Monthly Archives: August 2010

See No Evil, Hear No Evil, Speak No Evil – England vs. The Media and the Privacy Debate

Reports in the Daily Mail and the Guardian that an “England Footballer” has obtained a “superinjunction” to restrain publication of an expose into his private life have reignited debate over the use of privacy law to restrict freedom of the press.

According to reports in both the Guardian and the Daily Mail, a member of the England Football Team obtained a so-called “Superinjunction” on Friday 13 August to prevent a leading Sunday newspaper from publishing a revealing article on his private life.

The Daily Mail in particular (and its Editor, Paul Dacre, a long-standing critic of the developing law of privacy in the UK) has been outraged by what it refers to as “the latest in a string of high-profile figures using draconian privacy laws to block the media from reporting on matters they would rather keep secret.“

There are two sides to the argument – on the one hand, that celebrities are increasingly turning to the law of privacy rather than defamation to suppress negative coverage, severely limiting the freedom of the press and depriving the public of information about which they have a “right to know”.

On the other, the Press are increasingly turning to stories which have nothing to do with “the public interest” to fill column inches in an environment where the Press Complaints Commission is seen as largely powerless to make any kind of real recompense once a controversial story has been run and its subject’s life and career have already been seriously affected.

Over the past decade, a number of (ironically) very high-profile cases involving the so-called “right to privacy” have come before the Court. The first was Douglas v Hello!, dealing with covert photography at the wedding of Catherine Zeta-Jones and Michael Douglas (who had struck an exclusive deal with OK! Magazine for the images), and was the first hint that a “right to privacy” could exist in English law.

Next came Naomi Campbell’s successful claim against the Mirror after the publication of details of her drug rehabilitation treatment and featuring Piers Morgan’s immortal quote: “This is a good day for lying, drug-abusing prima donnas who want to have their cake with the media and the right to then shamelessly guzzle it with their Cristal champagne.” Whilst Campbell was only ultimately awarded £3500 or so in Damages, her costs ran to over £1 million, which the Mirror was ordered to pay.

Privacy law reached its high watermark (so far) in the now-infamous battle between Max Mosley and the News of the World in 2008 over allegations of Mosley’s involvement in a “Nazi Orgy” and the leaking of a video of the event online. Mosley was successful, winning damages of around £60,000 and setting out the basic “road map” to the new approach to privacy law following the coming into force of the Human Rights Act in 2000.

The Human Rights Act brought the European Convention on Human Rights into English Law and requires the Court to take its provisions into account wherever possible. In privacy cases, the Court must consider whether or not there was a “reasonable expectation of privacy” in the information in question which can be protected by the Claimant’s Article 8 right to respect for private and family life (dependent in many cases upon whether or not the Claimant courted publicity) and then perform a “balancing act” with the Press’ Article 10 right to freedom of expression.

The most important consideration in this balancing act is usually whether or not the information in question can be justifiably disclosed in the name of the public interest. This does not cover information which is merely “interesting to the public” and in Mosley’s case Judge Eady made the point that a publication which reveals sensitive information for the sake of “titillation” or satisfying public curiosity cannot be justified. In his opinion, “the sex life of any individual is essentially their own business”.

Even when freedom of expression sees the balancing act come down in the Press’ favour and a disclosure can be justified as being in the public interest, (such as in cases where the disclosure is justified to expose illegal activity, to avoid the public being misled or to contribute to a genuine public debate), this will not allow the publication of “every gory detail” and in particular, stories involving a breach of privacy of the sex lives of those in the public eye will normally be much harder to justify.

Nevertheless, the start of 2010 saw then-England Captain John Terry at the centre of the privacy law debate after obtaining a “Superinjunction” banning any reporting of his alleged extramarital affair with lingerie model Vanessa Perroncel as well as any reference to the fact that the injunction itself even existed. The decision in Terry’s case came amidst increasing criticism of what has been described as a “back door privacy law”, and the “Superinjunction” was overturned after Mr. Justice Tugendhat’s ruling that it was unnecessary; the information which it covered was already relatively widely known within the sport, and in his opinion, Terry applied for the injunction more to protect his commercial interests and sponsorship deals rather than his private life.

If a Claimant becomes aware of impending negative press attention and has a very strong case in either Defamation or Privacy against the publisher for which an award of damages would never truly compensate the Claimant after the fact, then an, injunction may well be the only option.

