The Media and Entertainment Law Review: United Kingdom
The focus on digital content continues. Of note is the UK's Online Harms policy development, which aims to tackle the issue and make the UK the safest place in the world to be online, and the national competition authority's report on online platforms and digital advertising, finding that competition is not working well in these markets and recommending a new pro-competitive regulatory regime.
Developments in the protection of personal rights continued, with several defamation cases being considered by the UK's highest court and an increase in claims for invasions of privacy and misuse of personal data, including against the traditional press and for use on social media.
The sector also began preparing for Brexit in earnest. Once the UK's Brexit transition period ends (due to be 31 December 2020) various rights granted to the UK as a Member State of the EU will no longer be available; for example, the country of origin principle for EU broadcast rights simplifies the clearance process for EU-wide broadcasts by permitting clearance only in the origin country. The UK will no longer benefit from that right post-transition period and broadcasters may be faced with more complex clearance processes.
Legal and regulatory framework
Broadcasting is regulated by Ofcom. Pursuant to the Communications Act 2003 and Broadcasting Act 1996, Ofcom provides a Broadcasting Code for television and radio covering standards in programmes, sponsorship, product placement in television programmes, fairness and privacy. Ofcom also regulates editorial content on UK video-on-demand services. Other relevant regulators include the Advertising Standards Authority, the British Board of Film Classification and the Video Standards Council.
The press is not regulated. As a result of the Leveson enquiry into the phone-hacking scandal, a Royal Charter created a new regulator, IMPRESS. However, IMPRESS is voluntary and many newspapers remain members of the Independent Press Standards Organisation (IPSO) (also voluntary). Both regulators have their own code. Certain major national newspapers (e.g., the Guardian, the Financial Times) do not belong to IPSO or IMPRESS and instead have their own complaints procedures.
The Copyright, Design and Patents Act 1988 (CDPA) is the main copyright legislation for the protection of original literary, dramatic, musical and artistic works as well as broadcasts, films, sound recordings and typographical arrangements. This legislation protects such works from unauthorised use.
Britain does not have a written constitution, which is typically where fundamental rights like freedom of expression are enshrined. However, the UK was the first country to accede to the European Convention on Human Rights (ECHR) in 1951. The ECHR protects the human rights of people in countries that belong to the Council of Europe, including the right to freedom of expression. The European Court of Human Rights (ECtHR) determines cases under the ECHR. The ECHR is not a creature of the EU and will not be affected by Brexit per se. Since 2000 the right to freedom of expression has been set out in UK statute under Section 12 of the Human Rights Act 1998 (HRA) (enacting Article 10 of the ECHR). This enactment means that UK individuals can enforce human rights in the UK courts, rather than having to go to the ECtHR. The HRA provides that the government has to ensure any new laws are compatible with the ECHR rights and that law is interpreted in line with those rights. The UK courts have incorporated the freedom of expression principle into various national laws and, notably for the purposes of the media industry, into the determination of when invasions of privacy are unlawful, if injunctive relief to prevent publication should be granted and the protection of journalistic sources.
Free speech and media freedom
i Protected forms of expression
The HRA provides that everyone has the right to freedom of expression but this freedom 'may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society'. Those restrictions may be:
in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Other statutes provide specific exceptions to the right to free speech and liability with respect to certain speech types. For example, Section 4 of the Public Order Act 1986 states that it is an offence for a person to use 'threatening, abusive or insulting words or behaviour that causes, or is likely to cause, another person harassment, alarm or distress', speech that is deemed to incite 'racial and religious hatred', as well as 'hatred on the grounds of sexual orientation'. The Terrorism Act 2006 criminalises the encouragement of terrorism, which includes making statements that endorse terrorist acts.
