Media and Entertainment Law

UK Radio Station Sanctioned by Ofcom over Coronavirus Conspiracy Theories

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Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 7 December 2020, Ofcom, the UK’s communications regulator, found that The Family Programme, a live radio broadcast, featured potentially harmful statements about the COVID-19 pandemic without adequate protection for listeners.

The regulator currently prioritises cases linked to the coronavirus where programmes may have helped spread misinformation or included misleading material about the illness and public policy in relation to it. The Family Programme is broadcast every Sunday on New Style Radio 98.7 FM, which is a community radio station providing a service for Afro-Caribbean communities in Birmingham. The licensee for this service is the Afro-Caribbean Millennium Centre (ACMC).

During the programme, a number of “highly contentious, unevidenced conspiracy theories about the coronavirus” were set out. In its ruling, Ofcom highlighted controversial allegations that wearing face masks can “cause serious neurological and respiratory damage”, as well as suggestions that Bill Gates intended to reduce the world population, and mark and control 7 billion humans through vaccination. At the time of the broadcast, human and clinical trials were ongoing around the world to develop and deploy an effective vaccine, which is recognised by the scientific and medical community (and endorsed by the World Health Organisation) as the key to controlling and potentially defeating the COVID-19 pandemic. Ofcom was particularly concerned that such unsubstantiated claims would cause harm to listeners by undermining confidence in any future roll-out of a vaccination programme.

The presenter, Simon Solomon, referred to the crisis as an orchestrated “plan-demic” linked to the roll-out of 5G, and repeated without challenge throughout the programme the suggestion that “government and WHO policies are deliberately aimed at killing people.” Much of the discussion centred around a document written and a video presented by conspiracy theorist Claire Edwards, both of which have been discredited by fact-checking initiatives or trustworthy media organisations. Ofcom expressed serious concerns that such allegations could lead listeners to disregard public authorities’ advice and the social distancing measures intended to protect public health (especially at a time when coronavirus cases were rising and the government had just announced a second national lockdown in England).

The regulator rejected the presenter’s arguments that he had not endorsed Claire Edwards’ claims. In its view, the presenter had increased the potential for harm by lending the contents of those claims further credibility and adding greater weight: “listeners would have been left in no doubt that the presenter supported the contents of Ms. Edwards’ documents.” ACMC accepted the regulator’s findings and mentioned in its response that, as Mr. Solomon was a “very experienced” presenter, they “could not have possibly envisaged” that he would present a programme containing potentially harmful material. The licensee also stated that The Family Programme broadcast at issue could be seen as an “aberration” and believed that it constituted an “exception” to their normal high standards of professionalism.

In considering whether ACMC had provided listeners with “adequate protection” from this potentially harmful material (as Rule 2.1 of the Ofcom Broadcasting Code requires), Ofcom ruled that the disclaimer given by the presenter at the beginning of the programme had the potential to compound the potential harm to members of the public: “Rather than provide a warning about the unsubstantiated and controversial nature of the conspiracy theories put forward in the programme, in our view [the disclaimer] denigrated listeners who did not subscribe to them and cast doubt on the veracity of mainstream and credible sources of information about the coronavirus pandemic.” Moreover, according to Ofcom, Mr. Solomon had presented highly contentious claims as unequivocal facts and uncritically guided listeners to use the programme as the basis for their research.

Ofcom considered the steps ACMC had taken to mitigate the potential for harm following the broadcast of the programme; these were the suspension of the programme and its presenter, as well as the broadcast of “a special programme” about the coronavirus, which was aired on 15 November 2020 at the same time as the original programme and which “comprehensively refuted all the conspiracy theories” included in the initial broadcast.

The regulator emphasised that broadcasting views which question official authorities on public health information is not in principle prohibited and acknowledged the presenter’s right to discuss contentious viewpoints. However, in doing so, broadcasters must ensure compliance with the Code. Despite the actions taken by the licensee, the regulator was of the opinion that there were not sufficient measures in place to ensure that listeners were protected from the inclusion of “potentially extremely harmful material” in this programme, which was broadcast for two hours “without sufficient warnings, context or challenge during a public health crisis.”

As a result, Ofcom found that New Style Radio had committed a serious breach of the Broadcasting Code and directed the station to broadcast a summary of its ruling. The regulator has yet to give a final verdict regarding a suitable sanction, which could determine whether Solomon shall continue on the station as a presenter.

This article originally appeared on the IRIS Merlin legal database and is reproduced here with permission and thanks.

Marketers in Hot Water: ASA Rulings During the COVID-19 Crisis

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Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

Being conscious of its regulatory role during the ongoing global health crisis, the Advertising Standards Authority (“ASA”), the UK’s regulator of advertising across all media, aims to act with due regard to the circumstances faced by businesses in the current emergency. Since the beginning of the pandemic, the regulator seems to have adopted a layered approach to the implementation of its rules.

‘Forbearance’

Following the Chancellor’s reference to “possible regulatory forbearance” in his March 2020 speech on the government’s measures to address the economic emergency, the regulator announced it would adjust accordingly its regulatory approach towards relatively minor advertising indiscretions by businesses facing an “existential threat” e.g., the hospitality industry, event organisers etc.

Where a marketer, for example, was unable to carry out or had to rethink elements of a promotion because the impact of COVID-19 had derailed their original plans (e.g., by creating unanticipated high demand of a product or service) and failed to put in place suitable management measures to justify amending a promotion and communicate this to consumers in a timely fashion, a more light-touch approach may be warranted where a breach of the rules on promotional marketing could not have sensibly been foreseen. Or, an advisory rather than investigatory approach may be adopted where it was the first time a complaint was raised against an advertiser.

A tougher approach

During a period which saw an intense sale of high-demand products (e.g., hand sanitisers), the regulator seems to have escalated its regulatory interventions in cases where marketers have unfairly taken advantage of the ongoing global disruption for financial gain or acted in a way that disadvantages consumers. Key areas of concern that have emerged so far include medical claims about COVID-19, alternative and complementary therapies, food supplements as well as irresponsible advertising practices.

The regulator is likely to take a dim view of an advertiser who makes unsubstantiated ‘medical or medicinal claims’ as such claims may only be made with respect to licenced medicines or appropriately marked medical devices in compliance with Sections 11 and 12 of the BCAP and CAP Codes respectively. For example, the ASA banned a paid-for Facebook ad and a website post for a COVID-19 test provider which gave the impression that a positive antibody test would show that people were immune to the virus (ASA Ruling on XMedical Ltd t/a Corona Test Centre, 14 Oct. 2020). The regulator also banned an ad in The Sun making unsubstantiated claims that a reusable copper-infused face mask would instantaneously kill particles of COVID-19 that came into contact with it (ASA Ruling on Easylife Group Ltd, 11 Nov. 2020).

Unsubstantiated reduction of disease risk claims or claims that food supplements can prevent or treat coronavirus infection can be particularly problematic. The ASA targeted, for example, Instagram posts from the accounts of Cosmetic Medical Advice employees which implied that an intravenous fluid drips treatment could help prevent people from catching coronavirus (ASA Ruling on Cosmetic Medical Advice UK, 22 Apr. 2020). In an another ruling, a national newspaper ad for a brand of honey was banned for implying that it could be used as a treatment for coughs and that its “anti-microbial” properties could prevent or treat human diseases (ASA Ruling on Manuka Doctor UK Ltd, 6 Jan. 2021). Sections 13 and 15 of the BCAP and CAP Codes limit nutrition claims about foodstuffs to only those expressly listed as authorised on the EU Register of Health Claims.

Moreover, the ASA tends to rely on its general rules on social responsibility (Section 1 of the BCAP and CAP Codes) and material misleadingness (Section 3 of the BCAP and CAP Codes) when targeting ads that seek to profit from the ongoing public health emergency. For instance, in December 2020, following complaints by Stella Creasy, Labour/Co-operative Member of Parliament of the United Kingdom, the ASA banned four Instagram posts made by influencers in association with Klarna Bank for promoting the use of the company’s deferred payment service in an “irresponsible manner” in breach of the advertising code (Ruling on Klarna Bank AB, 23 Dec. 2020). The controversial ads encouraged the use of credit to purchase beauty and clothing products in order to help with boosting people’s mood during the challenging circumstances faced by many consumers in the national coronavirus lockdown period.