They are not easy to obtain, “Superinjunctions” even less so, and are only granted in cases where allowing the publication to go ahead will cause more harm to the Claimant than restraining it would do to the Newspaper. Even then, however, an Injunction or Superinjunction may never truly kill a story.

In December last year, Tiger Woods obtained an injunction against the reporting of further intimate details of his private life being disclosed in the British press in the wake of his very public fall from grace after a number of extramarital affairs. However, much of the information and accusations in question were already available on a number of US websites accessible from the UK, leaving many commentators wondering what the point was.

In the world of real-time commentary through social media, injunctions may be very easily undermined by the information to which they relate already being in the public domain in one form or another, as Trafigura found out when dealing with allegations over the dumping of toxic waste on the Ivory Coast last year and their subsequent attempt to stifle debate on the issue in the House of Commons last year as well as the Media.

Add to this the fact Damages in privacy claims have so far been fairly limited – Mosley only received £60,000 – and the Press may believe that running a story is worth the commercial risk against a rise in circulation, especially when the Press Complaints Commission is seen as ineffective and is unable to provide any remedy to complainants at a level anywhere near that of a Court. However, even if that were the case, costs in privacy cases tend to be extremely high and the risk of being having to pay a Claimant’s costs if successful can be enough to deter publication.

As Privacy is still very much a developing area of law, it’s hard to say with any certainty just what kind of reporting the Court will allow in the public interest and what will be restrained. This particular case may well help to shape the Court’s future approach, but we will only have an idea of whether or not this is the case when or if the full details come out.

Practically speaking, the most obvious advice to Footballers or indeed anyone else in the public eye is to choose your friends carefully and be careful who you trust. Once a story becomes public or leaks online it is extremely difficult and costly to put the genie back in the bottle, and damage to both reputation and private life can be almost impossible to repair. It remains to be seen in this case whether or not the England Team’s poor performance during the World Cup leads to a lesser degree of sympathy if the identity of the player behind this latest superinjunction becomes public.

In the social media age memories are longer and attention is more focussed. If you do need to and can take action, then do so quickly.

Lucasfilm takes it to the Hilt

Lucasfilm, US-based maker of the phenomenally lucrative “Star Wars” movie franchise, are no strangers to taking action to protect their intellectual property, as seen in their recent (and unsuccessful) copyright infringement case against Andrew Ainsworth, a maker of replicas of the iconic “Stormtrooper” helmets who worked on the original 1977 film.

Over the last thirty years Lucasfilm has taken action against a number of other alleged infringers of their intellectual property for producing unlicensed merchandise relating to the Star Wars Saga against the backdrop of a changing technological landscape that has seen some of its more spectacular ideas become reality.

Enter Wicked Lasers, manufacturers of the S3 Spyder Pro Arctic Laser. Far from being what you might expect – a laser pointer or something equally harmless, the S3 is referred to on the company’s website as “the most dangerous laser ever created”, and capable of causing “immediate and irreversible retinal damage”. It’s also a laser built into a silver cylindrical handle which Star Wars fans may find a little familiar.

Lucasfilm certainly did, and issued a “cease and desist” letter to S3 stating that “it is apparent from the design of the Pro Arctic Laser that it was intended to resemble the hilts of our light saber swords, which are protected by copyright”. Wicked Lasers’ response to the letter, which also demanded that production on the product be halted immediately, was – “the light saber doesn’t exist and is currently impossible to make according to the laws of physics…There are no connections to be made between the famous Star Wars product and our lasers”. Whilst Wicked Lasers never used the word “Lightsaber” to describe or market the S3 product this didn’t stop the media from reaching their own conclusions and referring to it in those terms and suggesting that the Jedi’s weapon of choice may only be $300 away.

Lucasfilm’s letter of claim referred to the design of the lightsaber hilt being protected by Copyright. This may be the case in the United States, but in the EU the correct cause of action would be for unregistered or registered design right infringement.

Design rights protect the appearance of functional products without aesthetic appeal and are heavily relied upon in the manufacturing and retail industry to prevent the manufacture of “lookalike” products, but are occasionally hard to enforce in practice due to the fact that the test for infringement is whether or not the allegedly infringing product creates a different “overall impression” in the eyes of the “informed user” – those differences do not necessarily need to be substantial although they do need to be genuine. Add to that the fact that an unjustified threat of design right infringements can lead to a claim against the maker of those threats and it’s easy to see how “cease and desist” letters need to be drafted very carefully.

