NEWSLETTER
MEDIA LAW
INTERNATIONAL BAR ASSOCIATION legal practice division
Vol 10 No 1
SEPTEMBER 2007
IN THIS ISSUE
From the Chair
From the Chair
1
Committee officers
2
IBA Annual Conference –
Singapore
3
No frontiers: new rules for
European content providers
John King
6
Format rights and UK law –
the emperor’s new clothes?
8
Jonathan Sellors and Elena Ioannides
Google and copyright: organising
the world’s information
11
Kurt Wimmer
From Afghanistan to Zimbabwe:
discouraging forum shopping
on the World Wide Web
Peter Jacobsen
14
Argentina: cease and desist order
against Yahoo! and Google to
stop access and referral to certain
websites by web users
16
Pablo Crescimbeni
The decline of English libel trials? 17
Alasdair Pepper and Antonia Foster
Online archives: modern day
resource or pillory?
Sebastian Seelmann-Eggebert
19
A good year for media
Mark Stephens
Finers Stephens Innocent LLP, London
mstephens@fsilaw.co.uk
I
t is with enormous pleasure that we present you with our annual
newsletter. The Singapore Conference is fast approaching, and there
is an exciting and ambitious array of sessions. Southeast Asia is an
appropriate place to be holding our conference, given the challenges to
lawyers in our area of practice emerging from the region, whether it is the
killing of journalists in the Philippines (the Philippines is now the second
most dangerous place for journalists to work – after Iraq), piracy, the
growth of gaming in the region (with the newly anticipated casino in
Singapore) or the wide and growing use of online services across the
region and the increasing number of related issues.
I look forward to meeting many of you in Singapore. We are encouraging
more new blood to join in the work of the committee: if that is of interest
to you, please do contact one of the officers. We will be looking to you to
come forward with ideas for sessions for the Buenos Aires Conference –
don’t be surprised if you are asked to work on any project you suggest!
The IBA is becoming more and more important given that clients in our
areas of practice are increasingly working across borders. It is with this in
mind that we have put together the eight programme sessions for
Singapore, everything from the current dispute over copyright and fair
dealing on the web, to state intervention in the media, to new multimedia
platforms. We kick off our sessions in Singapore with a speed dating session
designed to allow members to meet and discuss topical issues. This is also a
marvellous place for newcomers to make their mark in the committee.
One of our sessions, on trial observation, arises out of work being done
by members of the committee in assisting the IBA by acting as independent
trial observers in media cases to ensure compliance with international
Contributions to this newsletter are always welcome and
should be sent to the Newsletter Editor, Sebastian Seelmann-Eggebert, at the address below:
Sebastian Seelmann-Eggebert
Latham & Watkins LLP
Warburgstrasse 50, 20354 Hamburg, Germany
Tel: +49 (40) 414 030 Fax: +49 (40) 4140 3130
sebastian.seelmann@lw.com
Continued overleaf
International Bar Association
10th Floor, 1 Stephen Street, London W1T 1AT, United Kingdom
Tel: +44 (0)20 7691 6868. Fax: +44 (0)20 7691 6544
www.ibanet.org
© International Bar Association 2007.
All rights reserved. No part of this publication may be reproduced or transmitted
in any form or by any means, or stored in any retrieval system of any nature
without the prior permission of the copyright holder. Application for permission
should be made to the Managing Editor at the IBA address.
From the Chair
norms. We are very pleased to report that His Honour
Justice Michael Kirby of the High Court of Australia
will lead this session, which will give very practical
hands on guidance to those who want to act as trial
observers.
We have, for this conference, worked with many
other committees to present joint sessions. We
anticipate this will provide greater opportunities for
networking as well as broadening the scope of topics
covered.
Jim Borelli from Media Professional Insurance is
leading the session on state intervention in the media,
which looks to be an informative and dynamic session
with excellent speakers from industry, private practice
and academia.