More recently, the ASA banned Ryanair’s “jab and go” TV campaign on the grounds that it encouraged the public to act irresponsibly once they had received a coronavirus vaccination shot (Ruling on Ryanair DAC, 3 Feb. 2021). The ban came just days after the Ryanair chief executive, Michael O’Leary, stated in a BBC Radio 4 interview that he expected a revival of European beach holidays in summer 2021.

The Ryanair ruling deserves perhaps a more detailed consideration because it is the first ad with a marketing message about emerging from the pandemic that was found in breach of the regulator’s rules.

Photo by Portuguese Gravity

‘Jab & Go!’: addressing the post-COVID-19 life

The two controversial television advertisements launched on Boxing Day and were seen between 26 December 2020 and 4 January 2021. The first ad featured a medical syringe and a small bottle labelled “vaccine” along with on-screen text stating “vaccines are coming”. The voice-over encouraged consumers to snap up Easter and Summer bargain deals to sunny European countries like Italy and Greece, because “you could jab and go”. Footage also showed people in their 20s and 30s at holiday destinations. During the last few seconds of the ad further on-screen text reinforced the same message with large lettering stating: “Jab & Go!” The second ad was similar, except that it included a different price offer.

The advertisements attracted 2,370 complaints and were challenged on three grounds: first, that the ads, and particularly the “Jab & Go” claim, were misleading because they gave the impression that large parts of the UK population would be vaccinated against COVID-19 by Summer 2021 and unaffected by travel restrictions related to the pandemic; second, that the promotional statements in the ads were offensive because they trivialised the effects of the pandemic on society; and finally, that the ads encouraged people to behave irresponsibly once they received a coronavirus vaccination shot.

The commercial aircraft carrier submitted that their ads were first broadcast at a time during which the government continued to give “optimistic briefings” implying that a significant proportion of the population would be vaccinated midway through the year. In addition to the timing of the ads’ broadcast, the general public’s familiarity with information about the vaccines, the rollout schedule, the continuously changing international travel restrictions and inherent uncertainty in the travel industry, as well as the use of conditional language in the voice-over (“could”), were all important contextual factors which would enable the average viewer to understand the ads envisaged “a hypothetical Easter or summer holiday.”

However, it was exactly this context, marked by uncertainty and complexity, that placed an additional level of responsibility on advertisers to act cautiously when linking developments in response to the coronavirus pandemic with buyers’ decision-making processes, especially at a time when consumers were likely to feel apprehensive about booking holidays.

A misleading and irresponsible ad

The ASA found that both ads breached Rule 3.1 of the UK Code of Broadcast Advertising (BCAP Code) by materially misleading consumers about the impact that COVID-19 vaccines would have on their ability to travel abroad during Easter and summer 2021. The regulator considered that the information available at the time the ads were broadcast left no doubt that it was “highly unlikely” that societal groups falling outside the priority list for ‘phase one’ of the planned vaccination rollout schedule (i.e., the most vulnerable individuals in society) would be maximally protected in time to go on holiday in either Summer or Easter 2021.

Moreover, while the vaccines have been proved to provide some protection against developing serious illness, much is unknown about how the vaccine may prevent its spread from one person to another. Hence, vaccinated individuals are advised to continue adhering to social distancing and wearing face coverings. Such measures were likely to remain in place for both vaccinated and non-vaccinated people “in at least the short- to medium-term”, the ASA stressed.

The overall impact created by the elements of the ad, including links to the planned vaccination rollout in the ad and the accompanying footage (featuring a group of young people jumping together into a pool and a couple being served by a waiter without a mask) overshadowed the conditionality of the word “could” and conveyed a misleading message: i.e., that most people who wished to go on holiday would be vaccinated in time to be in a position to do so and could go on holiday without restrictions as a direct result of being vaccinated against COVID-19.

The ads were also found to have breached Rule 1.2 of the BCAP Code, which requires marketers to prepare advertisements with a sense of responsibility to the wider society. The emphasis on the vaccines from the very outset, as well as the suggestion of immediacy and speed of access through the claim “Jab & Go”, encouraged people to behave irresponsibly by prompting those not yet eligible to be vaccinated to arrange vaccination at a time when health services came under intense strain. Moreover, the featured imagery of people enjoying typical holiday activities without observing social distancing would lead some viewers to infer that it was possible for anyone to get vaccinated by Easter or summer 2021 and go on holiday once vaccinated without necessarily adhering to restrictions, posing risks for their own and others’ health.

But not an offensive ad

The ASA ruled, however, that the Ryanair ads did not breach the harm and offensiveness rules under Section Four of the BCAP Code. Although their “celebratory” tone was “distasteful” to some viewers, they were not found to be insensitive to the wider impact of the pandemic and were unlikely to cause serious or widespread offence against generally accepted societal standards. Presumably, the position would have been different, had the ad made light of the emotional toll the pandemic has taken on individual and collective well-being or otherwise trivialised its effects.

Interestingly, the evaluation made by Clearcast, the non-governmental organisation which pre-approves ads for broadcast on the UK’s main commercial channels, was out of step with the ASA’s assessment. Clearcast took the view that the Ryanair ads contained “a hopeful message” that holidaying in summer 2021 without social distancing was a real possibility and when the ads were approved (when England was coming out of its second lockdown) “it looked like better times were coming”.

The Ryanair ruling serves as a useful reminder that, in the aftermath of the Prime Minister’s announcement about England’s roadmap for easing coronavirus measures, marketers who promote services or events that necessitate lifting of business or travel restrictions need to exercise caution when dealing with post-lockdown life. This is especially the case when links are made between fast-moving developments in the country’s response to the pandemic and the consumer’s confidence in purchasing a product or service. Finally, the Ryanair ad creates an opportunity to look into the regulator’s approach to the application of its harm and offence rules in the COVID-19 context.

Harm and offence in the time of coronavirus

At the time of writing, and since the onset of the pandemic, only five coronavirus-related rulings engaged the harm and offensiveness rules under Section Four of the advertising codes. With the exception of the Ryanair ruling, complaints were upheld in all four cases. However, only one of those was found to have crossed the line in terms of harm. The ASA’s justifications for banning the remaining three were couched in offensiveness terms.

More specifically, a newspaper and Instagram post by a hemp shop were deemed ‘harmful’ because they described COVID-19 as a “hoax” and “incited” people to break the law by discouraging them from wearing face coverings in shops (ASA Ruling on Geraint Christopher t/a Hemp in Avalon, 2 Dec. 2020). Concerns about harm in coronavirus-related advertising content seem to be associated with marketing messages which raise the risk that consumers’ trust in public health advice could be undermined, with potentially serious consequences not only for their own but also others’ health. This broad approach to societal harm is noteworthy in this context. Some parallels may be drawn with the Ofcom’s (the UK’s communications regulator) approach, which has also found harm arising from broadcast content contradicting official governmental guidance.

Offensiveness manifested itself in a product listing on Amazon as well as paid-for display ads and website claims about face coverings that made use of alarmist language likely to cause fear without justifiable reason (ASA Rulings on Easy Shopping 4 Home Ltd and Novads OU, 4 Mar. 2020). A newspaper ad for mattresses was also banned for being offensive because it associated immigrants with diseases such as the coronavirus (Ruling on Vic Smith Bedding Ltd, 11 Mar. 2020). That stated, the ASA seems to have overlooked in the former cases the potential for significant harm to the wider society arising from exploiting people’s health-related fears or anxieties. Also, by examining the Vic Smith Bedding ad through the lens of offensiveness, the regulator seems to have discounted the potential harm to ethnic minority groups who have been assaulted or denied services, like transport, because of fear that they may pass on the virus. It may also be suggested that the ASA minimised the importance of the role of advertising in potentially exacerbating or reinforcing socially harmful attitudes. The media have also reported cases of xenophobia and racist attacks against students of Asian descent due to the virus originating in China.