From 2009 to 2011 the UK was rocked by the News of the World phone hacking scandal, concerning journalists at the UK publication News of the World intercepting and hacking into the voicemails and phones of private individuals (celebrities and the like). Despite a public inquiry and various legal cases where the individuals concerned were awarded damages for invasions of privacy, the UK did not introduce a mandatory regulatory regime for the press.
A recent landmark case in this area concerned a suspect's right to privacy in the context of publication of details of a search made by the police. In this case, the police searched the premises of famous singer Sir Cliff Richard in connection with allegations of child sex abuse. The UK's national broadcaster (the BBC) obtained advance warning of the searches, filmed the event and widely publicised it. Sir Richard successfully sued the BBC for invasion of his rights to privacy. The court held that Sir Richard did have a reasonable expectation of privacy both as against the investigating police force and the BBC and that the press right to freedom of expression in reporting the search was outweighed by his right to privacy. Sir Richard was awarded very substantial damages.
In terms of the government's approach to freedom of the press, a recent example concerned the apparent blacklisting by the Ministry of Defence of an investigative journalist who was seeking comment in relation to the UK's involvement in Yemen for Declassified UK, a website focusing on foreign and defence policy stories. As stated above, the UK is a member of the Council of Europe and a signatory to the ECHR. The Council operates a platform for the protection of journalism and safety of journalists and the UK's conduct led to the issuance of a level two media freedom alert, prompting the Secretary of State to issue a statement to Parliament apologising and committing to uphold the standards of fairness and impartiality in the treatment of journalists and the media.
iii Freedom of access to government information
Access to government information is provided under the Freedom of Information Act 2000 (FOIA). FOIA requires certain public authorities to routinely publish prescribed information about their actions as well as respond to requests for information from third parties. Anyone can make a request for information regardless of whether they are a corporate entity or a natural person. FOIA does not cover every organisation that receives state funds but it does capture the vast majority of public bodies (e.g., central and local government, police forces and state schools). All recorded information held by or on behalf of a relevant public body is covered by FOIA.
There are rules governing what information must be disclosed and how disclosure should take place. At its core, information must be released unless there is a good reason not to. The Information Commissioner's Office is charged with investigating complaints concerning public bodies who are accused of not complying with their obligations under FOIA.
Freedom of information requests have been used by journalists in many notable cases. Probably one of the most well-known was the 2009 MP's expenses scandal, which eventually led to a number of political resignations and some prison sentences.
iv Protection of sources
The UK does not have an overarching shield law for journalistic sources. Instead, the protection is fragmented across different pieces of legislation.
The ECtHR has considered the UK's approach to this issue, including in the key case of Goodwin v. United Kingdom, where it emphasised that the protection of sources 'is one of the basic conditions for press freedom' intrusion of which should only be justified where there is an overriding requirement in the public interest. The high principle set out in Goodwin has been recognised by the English courts in subsequent national cases.
In terms of the availability of a court order to disclose a source, the key legislation is the Contempt of Court Act 1981 (CCA). Section 10 states that 'no court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible'. There are, however, exceptions to this presumption where the disclosure of information will be deemed necessary in the interests of justice, in the interests of national security or for the prevention of disorder or crime.
In the recent case of Various Claimants v. News Group Newspapers Ltd, a journalist was held to be entitled to protection under Section 10 of the CCA as a source even though his identity was known. It was deemed irrelevant that the source was himself a journalist or that he was paid, and paid on a large scale.
The powers of the police with respect to journalistic sources and information are governed by the Police and Criminal Evidence Act (PACE). Pursuant to PACE, police are able to search premises where an offence has been committed to obtain evidence but journalistic material is carved out of these powers and may only be seized by the police via a specific procedure requiring an application for a warrant. However, the police have used other powers to obtain journalistic material. In Miranda v. Secretary of State for the Home Department, Mr Miranda (the partner of a UK investigative journalist reporting on the Snowden affair) challenged his detention by police under the Terrorism Act 2000. Mr Miranda was carrying encrypted material provided by Edward Snowden and relating to the mass surveillance of internet communications by the UK and US intelligence agencies. The Court of Appeal held that in this instance the stop was properly exercised and that any journalistic rights were outweighed by the interests of national security. However, the stop powers of the Terrorism Act per se were held to lack sufficient legal safeguards to be in line with Article 10 rights to freedom of expression in respect of journalistic information or material.