Don’t miss the committee dinner, which this year will
be a joint dinner with the Art, Cultural Institutions and
Heritage Law Committee. Please do book your tickets
early to avoid disappointment.
In this newsletter there are some marvellous and
timely articles by some of our most prominent
members, and I commend them to you. Whilst
commending these articles I would also draw your
attention (dear reader) to the solicitation for
contributions to our next edition.
We had a very successful meeting in Shanghai where
immediate past Chair, Peter Bartlett of Minter Ellison,
Melbourne led on behalf of the committee. The
Shanghai Bar has now strongly suggested a programme
on M&A in Shanghai in 2008. It also looks as though
we will be running another session on convergence in
another region as a follow-up this coming year.
As with the last newsletter, I would like to conclude
with a request that you, the members, let your
committee know what projects you would like us to
undertake on your behalf to make your membership of
the IBA Media Law Committee more relevant to you.
Please do not hesitate to take the next step and get in
touch or, indeed, offer your own services.
COMMITTEE OFFICERS
Chair
Vice-Chair and Newsletter Editor
Mark H Stephens
Sebastian Seelmann-Eggebert
David Schulz
Finers Stephens Innocent
179 Great Portland Street
London W1W 5LS
England
Tel: +44 (0)20 7323 4000
Fax: +44 (0)20 7344 5603
mark.stephens@fsilaw.com
Latham & Watkins LLP
Warburgstrasse 50
20354 Hamburg
Germany
Tel: +49 (40) 414 030
Fax: +49 (40) 4140 3130
sebastian.seelmann@lw.com
Levine Sullivan Koch & Schulz
230 Park Avenue
Suite 1160
New York, 10169
USA
Tel: +1 (212) 878 8000
Fax: +1 (212) 878 8375
dschulz@lskslaw.com
Secretary
LPD Administrator
Ishka Khatun
ishka.khatun@int-bar.org
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
Singapore 2007
The IBA‘s Annual Conference is this year being held in Singapore between 14 and 19 October.
Details of the sessions the committee will be holding are below and we look forward to seeing you there.
Intellectual Property, Communications
and Technology Section session
Second dates: up to speed tabletalk
This is an interactive networking session that builds on the
successful ‘speed dating’ session held at last year’s Annual
Conference in Chicago. Participants will move around moderated
tables discussing areas of current interest providing you with a
convenient opportunity to meet many other lawyers with similar
interests and to discuss a number of topics with them. Officers of
the section’s committees will also be soliciting your views about your
areas of interest and encouraging other suggestions, to enable the
section to deliver activities accordingly.
A variety of topics covering aspects of business and law of interest
to the section’s committees will be discussed, including ‘hot topics’
that will be selected for relevance just prior to the conference. Topics
to be covered include:
• Google Earth and intrusive technologies: how far should they
reach?
• mobile entertainment;
• real law in virtual worlds: massive multiplayer interactive games;
• user generated content (blogs and wikis);
• mining the data mountains: personal and corporate data;
• new multimedia platforms (HDTV, broadband, wireless);
• the mobile divide: new mobile technologies and their regional
development;
• secured financing of satellites;
• when buying art is theft: cultural heritage and Asia;
• art and freedom of expression: should there be boundaries? and
• online gaming.
Committee sessions
Google issues – is content liability sexy again?
Joint session with the Copyright and Entertainment Law
Subcommittee.
Session Co-Chairs
Peter Brownlow Bird & Bird, London, England; Vice-Chair,
Intellectual Property and Entertainment Law
Mark Stephens Finers Stephens Innocent, London, England; Chair,
Media Law
Entire libraries are being digitised and user-generated content on
sites such as YouTube is attracting huge amounts of investment and
publicity. This session will examine the problems faced by companies
such as Google in using this material either with or without the
permission of the copyright owners.
The interests of online service providers and content rights owners
are increasingly coming into conflict as the internet evolves. How
these disputes are resolved will affect the future of the internet.