Another option in the UK would be a claim for passing-off, but although one of the leading cases in recent passing-off law centres around the appearance of a product and the manufacture of a similar and competing alternative (Reckitt & Colman v Borden – 1990: The “Jif Lemon” Case), this is also a difficult case to win hands down.

Even though there are no threats actions available in a passing-off claim, Lucasfilm would need to show that they were the owners of goodwill in the shape of the Lightsaber and then a misrepresentation by Wicked Lasers leading to confusion in the eyes of the public and damage to Lucasfilm’s business as a result. Given that Wicked Lasers have been clever enough to avoid the obvious parallels with the lightsaber in their marketing material, they would have a good chance of defending such a claim.

So, around a month after threatening proceedings against Wicked Lasers, Lucasfilm have confirmed that they will withdraw any potential claim provided that the S3 is labelled in a way which states clearly that there is no connection between Wicked Lasers and Lucasfilm because “the media and public has come to realize that Lucasfilm would never endorse or license a highly dangerous product such as your Arctic Pro Laser.”

The point to all this? As much as Lucasfilm would want to distance themselves in the eyes of a customer base made up mainly of children (and adults who should know better) from a very dangerous weapon, their actions have apparently led to a 300% sales surge for the S3 as a result of the publicity generated by the dispute. Although reputation management is an important issue for Lucasfilm and its brand, it seems in this case the law was not entirely on their side and that their potential cases not as straightforward as they would first appear, leading to the Empire striking out.

If this case were fought in the UK, then although it would almost certainly have settled before trial, Wicked Lasers would at least have a (new) hope of a defence and make life much more difficult for Lucasfilm than they are used to, just as Andrew Ainsworth did. A good lawyer should never be afraid to point out the downsides of a case to their client, or to put it another way, that they have “a bad feeling about this”.

“Newport State Of Mind”, old Parody issues

A parody of Jay-Z’s “New York State Of Mind” celebrating life in Newport has been removed from YouTube after a complaint from EMI Music Publishing.

They say that imitation is the sincerest form of flattery, but apparently hip hop artist and entrepreneur Jay-Z doesn’t agree. A spoof of the rapper’s huge international hit “Empire State Of Mind” has now been taken down by YouTube at the request of his publishers after a complaint of copyright infringement.

The parody “Newport State Of Mind”, by director MJ Delaney, was viewed over two million times in two weeks by visitors to YouTube and celebrates life in the city. It was successful enough for Welsh rap act Goldie Lookin’ Chain to record their own version, “You’re Not From Newport”, after claiming that Delaney’s video suffered from a lack of local knowledge. Their version may still be online but Delaney’s has been quickly removed, scotching plans to release it as a single.

Copyright is infringed when a “substantial part” of the original “work” is either copied in its entirety or used to create another without permission from the Copyright owner. In this case, there are three or four works which Delaney could have infringed in putting together the parody – the “Empire State Of Mind” Video, the sound recording of the song itself, its lyrics and its music.

Dependent upon how the original copyright work has been used, then a number of defences are available to alleged infringers, one of which is parody. Parody is, however, a notoriously difficult defence to run. Any parody of an existing song will infringe the copyright in the original if it makes “substantial” use and unless it falls within the “fair dealing” provisions of the Copyrights, Designs and Patents Act 1988. These allow the use of copyright works for certain specific purposes, the most obvious in this case being for the purpose criticism or review, provided that the part of the work used (and theoretically the parody) contains a “sufficient acknowledgement” referring to the original.

The general rule is that the more of the original copyright work which the parody uses, the harder it is to argue that it doesn’t infringe. “Newport State Of Mind” uses a virtually identical melody to Jay-Z’s original even though the lyrics are very different, and it’s probably this line of attack which EMI have used to get the video removed. Had the tune been more different, then it may have been easier to defend.

This is the essential legal problem with parodies – they need to be close enough to the original to be recognised by their audience as a parody in the first place, which means that they will almost inevitably infringe copyright. Even though some cases have argued that parodies contain enough original thought and creativity to be recognised as “works” in their own right, the position is nowhere near clear enough for this particular parody to be worth the risk.

