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Are Privacy Injunctions a Dead Law Walking?

 

3102d355-cc51-4c70-886e-9975fe9e4309Following the Court of Appeal ruling that a mystery celebrity who had an extra-marital threesome should be named, we digest the issues and arguments surrounding celebrity super-injunctions, and explain why trying to gag the press in the age of social media is a fool’s game.

Such is the power of social networking sites, there is nowhere to hide and no point in a super injunction if Twitter, Facebook and the blogosphere tear the fragile privacy law?

The man in question, who can only be referred to as PJS, is married to another celebrity, identified as YMA. The couple, who have young children, sought an injunction to stop the Sun on Sunday from publishing the story.

Lawyers for the tabloid argued that the man has been named so widely that the injunction is effectively pointless. The Sun estimates that “two billion people worldwide” have access to the identities on the internet and in various publications.

The Court of Appeal initially agreed that PJS and YMA’s right to privacy outweighed the tabloid’s right to freedom of expression. However, their names have been revealed in the US, Canada, Sweden, Scotland and on various sites across the internet. Google refused to censor search results that identify the celebrity.

Ever since Ryan Giggs in 2012 famously decided to slap a gagging order on the world’s press, preventing them from blowing the whistle on his adulterous affair this summer, the clock has been ticking on the bomb labelled super injunction.

The fact it went off so spectacularly in the face of Giggs is a lesson to every wayward celebrity or organisation to think twice before throwing their hat in the ring and slapping a gagging order on the world’s media. Many believe, including people in the legal profession, super injunctions will soon not be worth the paper they are written on thanks to social media.

Where’s the point in a super injunction if Twitter, Facebook and the blogosphere tear the fragile privacy law to tatters?

The couple involved in the threesome have also expressed frustration about the situation. One of them told The Sun: “This is getting more and more crazy. When does this injunction become pointless?… It’s humiliating that people in America, where the celeb was first named, have more freedom than us but now our neighbours in Scotland and Ireland have more rights, which is stupid.”

Such is the power of social networking sites, there is nowhere to hide now and the case of PJS and YMA shows that imposing such a news blackout can do more harm than good.

Lawyers around the country are familiar with the day-to-day tools by which a client can obtain an injunction – a court order requiring that his opponent either do something specific or very frequently not do it.

If an injunction is granted, it is usually fine for the media to report the existence of it. The difference with super-injunctions, and the reason why they have caused such a furore, is that as well as being an ordinary interim injunction to restrict an act, part of the Order is a restriction on the news media from reporting the very existence of the proceedings or the fact that an injunction has been granted.

A successful super injunction ensures a news blackout, until or unless the claimant declares it or a brave and/or anonymous soul puts themselves in contempt of court and breaches the order, by tweeting or blogging about it. Once something is in the hands of the electronic media, it is very hard to put a lid on it, whether the story being broadcast is true or false.

In 2011 Jeremy Clarkson, the former Top Gear presenter revealed that he had lifted an injunction banning the publication of details about his alleged affair with his ex-wife after the claims were outed online Clarkson said the gagging order became “pointless” when his name was linked with the allegations on websites including Twitter. “If you take an injunction out it isn’t an injunction because Twitter and Facebook mean that everybody knows anyway,” he said. “They are incredibly expensive to maintain and there’s an assumption of guilt about which you can do nothing because I’m as bound by it as everybody else.”

It can be hard to understand why a celebrity fling is so important that the public interest (and not merely tabloid curiosity) overrides an individual’s entitlement to privacy, but where that individual trades on an image promoting family values it may well be appropriate for the truth to be known and discussed. It is for this reason that there is increasing unease in the media and in Parliament about the growing trend for rich celebrities or companies to exploit the super-injunction, for fear that important scandals are being suppressed. But super-injunctions are often counterproductive.

It may be that the Trafigura affair would have gone largely unnoticed if it hadn’t been for the super injunction. In that case, social media sites spread the word that the Guardian and Parliament were unable to discuss the incident – and it soon became a word-of mouth scandal.

Privacy practices could have a serious shortage of new clients after the PJS and YMA case and the resulting widespread revealing of names and the claims in unregulated conversation across the globe.

Woefully misjudging the power of the phrase ‘common knowledge’, as well as the power of web gossip and keyboards, as in the case of Giggs, the lawyers of PJS and YMA have inadvertently turned the indiscretion into a front page story that has overshadowed a whole range of important stories. As privacy cases go, this this has to go down as something of a failure!