Arguably, each of the rulings referred to above regarding medicinal claims, food supplements and alternative treatments could have the effect of exploiting consumers’ health-related fears to persuade (or in certain instances even mislead) them to buy the service or product. Yet, reference to the harm and offensiveness rules was made in none of them. Given the sensitivities of the pandemic and its ongoing impact, the potential for societal harm which can arise from appeals to insecurities that encourage ill-advised purchasing decisions should not be underestimated.

This piece was first published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

‘Old-fashioned alpha males’ against ‘professional homosexuals’: media justice and discriminatory reporting in the wake of the Greek #MeToo movement

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Dr. Dimitris Akrivos, Lecturer in Media Law, University of Essex

From the exposure of Hollywood producer Harvey Weinstein’s crimes to the Westminster sexual harassment scandal, the #MeToo movement has in recent years spread around the world, empowering survivors of sexual violence to share their traumatic experiences on social and news media. It was not until January 2021, however, that the impact of the movement became apparent in Greece.

Talking in an online event about the protection of children in sports on the 14 January 2021, Greek Olympic medallist Sofia Bekatorou publicly accused the vice president of the Hellenic Sailing Federation of sexually assaulting her in 1998. Bekatorou’s allegations led to the emergence of the hashtag #metinSofia (i.e. with Sofia) on Twitter with many other athletes but also actresses, singers and influencers following her example and reporting their own experiences of physical and/or psychological victimisation by powerful men (including famous actor Giorgos Kimoulis as well as actor and former Deputy Minister of Social Security Pavlos Haikalis). It was no surprise that, due to the celebrity status of many of the alleged victims and perpetrators, such claims dominated the Greek news agenda during these past two months alongside stories about the COVID-19 pandemic.

In February 2020, the Greek #MeToo movement acquired even greater momentum with clear political ramifications when former director of Greece’s National Theatre Dimitris Lignadis was remanded over allegations of serial rape – some of which involved underage victims. Responding to criticisms for appointing Lignadis, culture minister Lina Mendoni stated that he is a ‘dangerous man’ who ‘deceived her’ and ‘with deep acting talent tried to convince her that he had nothing to do with all this’. At the same time, Lignadis’ defence attorney Alexis Kougias dismissed the allegations against his client as a ‘crude fabrication’ made by ‘professional homosexuals’.

The news media’s involvement in Lignadis’ and all the other cases forming part of the Greek #MeToo movement constitutes an indicative example of what Greer and McLaughlin (2010: 27) define as a trial-by-media: ‘a dynamic, impact-driven, news media-led process by which individuals – who may or may not be publicly known – are tried and sentenced in the “court of public opinion”.’ In the era of 24/7 news, media seek to perform an alternative function of ‘justice’ which runs parallel to that administered by formal institutional authorities. There is an undeniable benefit in shedding light to such historic cases of sexual violence and thereby encouraging an honest, free-from-stigma discussion around the issue. Despite its belated emergence (or possibly because of it) the Greek #MeToo appears to extend the boundaries of the movement even further by also placing emphasis on cases of gender-based workplace bullying as well as male victimisation.

The shortcomings of this ‘trial-by-media’, however, including its impact on the defendant’s right to a fair trial, the consequent reputational damage and the risk of vigilantism also need to be taken into consideration. In the context of the ongoing discussion on the allegations made, journalistic objectivity and due process can easily give way to moralising, sensationalist speculation about the motives and actions of the accused who are assumed to be ‘guilty until proven innocent’ and therefore deserving to be ‘named and shamed’.

In addition, the homophobic dimension of some of the relevant mediated discourse also need to be highlighted. From the Greek state television censoring a gay kiss from an episode of Downton Abbey to bishop Amvrosios publicly urging people to ‘spit on gays’ because they are ‘freaks of nature’ and the killing of LGBT+ activist Zak Kostopoulos by the police, there is still a lot of progress to be made in order for LGBT+ people to achieve equal rights in Greek society. This is something that became even more apparent with the recent rise of the Greek #MeToo.

Apart from Kougias building Lignadis’ defence around claims (in Greek) of ‘crude lies’ told by ‘professional homosexuals’ who are ‘untrustworthy personalities’, the language used in some relevant news stories in the Greek press has been salacious, offensive and discriminatory: indicatively, tabloid newspapers ran controversial front-page stories with headlines like ‘Fa—[anti-gay slur] and paedophile bathhouse brings down the government’ (Makeleio, 20 February 2021), ‘Dirty nights with Ali and Saleem: dark-skinned boys at Lignadis’ disposal’ (Espresso, 25 February 2021) and ‘Homosexuals, perverts and paedophiles run the country with Mitsotakis [the incumbent Greek PM] in charge’ (Makeleio, 27 February 2021).

Such stories clearly associate homosexuality with paedophilia, creating a ‘signification spiral’ (Hall et al., Policing the Crisis, 1978) in the context of which both behaviours are constructed as sexual ‘perversions’. Such an association is intrinsically linked to and largely legitimised by the patriarchal discourse used by some of the accused to explain their actions – for example, Haikalis’ claim that he is an ‘old-fashioned alpha male’ – which also favours a view of non-heterosexual masculinities as deviant and socially reprehensible (Buchbinder, Studying Men and Masculinities, 2013).

There is extensive research on moral panics and the media’s role in marginalising social groups, portraying them as ‘folk devils’ who allegedly behave in ways that pose a risk towards society’s dominant moral values (Cohen, Folk Devils and Moral Panics, 2002[1972]). The aforementioned homophobic reporting can largely be made sense of within this framework. What is disconcerting, however, in the case of Greek media is not merely the exposure but most importantly the limited protection offered to LGBT+ people against such prejudicial and sensational media coverage on a regulatory level.

On the one hand, ESIEA, which is main trade union of Greek journalists based in Athens, provides in its Ethical Guidelines for Journalists (in Greek) that news reporting should be free from ‘discrimination based on nationality, sex, ethnicity, religion, political beliefs, financial situation and social status’ [Article 2(a)]. Although discrimination on the basis of gender identity or sexual orientation could in principle fall under the broad category of ‘social status’, it could be argued that the Code’s failure to refer explicitly to this particular form of discrimination creates an ambiguity which allows cases of homophobic reporting like those mentioned earlier to emerge without any threat of serious sanctions.

On the other hand, the National Council for Radio and Television (NCRT), which is the main regulator for public and private broadcast Greek media, seemingly adopts a more inclusive approach in its Code of Ethics for News and other Current Affairs and Political Programmes (in Greek): Article 4.1 of the Code specifically states that discriminatory reporting based on sexual orientation is not allowed while Article 4.2, which prohibits demeaning comments towards ‘ethnic and religious minorities and other vulnerable or powerless social groups’ (emphasis added), potentially covers sexual minorities too even if these are not explicitly mentioned.

This prima facie protection from discriminatory reporting offered by the NCRT Code to LGBT+ people is contradicted by the Council’s regulatory practice which has on several occasions led LGBT+ supporters to accuse NCRT of institutional homophobia and transphobia. For instance, in 2013, NCRT rejected (in Greek) the request of the Athens Pride organisers to air the event’s TV spot on all major Greek TV stations free of charge on the grounds that the spot ‘could not be described as one with a social message’.

Similarly, in 2010, NCRT imposed a fine of €20,000 on the Star Channel afternoon show Fotis and Maria Live for interviewing trans actress and author Betty Vakalidou based on the following rationale (emphasis added):

‘the issue of homosexuality (the sexual preference for individuals of the same sex) and of sex change with or without surgical intervention that was presented in the show constitutes a social issue and a reality that concerns only a small minority of people. It constitutes a condition that goes beyond the normal and, for that reason, it largely sounds strange to the underage viewer… The presentation of information about the sex life of homosexuals or transsexuals, about the sex change procedure and the feelings and experiences of the woman being interviewed, could possibly have a negative impact on underage viewers.’