In terms of surveillance and interception, the ramifications of the Snowden affair with respect to protection of journalistic rights are still ongoing. The law was updated and the Investigatory Powers Act 2016 (IPA) was introduced. That legislation has enhanced safeguards, including a double lock for warrants, which require authorisation by the secretary of state and approval by a judge. An Investigatory Powers Commissioner was also created. In 2018 the ECtHR held that the UK's previous regime for interception of internet communications violated Article 10 ECHR because it did not have adequate safeguards for journalistic material. Although this judgment concerned the previous legislation, it has a potential impact on the lawfulness of the IPA given that the IPA echoes certain aspects of the previous legislation. Indeed there have been various legal challenges of the IPA since its enactment.
v Private action against publication
English laws of defamation are respected worldwide, leading to the English courts being a forum of choice for the protection of reputation.
Defamation is a ground to challenge the lawfulness of a publication. Figures released by the Ministry of Justice show an upward trend, with a 22 per cent increase in issued defamation claims in 2019 compared to 2018. This is despite the introduction of the Defamation Act 2013 (DA 2013), which many predicted would reduce the number of claims because it imposed a higher serious harm threshold for claims and sought to curtail forum shopping, among other things.
To establish defamation, the claimant must show that the statement complained of:
- is defamatory: it lowers the claimant in the estimation of right-thinking members of society and has caused, or is likely to cause, serious harm to the claimant's reputation (the new serious harm threshold);
- identifies or refers to the claimant; and
- was published by the defendant to a third party.
Both individuals and corporates have rights in defamation and there are no exclusions, as there are in other jurisdictions, for political or famous people or for corporations over a certain size.
To pass the new serious harm threshold a corporate claimant has to show serious financial loss has been or is likely to be caused.
The UK Supreme Court recently confirmed that to pass the serious harm threshold a statement must not only have the tendency to cause serious harm but the serious harm must be demonstrated on the actual facts. There is no longer a presumption of harm based on the words of a statement alone. Factors such as the extent of the publication, the claimant's pre-existing reputation and the nature of the audience for a statement may be relevant.
The substantial truth of a statement operates as a defence to a claim. Other defences of importance to the media are honest opinion and publication in the public interest. The public interest defence requires the statement to be on a matter of public interest and the defendant must reasonably believe that its publication was in the public interest. In determining this, the court will have regard to all the circumstances of the case. The UK Supreme Court has recently ruled that the previous checklist of responsible journalism factors are no longer relevant to the question of whether a statement was on a matter of public interest and should not be used as a definitive checklist.
The DA 2013 was designed to curb claims with a tenuous connection to the UK. To sue a non-EEA defendant, a claimant must show that of all the jurisdictions where a claim could be brought, the English jurisdiction is clearly the most appropriate place. This is of increasing relevance given the multijurisdictional nature of internet publications and the increased prevalence of individuals who have reputations in more than one jurisdiction. This issue was recently considered by the Court of Appeal. Dr Wright, the claimant, was an Australian national, a citizen of Antigua and Barbuda and had moved to the UK in 2015. The court acknowledged that Dr Wright had an international reputation but held that the UK was not clearly the most appropriate place for the claim. The facts that the publication was published nearly four times as frequently in the US and that the claimant's important business relationships were in the US were relevant here.
Remedies for a defamation claim include damages, a final injunction, publication of a summary of the court's judgment and an order that a website operator removes a defamatory statement or a third party ceases distribution. The court does not order publication of an apology.
