could turn out to be a trial that tests the strength of the legal system's resilience to trial by media.

8.12.13

Nigella nails it - Team Cupcake: 1 Saatchi: 0

The YouGov poll commissioned by The Sunday Times and the fact of its commissioning, reveal the risks and rewards of high stakes PR poker.

The masthead neatly nestled beneath an advert for 'Ultimate Cookbook' (featuring Nigella Lawson) confirms that she has won 'in the court of pubic opinion'. The headline itself tells a tale insofar as what was witnessed at Isleworth Crown Court this week was a forum for trial by media which had, temporarily one hopes, hijacked the criminal prosecution of the Grillo sisters.

What this week's headlines and today's Sunday Times concluding comment have evidenced is that 'the court of public opinion' or 'trial by media' is an accepted and (taking the YouGov poll into account), measurable, forum. Legal and evidential argument over whether the Grillo sisters had spent a few thousand too much on a Gucci handbag or were permitted to do so in the first place went out of the window as the court's and world's media attention focused on the question of whether Nigella was a 'coke-head', or as was claimed, 'habitual drug user'. That the past week or so's legal and PR fees may well have exceeded the sums at issue in the fraud trial is irrelevant, as indeed it should be. But interesting nevertheless as it is on the issue of 'habitual drug use' that the 'prosecution' in the court of public opinion relies, while in Isleworth Crown Court, it is on the same issue of 'habitual drug use', specifically 'turning a blind eye' to it or assisting in 'covering it up' that the defence (in part) appears to be relying on.

So when it is said that whoever and howsoever the allegations of Nigella's drug taking were placed in the public domain could have underestimated the damage it would do, that could turn out to be an understatement. Cupcakes and coke aside, it will be the courts who decide when it comes to the current fraud trial, issues of contempt of court around its hijacking for PR purposes and (though a long shot given the current public opinion scores) any defamation actions arising out of it rather than a YouGov poll.

4.12.13

Nigella drugs smear backfires on Saatchi

Isleworth Crown Court was, orginally, hearing a fraud case relating to the spending of Lawson and Saatchi's personal assistants, the Grillo sisters. Today it was transformed into the high profile celebrity case normally played out in the High Court as Nigella (aka head of 'Team Cupcake') took to the stand.

She was, one would have thought, meant to be giving evidence relating to the actions of the sisters Grillo and their allegedly fraudulent activity, but no. Today was all about a face off with a smear campaign that has been woven into the proceedings and turned (temporarily, as Mediabeak is sure the judge will restore order) what should have been a grilling of the Grillos into a trial by media about whether Nigella was indeed, as suggested and then limply retracted by Charles Saatchi, a coke head and habitual drug user who had paid off the Grillo's to keep quiet about her cake use.

To the extent there may have been an agenda by either Saatchi or the Grillos or both to smear Nigella to defend their respective allegations about throat grabbing and money grabbing, Nigella today took control over the story. Knowing she was going to be today's lead story and tomorrow's front page (again), she embraced the media storm - alleged to have been set up by a dirty little PR campaign to smear her name (not that one would associate Saatchi with this sort of PR - but Nigella gave testimony in this regard) - and has ensured that her soundbites got heard. While various media throw in reference to her 'trembling' voice, viewed as a whole, her performance was a blinder. Not only did she stand firm (literally with hands on hips) but she also gave Grillo's brief, Anthony Metzer QC a good run for his money and showed she was not going to let some opportunistic quips on his part derail her mission and message. Metzer's ill judged attempt at sincerity when questioning about the death of her former husband, John Diamond, backfired big time: Metzer - 'I'll try to be tactful' (smile) Lawson - 'You don't need to be tactful about death. You were smiling when you said that. It was flippant' [Metzer 0: Lawson 1].

In terms of the real trial, it became a virtually irrelevant sideshow as the court and media agenda was hijacked by the war of words between Saatchi and Nigella. Does any of this help the legal process in the current case? No. At best and being generous to the intent of the defence team, it may have been designed to discredit Nigella's evidence and provide an excuse and explanation for the Grillo's spending. In this regard it backfired in that her heartfelt disappointment over the Grillo's abuse of her friendship and trust as well as a neat comment about the settings of their 'moral compass' will have not landed as intended by the defence. What, as Nigella referred to and was the reason for her deciding to tackle the attempt to smear her head on, actually was at play today was - it would appear - an orchestrated attempt to cause her public humiliation and pain.