Such discourse not only fails to protect LGBT+ people from discrimination but has the potential to add to their vulnerability and marginalisation even further by portraying them as ‘others’ who live outside the boundaries of the normal, heterosexual society. By prioritising a moralistic argument about how a discussion on LGBT+ issues might affect underage viewers, it also neglects the impact that prejudicial media portrayals or the lack of media representation can have on LGBT+ people’s mental well-being, self-image and aspirations. Positive LGBT+ representation in the news and entertainment media can play a key role in promoting social acceptance and tackling homophobic and transphobic violence. In a country like Greece where, according to a 2020 survey by the EU Agency for Fundamental Rights, 73% of LGBTI individuals avoid holding hands in public out of fear of being assaulted, threatened or harassed (one of the highest percentages among the 28 EU member states), it is profoundly disappointing and alarming that regulatory bodies like the NCRT fail to see the importance of responsible media reporting in creating a more inclusive Greek society and thereby improving LGBT+ individuals’ quality of life.

Finally, it is worth noting that, in our multi-mediated world, those identified as ‘folk devils’ and their advocates can use different outlets to challenge their demonisation in mainstream media instead of being completely defenceless against it. Following Kougias’ statement about his client’s reputation being tarnished by ‘professional homosexuals’, several well-known public figures hastened to criticise the lawyer’s language on news and social media: songwriter Foivos Delivorias condemned (in Greek) Kougias’ attempt to associate homosexuality with paedophilia and rape while, in a sarcastic move, both he and journalist Elena Akrita changed their employment statuses on Facebook to ‘Employed at Professional Homosexuals’.

The power to resist the conservative ideology of traditional media, however, does not change the fact that more work is required by media professionals and the relevant authorities in order to approach and report on the complex issues raised by the #MeToo movement sensitively. The Greek #MeToo movement can be seen as a tipping point which has the potential to effect societal change by eliminating the stigma attached to those issues and encouraging an open dialogue around them. But, as shown by some of the news coverage in former National Theatre director Dimitris Lignadis’ case, more responsible reporting is needed for this potential to be materialised.

In an attempt to show it is taking these allegations seriously (and perhaps also to divert attention away from its own unforeseen implication in Lignadis’ scandal), the Greek government set up the website metoogreece.gr to provide victims with the contact details of relevant support services. Allegations of rape, sexual assault, paedophilia and bullying against Lignadis and other powerful men of the Greek show business still dominate the Greek media at the time of writing. The exact number of victims and perpetrators, the actual impact of the ongoing ‘trial-by-media’ on due process and ultimately the extent to which the Greek #MeToo movement will succeed in rocking the hetero-patriarchal foundations of the Greek society remain to be seen.

This piece was originally published on The International Forum for Responsible Media and is reproduced here with permission and thanks.

Coronavirus and Harm in Broadcast Content

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UK communications regulator Ofcom has so far made six sanctions decisions on broadcast content related to the coronavirus. What do these decisions illustrate about what Ofcom considers harmful? In this post, Professor Lorna Woods explains the different types of harm that the regulator appears to take into account when considering misinformation around the virus and COVID-19.

Ofcom guidance on coronavirus

On 23 March 2020, UK communications regulator Ofcom issued guidance on content standards during the pandemic.  Building on the generally applicable Broadcast Content Code, the Ofcom guidance highlighted the importance of sections 2 and 5. Section 2 deals with harm and offence; section 5 with impartiality and accuracy. It might be thought that content about COVID-19 that has little evidential support could be dealt with under section 5, as Ofcom has previously dealt with complaints about climate change and anti-vaccine views on this basis. Yet Ofcom’s guidance on coronavirus points back to its approach to ‘health and wealth claims’ under rule 2.1. This rule specifies that broadcasters should apply ‘generally accepted standards’ to ‘provide adequate protection’ from harmful and/or offensive material. Ofcom’s Coronavirus guidance highlighted three areas of concern:

  • health claims;
  • medical advice; and
  • the need for accuracy in programmes dealing with the virus or with public policy in relation to the virus.

The guidance does not give much detail on how harm might arise, so what can be discerned from Ofcom’s approach in practice?

Health and wealth claims

Ofcom defines health or wealth claims as statements that specific products, practices or activities will result in various benefits, especially when conventional treatments or advice are dismissed. Based on research it commissioned, the regulator has identified ‘a hierarchy of factors affecting the level of potential harm arising’, divided into three categories which it applies in cases involving health or wealth claims generally. Primary considerations are the vulnerability of the audience (e.g when they may be affected by serious illness) and the authority of the speaker. Secondary factors include the range of views presented, and the level of certainty ascribed to them. Tertiary factors are personal gain, genre, audience size and time of broadcast.

The coronavirus decisions

The sanctions decisions on content related to the coronavirus were:

A further programme (The Last Leg on Channel 4) is identified as Covid-related, but it was not pursued.  It concerned comments made by a guest on the programme about Boris Johnson’s health, rather than the public health impact seen in the other programmes. It is not possible to identify a full list of programmes which might have raised coronavirus issues but which were not taken forward because Ofcom gives no reasons for such decisions, just stating that the complaints have been dismissed (this is a possible failing in Ofcom’s systems).

These six programmes promoted 5G technology as a cause of coronavirus. Loveworld News also suggested hydroxychloroquine as a ‘cure’ for COVID-19. During the sermon there was a call for people to ‘pray against the false vaccine’. All suggested an ulterior motive for lock-down (the creation of a new world order) and that government advice was not to be trusted. In The Family Programme, which heavily promoted a document entitled ‘The COVID-19 genocide of 2020’, there were references to ‘our duty to break unjust laws’.  With the exception of This Morning (which was still criticised), Ofcom found breaches of the code. In its London Live decision, Ofcom emphasised that its ‘rules do not prohibit the broadcast of controversial or outlandish views’ but ‘broadcasters must ensure that such views are properly contextualised so as to comply with the Code’.

What is harm?

These decisions illustrate what might be considered (in the broadcast context) harmful and that the ways that harm might be envisaged to arise show different levels of connection to the content, which we can ascribe to three broad categories: direct, indirect and societal.

A direct connection between content and harm can be seen, for example, in the context of photosensitive epilepsy (not in issue here), where content might have a direct impact on the psychology or emotional state of the audience. To the extent that psychological or emotional well-being was considered, it was a factor in assessing the vulnerability of members of the audience.  The concern in this context is therefore probably not their psychological or emotional well-being (though this can be seen in the context of some decisions in relation to children under rule 1 of the Broadcast Content Code), but the steps that individuals may take in response to the content: an indirect harm.

Indirect harm could occur because of a belief in the effectiveness of hydroxychloroquine or thinking that 5G causes coronavirus, which could lead people to engage in risky behaviours contrary to official advice (e.g. not social-distancing or injecting harmful substances).  It could also include circumstances when individuals seek to damage 5G masts. In this, the link between content and harm is indirect: it requires action on the part of the viewer to give effect to the harm.  This approach is not new. It ties in with the concerns Ofcom identified with regard to health claims and medical advice generally, and can also be seen with the rules in the Content Code relating to copycat behaviours.

London Live argued that it had removed any content that could have been considered to be medical advice or contrary to government guidance. The discussion was general and not aimed at any particular person. Ofcom still found the content to be harmful, however. This seems to extend the understanding of harm: what is distinctive here is that the harm occurs at the societal level, relating to virus spread, rather than just individual risk.

