The Media and Entertainment Law Review: United Kingdom

Overview

As consumers' consumption of content moves increasingly to digital, the public, political and legislative focus on digital content and governing the internet more broadly has continued in the UK,2 as in other jurisdictions. The UK's Brexit transition period ended on 31 December 2020, culminating in the EU–UK Trade and Cooperation Agreement (TCA), which formally entered into force on 1 May 2021. As a result of these two issues, the media and entertainment sector has started to see divergence of the UK position from the EU position to varying degrees, particularly around the rapidly evolving area of digital content. For instance, the UK's Audiovisual Media Services Regulations 2020 came into effect in November 2020 (pre-TCA), introducing new rules to reflect digital content consumption and extending their scope to video-sharing platforms. Deriving from EU law, the Regulations maintain consistency across the EU and UK. However, the UK government has indicated that the requirements for UK-established video-sharing platforms will be superseded by the proposed online safety regime in due course. In contrast, the UK chose not to implement the EU's Digital Single Market Copyright Directive,3 which sets the UK approach to online copyright issues apart from the EU, notably on the liability position of platforms where users share content, and on compensation to news providers for use of their content. The EU continues with its proposed Digital Services Act and Digital Markets Act to address online safety, advertising and anti-trust issues (among others), whereas in May 2021 the UK published its own draft Online Safety Bill, aiming to make the UK the safest place in the world to go online, and is at an earlier stage in terms of antitrust law and regulation in the tech and digital space. Also of note is the UK Information Commissioner's Office Age Appropriate Design Code, which came fully into force in September 2021 and contains principles that online services need to follow to comply with the EU General Data Protection Regulation (GDPR)4 in relation to data privacy for children.

Legal and regulatory framework

Ofcom is the UK regulator for television (TV), radio, and video on demand. 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. As noted above, the legal and regulatory environment for digital content services is rapidly changing and a more complex landscape is emerging with enhanced roles for regulators. Ofcom regulates video-on-demand services and video-sharing platforms and is the intended regulator under the Online Safety Act, responsible for online content. Other relevant regulators include the Advertising Standards Authority, the British Board of Film Classification and the Video Standards Council.

The press is self-regulated. As a result of the Leveson enquiry into the phone-hacking scandal,5 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 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. Since Brexit, the UK has diverged from Europe in its treatment of copyright law by not implementing the Digital Single Market Copyright Directive. As a result, the UK's liability regime and duties for online platforms with respect to copyright now differ from those in the EU.

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 human rights, including the right to freedom of expression. The ECHR is not a creature of the EU and is not affected by Brexit per se. In contrast, the EU's Charter of Fundamental Rights was expressly excluded from UK law post-Brexit. The impact of that exclusion and certain political moves towards setting up a Constitution, Democracy and Rights Commission reviewing constitutional and fundamental rights have yet to be seen. 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). 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, whether injunctive relief to prevent publication should be granted, and in relation to the protection of journalistic sources. The principle is interwoven into the draft Online Safety Bill, with platforms and search engines having to balance freedom of expression against any curtailment of content on the grounds of it being harmful.

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',6 as well as 'hatred on the grounds of sexual orientation'. The Terrorism Act 2006 criminalises the encouragement of terrorism,7 which includes making statements that endorse terrorist acts. Criminal law also prohibits certain malicious digital communications; however, the Law Commission is considering a new 'harm-based' communications offence to replace the existing offences, with a view to modernising the protection and at the same time ensuring that criminal law allows space for discussion and does not disproportionately interfere with legitimate freedom of expression.

ii Newsgathering

From 2009 to 2011, the UK was rocked by a phone hacking scandal, concerning journalists 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 (many such cases are ongoing and new claims continue to be made), the UK did not introduce a mandatory regulatory regime for the press.

A 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 in relation to both 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 nation's approach to freedom of the press, the Council of Europe's platform for the protection of journalism and safety of journalists records multiple instances of non-state actions against journalists, many regarding public threats in relation to vaccines and other pandemic-related issues. In March 2021, the UK launched a National Action Plan for the Safety of Journalists. In terms of state actions, the Ministry of Defence (MOD) failure to provide comments to investigative media outlet Declassified UK led to an apology from the MOD and a statement by the Secretary of State for Defence. Also of relevance, the UK has been criticised for the detention of Julian Assange, founder and publisher of WikiLeaks, in a high-security prison pending potential extradition to the United States under expanded claims relating to the US Espionage Act.

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, a natural person or a journalist. 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 MPs' expenses scandal, which eventually led to a number of political resignations and some prison sentences.