YouTube will have had to act quickly to avoid any action being taken against them (they’ve only recently been involved in a very high-profile copyright dispute with Viacom in the US). According to the Electronic Commerce (EC Directive) Regulations 2002, third party video websites will escape liability for copyright infringement provided that they have no actual knowledge that the content in question infringes and that they act “expeditiously” to remove it. If not, they may be held liable along with the actual infringer. The usual approach is to remove the content first and investigate infringement claims later, eliminating the risk as far as possible.

A popular parody is likely to make its way around the web extremely quickly, and although most sites will (and should) operate effective “take down” procedures; the chances are that some copies will still remain available. It’ll be very interesting to see if EMI take any further action in this case; if there is a real need to clamp down on infringement such as when copies of entire albums or films are made available through torrent sites without permission, then urgent action to deter further infringement will almost certainly be necessary to avoid damaging any ongoing revenue streams generated by the original.

In this case, however, Jay-Z’s fans and the general public may simply not agree that his complaint is justified morally (even though it is legally) and his reputation may suffer, as Prince found out when he threatened copyright infringement proceedings against a number of “Fan Sites” in 2007. Of course, had Delaney sought permission from Jay-Z before posting the video online, he would have had a defence to an infringement claim and possibly even support from an international superstar.

Although Parody has been due for reform for well over 20 years, which was on the agenda in the wake of the Gowers Review of Intellectual Property in 2006, the only way to be sure of avoiding an infringement claim is to get permission from the original artist. Similarly, the only way for platforms and websites to be sure that they aren’t drawn into such a claim is to remove any potentially infringing content as quickly as possible. Until the position changes, parody markers will have to play by the rules, even if they believe them to be a bad joke. The punchline could be a damages claim which far outweighs any attention or revenue which they generate.

Go, West – Unwanted Fame in the Social Media World

The potential (and potential drawbacks) of social networking giant Twitter’s ability to create, enhance or relaunch the global public profile of virtually anyone, including the man in the street, has been emphasised this week after teenager Steven Holmes from Coventry was unexpectedly “followed” by rapper Kanye West.

West, known for his self-promotion and considerable ego, has become known almost as much for online commentary as his music, creating a profile on Twitter in July and already attracting over 500,000 followers. His comments have ranged from the amusing to the downright bizarre, including: “Fur pillows are actually hard to sleep on”, “I used to clean my diamonds with toothpaste when I was about 19”, “I love me” and “I love everybody… only thing I don’t like is taxes.. me and taxes gone fight”.

In fact, when West began following Holmes on Saturday 1st August, his reply to Holmes’ understandably awestruck first “tweet” of “Holy *** bro, thx for following” was: “You are the chosen one dun dun dun dun”.

Since then, however, having seen his number of Twitter followers increase from 60 to almost 4,000 and after fielding interview requests, messages asking him to pass on demo recordings to West and angry comments from the Rapper’s fans who felt that they should have been the “Chosen One”, Holmes has stated that not only does he no longer want the huge attention, he is not one of the biggest fans of West’s music, telling the Independent that “before this weekend I thought it would be cool to have a celebrity following me on Twitter but now I think it’s really not worth it.”

Whilst this is a fairly rare case of a Twitter user finding fame which they did not go looking for, it does raise a number of fundamental issues as to the nature of the microblogging site and privacy in the social media environment.

Web 2.0 and social media platforms give their users access to a global community, with a virtually unfiltered channel to broadcast opinion, distribute content (either belonging to the user or to third parties in the case of illegal filesharing) or make friends without any kind of social or geographical restriction.

The downside, of course, is that once you are a participant in a social network, keeping an eye on with whom and how you interact is crucial. Facebook has seen its fair share of problems relating to privacy over the past few years and whilst safeguards are in place to ensure compliance with both international privacy and data protection laws as well as the site’s own privacy policy, users should review their own privacy settings and take action quickly if they are the subject of any unwanted attention. In some cases, that unwanted attention can be dealt with via criminal sanctions such as those found in the Protection From Harassment Act  1997 or the Public Order Act 1986. It’s unlikely, however, that Kanye West would fit the profile of a “Cyberstalker”.

The moral of the story is: Privacy in the social media world is an evolving landscape, and what starts out as harmless fun can soon turn sour. If it does, there is plenty you can do about it under the general law and the privacy policies of the sites in question. Any businesses operating in the social media environment also need to remember their responsibilities to their users and take action quickly when problems arise.