There is a long-standing general rule that leans heavily on the availability of interim injunctions to prevent publication. The rights to freedom of expression are given weight in this assessment and the court's position is that if a defence can be raised, then the publication should be allowed and the claimant can be compensated in damages if the statement is later held to be defamatory.
Recent noteworthy claims in the courts of England and Wales include actor Johnny Depp's defamation claim against The News Group Newspapers, publishers of The Sun and Melania Trump's defamation claim against the Daily Mail which settled for a sum of around £2.4million, making it one of the highest settlements to go through the English courts.
Alternative legal actions
Misuse of private information
Misuse of private information (MOPI) claims concern the unauthorised use and disclosure of private information, for instance where a newspaper wishes to run a story exposing aspects of the private life of an individual. The claimant must first have a reasonable expectation of privacy in relation to the disclosure. If so, the court will determine whether it is necessary and proportionate to limit the claimant's privacy rights in favour of freedom of expression.
The court will consider various factors, including the nature of the information and to what extent publication of detail is necessary; reporting the fact a politician is having an affair may be justified in the public interest, but publication of photographic images may be unnecessary.
Gulati is a landmark case. The case relates to the phone hacking scandal and concerned the damages available to victims of the hacking by virtue of the invasions of their privacy. The court held that damages were available both for the distress caused and also for the act of privacy invasion itself. The awards given to the claimant individuals represented a considerable uplift on previous awards, with the highest at approximately £250,000. This, among other factors, makes a MOPI claim an attractive option for claimants, particularly where it may be hard to satisfy the serious harm threshold for a defamation action.
Data Protection Act 2018
There has been a growing trend for defamation and privacy cases to be framed as claims for breach of the Data Protection Act 2018 (which implements the General Data Protection Regulation, GDPR). The GDPR governs the manner in which personal data may be lawfully processed. The GDPR therefore has application when the publication in question concerns personal data about an individual.
Landmark cases in this area concern the compensation available in such cases. In Vidal-Hall v. Google Inc, the courts held that damages for distress are recoverable even if material loss is not sustained. Further, Lloyd v. Google LLC confirmed that compensation is recoverable for a contravention of a data subject's control of its data, even if this does not cause material damage or distress.
vi Government action against publication
There have been recent tensions between the government and the media due to the government's handling of Brexit and the covid-19 pandemic. On 3 February 2020, political journalists boycotted a government briefing after certain publications were banned from attending, stating that the restrictions curtailed press freedom.
In addition, as previously stated, the Council of Europe recently issued a level two press freedom alert after the UK Ministry of Defence briefly blacklisted an independent media organisation, Declassified UK, due to its coverage of the crisis in Yemen.
i Copyright and related rights
The UK is a signatory to the main international copyright conventions, which sets some basic parameters on copyright protection. Copyright law is only harmonised to a limited extent by EU law.
Copyright arises automatically upon creation of a qualifying work, and the UK has no formal requirement for registration (unlike in other jurisdictions, there is no copyright register). The duration of the right depends on the work. Copyright in literary, dramatic, musical and artistic works subsists for 70 years from the author's death. Sound recordings benefit from copyright for 50 years (or 70 years, if a recording is published during that period).
The first owner of the copyright in a work will usually be its author. An exception to this principle is where an employee creates a copyright work during the normal course of his or her employment, in which case copyright belongs to the employer. Where a contractor is commissioned to create a work by a third party, the contractor owns the copyright (absent an assignment).
The copyright owner is granted various exclusive rights in relation to a copyright work, including the right to copy the work, and to issue copies or otherwise communicate the work to the public. Any third-party infringement of the copyright holder's rights in relation to the whole or a substantial part of a protected work is actionable by the rights owner.
The CDPA also provides for certain moral rights, including the right to be identified as a work's author. Performers obtain similar rights, including the right to prevent the use, distribution or broadcast of their performance without their consent.