How the government responds to FOIA requests from the media is under scrutiny. The Public Administration and Constitutional Affairs Select Committee is holding an inquiry into the Cabinet Office's implementation of FOIA, in particular claims relating to how that Office's Clearing House advises government departments on handling FOIA requests.

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 European Court of Human Rights (ECtHR) has considered the UK's approach to this issue, including in the key case of Goodwin v. United Kingdom,8 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 case of Various Claimants v. News Group Newspapers Ltd,9 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,10 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 2021, the ECtHR Grand Chamber gave judgment in a landmark case brought by civil liberties campaigners following Snowden's revelations and upheld its earlier decision that the UK's previous regime for interception of internet communications violated Article 10 of the ECHR through lacking adequate safeguards for journalistic material.11 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 to the IPA since its enactment. In October 2020, the EU Court of Justice gave its judgment in a related surveillance case brought by Privacy International. The Court ruled against the UK, finding that mass data collection and retention practices must comply with EU privacy safeguards. That judgment has galvanised ongoing challenges to the IPA in the UK courts (for example, Liberty's challenge to 'bulk powers' based on EU law is likely to be in court in early 2022).

v Private action against publication

Defamation

English laws on defamation are respected worldwide, leading to the English courts being a forum of choice for the protection of reputation.

As a result of the introduction of the Defamation Act 2013 (the DA 2013), the number of claims might have been expected to drop because it imposed a higher serious harm threshold for claims and sought to curtail forum shopping, among other things. However, recent figures show that the number of defamation claims rose in 2018 and 2019 but fell back in 2020 to previous levels.

Defamation is grounds for challenging the lawfulness of a publication.

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); it identifies or refers to the claimant; and it 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 not only must a statement have the tendency to cause serious harm, but the serious harm must also be demonstrated on the actual facts.12 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 is 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.13

The DA 2013 was designed to curb claims with a tenuous connection to the UK and has been amended post-Brexit. To sue a non-UK defendant, a claimant must show that of all the jurisdictions where a claim could be brought, the jurisdiction of England and Wales is clearly the most appropriate place. This is of increasing relevance given the multi-jurisdictional 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.14 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 fact that the publication was published nearly four times as frequently in the United States and that the claimant's important business relationships were in the United States were relevant here. In contrast, the High Court held that the courts of England and Wales were the most appropriate forum where a claimant was held not to have a global reputation, his UK residency and citizenship outweighing the fact that the number of US publications exceeded UK publications, with the failure to prove that the claimant could have obtained a remedy in California also carrying weight.15

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 Melania Trump's defamation claim against the Daily Mail, which settled for a sum of around £2.4 million, making it one of the highest settlements to go through the English courts, and actor Johnny Depp's defamation claim against a national tabloid: in November 2020, the High Court ruled against Depp, finding that the articles published were 'substantially true'.

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 (e.g., reporting the fact that a politician is having an affair may be justified in the public interest, but publication of photographic images may be unnecessary).

Gulati16 is a landmark case. The case relates to the phone hacking scandal and concerned the damages available to victims of the hacking on account of the invasion of their privacy. The court held that damages were available for both the distress caused and the act of privacy invasion itself. The awards made to the claimant individuals in the phone hacking scandal 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.

Recent noteworthy claims against the press include the court finding an invasion of privacy in the publication of the defendant's name as a suspect in a terrorist act when he had been arrested but released without charge.17 The courts also granted the Duchess of Sussex's applications for summary judgment for her MOPI and copyright infringement claim in respect of the reproduction in press articles of large parts of a letter she had sent to her father.18

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 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. Note that as of 1 January 2021, the EU GDPR ceased to apply directly in the UK but effectively became part of UK law with certain revisions following various amendments to the Data Protection, Privacy and Electronic Communications (Amendments etc.) (EU Exit) Regulations 2019. This means that an amended but similar version of the EU GDPR is effectively now in force in the UK and is commonly known as the UK GDPR.

Landmark cases in this area concern the compensation available in such cases. In Vidal-Hall v. Google Inc,19 the courts held that damages for distress are recoverable even if material loss is not sustained. At the time of writing, the Supreme Court's final decision is awaited in a key case with respect to whether damages are recoverable for loss of control of data even if there is no pecuniary loss or distress; aligned to that, the Court will decide whether the case can proceed as a representative action.20 The answers can be expected to affect the mass data privacy litigation landscape in the UK.

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. As mentioned above, the UK's approach to journalistic freedoms and the government's treatment of requests for information are also under challenge.

Intellectual property

i Copyright and related rights

The UK is a signatory to the main international copyright conventions and this fact sets some basic parameters on copyright protection.