It could be argued that super-injunctions are not worth the paper they’re printed on, and that the High Court is dangerously out of touch with the rest of the world, particularly the huge section of it that ‘tweet’. An absurd situation has arisen where PJS and YMA had been named and shamed, repeatedly, throughout the world, first on Twitter and the internet, then in newspapers, and yet the High Court, only reluctantly allowed the lifting of the naming of the celebrity (but then two more days to allow the celebrity to mount a challenge in the supreme court!) – thus being in danger of making the law “look like an ass.”

Unfortunately, super injunctions are becoming the most effective form of promotion since the dawn of advertising. Keeping a story out of the traditional media no longer provides any kind of lasting protection for the publicity-shy public figure and rather than protecting themselves they are creating the reverse effect and providing the most effective form of promotion since the dawn of advertising.

Whilst there is, of course a place for legal action in matters of privacy but the PJS and YMA case proves the super injunction is not the answer. Twenty years ago, this might have worked but in the social networking generation there is nowhere to hide and feel sure this particular celebrity would have attracted considerably less attention, and at substantially less financial cost, if he’d announced it in a full page newspaper advertisement!

Looking back at the John Terry story a few years ago, it appeared after the revelations about his private life and after his super injunction failed, that such an approach can make things far worse for the subject in question. It is often the case that if you declare war on the press, in the end you will nearly always lose. It is much better to work with them and at least have a chance to shape the story, and to have your version of events heard. For a time afterwards, the newspapers seemed to target him, perhaps because they were gagged. It just builds up a torrent of anger, which when unleashed is much worse than letting the story come out. It’s like cutting your nose off to spite your face.

In defence of celebrities, the rich and famous there are those who are targeted by certain sections of the public in order to extract money, in which case an injunction is often the only means of protection. However, the public perception is now somewhat cynical and there is an assumption that the person has something to hide.

In such circumstances a course of action may well be to seek an injunction, but would it be the right thing to do? This is the dilemma that the person and their lawyers now face given the notoriety that injunctions cause. Over the years, David Beckham has continually had to deal with allegations and claims regarding his private life. In 2010 there were reports that he had an affair with a Beverly Hills jewellery designer, but he wasn’t fazed by the claim. As John Hendrie, Sports Consultant points out: “People make wild accusations about celebrities all the time and then stories get written that aren’t true. I think it was pretty obvious that’s what’s happened here.”

Mother-of-two Shery Shabani filed a lawsuit against her husband Kambiz, alleging that he tried to run Beckham off the road because he believed the soccer star was having an affair with his wife. She has since filed for divorce and has denied ever being romantically involved with the world-famous star.

There is of course another issue here, and that is the super injunction itself. It’s one thing protecting footballers and their families from unwanted press intrusion, but in this case would Beckham taking out an injunction have made matters worse, when he had clearly done nothing wrong?

If you are looking for advice on privacy laws, injunction or other similar issues contact the Choix Team for the best independent advice.

Choix Multimedia Team

#OneTeamOneChoix

0330 321 1460

info@onechoix.com

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Getting Media Savvy with Victoria Pritchard

Never has it been more important to be media savvy than now. 

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With interviews and footage going viral at the click of a button, voice coach and media expert and CHOIX Consultant Victoria Pritchard discusses the importance of media image and why how you appear on camera can have far-reaching effects.

With the ever-instrusive nature of the media and the 24/7 news coverage of the famous, the need to deliver a message in the right manner has never been more important.

Who can ever forget Kevin Keegan’s infamous ‘Fergie rant’ caught on camera when he was Newcastle boss?

Who can but cringe when they remember how Wayne Rooney was caught telling the England fans what he thought of them as they booed the team off the pitch?

And who ever dreads facing a Sky or MOTD camera knowing they will end up repeating the same lines, head down and mumbling into the floor.

How do we deal with these situations? How do we protect our professional reputation and our personal brand to limit the fallout that can go global in seconds?

The answer is to understand how the media works. To understand the impact your communication is having and to know how to make it work FOR you, not against you.

When you’re faced with a difficult question from the media, or a subject you are uncomfortable with, it is important to know how to turn it around and take control of the interview, ensuring your brand and professional reputation remain intact.

Research tells us that 55% of our impact in any situation is what people see – We don’t even need to open our mouths before the impact of our body language is being felt. This might be an obvious “two finger sign” favoured by the likes of Wayne Rooney or indeed just a look or a physical gesture, but it can be picked up on instantly and may well be giving out a message that you don’t want to be sharing.

According to research 38% of our impact, is how people hear our voice – the pitch, the pace, the tone of the voice – all of which speak volumes about who we are and what we feel about the question being asked. Only 7% of our impact is what we actually say.

So our audience are reading much more into what we’re NOT saying than they are into the words we are actually using!

