Author: Nathanael Young

According to the Guardian, Brian Belo has begun court proceedings against ITV and Lime Productions for copyright infringement and breach of confidence. It appears he is claiming that The Only Way is Essex is based on an idea he had developed with Sassy Films and Massive TV, co-claimants with him in the litigation.

Given the subject matter, the case seems sure to be in the headlines until it is resolved. However, the legal difficulties in bringing a claim over ideas for shows should not be underestimated. Copyright infringement applies not to ideas themselves, but to the tangible expression of ideas – something the Americans call the idea/expression dichotomy. In the past, only highly developed ideas – such as preliminary drafts of final works – have been found to be protected in this way.

This issue has put paid to many cases of copyright infringement – among the most famous being the case over the Da Vinci Code, and the plot elements its author had borrowed from an earlier work called the Holy Blood and the Holy Grail.

Turning to TV shows, the classic case on copyright infringement is Green v NZ Broadcasting Corporation [1989] 2 All ER 1046. In that case, Hughie Green objected to a copy of his ‘Opportunity Knocks’ show being aired in New Zealand. However, the elements he alleged were copied were the title, certain catch phrases and other practices in relation to the show. The Privy Council held this could not be breach of copyright, and TV show producers have rarely relied on copyright ever since.

In confidentiality however, the picture is quite different. TV shows are frequently protected by the use of ‘production bibles’, supplied under confidentiality agreements, containing the sort of know-how that goes into the show but cannot be readily identified by watching it. This makes it hard for copycat shows to air without obtaining the confidential information and ending up on the wrong side of the law.

Indeed, before the show is first aired, confidentiality can offer still greater protection. The ideas, characters, format and flavour of the show are not yet in the public domain, and can all be covered by well drafted confidentiality agreements. This is certainly the route that any budding TV show producer would be advised to go down.

Contact Us
For further information or to discuss a particular matter or situation in more detail, contact Nathanael Young at our St Albans office by email at nathanael.young@salaw.com or on 01727 798000.

© SA LAW 2012
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.

Author: Nathanael Young

There has been plenty of sport in court over the last few months, what with super-injunctions, Sky decoders and match fixing. Now a libel case brought by former New Zealand cricketer Chris Cairns has hit the headlines.

As with many recent libel actions, it all started on Twitter. In this case, the offending tweet was posted by Lalit Modi, former chairman of the Indian Premier League, accusing Cairns of involvement in match fixing.

The tweet was soon posted on Cricinfo, a cricketing website with a worldwide audience. After Cairns objected, Cricinfo swiftly made peace – they withdrew the report, apologised and paid damages.

Modi took a different route. He defended on the ground of justification, calling evidence from a number of Cairns’s team mates in an effort to show the allegations were true.

In his judgment however, Mr Justice Bean was scathing about the reliability of some of Mr Modi’s witnesses, and accepted Mr Cairns evidence, noting he had emerged ‘essentially unscathed’ from prolonged questioning.

In a particularly interesting move, the judge then ruled that damages would be increased from £75,000 to £90,000 in view of the ‘sustained and aggressive’ attack on Mr Cairns by the Mr Modi’s lawyers. Apparently the words ‘liar’, ‘lie’ and ‘lies’ were used 24 times in Modi’s barrister’s closing speech.

The case is yet another reminder of the dangers of careless tweets. It is also a reminder of the dangers of trying to justify allegations in libel cases. Although the defendant only needs to prove on the balance of probabilities that they are true, not all attempts at justification survive the intense scrutiny of trial. When they go wrong, they can then lead to additional damages, and certainly far more costs than a quick early settlement.

It seems that the damages awarded may yet be the subject of an appeal. However, the principle that vindictive behaviour can aggravate damages is a long standing one. Defendants to libel trials should be warned: justification is not for the faint-hearted, nor for those without the greatest confidence in their evidence.