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.21 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 (in the absence of 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.22 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 right owner.

The CDPA also provides for certain moral rights, including the right to be identified as a work's author.23 Performers obtain similar rights, including the right to prevent the use, distribution or broadcast of their performance without their consent.24

Communication to the public

An element of UK (and EU25) copyright law that has been under scrutiny is communication to the public. In Warner Music & Sony Music v. TuneIn Inc,26 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 its website), TuneIn had communicated the streams to the public and was liable for infringement. On appeal, the court held that EU case law on this difficult issue of communication to the public should be followed and that further developments in that jurisprudence (i.e., after Brexit), although not binding, could be accorded weight.

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 of the 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 case27 held that the courts have the power to grant blocking injunctions more broadly (in this case, for websites that infringed trademarks). Nintendo28 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.29 In 2021, the High Court made30 blocking orders against a cyberlocker website (a file storage site where users upload and download unlicensed content to and from its servers).

ii Personality rights

There is no stand-alone 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 right holder may bring proceedings against a third party that misrepresents its goods or services as being the goods or services of the right holder (or otherwise connected to or endorsed by the right holder). 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 claim against passing off to protect their image include the pop star Rihanna's successful claim against Topshop31 for selling a T-shirt bearing her image. The fact that Rihanna was known to collaborate with fashion brands was of relevance because the use of her image on Topshop products could misrepresent to the public that there was an official connection between the two parties.

iii Unfair business practices

The UK does not have an unfair competition law as such and the 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.

The fact that commercial practices for trade-to-consumer advertising and marketing are governed by the Consumer Protection from Unfair Trading Regulations32 (CPUT) is of relevance to media organisations. The Business Protection from Misleading Marketing Regulations33 (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

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, set out in the Enterprise and Regulatory Reform Act 2013.34

Competition and consumer protection in this sector are subject to increased scrutiny, with particular focus on digital markets dominated by a small number of participants and on non-transparent online activities. The CMA's 2020 market study into online platforms and digital advertising concluded that competition in the sector was not working.

To address competition concerns in the digital space, the government has established a further regulatory body within the CMA, the Digital Markets Unit (DMU), with the express aim of encouraging competition in digital markets. The DMU was set up informally in non-statutory form in April 2021, with a statutory regime and enforcement powers to follow. The government issued a consultation on the new regime in July 2021, expressing the intention for the DMU to have a 'broad level of discretion' for pro-competition interventions.35 The precise scope of the DMU's powers will be determined when the legislation is finalised but is on track to include financial penalties, court orders and senior management liability.

In respect of advertising and consumer rights, both the CMA and the ASA have taken steps to address non-compliance in advertising practices, particularly regarding hidden advertising. The ASA published a report in March 2021 in relation to social media influencers' failure to label advertising appropriately, indicating that it has contacted both influencers and brands on the issue and stating its intention to conduct spot checks with the potential for further enforcement action. This was followed by the launch of a dedicated ASA web page to identify repeat offenders who fail to adequately disclose advertisements.36

As regards consumer legislation, following Brexit there is no obligation for the UK to implement the EU's Omnibus Directive,37 which aims to modernise and strengthen consumer protection in the EU. However, the government has indicated that it still intends to reform in this area, with a consultation issued in July 2021 on proposed reforms to consumer policy. This consultation identifies the practice of issuing fake reviews online as one of the areas in which laws may be strengthened to protect consumers.38

As to net neutrality, under current legislation (which has been amended to ensure continuity following Brexit),39 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.40 As at September 2021, Ofcom has begun a review of how the UK's net neutrality framework is functioning and whether further guidance is required.

Digital content

The UK has stated an intention to be a world leader in curbing and controlling online harms. A draft Online Safety Bill was published in May 2021. The draft legislation imposes duties of care on providers of online content-sharing platforms and search services with the aim of addressing both illegal and harmful content online. There are additional safeguards in relation to content likely to be accessed by children, and extra obligations on the largest providers. The draft also contains powers for Ofcom to regulate, including revenue-based fines, court orders and possible criminal action against named senior managers of non-compliant service providers. The draft legislation is extraterritorial and will apply to regulated services with links to the UK. The draft bill is at the time of writing undergoing review by a joint parliamentary committee and is not imminently expected to become law.

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 claimant41). 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.

In relation to audiovisual media, the government published its draft Audiovisual Media Services (Amendment) Regulations 2021 in January 2021, having transposed the EU's Audiovisual Media Services Directive (AVMSD) into domestic legislation before the 2020 deadline. AVMSD attempts to level the playing field between traditional broadcast providers and new media such as video-streaming and sharing platforms. As such, it imposes rules on video-sharing platforms relating to harmful content and controls to protect children.