Legislation in different jurisdictions such as the Digital Millennium
Copyright Act (US) and the Electronic Commerce Directive (EU) has
sought to balance these interests. This session will look at both
perspectives while taking a multijurisdictional look at these problems
and the development of law in this area.
Speakers
Gilbert Leong Rodyk & Davidson LLP, Singapore
Alexandra Neri Herbert Smith LLP, Paris, France
Richard Raysman Thelen Reid Brown Raysman & Steiner LLP, New
York, USA
Mark Stephens
1430 – 1730 MONDAY
Room 203, Suntec Convention Centre
0930 – 1230 MONDAY
Room 326, Suntec Convention Centre
Communication strategies in securities and M&A
transactions
Joint session with Securities Law.
Session Chair
Christian Cascante Gleiss Lutz, Stuttgart, Germany; Conference
Coordinator, Securities Law
In many jurisdictions, IPOs and M&A transactions draw a great deal
of publicity, hostile takeovers in particular. For the parties involved,
it is often key to choose the right communication strategy – and not
to make any legal mistakes when doing so.
This session includes investment banking, legal, PR and IR experts
and will focus first on the dos and don’ts when seeking publicity
in securities or M&A transactions. Topics covered will be the use
of broader advertising campaigns, the use of general media, the
methods of dealing with unwanted media reports and the relevant
legal restrictions. The roles of the issuer, the banks and other experts
will be addressed. The second part of the session will highlight the
approach of PR specialists to public M&A transactions, the different
perspectives of the relevant constituencies and the legal issues in
connection therewith by way of a case study.
Continued overleaf
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
IBA ANNUAL CONFERENCE – SINGAPORE
Speakers
Chris Ashworth O’Melveny & Myers LLP, London, England
Rebecca Blumenstein Wall Street Journal, Beijing, China
Michael DeSombre Sullivan & Cromwell LLP, Hong Kong SAR
Jane Liu Christensen IR, Hong Kong SAR
Tim Payne Brunswick Group, Hong Kong SAR
Rohit Sipahimalani Morgan Stanley, Singapore
Prawiro Widjaja Allen & Gledhill LLP, Singapore
1430 – 1730 TUESDAY
Room 208, Suntec Convention Centre
Trial observations: a practical approach
0930 – 1230 WEDNESDAY
Room 209, Suntec Convention Centre
Gaming
Joint session with the Human Rights Institute.
Session Chair
Honourable Justice Michael Kirby AC CMG High Court of Australia,
Sydney, New South Wales, Australia
The IBA’s Human Rights Institute (IBAHRI) sends independent experts
to observe trials around the world; observers are sent to encourage
compliance with fair trial standards and monitor and report upon
legal proceedings. The IBAHRI collaborates with other international
organisations, including member bar associations and law societies,
in this endeavour.
We are keen to encourage the practice of trial observations,
and to this end the IBAHRI, in collaboration with the Media
Law Committee, is offering IBA members the chance to attend
a workshop briefing participants on the appropriate skills and
approaches relevant to observing a trial. The session, led by lawyers
with particular expertise in the area, will focus on the provisions of
international and regional standards and the role lawyers can play in
ensuring these provisions are met. The workshop will also draw on
the experiences of previous IBA observers to examine how best to
monitor and report on a trial.
Speakers
Peter Maynard Peter D Maynard & Co, Nassau, Bahamas; SecretaryTreasurer, Public & Professional Interest Division
Sternford Moyo Scanlen & Holderness, Harare, Zimbabwe
Mark Stephens Finers Stephens Innocent, London, England; Chair,
Media Law
1430 – 1730 TUESDAY
Room 311, Suntec Convention Centre
Return of human remains
Joint session with Art, Cultural Institutions and Heritage Law and
Indigenous Peoples.