Author: Nathanael Young

In true holiday spirit we have gathered together some tips to ensure your business is fighting fit for 2012. Even Scrooge would approve…

Savings matter for businesses too. Sometimes businesses are in a position to put something aside, but it can be hard to find a suitable account. Shawbrook Bank, launched in October 2011, has introduced a new business bond. The 1 year fixed rate savings bond pays 2.70% gross, guaranteed for 1 year. Shawbrook specialises in offering products to SMEs and therefore allows customers to choose whether the interest is paid gross or net, to suit the tax status of their business.

Almost 50% of businesses are not on the most suitable mobile phone tariff according to Connecting Business. This leads to businesses paying over the odds because they are unaware of the advantages of the right business tariff; make sure you don’t make this costly mistake.

VAT can be reclaimed on a wide variety of products, but did you know that it can be reclaimed on line rental too? This is obviously not possible for those that are on consumer tariffs, but for VAT registered businesses it can significantly reduce bills. Tariffs can also be shared amongst users allowing for line rental per line of around £15.

Intuit, the makers of QuickBooks accounting software, recently tested the knowledge of 155 entrepreneurs. They claim that SMEs suffer because of a general lack of financial knowledge as set out below. So read these next tips carefully…

Never forget legal compliance. 39% of those questioned were unaware of the VAT threshold of £73,000 and 23% did not know the correct definition of VAT taxable turnover. Getting things like this wrong can have a major impact on the cash flow of a business and expose it to crippling penalties. If in doubt, get advice.

Get familiar with accountancy terms. 47% of those tested did not know the correct definition of gross profit and a further 31% did not know how to explain turnover. Not  a great start when you’re speaking to your bank, is it?
Start drawing up a plan. 16-20% of businesses do not have a business plan, although this is essential to keep a business focussed and well funded. If you’re one of the defaulters, make this the first New Year’s resolution on your list.

On behalf of SA Law, we wish you a very Merry Christmas and a prosperous New Year.

This article was written by Head of the SME Team Nathanael Young and Trainee Solicitor Helen Young.

Contact Us
For further information or to discuss a particular matter or situation in more detail, contact Nathanael Young at our St Albans office by email at nathanael.young@salaw.com or on 01727 798000.

© SA LAW 2011
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.

Author: Nathanael Young

Hot on the heels of the Advocate General’s opinion on the use of foreign decoders (well, 8 months later) the Court of Justice has now given its ruling on the issue. As expected, the Advocate General’s opinion has been followed, and prohibitions on using or selling foreign decoder cards have been held contrary to European law.

Although the judgment runs to 212 paragraphs, it has already been scrutinised and re-scrutinised across the EU. This is because, as mentioned in my previous blog piece, it strikes at the heart of the current licensing system used for football in the UK and elsewhere.

In principle, the Court held that national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services. It also held that a system of exclusive licences is itself contrary to competition law if the licences prohibit the supply of decoder cards to television viewers outside the licensee’s territory.

However, in an odd quirk, the Court also held that the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches and certain other graphics fell into a separate category. These works could only be used with authorisation from the rights holder.

Although pub owners can protect themselves from this exception by only screening games from kick off, rights holders are no doubt looking at whether they can use this additional material in an effort to preserve the status quo. However, given the fundamental antagonism in the judgment towards the notion of partitioning rights, and towards artificial price differentials resulting from such partitioning, this may be hard to achieve.

Whilst broadcasters and rights holders will be disappointed at the decision, it was hardly unexpected after the Advocate General’s opinion. They must therefore have given some thought to contingency plans, and to new business models to cover just this eventuality. Whether these will involve the pan-European licences the Advocate General seemed to envisage is another question. So too is the issue that has the widest interest – the effect of such new models on football itself.

The importance of this decision on football has resulted in considerable media attention already, with much speculation as to whether the result will be business as usual or fundamental change. However, the case is worth noting for other reasons as well. Apart from anything else, it is a vivid illustration of how the importance of a single market and competition across member states is hard-wired into European law. Intellectual property rights have not proved sacrosanct when they have come into conflict with competition law, as even Microsoft has found to its cost.