The message is clear: Brand yourself for the career you want not the job you have. Your personal brand and reputation have a huge impact on your career path, not to mention your financial achievements and endorsement opportunities, so invest in it. Make sure that the public are seeing what you want them to see and that any media opportunity that comes your way is positive and constructive, helping to build a strong personal brand and representing your club well. Not only do good media skills help during your professional life on the pitch but they can also open many doors after retirement. With so many TV and radio channels devoted to sport, there is a constant need for good presenters and commentators who can work with the media to bring their years of experience and skill to the viewing public.

Victoria Pritchard –  Choix Consultant

#OneChoiceOneTeam

0845-0348984

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Think before you Ink – Celebrities could face being sued over their tattoos

Sunday evening will see the San Francisco 49ers take on the Jacksonville Jaguars here in England at Wembley Stadium. The 49ers quarterback Colin Kaepernick is nearly as famous for his distinctive tattoos as he is for reaching last year’s Super Bowl.

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However, Kaepernick could find himself in hot water following lawsuits that are being filed in America surrounding intellectual property rights and tattoo artists.

In America in late 2012 tattoo artist Chris Escobedo sued THQ, the creators of the computer game ‘UFC Undisputed’, for copyright infringement. In summary, in 2009 Escobedo inked a large tattoo of a lion into the ribcage of mixed martial arts fighter Carlos Condit. He then filed a claim when the fighter and his lion tattoo were digitally recreated in 2012 to appear in the UFC Undisputed computer game. Escobedo claimed that THQ did not have his prior permission to recreate the lion tattoo. Escobedo was ultimately awarded $22,500 which incidentally was the same figure that Condit was paid to feature in the game.

In the wake of the Escobedo settlement the NFL Players Association has begun advising players to obtain copyright waivers or licenses from their tattoo artists. The NFL wishes to distance itself from any potential liability, no more evident than the revenue stream it enjoys yearly from the hugely successful Madden NFL franchise. Electronic Arts, the creators of Madden will have been put on notice by the outcome of the Escobedo settlement.

Prior to the release of The Hangover II tattoo artist S. Victor Whitmill sued Warner Bros, seeking damages for copyright infringement of the Mike Tyson facial tattoo. Although the case settled relatively quickly, US district judge Catherine D. Perry indicated at a preliminary hearing that the artist had ‘a strong chance of prevailing’. Whitmill was not objecting to the use of Tyson’s tattoo in the movie itself as he had brought no lawsuit when Tyson appeared in the prequel The Hangover rather that the image was replicated and depicted on actor Ed Helm’s face in the movie and was the chosen image for all advertising in the build up to the box office release of the film.

So what would be the position in the English Courts? David Beckham found himself at the centre of copyright controversy when his tattoo artist Louis Malloy took exception to the proposed promotional campaign that was to focus on the guardian angel that Molloy had designed and tattooed on the ex-footballer’s back.

The legislation for copyright is housed in the Copyright, Designs and Patents Act 1988 (section 4). Although tattoos are not explicitly listed within the section the scope of the Act does not appear to exclude tattoos.

The majority of the cases which have been filed, centre around a commercial interest for the tattoo artist’s celebrity client. There is an implied licence that exists between the tattoo artist and the celebrity which allows the client to display the tattoo without prior permission from the tattoo artist. It is reasonably foreseeable that a celebrity client will appear across various media platforms and as a result so will the tattoo.

As it stands no cases involving tattoos and copyright have made it to the English courts. We wait in anticipation to see how the courts will decide between the interests of the tattoo artist and the client. In the meantime we would strongly suggest that tattoo artists and their respective clients sign copyright agreements which outline their respective intellectual property rights. By making the implied licence explicit there will be greater transparency of the intentions of both parties which should prevent costly litigation in the future.

If you need any advice on registering trademarks or general copyright advice please do not hesitate to contact our specialist team.

Andy Boyde – Sports Consultant

#OneChoiceOneTeam

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TVCatchup Caught Out: High Court bans TVCatchup from streaming content over mobile networks

Are you one of the 10 million active users of TV Catchup? Do you have the mobile app installed on your smartphone?

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Following a successful High Court challenge by three of the UK’s biggest broadcasters, ITV, Channel 4 and Channel 5 (“the Broadcasters”), the TVCatchup service has been forced to alter the services it provides.

The TVCatchup business model involves the relay of free-to-air TV channels to computers and mobile devices. The service is free to use, but limited to those persons who can access the internet in the UK and who hold a valid TV licence. As of April 2009, the site has been using stringent IP monitoring facilities to detect and block access from many proxy servers, to ensure that users are situated within the UK.

TVCatchup retransmits free-to-air channels over the internet on the authority granted under section 73 of the Copyright, Designs and Patents Act 1988 (“the Act”), which allows for the retransmission of ‘qualifying services’.  S.73 of the Act essentially provides for a ‘carve out’ from the separate rights that broadcasters are granted. It permits the unlicensed retransmission of broadcasts over a cable network or of a regional or national Channel 3 service, Channel 4, Channel 5 and S4C.