Session Co-Chairs
Adrian Parkhouse Farrer & Co, London, England; Co-Chair, Art,
Cultural Institutions and Heritage Law
Mark Stephens
The remains of indigenous peoples are increasingly sought from
museum collections for repatriation to their own lands and
traditional disposal by their descendants. This session will look at the
conflicts between rights of custodians, science and indigenous rights
and will look at the comparative ways in which different jurisdictions
are confronting these increasingly complex issues.
Keynote Speaker
Justice Michael Kirby High Court of Australia, Sydney, New South
Wales, Australia
Speakers
Catherine Bigley McGovern University of Notre Dame Australia,
Sydney, New South Wales, Australia
Patrick Boylan City University London & Editor in Chief, International
Journal of Intangible Heritage, Leicester, England
Joe Brennan Field Museum, Chicago, Illinois, USA (invited)
R A Foley University of Cambridge, Cambridge, England (invited)
Cressida Ford Heritage Research and Consultancy
Russell Raikes Cohen Highley LLP, London, Ontario, Canada; Chair,
Indigenous Peoples
Joint session with Anti-Corruption, Business Crime and Leisure
Industries.
Session Co-Chairs
Peter Bartlett Minter Ellison, Melbourne, Victoria, Australia
Jamie Nettleton Addisons, Sydney, New South Wales, Australia
Singapore has introduced two integrated resorts with casinos, which
are due to open in 2009 and 2010. Macau is overtaking Las Vegas
as the world’s largest casino venue. In Europe, America and Asia
online gaming and online games have become the primary source
of leisure for millions of people: multiplayer games, online poker,
‘second life’ games and some of the internet-generation games that
flourish across the globe.
The authorities and regulators are active. There are different
regulatory approaches. These approaches are under scrutiny by both
the EU and WTO. Hear about the new global battlefield – how to
regulate online gambling.
The session will seek to capture the spirit that captivates millions.
Speakers
Peter Brown Thelen Reid Brown Raysman & Steiner LLP, New York,
USA
Lee Suet Fern Stamford Law, Singapore
Quirino Mancini Sinisi Ceschini Mancini & Partners, Rome, Italy
Yap Wai Ming Genting International, Singapore
Ramon Moyano Estudio Beccar Varela, Buenos Aires, Argentina
Jamie Nettleton
Gabrielle Patrick British American Insurance Co, Barataria, Trinidad
Monty Raphael Peters & Peters, London, England
Stefan Schuppert Lovells LLP, Munich, Germany; Co-Chair,
Technology Law
Thibault Verbiest ULYS, Paris, France
0930 – 1230 WEDNESDAY
Room 311, Suntec Convention Centre
State intervention in the media
Session Chair
Peter Jacobsen Bersenas Jacobsen Chouest Thomson Blackburn LLP,
Toronto, Ontario, Canada
How relevant are national laws to regulating a global media? This
session will look at recent pronouncements of the Commonwealth
Parliamentary Association and The World Bank Institute on the
prerequisites for a free and independent media. How well does any
democracy measure up? Is this merely a legal nirvana?
Speakers
Stuart Chisholm Open Society Foundation, London, England
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
IBA ANNUAL CONFERENCE – SINGAPORE
Harshad Raj Dipendra Zaid Ibrahim, Kuala Lumpur, Malaysia
Charles Glasser Bloomberg News LP, New York, USA
Lesley Power Special Broadcasting Service (SBS), Sydney, New South
Wales, Australia
Kevin Tan Equilibrium Consulting Pte Ltd, Singapore
1430 – 1730 WEDNESDAY
Room 303, Suntec Convention Centre
New multimedia platforms: who is riding the wave?
HDTV, broadband, wireless, fixed line – issues arising
from the convergence of media
Joint session with Communications Law.