This broad approach to the societal category of harm is noticeable as regards Ofcom’s third category of concern: the approach to public policy. Although Ofcom emphasised the importance of a robust debate around the Government’s handling of the pandemic and in particular the restrictions to our freedoms, Ofcom found harm arising from criticism of Government’s motives. Some criticism, for example that in The Family Programme where the presenter repeatedly commented that “Government and WHO policies are deliberately aimed at killing people” was extreme.  Nonetheless, it seems that there is a low threshold to trigger this concern which is especially noticeable in Ofcom’s This Morning decision. There, the comparatively mild challenge to the government’s policies was assessed by Ofcom as ambiguous but yet was determined to have undermined people’s trust in official advice. Although a failure to follow government advice could clearly lead to harm – whether to the individual not following the advice or to others as a result of the spread of COVID-19 – this seems to be a broad understanding of harmful content, especially given the role of the media in holding government to account.

Conclusion

It is important, however, to appraise these decisions in context. The programmes (with the partial exception of This Morning) promoted extreme views. In the London Live interview, for example, the interviewee stated that the world is controlled by a cult which wants to create “a beyond Orwellian global state in which a tiny few people dictate to everyone else”.  In the Loveworld Sermon, the preacher argued that there was a sinister plan for the survivors of Covid-19:

“And the younger ones that are strong enough for the formation of the new breed that is in the dream, the new breed, the new class of people that some scientists want to create for the world. While all others may soon have to perish.”

Similar views were repeatedly expressed in The Family Programme.  Additionally, we should remember that the rule relates not to the existence of harmful content, but to the broadcaster’s failure to protect the audience.  In these cases (This Morning being the exception), there were only minimal attempts to provide balance or context in the presentation of the content, and the viewpoints were in each case adopted by the presenter, giving that viewpoint weight and authority.

All of Ofcom’s decisions emphasised – in accordance with its approach to health and wealth claims – the vulnerability of the audience, here the concerns arising from the spread of a novel virus for which there was at the time no cure or even particularly effective treatment, especially in groups or areas particularly adversely affected.  So, while Ofcom recognises a broad scope to harm in this context, the decisions on the facts were balanced. It is far from certain that Ofcom would find other views that are critical of the Government to be harmful; this trend would certainly not seem to be applicable beyond the pandemic situation. Finally, the challenge brought by the Free Speech Union was unsuccessful; permission to bring a judicial review action was refused.

This post first appeared on the Media@LSE blog and is reproduced here with permission and thanks.

The Defamation ‘Drag Race’ against Laurence Fox

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Photo by Harry Quan

Dr. Alexandros Antoniou and Dr. Dimitris Akrivos, School of Law, University of Essex

On 6 October 2020, Drag Race UK participant Crystal publicly announced her intention to pursue a defamation action against actor and aspiring politician Laurence Fox after calling her a ‘paedophile’ on Twitter.

The comment was made in relation to an earlier tweet posted on Sainsbury’s account, which expressed support for Black History Month. Fox accused the supermarket of promoting ‘racial segregation and discrimination’ and encouraged people to boycott the groceries retailer. Crystal criticised Fox’s tweet, writing: ‘Imagine being this proud of being a racist! So cringe. Total snowflake behaviour.’ In response, Fox tweeted: ‘Says the paedophile.’

The reality show contestant claimed that Fox’s comment on the microblogging platform amounted to ‘homophobic defamation’. In her statement, she said: ‘An accusation of paedophilia is one of the oldest homophobic tropes, and it was very shocking to have that levelled at me, not just by Mr Fox, but also his many followers who believed him. I may have had to endure homophobic bullying as a child, but I will not tolerate it as an adult.’

Crystal is the second individual seeking to bring a legal action against the actor over comments on the social networking platform. Simon Blake, deputy chair of the LGBT rights organisation Stonewall, also advised his lawyers to begin defamation proceedings against Fox, after the actor called him a ‘paedophile’ as well. Earlier, Blake had challenged him over his Sainsbury’s tweet by writing ‘What a mess. What a racist t**t’, to which Fox replied: ‘Pretty rich coming from a paedophile.’

Fox subsequently deleted his tweets, but screenshots continued to circulate online. He appears to have regretted posting these comments. In a Channel 5 interview, he stated: ‘It was in response, possibly, to 10 months now of being called a racist by people on Twitter, which I think is a career-ending slur, actually, and I find very hurtful. If the point is that words mean nothing, seeing as it’s a totally baseless allegation and is entirely in opposition to what my feelings are, I thought, you know what, if words meaning nothing nowadays, I can call you anything I want in return. Was it my finest hour? No.’

Defamation is committed by publishing a statement which lowers the reputation of the person referred to. In order to succeed in an action for defamation, the claimant must prove that the statement complained of was defamatory; that the statement was published and referred to the claimant; and that the publication of the statement has caused or is likely to cause serious harm to the claimant’s reputation. Whilst it is well-arguable that Fox’s tweets could provoke strong feelings against Crystal and Blake, the introduction of a serious harm threshold is one of the major changes introduced by the Defamation Act 2013 and is likely to prove a challenge when/ if these cases come before the court.

The early judicial opinion in Cooke and Anr v MGN Ltd and Anr [2014] EWHC 2831 suggests that in cases involving grave imputations serious harm will be so obvious that the need for evidence can be dispensed with, such as where an individual was wrongly accused of being ‘a terrorist or a paedophile’ in a national newspaper (Mr. Justice Bean, para. 43). More recently, however, the Supreme Court held in Lachaux v Independent Print Ltd and Anr [2019] UKSC 27 that, in assessing whether a publication has caused serious harm to reputation, the meaning of the words and their inherent tendency to do harm are not the sole factors. As Lord Sumption stated:

The reference to a situation where the statement ‘has caused’ serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is ‘likely’ to be caused. In this context, the phrase naturally refers to probable future harm.

Para. 14

So, the threshold has been raised and its application is to be determined with reference to a two-pronged test, i.e. the meaning of the words, plus their actual impact. The Supreme Court recognised, nevertheless, at para. 21 of the decision that inferences of fact can still be drawn from the circumstances and context of the publication, including factors like the scale of publication and the gravity of the allegation(s). The same court confirmed the importance of context in Stocker v Stocker [2019] UKSC 17, where the fact that publication was in a Facebook post was critical, as Facebook is ‘a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on’ (Lord Kerr, para. 43). Twitter is not too dissimilar. One of the messages sent is that in many instances not much thought is invested by people publishing on forums like these, and so far as defamation is concerned, ordinary readers on such platforms recognise this and are not overly analytical: ‘People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting’ (Lord Kerr, para. 44; see also Monir v Wood [2018] EWHC 3525, para. 90, Mr. Justice Nicklin).

A similar approach had earlier been taken in Monroe v Hopkins [2017] EWHC 433, in which Twitter was seen by Mr. Justice Warby as ‘a conversational medium’ to which ‘an impressionistic approach is much more fitting and appropriate’ (para. 35), taking into account the immediately surrounding contextual material. But, would it be fair to say that crude, provocative and controversy-seeking messages on Twitter are not often taken seriously because they are considered by ordinary readers ‘mere abuse’ or are perhaps expected in a forum of this nature? And, does it follow that the harm suffered will often be less serious? Every case depends on its own facts, but in Monroe, Mr. Warby Justice had little difficulty in accepting that the absence of evidence that a tweet was believed was not evidence of a lack of harm (para. 71).

Ultimately though, does it really make a difference if someone is accused of paedophilia in a ‘casual’ social medium like Twitter or a national newspaper? In our multi-mediated world, the so-called ‘trial-by-media’ – which often involves a sensationalist, moralistic speculation over the actions and motives of those who find themselves accused in the ‘court of public opinion’ – extends beyond news stories produced by professional journalists to also cover claims made on social media. More importantly, the age of ‘fake news’, the Jimmy Savile scandal and the #MeToo movement is also an age of mistrust towards society’s institutions (including traditional media organisations), especially when the matter at issue is paedophilia. From this perspective, social media have the power to challenge the top-down information flow in contemporary democratic societies and therefore their ordinary users might attribute more importance to content like Facebook posts or tweets than they are often assumed to.