Author: Nathanael Young

Some people have them, but you don’t know who. Some people want them, but don’t want you to know they want them. Some people know about them, but aren’t allowed to tell you about them. Welcome to the strange world of super-injunctions.

First coming to popular attention in the wake of the Trafigura affair, these supercharged legal injunctions raised amazement and concern in equal measure. At first, particularly after John Terry’s failed bid to cover up an affair, it seemed that they were going to be rarely sought and even more rarely granted.  A year on, however, and it seems their rise is unstoppable. Just what can these court orders be, that have got everyone from junior journalists to the Prime Minister talking?

At the heart of each super-injunction is an ordinary injunction – an order stopping someone from doing or saying something.  However, it is also accompanied by reporting restrictions. Thus the nature of the order, or the identity of the person applying, or even the fact an order has been made, may all be kept secret.  Such super-injunctions often concern the secret misdemeanours of celebrities, who argue that their right to privacy under the Human Rights Convention will be infringed if their private lives are laid bare. They argue that the purpose of their application will be defeated if the fact they have applied for an order is revealed,.

The legal procedure necessary to make such orders is not new, but the privacy law that has led to their popularity is another story. Although often stigmatised as a ‘judge-made’ law, it has in fact arisen out of the Human Rights Act 1998, which required courts to give effect to the European Convention on Human Rights. This has been done by adapting the much older principle of breach of confidence. Now anyone can stop disclosure of matters – even where there is no breach of confidence in the normal sense – if they have a ‘reasonable expectation of privacy’. If this right conflicts with the right to freedom of expression, the two rights are balanced against each other, with neither right automatically preferred before the other.

To some, these developments are a necessary check on the abuse of press power; aimed at those who specialise in turning scandal into profit. They argue that academic lawyers had been calling for a right to privacy in English law for years, and that freedom of expression can be amply protected by the court’s balancing exercise.

To others, however, privacy law and the rise of the super-injunction are a worrying attack on open justice and freedom of expression; allowing the rich and powerful to suppress their critics. They point out that celebrities use the press to promote their own image, but are the first to object when the press turn against them.

Certainly, as the balancing exercise has been applied in practice, the courts have been reluctant to accept that the public have a genuine concern in the lives of celebrities. As the judges frequently say: what interests the public is not necessarily in the public interest.

Unfortunately, it is not clear that such unashamedly elitist distinctions are adequate in practice. Newspapers like the Guardian and the Telegraph – hardly known for scandal-mongering – are at the forefront of criticism of these injunctions. Having some kind of privacy law may be welcome, but private hearings and secret orders are a heavy price to pay.

As the proliferation of these orders has exceeded all expectations, the trickle of concern has become a flood. The issue has now been raised at the highest levels, and with a commission on the subject due to report soon, it would be easy to assume that some kind of controls must be introduced.

In the meantime, however, celebrities still seek super-injunctions, and courts continue to grant them. If these drastic orders do become rarer, it will not be for lack of interest.

Author: Nathanael Young

Football may be a global game, but not for Premier League broadcasters.  English top flight matches are broadcast across the world, but each broadcaster will sign up to an exclusive licence covering its own territory. BSkyB has the UK patch , and have paid handsomely to the Premier League’s marketing organisation for the privilege.

Central to this system is a decoder card, which decrypts the signals which are transmitted by the broadcaster issuing it. Under the terms of each broadcaster’s licence, the circulation of their decoder cards outside their own territory is restricted. The intention was to ensure that only Sky decoder cards were available in the UK, and thus only customers of Sky would be able to see live transmissions of Premier League matches.

Given the high price of the UK decoder however, a market developed in imported ones. According to the Premier League, this was illegal. Allowing importation and use of foreign decoders would undermine the territorial exclusivity they offered to BSkyB, and would have a major effect on their revenue.