Session Chair
Malcolm Webb MGF Webb, Auckland, New Zealand; Vice-Chair,
Communications Law
There is increasing direct competition between what were previously
adjacent platforms: DSL or fibre versus cable or satellite, fixed versus
mobile, IPTV versus broadcasting etc. Also, previously distinct operators
are beginning to compete head-on, for example broadcasters like
BSkyB which are offering bundled broadband, and telcos like BT,
France Télécom and Telecom Italia which are offering video services,
including IPTV. Incumbent telcos, faced with declining voice revenues,
must find new businesses in markets where they are the challenger to
established companies. Successful new entrants to the communications
market, sites like Google, Yahoo and eBay, have seen huge expansion,
and consumers are spending more and more on communications and
media services. This session explores the new business models that
are beginning to emerge, the new alliances that are taking shape, the
developing legal issues and concerns, and the policy and regulatory
challenges that arise in a rapidly converging market.
Speakers
Stuart Chiron PCCW Limited, Hong Kong SAR
Katrina Johnson eBay Australia & New Zealand Ltd, Sydney, New
South Wales, Australia
John King Ivor Fitzgerald & Company, Dublin, Ireland
Simon Muys Blake Dawson Waldron, Melbourne, Victoria, Australia
Marcus Vass Bird & Bird, Hong Kong SAR
Richard L Wirthlin Latham & Watkins LLP, Los Angeles, California,
USA
0930 – 1230 THURSDAY
Room 303, Suntec Convention Centre
International Practice
Diploma Programme
The International Practice Diploma Programme is a continuing legal education programme
designed specifically to meet the needs of international practitioners throughout the
world.
Developed by the International Bar Association and The College of Law of England and Wales, the Programme will be of
particular interest to newly qualified lawyers wishing to enhance their knowledge of particular areas of legal practice, and
lawyers wishing to diversify their legal knowledge.
The Programme’s flexible distance learning format and support structure mean that jurisdictional boundaries represent no
barrier to successful completion. For more information, see
www.ibanet.org or
www.college-of-law.co.uk or
contact:
Client Services Professional
Development Department
The College of Law
Braboeuf Manor
Portsmouth Road, Guildford, Surrey
GU3 1HA, United Kingdom
DX: 2400 Guildford
Previous entrants to the Programme include lawyers from every corner of the globe, from Australia and Argentina, to the
USA and Uruguay. Contributors to the Diplomas include international law firms such as Allen & Overy LLP, Baker & McKenzie,
Freshfields Bruckhaus Deringer and Debevoise and Plimpton LLP.
The International Practice Diploma programme offers the following ten Diplomas:
• International Business Organisations
• International Mergers and Acquisitions
• International Commercial Law
• International Antitrust/Competition Law
• International Capital Markets and Loans
• International Joint Ventures
• International Intellectual Property Law
• International Arbitration
• Human Rights Law and Practice
• Human Rights and Criminal Procedure
Tel: +44 (0)1483 460384
Fax: +44 (0)1483 460306
Application forms must be submitted by 2 January 2008 for January modules.
E-mail:
ibapracticediploma@lawcol.co.uk
A limited number of scholarships are available to young, deserving lawyers who require financial assistance in order to
participate in the Programme. For further details, please visit the IBA website.
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
No frontiers: new rules for European
content providers
John King
Ivor Fitzpatrick & Co, Dublin
jk@ivorfitzpatrick.ie
F
or almost two decades now, a long time in the world
of communications technology, television
broadcasters in Europe have operated within the
regulatory framework set by the Television without
Frontiers Directive (TVWF). The directive, which was
introduced in 1989 in response to the regulatory
challenge posed by the advent of satellite television, is
soon to be replaced by new legislation, the more
prosaically titled Audiovisual Media Services Directive
(AVMSD). The new measure updates the TVWF rules
and extends their sphere of application.
Television without Frontiers Directive
TVWF laid down two key principles with a view to
establishing a single broadcasting market within the
European Union. An EU broadcaster is regulated only
in the country from which he operates, and he is in
most circumstances guaranteed freedom of reception
throughout the EU. So a Dublin-based broadcaster is
regulated only in Ireland; he may broadcast to viewers
in Lombardy, and the Italian authorities may not
normally prevent him from doing so.