Communication to the public
An element of UK (and EU) copyright law that has been under scrutiny is communication to the public. In Warner Music & Sony Music v. TuneIn Inc, the court found that TuneIn's web radio platform communicated sound recordings to the public because it went beyond acting as a simple search engine for radio stations. By providing embedded hyperlinks to radio streams that were not licensed to cover the UK (whereby the streams appeared to be playing from their website), TuneIn had communicated the streams to the public, and was liable for infringement.
In Nederlands Uitgeversverbond v. Tom Kabinet Internet BV, the European court found that 'The supply to the public by downloading, for permanent use, of an e-book is covered by the concept of 'communication to the public' and, more specifically, by that of 'making available to the public of [authors'] works in such a way that members of the public may access them from a place and at a time individually chosen by them'. Of particular interest to the entertainment sector, this case clarified that rights of exhaustion do not therefore apply, and accordingly the rights holder could prevent second-hand sales of digital books.
Online blocking injunctions
An area of copyright law that has developed in recent years relates to online blocking injunctions in an increasingly wide range of scenarios. Section 97A CDPA provides for an injunction against intermediaries whose services are used by a third party to infringe copyright. The UK Supreme Court in the Cartier case held that the court has the power to grant blocking injunctions more broadly (here, for websites that infringed trademarks). Nintendo obtained an injunction ordering internet service providers to block access from the UK to websites offering devices and software that circumvented copyright protection measures pursuant to statutory rights against workarounds that circumvent technological prevention measures.
ii Personality rights
There is no standalone personality or image right in the UK. Personal data rights give individuals the right to object to unlawful processing of their personal data, invasions of their privacy or statements about them that harm their reputation. These rights may be breached, for instance, where a celebrity's image is used without consent, for example to falsely endorse a product.
Those with valuable personality rights increasingly register trademarks for their name, signature, image, voice and even distinctive gestures. To secure registration the mark must be distinctive and indicative of origin.
The tort of passing off is a common law action, sometimes referred to as giving rise to unregistered trademark rights. A rights holder may bring proceedings against a third party who misrepresents his or her goods or services as being the goods or services of the rights holder (or otherwise connected to or endorsed by him or her). The claimant must establish:
- ownership of goodwill;
- a misrepresentation by the defendant to the public; and
- damage caused by that misrepresentation.
Examples of individuals using the right to passing off to protect their image include the pop star Rihanna's successful claim against Topshop for selling a t-shirt bearing her image. Of relevance was that Rihanna was known to collaborate with fashion brands so that the use of her image on Topshop products could misrepresent that there was an official connection.
iii Unfair business practices
The UK does not have an unfair competition law as such and the English courts have expressly resisted the case law development of such a law.
Passing off is equated with a law of unfair competition. The law can protect the trade dress and get-up of a brand and use of its signs and trademarks. However, the requirement that the public (or a significant proportion of it) is deceived by unauthorised use is a threshold that in practice prevents this cause of action being more than a facet of a law of unfair competition.
Of relevance to media organisations, commercial practices for trade-to-consumer advertising and marketing are governed by the Consumer Protection from Unfair Trading Regulations (CPUT). The Business Protection from Misleading Marketing Regulations (BPMR) concern misleading advertising to traders. A significant role in this area is played by the UK's Advertising Standards Authority (ASA), in association with the Committee of Advertising Practice (CAP). These regulatory bodies set and enforce the codes of conduct that regulate print and broadcast advertising in the UK and that reflect the CPUT and the BPMR. The ASA does not have the power to fine those who contravene advertising rules. However, it can publicly censor offenders and ban adverts that are misleading, harmful, offensive or irresponsible in line with a broad range of criteria set out by the CAP.
There are also direct causes of action available to traders by virtue of trademark rights where their registered brands are used unfairly in comparative advertising.