Contractual disputes

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.

Outlook

The UK outlook is dominated by post-Brexit legislation and a range of possible divergences from EU law, which are likely to increase as further legislation is brought into effect in both the UK and the EU. Businesses that deal in the EU and UK or across the border therefore need to monitor the position.

As consumers continue to increase their consumption of digital content and innovative digital services emerge, the dissemination of material online and the safety of online users remains a key theme, with the focus of UK regulators highlighting the increasingly commonplace issues of misinformation, hidden advertising and lack of transparency on various online platforms. The UK's Online Safety Bill marks the ambition of the government to introduce stricter regulation of internet services and regulators have turned their focus to the activities of the largest participants in the digital media space, looking for both monopolistic and consumer-unfriendly practices. This regulatory scrutiny appears likely to continue as ongoing investigations proceed.

There has been substantial disruption to businesses and supply chains in the media and entertainment sector because of the covid-19 pandemic. In the wake of the changes to lifestyles and operating practices, it is expected that in-home entertainment services will continue to perform well. The press will continue to grapple with the pressures created by online news.

Footnotes

1 Joanna Conway and Calum Murray are partners at Deloitte LLP. They are grateful for the support of their colleagues Emily Giles and Jessica Withey in the preparation of this chapter.

2 This chapter is written from an English law perspective, as a guide. The authors note that the UK also comprises other nations (Scotland, Wales and Northern Ireland), which have, for example, different national laws, court systems and regulations. Readers should check the position in those jurisdictions.

5 See Section III.ii.

6 Schedule, Racial and Religious Hatred Act 2006.

7 Section 1(2) Terrorism Act, 2006.

8 Application No. 17488/90 (ECtHR 1996).

9 Various Claimants v. News Group Newspapers Ltd [2020] EWHC 1435 (Ch).

10 R (Miranda) v. SSHD [2016] EWCA Civ 6.

11 Big Brother Watch & Others v. The United Kingdom (Applications Nos. 58170/13, 62322/14 and 24960/15).

12 Lachaux v. Independent Print Ltd and Evening Standard Ltd [2019] UKSC 27.

13 Serafin (Respondent) v. Malkiewicz and others (Appellants) [2020] UKSC 23.

14 Wright v. Ver [2020] EWCA Civ 672, t.

15 Soriano v. Forensic News LLC [2021] EWHC 56 (QB), although note that the equivalent case against the sixth defendant is being appealed.

16 Gulati v. MGN Ltd ([2015] EWHC 1482 (Ch)).

17 Sicri v. Associated Newspapers Ltd [2020] EWHC 3541 (QB).

18 Duchess of Sussex v. Associated Newspapers Ltd [2021] EWHC 510 (Ch).

19 [2015] EWCA Civ 311.

20 Lloyd v. Google LLC UKSC 2019/0213.

21 Section 11 Copyright, Designs and Patents Act 1988.

22 Section 16 Copyright, Designs and Patents Act 1988.

23 Sections 77–83 Copyright, Designs and Patents Act 1988.

24 Sections 182–184 Copyright, Designs and Patents Act 1988.

25 Information Society Directive (Directive 2001/29/EC, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32001L0029).

26 Warner Music & Sony Music v. TuneIn Inc [2019] EWHC 2923 (Ch).

27 Cartier International AG and Ors v. British Telecommunications and Anor [2018] UKSC 28.

28 Nintendo Co, Ltd v. Sky UK Limited and Ors [2019] EWHC 2376 (Ch).

29 Sections 296ZD and 296 Copyright, Designs and Patents Act 1988.

30 Capitol Records and others v. British Telecommunications plc and others [2021] EWHC 409 (Ch).

31 Robyn Rihanna Fenty v. Arcadia Group Brands Ltd (T/A Topshop) [2013] EWHC 2310 (Ch)].

32 (SI 2008/1277).

33 (SI 2008/1276).

34 Section 25(3) Enterprise and Regulatory Reform Act 2013.

35 'A new pro-competition regime for digital markets', 20 July 2021, https://www.gov.uk/government/ consultations/a-new-pro-competition-regime-for-digital-markets.

39 See Open Internet Access (Amendment etc.) (EU Exit) Regulations 2018 (SI 2018/1243).

40 See Section 21 Open Internet Access (EU Regulation) Regulations 2016.

41 Cartier International AG and others (Respondents) v. British Telecommunications Plc and another (Appellants) [2018] UKSC 28.

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