Under TVWF each EU Member State must ensure
that broadcasters under its jurisdiction comply with
certain minimum standards. These are designed to
further a variety of policy objectives. For example,
children are to be protected, and European
programme makers are to be supported.
TVWF permits another Member State to restrict
reception of an incoming service that seriously offends
the public interest rules which are prescribed in the
directive. However, the European Commission may
require the receiving State to put an end to restrictive
measures that are not compatible with EU law.
TV advertising is subject to rules which are designed
to promote public policy objectives. It may not include
racial discrimination for example, or promote alcohol
to minors. There are also a series of provisions that
limit the amount of advertising which can be included
in schedules, and regulate the way it may be inserted;
the overall aim is that advertising should support the
medium, but must not to be allowed to dominate it.
A country may impose on broadcasters operating
from within its jurisdiction rules which are more
rigorous than those that are prescribed by the
directive.
Audiovisual Media Services Directive
AVMSD makes a number of changes to the existing
regulatory régime. The key TVWF principles – a single
regulator and freedom of reception – remain. However,
new provisions are to be introduced, in response to the
developing jurisprudence of the European Court of
Justice, which will enable a Member State, in limited
circumstances and in accordance with strictly defined
procedures, to interfere with reception of a service
which originates in another Member State.
Under Article 2a(4), the receiving state may prevent
the reception of an incoming service which offends its
public policy in areas such as crime prevention and the
protection of public health. The measures taken by the
receiving State must be proportionate to its objectives,
and in most cases the receiving State must seek to
resolve the issue in consultation with the originating
State before taking any measures.
Importantly, the Commission retains an overall
supervisory function in respect of the operation of
these provisions. It may require a Member State to
refrain from taking an action which would be
incompatible with EU law.
Article 3(1a) deals with a situation in which a
Member State has adopted rules for media service
providers which are stricter than the minimum rules
required by the directive.
Provided that these national rules are compliant
with EU law, the Member State may restrict reception
of a service broadcast from another Member State,
which it believes to be wholly or mostly directed to
its territory.
Once again, the right of the receiving State is
restricted. The Member States involved are to
cooperate in an attempt to resolve the issue. Any
measures taken by the receiving state must be necessary
and appropriate. The Commission, which must be
notified of any impending action by the receiving State,
may require it to refrain from taking an action that
would be incompatible with EU law.
Advertising rules
The new directive amends TVWF’s advertising rules.
So, for instance, product placement will now be
permitted, but only in certain very limited
circumstances. The rule is to be abolished which
provided that a broadcaster might not give more than
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
no frontiers: new rules for european content providers
20 per cent of a day’s transmission time to advertising.
(The limit of 20 per cent of advertising per clock hour
remains, however.)
Convergence
The new measure seeks to accommodate changes in
the way in which content is delivered, and to create a
structure that can deal with future technological
developments. It will bring within the EU system of
content regulation those who broadcast over the
internet and via mobile telephones, and it will cover
services which supply video on demand, as well as
scheduled TV services.
Whereas the new directive is platform neutral, not
everyone who puts audiovisual material up on the web
will be regulated under AVMSD. For instance, the
measure will not affect the individual who for his own
amusement puts a video on a social networking site.
An online version of a newspaper will be unaffected by
the new régime, as will a travel website which uses video
to advertise a hotel.
Video on demand
AVMSD distinguishes between linear and non-linear
services. The conventional linear broadcaster, no
matter how he delivers his content, exercises editorial
control in the choice of content and the construction
of a schedule. In the case of an on-demand video
service (which is non-linear), the editorial function is
limited to choosing material for inclusion in a
catalogue.
Whereas non-linear services fall within the scope of
the directive, not all of the controls in the legislation
will apply to them. So, for instance, non-linear
operators will be bound by the provisions of the
AVMSD which are designed to prevent incitement to
hatred. They must promote production of, and access
to, European works. They will not, however, be obliged
to comply with detailed advertising rules.