This may now change, however, after pub landlady Karen Murphy’s case was referred to the European Court of Justice. In her opinion to the court, the Advocate General has advised that territorial exclusivity in broadcasting is contrary to European Law, and has a serious effect on the freedom to provide services across the internal market. Nor did she accept that exploitation of intellectual property rights was undermined by allowing use of foreign decoders. Since the foreign decoders were paid for, the only issue was the price difference across EU Member States. It was part of the function of the internal market to ensure such price differences were reduced by trade.

The effect of this opinion is still unclear. The Advocate General’s opinion is not binding on the ECJ, although it is highly persuasive, and is followed about four times out of five. Thus it will not be until after the ECJ’s actual verdict that we will know for sure if the legal landscape has changed.

However, the opinion is without doubt a major blow to the Premier League, and to Sky. The financial consequences of ending territorial exclusivity would have a huge effect on revenue, and this would in turn send ripples through football. For consumers on the other hand, it could see the price of subscriptions slashed, as pan-European competition takes off.

For intellectual property lawyers, one issue will be how far any verdict extends. There has always been a tension between EU competition law and intellectual property rights, but despite some suggestions in the media, this case seems unlikely to change things fundamentally. Whilst the Premier League’s case relied upon intellectual property rights, broadcasting live matches is not quite in the same category as writing novels or songs.

Not that there is any lack of creativity and imagination in football, of course. Just think of the diving.

Author: Nathanael Young

Twitter troubles are already a staple of the celebrity press, but Courtney Love has now given them a new twist.  After a dispute over payment for clothes, the singer is said to have called a designer a  ‘drug pushing prostitute’, and was sued after the tweet was picked up by tens of thousands of fans.

Although the case will be dealt with in Los Angeles under US law, it still highlights the way in which changing technology has an impact on defamation law the world over. Defamatory statements are now as likely to be in blogs, message boards or social media as in traditional newspapers and magazines.

In addition, it provides a salutary reminder of how dangerous new media can be. When angry rants were only oral, English law classified them as slander rather than libel, and made it much harder to sue. Now, even the most momentary anger can lead to a libel claim, with comments  published to thousands at the touch of a button. It is unlikely Love made a habit of counting to ten before tweeting, since she announced she was leaving Twitter in October after posting photographs of herself intended only for her boyfriend.

Let users beware…

Author: Nathanael Young

Since my last blog The Stig Issue: BBC battles to keep driver veiled, the BBC has lost its application against HarperCollins to keep the Stig’s identity secret. We will not know the reasons immediately, since the judgment will be given in private. However, since Formula 3 driver Ben Collins was in court for part of the case, the BBC’s refusal to confirm whether or not he is the Stig now seems a little coy. By relying on confidentiality, they have more or less confirmed the truth of Collins’ planned disclosures.

Despite this set back, it may still be the BBC proceed with their case. Failing to obtain an interim injunction to stop something being published is not the same as losing at trial. Generally, the court decides whether to grant such injunctions on the basis of the balance of convenience, and not based on who it thinks will win. The BBC might still go on to win damages.

Meanwhile, public speculation will shift to another issue. What will happen to the Stig now?

Author: Nathanael Young

For years, the identity of Top Gear’s the Stig has been the subject of speculation and amateur detective work. Now, with publisher HarperCollins set to reveal all in a new book, the matter has been passed to the lawyers. The BBC has applied for an injunction to halt publication, and both parties were in the High Court on Monday over the issue.

At present, further details of the case are hard to come by. It seems the BBC is alleging that the publication breaches confidentiality agreements entered into in connection with the show, and that HarperCollins is standing by its right to publish the mysterious driver’s story. No doubt more will emerge in due course, although how much depends on the outcome of the litigation.