With regard to how a tweet containing accusations of paedophilia could be interpreted, it is also worth briefly noting here the similarities between Fox’s case and that of the equally temperamental Tesla CEO Elon Musk, who was sued for defamation in the USA by a British cave explorer, Vernon Unsworth, after Musk called him a ‘pedo guy’ on Twitter in 2018. Musk claimed at the time that he used the term as a generic insult meaning ‘creepy old man’ and not with the intention to literally accuse Unsworth of paedophilia – an explanation that was accepted by the Los Angeles court which cleared Musk a year later. However, coming back to Fox’s tweets, an assessment of the harm they could cause to the claimants’ reputation would be deficient without a careful consideration of their identities and, particularly, their sexuality. Targeted towards two members of the LGBT community, Fox’s claims acquire an additional layer of meaning (and by extension, a greater capacity to harm) as they allude to the homophobic myth conflating homosexuality with child predation and paedophilia.

Post-Lachaux case law indicates that solely relying on the inherent tendency to cause harm may not be optimal for the success of a libel claim. Adducing as much evidence as possible can maximise a claimant’s likelihood of success. This could include: first, reliable evidence as to the extent of publication. Although Fox’s tweets were deleted, a sound assessment can still be made of the scale of publication through a combination of the number of his followers, the number of profile visits to his ‘home page’ and Twitter analytics. Hence, efforts should be made prior to the deletion of the tweets to obtain and preserve the analytics data regarding publication. The importance of Twitter analytics was noted by Mr. Justice Warby in Monroe (para. 84). And, even if a tweet is deleted, ‘what matters […] is not the period of time for which a person is exposed to the message but the impact the message has’ (Monroe, para. 71). Second, evidence of serious harm in the form of abusive tweets from other Twitter users who had read the tweet complained of can also be helpful, so long as the alleged abuse is causally linked to the offending tweet and reflects harm to reputation (see Monroe, para. 71). Third, evidence of substantial further indirect (“grapevine”) dissemination of the allegations complained of would be useful; as Fentiman v Marsh [2019] EWHC 2099 suggests, the likelihood of repetition of the allegation beyond the original publishees may be ‘typically’ inferred in cases involving social media (para. 55). Finally, evidence of the statement’s adverse effect on the way right-thinking members of society generally would treat the claimant could strengthen the serious harm argument, but the absence of direct evidence of adverse impact does not of itself mean a claim should fail. As noted earlier, Lord Sumption in Lachaux referred to the court’s ability to draw inferences and to the ‘inherent probabilities’ (para. 21).

At the time of writing, letters of claim have not been issued. If, however, the cases eventually reach the court, a difficult evidential burden will have to be shouldered. In the absence of such evidence, serious harm arguments may be open to question and weakened.

This post first appeared on the International Forum for Responsible Media Blog and is reproduced here with permission and thanks.

The Johnny Depp Libel Trial Explained

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Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On November 2 2020, London’s High Court handed down its hotly anticipated judgment in the high-profile libel case brought by Hollywood actor Johnny Depp over a newspaper article which labelled him a “wife-beater”. In his 585-paragraph ruling the presiding judge, Mr Justice Nicol, dismissed the actor’s claim, holding in essence that the words used in The Sun’s report were legally acceptable.

Depp brought a libel action against The Sun’s publisher (and the newspaper’s executive editor Dan Wootton) in respect of an 2018 article which was first published online under the headline: “GONE POTTY: How can JK Rowling be ‘genuinely happy’ casting wife beater Johnny Depp in the new Fantastic Beasts film?” The story asserted that Depp was violent towards his ex-wife Amber Heard during their relationship.

Depp’s case was that the article made seriously defamatory allegations which bore the meaning that he was guilty of serious domestic violence against his former wife. The defence maintained that the evidence showed the claimant “was violent towards Ms Heard on multiple occasions” during their relationship, and thus the “wife-beater” claim was justified. They relied on 14 alleged incidents of serious physical assault against Heard which had occurred between 2013 and 2016. However, Depp consistently denied the “reputation-destroying and career-ending” allegations.

The case was heard over the course of 16 days at London’s Royal Courts of Justice in July 2020. Importantly, neither Depp nor Heard was on trial. And this wasn’t a criminal trial either. In this libel dispute, there were two central issues: the meaning of the articles complained of; and whether the imputation conveyed by them (that the Hollywood actor engaged in unprovoked attacks and violent conduct against his ex-wife) was true in substance and fact. Mr Justice Nicol held that the meaning of the words complained of was as contended for by The Sun, namely that Depp was violent to Heard, “causing her to suffer significant injury and on occasion leading to her fearing for her life”.

The judge also expressly acknowledged that Depp proved the necessary elements of his cause of action, that his reputation had been damaged. But, under UK defamation law, if a defendant proves that the published words are “substantially true”, they will have a complete defence: they cannot be successfully sued regardless of the gravity of the allegations. In this case, the judge found that the great majority of alleged incidents of violent physical assault against his ex-wife were proved to be substantially true and dismissed Depp’s claim.

Was it all worth it?

Anyone following the case may have reasonably queried whether Depp’s action was ill-advised. Traumatic, intensely intimate and unflattering details of a tumultuous relationship apparently punctuated with blazing rows, a drug and alcohol-fuelled lifestyle and allegations of domestic abuse – strenuously denied – were uncovered in court and made front-page news worldwide.

A parade of witnesses, including A-list actors, strode into London’s High Court to support each side’s versions of events. The court heard details of a costly trail of destroyed property, a severed finger apparently caused by a thrown vodka bottle, profoundly acrimonious texts and “a large pile of faeces” left in a bed.

In addition to the revelation of unattractive details of his personal affairs, Depp had to shoulder a taxing evidential burden as a result of a recent Supreme Court ruling. The court’s decision in a 2019 defamation case involving two UK newspaper publishers established that the threshold test for “serious harm” in defamation actions has been significantly raised under the 2013 Defamation Act. This has made it more difficult for claimants to succeed in their actions.

Nevertheless, Depp must have considered that the trial was the lesser of two evils compared to unanswered reputational attacks of this magnitude. The conduct alleged was essentially criminal and highly defamatory, especially in the post-#MeToo landscape. The judge’s ruling suggests that the actor correctly assessed the potential reputational damage that the words “wife-beater” would cause to his future.

The heavy focus on Depp’s alleged criminal wrongdoing in The Sun’s article, the extent of its publication, the long-term effect of online libel and the undesired prospect of the actor’s removal from his role in a major film franchise provided a strong impetus for the claimant.

NGN took an equally bold, yet somewhat risky, decision. By relying on the defence of truth, the publisher was required to establish the essential truth of the “sting” of the libel. This means that it was not necessary for NGN to prove that every single aspect of the statement complained of was absolutely true, so long as, taken as a whole, it was accurate.

The standard of proof needed for a truth defence is that used in civil cases generally – the material must be proved true “on the balance of probabilities”. This is a lower bar to achieve than the usual criminal standard of being sure “beyond a reasonable doubt”.

Although one might think that NGN had a relatively easier task to achieve, it should not be forgotten that, when the truth defence is used, the burden rests on the publisher to prove that the allegations were true, rather than on the claimant (in this case, Depp) to show that they were false. This can give rise to further complications, as the success of a claim will regularly turn on the evidence in each individual case.

And when opposing accounts of what happened in private cannot be entirely ruled out, lawyers will struggle to persuade the court which version is more likely to be true. This is apparent in the position taken by Depp’s lawyers that “the claimant was not violent towards Ms Heard; it was she who was violent to him”.

Hence, media organisations may often be reluctant to defend libel actions and may opt for an out-of-court settlement to avoid the risk of high legal costs or damages. This was not the case with NGN, which nevertheless sought to prove true a very serious allegation. It succeeded, despite the challenges associated with this defence.

The case continues

The outcome was bitterly unfavourable to Depp, who arguably suffered a crushing defeat, with all that this might entail for his career. Moreover, his case has reportedly led to an estimated £5m in legal costs, and on top of that, he is likely to be made to cover a significant percentage of the winner’s legal costs.

The Sun, meanwhile, emerged victorious from a tense legal battle. The outcome may stiffen the resolve of the English press to report on matters of domestic violence, but it does not necessarily follow that the approach taken by the High Court in Depp’s trial is a uniform one in all cases.

