Huffington Post bloggers in a huff - $105m lawsuit looms

A group of disgruntled Huffers (or Huffington Post bloggers - or former bloggers as the case may be) have decided they were entitled to a slice of the profitable proceeds of Huffington Post's sell-out to AOL and are seeking compensation for providing content to the site which they claim contributed to its value and sale value.

Having had a bit of time to reflect on the sale of the site to AOL for ca $315m last year, the Huffers claim that they are entitled to their respective fair share of the proceeds for having provided content. The response from Huffington Post (AOL) has been that it actually offered the bloggers/writers an opportunity and platform to air their views and distribute their work and that the sale related to the packaged Huffington Post platform as opposed to the individual content on that platform.

What's the issue:
Do bloggers who provide their content for free to a site such as Huffington Post have any rights in their work which would entitle them to receive compensation for their work in the context of the sale of Huffington Post.

Interesting background:
The person behind the class action against Huffington is none other than Jonathan Tasini who was the journalist at the centre of the landmark copyright case involving the New York Times republication of back-issues of its newspaper through an online database. Tasini and others challenged this, claiming that the agreement they had in place in relation to providing their copy for print did not extend to the online environment and reproduction on the web. They won and the paper was forced to pay out over $18m.

So is this claim Huff or puff?
In the New York Times case it was possible to distinguish between the agreement there was to assign copyright for the print article but that this did not automatically transfer over to the online version or reproduction if this was not covered off or envisaged by the original agreement.

Things have moved on in the decade since the New York Times decision but the underlying issue and argument is the same - when does a journalist /author / contributor have or acquire a right to be compensated for the commercial exploitation of their work. The answer is that they do so when they enter into / secure an agreement that acknowledges and provides for remuneration.

The difficulty in this case - and in the case of those contributing material on a free basis - is that there is no direct contractual basis for such contribution or corresponding right to remuneration.

The key question:
Where bloggers (contributors) provide content for free for the mutual benefit of website (Huffingon Post) and their own profile, do they acquire any right to the overall goodwill (collective value) in the site even though they are not paid or contractual contributors to such site? The answer surely has to be no.

In the New York Times case the journalists were on contract to provide print copy but had not had contractual terms that covered online reproduction. Had the New York Times been sold they could not have claimed that by virtue of their authorship they were entitled to a percentage of the sale price.

In the current case there is not even a contractual basis for the contributions let alone the entitlement of those contributing to a proportionate share of the aggregate goodwill of all contributions.

The solution:
To the extent that the contributors such as Tasini might not have any contractual rights to remuneration from their content, to the extent it has been provided on a free basis, the flip side of this position is that the Huffington Post does not automatically have any right to the content and does not have the right to commercially exploit the content.

While the Huffington Post was aggregating contributed content to provide a diverse media platform then there was an implicit agreement between content provider and platform that there was mutual benefit but on being sold, the Huffington Post fixed a goodwill value to its site, reputation and content which will have drawn on the collective contributions to the site. So if one stripped the Huffington Post of its content and contributors would it still command and have commanded the value it did and has? - probably not.

Mediabeak's assessment is therefore that while contributors such as Tasini do not have a claim to a share of the proceeeds of the sale of the Huffington Post they do have the right to request that their contributions be removed from the site (subject to any agreement they may have signed that provides otherwise) post sale to AOL - the argument being that they did consent to and implicitly license the content of their copy to the Huffington Post platform as was but did not consent to licensing and providing their work for free to AOL.

The issue here is not dissimilar to the legal wrangles that followed Google's acquisition of You Tube.

This case is and will likely prove to be an interesting one and test for the as yet unchallenged and tested area of user generated / blogged / freely contributed content that now prevails across the internet.


PCC cautions press against harassing Kate Middleton family

With only a few weeks until the Royal Wedding where Prince William will marry Kate Middleton it can come as no surprise that the media interest and quest for pre-wedding coverage of the couple and everything and anything to do with them will see reporters and photographers pursue stories and pictures with renewed vigour.

Kate Middleton and her family are by now no strangers to media attention and it would be naive of them or the media consuming public to think that in the run up to the wedding there would not be a media offensive on Kate Middleton and her wider family BUT such offensive does not have to offend which is where this week's memo from the Press Complaints Commission (PCC) comes into play.

To the extent it is fair that the media seek out Kate Middleton and her family as legitimate targets for attention at this time, the fact Kate is marrying William does not give reporters and photographers carte blanche to ignore the normal and accepted rules of engagement and regulatory codes and laws. As reported in Press Gazette, following a request made on behalf of the Middleton family, the PCC has sent a memo to editors reminding them to play by the rules and show restraint - or persuade their reporters/photographers to do so and adhere to those rules in the manner in which they obtain their material.

Whether through staffers or via agency photographers it is the duty of editors to ensure that the copy and pictures they allow to be printed or broadcast are not in breach of the regulatory codes or otherwise violate the rights of the subjects - in this case the Middletons.

The Middletons cannot deny and seek to hide from the fact that they are legitimately of media interest but to the extent that the Middletons have to accept they are a legitimate target the media for their part have to ensure that when they shoot pictures of or report on their target they do so within the rules that apply.


Top Gear Mexican slur not in breach rules Ofcom

Media regulator Ofcom has decided that the remarks made about Mexicans on the hit BBC TV show Top Gear were not in breach of the Broadcast Code.

As previously reported on Mediabeak, presenters on Top Gear cause outrage over their comments about Mexicans during a programme broadcast in January this year.

