EU Law and Media and Information Law
Aidan O’Neill QC
Sara Mansoori
Chair: Hugh Tomlinson QC
Title goes here
Summary
• Charter of Fundamental Rights
• DPA & PECR
• Jurisdiction & Conflict of Laws
• ATVOD
The Charter of Fundamental Rights
• Art 6 (1) TEU
“The Union recognises the rights,
freedoms and principles set out in the
Charter of Fundamental Rights of the
European Union of 7 December 2000,
as adapted at Strasbourg, on 12
December 2007, which shall have the
same legal value as the Treaties”
Charter: Field and Scope
Art 51
• Charter only applies to Member States when they are
implementing Union law
- R (Zagorski) v Secretary of State for Business, Innovation and
Skills [2010] EWHC 3110 (Admin)
- (C411/10) N. S. v Secretary of State for the Home Department,
22 September 2011
Art 52
“In so far as this Charter contains rights which correspond to
rights guaranteed by the Convention for the Protection of
Human Rights and Fundamental Freedoms, the meaning and
scope of those rights shall be the same as those laid down by
the said Convention. This provision shall not prevent Union
law providing more extensive protection.”
Protocol to the Charter
• The Charter does not extend the ability
of the court to find that UK laws are
inconsistent with fundamental rights
• The Charter does not create "justiciable
rights applicable to the United Kingdom"
Article 11: Freedom of expression &
information
1. Everyone has the right to freedom of
expression. This right shall include freedom
to hold opinions and to receive and impart
information and ideas without interference
by public authority and regardless of
frontiers.
2. The freedom and pluralism of the media
shall be respected.
Article 7: Respect for private & family life
“Everyone has the right to respect for his or
her private and family life, home and
communications.”
Art 8 ECHR
• Alison Halford v UK (1997) 25 EHRR 523
• Copland v UK (2007) 45 EHRR 37
• J McB v LE (Case C-400/10 PPU) [2010] ECR I-nyr,
[2011] 1 FLR 518
Article 8: Protection of personal data
1.
2.
3.
Everyone has the right to the protection of personal data
concerning him or her.
Such data must be processed fairly for specified purposes
and on the basis of the consent of the person concerned or
some other legitimate basis laid down by law. Everyone has
the right of access to data which has been collected
concerning him or her, and the right to have it rectified.
Compliance with these rules shall be subject to control by an
independent authority.
C-92/09 & C-93/09 Volker und Markus Schecke GbR v Land
Hessen, [2010] ECR I-nyr [52]
S and Marper v UK (2009) 48 EHRR 50
Art 47: Right to effective remedy & fair trial
“Legal aid shall be made available to
those who lack sufficient resources
insofar as such aid is necessary to
ensure effective access to justice.”
Article 47: Legal Aid
• Legal Aid in practice not available for
Defamation claims
• CFAs under imminent threat
Case C-279/09 DEB Deutsche
Energiehandels- und Beratungsgesellschaft
mbH v Germany, 22 December, [2010] ECR
I-nyr
Damages under EU Law
• ‘Francovich’ damages
– In relation to directly effective Treaty
articles and regulations
– Any breach by Member State of its Treaty
obligations
– Applies to emanations of the State (incl the
police)
• Damages under relevant directive provisions
DPA: Compensation
• Section 13 (1) and (2)
Johnson v Medical Defence Union Ltd [2007] 3 CMLR 9
Case T-48/05 Yves Franchet and Daniel Byk v. Commission
[2008] ECR II-1585
• Section 13 (3): Defence if took “such care as in all
the circumstances was reasonably required to
comply with the requirements concerned”
• Section 32: special purposes exemption
• Quinton v Peirce [2009] EWHC 912 (QB)
Privacy and Electronic Communications
(EC Directive) Regulations 2003
• Implements the Privacy and Electronic
Communications Directive 2002/58
• Applies in addition to DPA
–
–
–
–
Regulates direct marketing
Calling/connected line identification
Use of cookies without consent is restricted
Limits on retention & use of traffic data
Privacy and Electronic Communications
(EC Directive) Regulations 2003
• Reg 30: Compensation
– Available for “damage” (not distress)
• Microsoft v McDonald [2006] EWHC 3410
– Defence of reasonable care (Reg 30(2))
• Reg 32: Request IC to exercise enforcement
functions
– S.40 of DPA: Enforcement Notices
– S.43 of DPA: Information Notices
Jurisdiction in EU Media cases
• Judgments Regulation (Council Regulation No.
44/2001)
• Arts 2: Court where the Defendant is domiciled; or
• Art 5(3): Court where harmful event occurred or may
occur.
• Shevill v Press Alliance [1995] 2 AC 18 (C-68/93)
• S.7 of Defamation Bill relating to “libel tourism” only
applies to actions against a person not domiciled in
the UK or a Member State etc
Choice of Law in EU Media Cases
• Media cases excluded from Rome II
• Private International Law (Misc Provisions)
Act 1995, s.11: Law of country “where the
events constituting tort occurred”
– Defamation: where “communication received and
understood”
– Privacy: Douglas v Hello! Ltd (2003) EMLR 28 [41]
Choice of Law in EU Media Cases
• Media excluded from Rome II
• EP Working Document on amendments to
Rome II
– Considers conflict rule is necessary
– Jurisdiction
AG opinion in eDate Advertising (C-509/09) &
Martinez (C161/10): “centre of gravity of the
conflict”
– ADR
– An “EU Media Law”?
ATVOD: Regulatory authority for ODPS
• Audiovisual Media Services Regs 2009 &
2010
• ATVOD Rules set out compliance obligations
concerning editorial content
– Harmful Material
• Material likely to Incite Hatred
• Protection of Under-18s
– Sponsorship
– Product Placement
ATVOD: Enforcement
• Determinations by ATVOD
• Power to issue statutory enforcement
notifications
– Prevent publication of a programme
– Publication of a correction
– Publication of ATVOD findings
• Ability to bring Civil Proceedings
• Ability to refer matters to OFCOM
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