The High Court’s decision doesn’t seem to spell the end of the legal battle. Depp’s representatives said they found the decision “as perverse as it is bewildering” and announced their intention to appeal. It will also be interesting to see whether the outcome in London can carry some weight and indirectly affect the libel rematch next May in the US against Heard herself over an opinion piece she wrote for Washington Post.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

ICO’s Age Appropriate Design Code of Practice Comes Into Effect

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Photo by Igor Starkov

Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

On 2 September 2020, the Information Commissioner’s Office (ICO), the United Kingdom’s independent body established to uphold information rights, formally issued its Age Appropriate Design Code of Practice which should be followed by online services to protect children’s privacy.

The Age Appropriate Design Code of Practice, the first of its kind, is a statutory code required under Section 123 of the Data Protection Act 2018 and aims to address the increasing “datafication” of children. The Code was first published on 12 August 2020 and, following completion of its parliamentary stages, it came into force on 2 September 2020. The Information Commissioner, Elizabeth Denham CBE, stated: “For all the benefits the digital economy can offer children, we are not currently creating a safe space for them to learn, explore and play. This statutory Code of Practice looks to change that, not by seeking to protect children from the digital world, but by protecting them within it.”

The Code’s primary focus is to set a benchmark for the appropriate protection of children’s personal data and provide default settings which ensure that children have the best possible access to online services whilst minimising data collection and use, by default. It sets out 15 standards on data collection and protection, and reflects a risk-based approach. Section 123(7) of the DPA 2018 defines “standards of age-appropriate design” as “such standards of age-appropriate design of such services as appear to the Commissioner to be desirable having regard to the best interests of children.” The 15 points of the Age Appropriate Design Code include a duty to conduct data protection impact assessments; transparency; policy and community standards; data sharing and minimisation; geolocation; parental controls; nudge techniques; and online tools, among others. For a brief overview of the standards laid out in the Code, see here. Due to the fact that different services will need to implement various technical solutions, the ICO acknowledges that these are not intended as technical standards, but as a bundle of technology-neutral design principles and practical privacy features.

These principles apply to any online products or services (including, for instance, educational websites, social media platforms, apps, online games, and connected toys with or without a screen) that process personal data and are likely to be used by children under 18 in the UK; therefore, they are not limited to services specifically aimed at children. The Code covers entities based in the UK as well as entities based outside of the UK if their services are provided to (or monitor) users based in the UK. Services provided on an indirect charging basis (for example, funded by advertising) also fall within its remit.

The ICO and the courts will take the Code into account in determining whether the GDPR and PECR requirements have been met for the purposes of enforcement action. Although the Code is now in effect, the industry has been given a 12-month implementation period to get up to speed and introduce suitable changes. After a year in force, the ICO will undertake a review of the Code and its effectiveness.

This article was first published in the 9th issue of IRIS Legal Observations of the European Audiovisual Observatory and is reproduced here with permission and thanks.

Internet Safety Expert Recognised with OBE

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An Essex legal expert has been recognised in the Queen’s Birthday Honours for her work on internet safety.

Professor Lorna Woods, from our School of Law, has been working since 2017 with William Perrin of the Carnegie UK Trust to develop a workable solution to ‘online harms’, a term that covers a range of internet safety issues. Professor Woods and Mr Perrin are to both receive OBEs.

Professor Woods said: “I am delighted, if a little surprised, by this honour. I’d like to thank Will, of course, but also Maeve Welsh and everyone at the Carnegie UK Trust – without their support, we would not have been able to develop our approach further or undertake the vital, ongoing engagement with those working in this area.

“Recent events have raised new concerns about the role of social media. The need for a statutory duty of care, overseen by an independent regulator, is not going away. In fact, it is more urgent than ever. We look forward to publication of the promised Online Harms Bill, and its consideration in this parliament.”

In October 2017, Professor Woods and Mr Perrin sat down to review the just-published Green Paper on Internet Safety Strategy.

Near-daily stories of bullying, self-harm and extremism had created a febrile debate. The challenge? To reset the online world and reduce the risk of harm.

The pair agreed the government response was inadequate. Drawing on their experience of the sector, they consulted with a range of actors, researched models already in use and started to write.

Across seven co-authored blogs, completed between February and May 2018 (and subsequently collected into a report, with funding from The Carnegie UK Trust), they sought to shift the debate from ”publishing” and the removal of specific content, to harm prevention, developing a detailed plan involving a statutory duty of care, overseen by an independent regulator.

The duty of care approach re-casts social media as a series of “public or quasi-public spaces”.  In creating these spaces, the providers’ goal must be not maximising profit, or engagement, but user safety. The more vulnerable an audience, the greater the responsibility.

At a time of significant public concern, their research has been a game-changer, offering a workable solution, inspiring a national newspaper campaign, rallying civil society groups and influencing lawmakers, at home and abroad.

In December 2019, they published their own draft Online Harm Reduction Bill, to maintain momentum. The draft bill was endorsed by organisations including the NSPCC, 5Rights Foundation, The Institute for Strategic Dialogue and the Royal Society of Public Health.

In January 2020, the authors and the Carnegie UK Trust also supported Lord McNally in the preparation of a short paving Bill to require Ofcom to prepare for the introduction of an Online Harms Reduction Regulator. The paving Bill was introduced into the Lords on 14 January 2020 and is currently awaiting a second reading.

Four Essex graduates have also been recognised in this year’s Queen’s Birthday Honours:

  • Dr Philip Orumwense (MA Political Behaviour, 1991) will receive a CBE for public service. Philip was Commercial Director of IT at Highways England and is recognisesd for his work across the public sector.
  • Sir David Attenborough (Honorary Graduate), has received a GCMC for his services to broadcasting and conservation.
  • Miss Carrie Anne Philbin (BA History, 2002) has received an MBE for services to education, championing diversity and inclusion in computing.
  • Ms Clare Woodman (BA Government & Sociology, 1989) has received a CBE for services to finance in her role as Head of EMEA and CEO of Morgan Stanley & Co. International PLC.

This story originally appeared on the University of Essex news webpage and is reproduced here with permission and thanks.

University of Essex Academics Respond to the European Commission Consultation on Digital Cultural Heritage

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Professor Stavroula Karapapa, University of Essex, School of Law

Digitisation has enabled access to and availability of cultural heritage to an extent previously unknown and, in addition, it has enhanced preservation and modern research opportunities, e.g. through text mining and data analytics. The availability of and access to cultural materials in digital form can provide significant support to conservation, renovation, research, study and promotion of cultural assets and, in this regard, digital cultural heritage can serve as a resource for education, enjoyment or re-use, including use towards the development of new knowledge. The need for digital transformation has been revealed and become as relevant as ever as a result of the COVID-19 pandemic. Despite its benefits, the digitisation of cultural heritage challenges traditional legal norms, such as copyright law.

Colleagues from the School of Law, in collaboration with staff from the University’s Library Services and University Archives, have contributed to a consultation of the European Commission on Digital Cultural Heritage.

In their position paper, they recommend that digitisation should enable preservation of cultural artefacts, including world heritage properties, access to the public, and accessibility by people with special needs and educational institutions.

They also recommend that law and policy should offer further support to cultural institutions towards developing digitisation initiatives (e.g. the legislative framework on orphan works should be revisited in terms of its breadth and parameters of application).

They warn against the creation of digital monopolies (e.g. public domain material should remain in the public domain after digitisation) and urge for the development of legal provisions ensuring the security of computer infrastructure both to safeguard digital culture and avoid the spread of misinformation.

Click below to download a copy of the position paper:

uoe-position-paper-digital-cultural-heritageDownload

If I could turn back time: the confusion between two TENETs and the role of trade marks

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Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex

Christopher Nolan’s much-anticipated “mind-bending” film Tenet was released in the UK in late August 2020 to mixed reviews. Nevertheless, it performed well internationally. This is not, however, surprising for Nolan, whose blockbusters Inception, Dunkirk and The Dark Knight trilogy saw massive box office returns.