To the public, the interesting question may be the face behind the trademark black visor, but there are likely to be serious legal issues in a case of this sort. Secrets are not usually kept for long under the constant glare of media publicity; they have to be carefully guarded. There can be little doubt the BBC has given serious thought to the issue from Stig’s first appearance in 2003, or there would now be nothing confidential to protect.

In English law, secrets of this sort will be protected by the law of confidence. To stop disclosure, someone will generally have to show the information is confidential in nature, that it was disclosed in confidential circumstances and that there is a threat to use it to their detriment. The best way to satisfy this test is by having a carefully drafted confidentiality agreement.

In this case, HarperCollins is not likely to have received their information from the BBC, so there is unlikely to be a signed agreement. It may be the BBC will instead allege the publisher is obliged not to use information they received from the unknown driver, since they knew or ought to have known that was confidential.

There is precedent for this; since when Michael Douglas and Catherine Zeta-Jones sued Hello! magazine for using unauthorised images of their wedding, there was again no confidentiality agreement between the magazine and the couple. In that case the source of the photographs must have been a guest or member of staff with a hidden camera. However, it was held that Hello! were liable for using the images obtained in breach of confidence.

Cases of this sort may seem far from the world of business. However, all businesses will have confidential information about their processes, customers, suppliers and systems. Sometimes, this information can be the single most valuable thing the business owns. It makes sense to control and protect it, and this means carefully worded confidentiality clauses are a must.

After all, some things are best kept under your hat – or helmet.

Author: Nathanael Young

Attack and Counterattack

Recent news stories have highlighted the lengths FIFA are prepared to go to in protecting its brand.

Last Monday’s Holland v Denmark game saw 36 female supporters wearing orange mini dresses participating in an ambush marketing stunt for the Dutch beer brand Bavaria.

Ambush marketing, the practice of finding a way to promote a brand at a high profile event without paying a sponsorship, has long been a marketing strategy of Bavaria. At the 2006 world cup in Germany, 1000 fans wearing branded underwear were denied entry to a Holland game, and more recently it has been targeting the Dutch national team matches.

FIFA has promised to come down hard on any brand trying to highjack the tournament and this was the case last Monday. The group of women were ejected from the stadium and two of the 36 were later arrested. In addition to this, the ITV pundit Robbie Earl has been sacked by ITV as it has emerged that some of the tickets used by Bavaria were from the ex-Jamaica and Wimbledon midfielder’s  allocation;  which he was  prohibited from redistributing to third parties.

Logo or No Logo

With the world cup now in full swing, businesses around the country have included references to the event in their advertising and promotional activity in a bid to cash in on its popularity. Some of those are official sponsors, who have paid millions to be able to do so; however, a considerably large number of businesses haven’t paid for the privilege. They simply seek to associate their business  with the  pride and passion that the tournament evokes, with the ultimate aim of increasing sales. However it does come with some risks attached.

Many business may not be aware of the extent to which FIFA have rights over and above ordinary trademark or copyright protection in South Africa.  FIFA has every motivation to stamp out such practices, which threaten the sponsorship revenues from their official partners. It already has trademark protection over a number of words, like ‘2010 FIFA World Cup’ and images, such as its official emblem for the tournament. The host country has gone so far to keep FIFA and its sponsors happy, it has created a new list of prohibited marks under special legislation, even including the use of ‘2010’ on its own, which is not a trademark.

For businesses operating in the UK, the situation is rather less draconian.  However,  there are reports that FIFA has obtained a ruling against a sports bar near the Loftus stadium using phrases such as ‘World Cup 2010’.

Things to Remember…

The most important guidance is to always avoid the using of any FIFA artwork or branding – such as its logo or the ‘man kicking ball’ official 2010 world cup emblem. For more information and guidance about when you can cannot use World Cup related terms, FIFA has provided a Public Information Sheet which states what is acceptable and the terms of use.
Use of the term ‘World Cup’ or similar phrases is less likely to be an issue, although each situation is different, so it is important to take legal advice in order to avoid prosecution.