Presenter Richard Hammond had lined up the Mexican mockery by stating:
“Why would you want a Mexican car? Cos cars reflect national characteristics, don‟t they? So German cars are very well built and ruthlessly efficient, Italian cars are a bit flamboyant and quick – Mexican cars are just going to be a lazy, feckless, flatulent oaf with a moustache, leaning against a fence, asleep, looking at a cactus, with a blanket with a hole in the middle on as a coat.”

There then followed dialoge between him and Jeremy Clarkson:
Hammond: “I‟m sorry but just imagine waking up and remembering you‟re Mexican. „Oh no ...”
Clarkson: “It‟d be brilliant, it‟d be brilliant because you could just go straight back to sleep again. „Aaah, I‟m a Mexican ...‟
Hammond: “... that‟s all I‟m going to do all day ...”
Clarkson: “That‟s why we‟re not going to get any complaints about this – cos the Mexican Embassy, the Ambassador‟s going to be sitting there with a remote control like this [slumps in seat and snores]. They won‟t complain. It‟s fine.”

As it happened 157 viewers and the Mexican ambassador did complain about these seemingly offensive remarks which were potentially in breach of Clause 2.3 of the Ofcom Broadcast Code which states: “In applying generally accepted standards broadcasters must ensure that material which may cause offence is justified by the context”

Having considered the issue Ofcom considered that:
"In this instance, therefore, Ofcom considered that the majority of the audience would be familiar with the presenters‟ approach to mocking, playground-style humour, and would have considered that applying that approach to national stereotypes was in keeping with the programme‟s usual content, and the presenters‟ typical style. Ofcom was of the view that the majority of the audience would therefore be likely to have understood that the comments were being made for comic effect."

and ruled that the programme and comments had therefore not breached the code.

Mediabeak considers that Ofcom could reasonably arrive at their decision in relation to the Code as there is the broad and grey area of interpretation and context which allows - as was the case here - for the regulator to take account of the fact that the style and content of the programme is one of mockery, contempt and arguably cheap jokes. The question for the viewer and regulator however is this - just because we are told that a programme may contain offensive material and be used to certain presenters and programmes having a certain type of humour and making offensive remarks, does this negate the offensive of the remarks in relation to the application of the broadcast code or the viewer? while one has to preserve the right of programmes to push the boundaries, express themselves and be satirical, this should not be at the expense of competing rights to respect and not to be ridiculed or satirised. In this case it is probably the right decision based on the context and content BUT Mediabeak thinks that this may nevertheless send out the wrong signals that this sort of comment is acceptable just because the programme it is broadcast on is seen as being 'edgy' or 'controversial'. Ultimately the duty of the regulator and broadcaster is to the viewer and this needs to be considered and balance against the ratings that some controverial comment or quip may serve to boost.

More on the Top Gear decision from MediaGuardian

Hellish day in court for Solicitors from Hell

The person behind the naming and shaming website 'Solicitors from Hell' , Rick Kordowski, has had his defence to a libel action blown out of court by a not impressed Mr Justice Tugendhat who considered his self-represented defence to be an abuse of process.

The issue:

The site elicits feedback from disgruntled clients who are no doubt appreciative of a forum through which to vent their displeasure at the perceived derisory performance of their solicitors. One firm, Awdry Bailey & Douglas, took exception to comments posted on the site which were supposedly from a client. It later transpired that the posting came from the fromer husband of a client and the firm considered them to be defamatory.

A feature of the site was that Kordowski appears to have developed a business model through which he offers the named and shamed the opportunity to have the naming and shaming posting removed from the site for a fee. The subtext to this 'proposition' is that if the firm in question pays an 'administration fee' then this could save them the cost of litigating over the - possibly - defamatory allegations as the posting would be removed from the site.

Awdry Bailey & Douglas did not subscribe to this model and proceeded with a defamation action against Kordowski.

The High Court ruling this week:
Kordowski, who represented himself, sought to advance various blanket excuses including contending that he had submitted a Part 36 offer that had been rejected (not surprisingly since it was framed along the lines of pay him some money and discontinue the claim and that will settle the matter).

Mr Justice Tugendhat was not persuaded by Krodowski's ineffectual attempts to defend his - or the website over which he had control - actions. He concluded that none of the documents or 'evidence' put forward by Kordowski added up to anything approaching a defence and as such his defence failed and, further, his actions were seen to be an attempt to abuse the process.

Kordowski is reported as seeking to appeal the decision - something that could be an expensive exercise on his part.

Mediabeak thinks that to the extent it is very good to name and shame those not delivering a quality and professional service, the good intent behind the Solicitors from Hell site has potentially been undermined by a focus on the business opportunity of offering those shamed the removal of the posting for a fee. This dilutes the integrity of the free speech angle and idea of being able to complain in the first place. Surely those complaining would not be impressed if their complaint were removed if those they were complaining about paid the website a fee. IF there is a genuine cause of complaint then that deserves to be aired and would - if shown to be true - withstand a defamation challenge. It is not right to sell or remove the free expression of that complaint for a fee and thereby facilitate the suppression of the expression for a fee. Where challenges and complaints are true and justified then there is little to fear in expressing them as they will stand up to a defamation challenge.

For those with a good experience to shout about there is always the 'Solicitors from Heaven' site - though defamatory comment on the Hell site will not be mitigated by there being a Heaven.

Kordowski is no stranger to legal action over his site's postings, last October Shoreditch solicitor Megan Phillips won £17,500 damages and £28,000 costs against Kordowski over 'completely fictitious' and derogatory comments about her on the Solictors from Hell website.