It is never wise to seek to interfere or, as appears to be the case here, use predictable media interest to interfere with or add a different dimension to legal proceedings. All this will achieve is risk undermining the administration of justice and the focus of the jury in the actual case (to which a big contempt of court alarm bell risks being rung).

The smear: 'Stories' appear about Nigella's alleged drug habit, then Saatchi (who is alleged to have orchestrated these and commented in his 'off her face on drugs' email in this regard) gives testimony that seems to retract this and this leaves the stage set for Nigella having to give testimony to defend her honour rather than focus on the facts of the case itself.

The turnaround: Whether Saatchi or the Grillos are behind the attempt to make themselves look not so bad at the expense of Nigella, both parties have underestimated the public popularity and sympathy factor. As is public knowledge and front page material, Saatchi got off to a bad start:

..then came the stitch up...

Tomorrow's front pages will provide updated scores but in addition to Mediabeak's earlier point about not seeking to mess with or hijack legal process for trial by media purposes, the other learning here if you try to make someone who (as evidenced today) is not foolish look a fool (or coke head) you are not going to fool public perception and you will be the one whose message gets choked.

3.12.13

Guardian was right to publish (selected part) of NSA files

If you can't have free speech and information you don't balance out a democracy and if you don't have that then the actions of state organisations to suppress free speech are not more legitimised than the actions they complain of.

What is national security? what is it predicated on? to whom to do those charged with upholding it owe their legitimacy and accountability? These are the questions that should be the precursors to the debate and war of words being waged in the 'NSA Gate' Parliamentary Select Committee. Let's take a further step back and ask the equally valid question, to what does the Select Committee owe its legitimacy? To the parliamentary system and government as put in place by the electorate within a 'supposedly' democratic society. Next question - what are the cornerstones of a democratic society? Answer - the freedom of speech and a free press (this goes back to earliest legal principles as put forward by Blackstone) are necessary to underpin the legitimacy of a democracy.

So turning to today's grandstanding by politicians we get Keith Vaz's pathetic attempt to score points by asking Alan Rusbridger 'Do you love this country?' - really! have we entered American politics and patriotism (well in terms of governmental snooping, apparently so). The further this Select Committee delves into its enquiry to its own objections, the deeper the hole it digs itself. So in terms of today's hearing we move on to Michael Ellis who offers the question of whether revealing the revealed part of the NSA documents violates section 58(1) of the Terrorism Act 2000. Rusbridger responds "you may be a lawyer Mr Ellis. I'm not" so 1:0 to Rusbridger and fairly so. It would be easy to go on but returning to Mediabeak's key point here, one may have, on the face of it, a breach of a law (which Ellis directed us to in terms of s58(1) of the Terrorism Act) insofar as that Act states:

A person commits and offence if:
(a) he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or
(b) he possesses a document or record containing information of that kind.

BUT let's not forget s58(3) which states that:
"It is a defence for a person charged under this section to prove that he had reasonable excuse for his action or possession".

So the offence is not an absolute and surely 58(3) nods to the counterbalancing point that there may be a 'reasonable excuse' in the form of public interest and freedom of speech within the democratic process.

Politicians, conveniently, would have us believe that the Guardian has been complicit and unpatriotic in its exposure of information relating to NSA. Well if the public wants its press to suppress the fact that its' and foreign (US) governments are snooping in corners that seem disproportionate even in the wake of real and present terrorist threat, then that is a question (within the democratic process) for the public. The answer, it would appear, has been that the public has been most interested in and supportive of the information that has come to light.

What's the key question here?

Well - and consistent with the proportion/quantity/selection of what has been placed in the public domain - the real issue here is in the fact and extent of snooping and not what has been snooped. Here is (one would assume) Rusbridger's argument and the supportive arguments based on free speech and democratic principles he put to the Select Committee. The public have a right to know this (the level of snooping) is going on. That does not mean they have a right or need to know what has been snooped or a list of potential terrorists who have been snooped (and could therefore be put on notice of such snooping). So let's be boring and return to the law - Sections 58(1) goes to information 'of a kind likely to be useful' - does the fact that information is being snooped amount to actual information 'of a kind likely to be useful' - no. The point here is that what has been exposed is the level of snooping. This does not go to the actual information snooped or its usefulness. In other words, what has been exposed is not what the Act is designed to prevent.

More:
Guardian will not be intimidated
Rusbridger deflects silly questions

27.11.13

MEDIABEAK IS BACK!

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