Competition and consumer rights
Competition and consumer protection in this sector are subject to increased scrutiny, with particular focus on digital markets dominated by a small number of players. The main authority regulating competition in the UK is the Competition and Markets Authority (CMA), with its primary duty to promote competition, both in and out of the UK, being set out in the Enterprise and Regulatory Reform Act 2013.
The CMA's 2020 market study into online platforms and digital advertising concluded that competition in the sector was not working. Facebook's acquisition of Instagram in 2012 triggered a CMA investigation at the time but the deal was ultimately approved. However, the CMA's recent report refers to the need for some form of separation in the context of Facebook and Instagram. Increasingly watchful over competition in the digital space, the CMA has recently launched an investigation into the acquisition by Facebook of Giphy, Inc amid concerns over the competitive impact of the integration.
The CMA has recommended the establishment of a Digital Media Unit, being 'a pro-competition regulatory regime for online platforms' responsible for enforcing a code of conduct to govern platforms that hold market power and equipped with wide-ranging powers (such as separation powers).
Highlighting how the market has shifted, in 2009, a joint venture between BBC Worldwide, Channel 4 and ITV for an on-demand service was halted by the CMA's predecessor. A decade later, ITV and the BBC launched a similar joint venture, BritBox, with no such CMA obstruction, against a backdrop of far more established on-demand providers.
On net neutrality, under current legislation (which has been amended to ensure continuity following Brexit), broadband providers must treat all internet traffic on their networks equally without favouring certain websites or services, be that by blocking, throttling or redirecting customers. Ofcom is responsible for the regulation of broadband providers, and requires providers to clearly state their approach to managing internet traffic. Ofcom can impose a penalty of up to 10 per cent of the turnover of the relevant business for breaches of legislation on net neutrality.
The UK has stated an intention to be a world leader in curbing and controlling online harms. In April 2019, the Online Harms White Paper proposed a new regulatory regime underpinned by a statutory duty of care placed on content-based companies. It is likely that Ofcom would be the regulator, issuing codes of practice and equipped with enforcement powers (including levying substantial fines). There are concerns that this new regulatory risk could result in increased censorship by content hosts, including by automated means (through upload filters and automated detection and take-down and the like).
An intermediary information society service provider (ISSP) is not generally liable for hosting, transmitting or caching a third party's unlawful content. A content host cannot take advantage of this shield where it is active in the publication, and it will lose that shield when it is notified of the unlawful content and if it does not act expeditiously to remove it. This liability shield does not prevent the availability of blocking injunctions against innocent intermediaries (although recent case law has confirmed that the costs of obtaining and implementing such an order fall to the claimant). There is a general prohibition on the imposition of a general monitoring obligation on providers. Much of the case law in this area probes issues such as whether a digital company qualifies as an ISSP and when an ISSP should be deemed to have taken an active role so that the shield is not available.
The most common types of contractual disputes in the media and entertainment sector in the UK include licensing disputes, contractual disputes with artists and performers, supplier–distributor disputes and royalties disputes.
Typical methods of resolution in the UK might include arbitration (or other alternative dispute resolution) in addition to litigation.
The UK outlook is dominated by Brexit.
The dissemination of material online will continue to be a key theme. The UK is on track to distance itself from Europe in its treatment of copyright law, with no plans to implement the Digital Single Market Copyright Directive. As a result, the UK's liability regime and duties on online platforms with respect to copyright will differ from those in the EU and will arguably be more lenient. The UK's Online Harms policy development may increase the gap with the EU further. That policy has the potential to toughen up the landscape for digital companies. It is worth noting, however, that the UK will presumably strive to make the country attractive for big tech companies to operate and invest in after Brexit, whereas the EU is developing new laws to control online content and powerful players, which will make the EU a tougher place for big tech.
There have been huge disruptions to events and supply chains in the media and entertainment sector due to the covid-19 pandemic. Although it is expected that in-home entertainment services will continue to perform well, the future is uncertain for physical entertainment such as cinemas. The press will continue to grapple with the pressures of online news.