“The story [in Tenet] takes on ideas of time and how we experience it – interacting a science fiction component with the classic elements of the spy genre”, Nolan said. The first trailer of the movie arrived with a simple title logo in which the last two letters, i.e. E and T, were inverted, making an indirect reference to the concept of time inversion which provides a framework for the film’s plot.

When the first trailer dropped in December 2019, a bicycle components brand based out of Bellingham in the US state of Washington, also named Tenet, published the following post on Instagram:

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𝟱/𝟮𝟱/𝟮𝟬 𝗨𝗣𝗗𝗔𝗧𝗘: 𝗔𝗽𝗽𝗮𝗿𝗲𝗻𝘁𝗹𝘆 𝗜 𝗻𝗲𝗲𝗱 𝘁𝗼 𝗵𝗶𝗴𝗵𝗹𝗶𝗴𝗵𝘁 𝘁𝗵𝗮𝘁 𝘁𝗵𝗶𝘀 𝗽𝗼𝘀𝘁 𝗶𝘀 𝗻𝗲𝗮𝗿𝗹𝘆 𝟲 𝗺𝗼𝗻𝘁𝗵𝘀 𝗼𝗹𝗱. 𝗦𝗶𝗻𝗰𝗲 𝗽𝗼𝘀𝘁𝗶𝗻𝗴 𝘁𝗵𝗶𝘀 𝗠𝗿. 𝗡𝗼𝗹𝗮𝗻 𝗮𝗻𝗱 𝗪𝗕 𝗵𝗮𝘀 𝗯𝗲𝗲𝗻 𝗶𝗻 𝗰𝗼𝗻𝘁𝗮𝗰𝘁 𝘄𝗶𝘁𝗵 𝘂𝘀 𝗿𝗲𝗴𝗮𝗿𝗱𝗶𝗻𝗴 𝘁𝗵𝗲 𝘀𝗶𝘁𝘂𝗮𝘁𝗶𝗼𝗻. 𝗜𝗳 𝘆𝗼𝘂 𝘄𝗼𝘂𝗹𝗱 𝗹𝗶𝗸𝗲 𝘁𝗼 𝗿𝗲𝗮𝗱 𝗠𝗿. 𝗡𝗼𝗹𝗮𝗻’𝘀 𝗲𝗺𝗮𝗶𝗹 𝗮𝘀 𝘄𝗲𝗹𝗹 𝗮𝘀 𝗼𝘂𝗿 𝗿𝗲𝗽𝗹𝘆 𝗶𝗻 𝘁𝗵𝗲𝗶𝗿 𝗲𝗻𝘁𝗶𝗿𝗲𝘁𝘆 𝘄𝗲 𝗵𝗮𝘃𝗲 𝗽𝗼𝘀𝘁𝗲𝗱 𝘁𝗵𝗲𝗺 𝗼𝗻 𝗼𝘂𝗿 𝘄𝗲𝗯𝘀𝗶𝘁𝗲. • ORIGINAL POST FROM 2019 -> No, despite the striking similarities, we are not making a movie with Christopher Nolan. Maybe it was a coincidence, or maybe Nolan was inspired by our branding; regardless the apparent negligence is frustrating to say the least. Thank you to all the people that have reached out in support of Tenet (the bike brand). When we became aware of this, our biggest fear was that many of our peers who haven’t heard of Tenet (the bike brand, shit this is going to get old quick) might think WE stole the logo from Nolan, when in reality, we launched long before this movie was announced. If you would like to share this post to help spread the word, it would be greatly appreciated. I’m sure one day we’ll all look back on this and shake our heads in disbelief. #supportriderowned #damntheman

A post shared by TENET COMPONENTS ™️ (@ride_tenet) on

Christopher Nolan was seemingly unaware that a strikingly similar logo was already being used by the bicycle making company. Tenet Bicycles holds a registration for the mark (USPTO, registration number 5581507) since 9 October 2018, i.e. prior to its adoption for the film. However, in trade mark law, this registration only protects them from the use of the word within the biking industry.

The core aim in registering a trade mark is to acquire a monopoly right over a sign that distinguishes a trader’s goods or services from those of others. But, that sign gives in principle protection in the class or classes of goods and services for which it is registered (there are 45 classes under the NICE classification system). For instance, the name Lloyds is used in various classes: a bank, a pharmacy chain and an insurance market, but only one bank, one pharmacy chain, etc. can register the mark Lloyds. Special rules apply, however, to very strong and vulnerably famous marks, which are afforded in trade mark law stronger protection against use by third parties, even on dissimilar goods or services and even if no confusion will arise on the part of the average consumer.

In the case at issue, there was understandably a real concern that people unfamiliar with the Washington-based brand, which launched in June 2018, would think that the recently established company attempted to ride on the coat-tails of the logo used to promote the forthcoming film of a reputable director in order to benefit from its prestige and power of attraction. Being minded to mitigate the risk of confusion, the founder of Tenet Bicycles, Tyler Deschaine, said in a public statement:

I don’t have any issue with them using the word Tenet, there are thousands of trademarks for that word across dozens of industries. My issue is with the stabilization, but that is neither here nor there. I’ve spoken with lawyers and despite the validity of my concerns; I’ve been advised not to pursue it. Even sending a letter could potentially open myself up to a pre-emptive lawsuit from Warner Brothers. These sorts of things can get dragged on for years and the legal fees can go well into the hundreds of thousands of dollars. We’re a tiny component company that is taking baby steps to carve out a place for ourselves in the industry. We in no way want to get raked through the coals of litigation. That would end poorly for us. Also, we’ve got more important things to focus on, like developing new product and creating rad content. I want to make it clear that I never thought of this scenario as a get rich quick scheme. At the end of the day, I just want to avoid potential damages to my brand’s reputation and I suppose this article will help clear the air.

After the publication of this statement, Warner Bros., the production company behind Nolan’s film, reached out to the bike parts manufacturer, with the following response by the director:

Dear Tyler,

Warners just showed me the logo for your company, so I wanted to reach out directly and reassure you that our logo was arrived at without reference to yours. I know this because I designed ours myself, evolving it over the last six years, driven by a fascination with the symmetries of a word which is central to my story and its themes. I thought I’d done something unique – but clearly, you were driven by the same creative impulse. I guess lightning can strike twice, and obviously I understand that you would not want anyone thinking that you had been inspired by our movie’s title treatment – feel free to quote me in shooting such misunderstandings down. I love our logo so I hope you won’t feel this is necessary, but if you like, I can stop using it since it seems you went public with yours first.

Yours respectfully.

Chris Nolan

This story is a useful reminder that not all trade mark disputes have to result in bitterly fought litigation. Both Deschaine and Nolan took this matter as a simple coincidence, though Tenet Bicycles did ask Warner Bros. to refrain from using the partially inverted logo with the same font for Nolan’s film. The producers followed up by slightly amending the film’s logo in its latest trailer, which premiered with a plain title card instead. This mutually acceptable outcome represents an amicable compromise and reasonable settlement of the issue, which led to positive publicity for both sides involved, the bicycle company and the film producers.

Another key take-away message is that brands must learn to carefully pick their battles. Warner Bros. producers could have been left with a PR nightmare on their hands, had they attempted to ‘discipline’ a small company. Resorting to legal correspondence with a threatening tone or aggressive point-scoring enforcement practices that frustrate lawyers and the public might not always be the best way forward. Instead, it is wise to determine on a case-by-case basis how best to address potentially infringing activities. The type of business being written to, the precise nature of the alleged infringement as well as the risk of future litigation and the management of commercial risks to the business itself should be carefully considered. The legal and public relations teams of brands need to work together in assessing whether to pursue cases of infringement, and if so, in what way. The balance between brand protection through robust legal enforcement and the risk of adverse publicity is a delicate one.

This piece first appeared on INFORRM, the International Forum for Responsible Media Blog, and is reproduced here with permission and thanks.