Yet when the Broadcasters became aware of the TVCatchup service they challenged it in Court on the grounds that the retransmission of programmes amounted to copyright infringement. In support of its challenge the Broadcasters sought to rely on a European Information Society Directive which provides the Broadcasters with the right to authorise or prohibit any communication to the public of their works, by wire or wireless means.

Therefore the key question for the Court to consider was whether TVCatchup’s live streaming amounted to a ‘communication to the public’ and therefore infringed the copyright evident in the Broadcasters broadcasts. In 2011 Judge Mr Justice Floyd said that it was his ‘provisional opinion’ that the streaming service operated by TVCatchup constituted a “communication to the public” but he referred the matter to the Court of Justice of the European Union (“CJEU”) to clarify how the EU’s Information Society Directive should be interpreted before definitively ruling on the point. The CJEU said:-

“The concept of ‘communication to the public’ … covers a retransmission of the works included in a terrestrial television broadcast where the retransmission is made by an organisation other than the original broadcaster, by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server, even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.”

In his latest ruling Mr Justice Floyd held that by streaming the Broadcasters programmes TVCatchup were communicating with the public and as a result had infringed the Broadcasters copyright. He granted an injunction refraining TVCatchup from streaming any of the programmes of the Broadcasters without a licence or their prior consent and TVCatchup were saddled with a hefty adverse costs order. However, TVCatchup were granted permission to appeal and this may not be the end of the road yet for this legal battle.

To all the streaming services that re-use copyrighted works without the permission of the original creator of the works this ruling will not be welcomed. The decision confirms that copyright owners cannot be excluded from decisions regarding the re-use of their original works. If the courts had found in TVCatchup’s favour the decision would have struck a serious blow to the fundamentals of copyright law, which allow copyright owners to control the distribution and misuse of their works. TVCatchup has had the wind taken out of them and their strap line “Never miss a show again” is currently on the ropes. We will keep you up to date with the latest legal developments of online streaming.

If you have any issues surrounding copyright infringement please do not hesitate to contact us.

Andy Boyde – Sport Consultant

One Choice One Team

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The Beat Goes On: Ministry of Sound sues Spotify for copyright infringement

Are you signed up to Spotify? Have you created an ‘Ibiza Annual 2013’ playlist to pay homage to your summer pilgrimage to the White Isle? Then you may have got Spotify in hot water!

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Ministry of Sound claims that Spotify has refused to delete their subscriber’s playlists that recreate existing Ministry of Sound compilation albums to the point where “Ministry of Sound” can be found in the actual playlist title.

Ministry of Sound launched proceedings in the UK High Court early last month, seeking an injunction requiring Spotify to remove the copy cat playlists. Ministry of Sound is also seeking damages and costs. Ministry of Sound has come to the end of their tether with Spotify as several rounds of legal letters have failed to settle the dispute.

The case rests on whether the order in which particular songs are sequenced – rather than the songs themselves – is protected by intellectual property law. Ministry of Sound do not deny that Spotify has the rights to stream all the tracks on the offending playlists, Ministry of Sound themselves do not own the copyright to many of the tracks on its own compilations. The licence of the majority of the tracks comes from other record labels.

This is not the first time Ministry of Sound have turned to the legal system to protect their commercial interests.  In 2010 thousands of letters were sent out on behalf of the record label, one of which accused the recipient of illegally making available an album and demanding the accused to pay £350 or face court proceedings for infringing the rights of the label.

So what about the other compilation labels? The infamous Now! That’s what I call music compilation will mark 30 consecutive years of production when Now! 86 is released on 18 November 2013. The contrast with the Now! compilations and Ministry of Sound is that the former are a joint venture of industry giants Sony and Universal. The two heavyweights own the majority of the tracks on their playlists, and earn royalties every time they are streamed.

The closest legal comparison that can be made with Ministry of Sound’s allegations is that of the “Football Live” database compilation. The UK Court of Appeal in Football Dataco v Sportradar found that compiling the database “may sometimes involve some skill…but it is not creative skill” and therefore the ‘Football Live’ databases were not protected by copyright. Ministry of Sound will argue that their copyright is founded in the skill of the artistry in creating the compilation. Perhaps we will see Ministry of Sound promoting individual producers to evidence the creative process and skill that goes into creating their albums.

We will keep you in the loop as to what the High Court has to say when it hands down their judgment. If you have any copyright or intellectual property issues then please don’t hesitate to contact one of our team.

Andy Boyde – Sports Consultant

#OneChoiceOneTeam

0845-0348984

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