Challenge
EU content regulators should have relatively little
difficulty in bringing within existing régimes mobile
telephone operators, who already work in a highly
regulated environment. They may view the regulation
of internet broadcasters as a greater challenge.
Mobile telephone operators in Europe already
generate significant revenue from downloads of
content such as music, ringtones and screensavers.
This revenue is bound to rise sharply with the
development across the European Union of mobile
TV. In the new environment, telecommunications
companies become broadcasters – as well as dealing
with telecommunications authorities on matters such as
local loop unbundling, they will have to learn how best
to approach content regulators on issues such as
protection of minors and support for European
programme makers.
Content providers will chafe under any system of
regulation, and the extension of AVMSD to nontraditional operators will not be universally welcomed.
On the positive side, the new entrants will benefit from
the application in their sector of the principle of home
country regulation, which underpins a single market in
audiovisual services in a Union that now has 494
million inhabitants.
Timing
It is expected that AVMSD will take effect later this year.
Member States will have two years from the date on
which it comes into force to adopt domestic legislation
giving effect to its terms.
Media lawyers whose clients are active in Europe will
need to advise internet and mobile telephone
operators as to the likely impact of the new rules. Given
that each Member State will apply the directive in its
own way, some operators may want to study the various
national regimes, with a view to choosing the most
compatible environment in which to base their
activities.
Terms and Conditions for submission of articles
1. Articles for inclusion in the newsletter should be sent to the Newsletter Editor.
2. The article must be the original work of the author, must not have been previously
published, and must not currently be under consideration by another journal. If it
contains material which is someone else’s copyright, the unrestricted permission
of the copyright owner must be obtained and evidence of this submitted with
the article and the material should be clearly identified and acknowledged
within the text. The article shall not, to the best of the author’s knowledge,
contain anything which is libellous, illegal, or infringes anyone’s copyright or
other rights.
3. Copyright shall be assigned to the IBA and the IBA will have the exclusive right
to first publication, both to reproduce and/or distribute an article (including
the abstract) ourselves throughout the world in printed, electronic or any other
medium, and to authorise others (including Reproduction Rights Organisations
such as the Copyright Licensing Agency and the Copyright Clearance Center)
to do the same. Following first publication, such publishing rights shall be nonexclusive, except that publication in another journal will require permission from
and acknowledgment of the IBA. Such permission may be obtained from the
Managing Editor at editor@int-bar.org.
4. The rights of the author will be respected, the name of the author will always
be clearly associated with the article and, except for necessary editorial changes,
no substantial alteration to the article will be made without consulting the
author.
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
Format rights and UK law –
the emperor’s new clothes?
Jonathan Sellors and Elena Ioannides
Finers Stephens Innocent LLP, London
jonathan.sellors@fsilaw.com
elena.ioannides@fsilaw.com
T
his article seeks to clarify the precise nature of the
rights being sold in a format sale and what steps
can be taken to protect these rights under UK law.
Format licensing is a billion-dollar industry of which
the UK is undoubtedly one of the leading markets.
However, scratching beneath the surface of a format
sale, what a purchaser is in fact acquiring is a bundle of
rights, each of which may be enforceable, as opposed
to a single format right capable of protection per se.
What rights are capable of protection?
The rights licensed as part of a format sale are capable
of copyright protection as underlying works if they
amount to literary, artistic, musical or dramatic works.
Copyright serves to protect the expression of an idea
rather than the idea itself.1 Since, unlike a programme,
the format itself is incapable of protection, one must
look at the individual rights which make up the format
to ascertain whether one of the constituent elements
has been infringed. A substantial part of a programme
cannot (obviously) be taken without a licence and only
the most ill-advised programme makers would do so.
However, it is unlikely that original footage will be used
by a rival when copying a format. The works sold in a
format sale, which will have to be sufficiently original to
qualify for protection as literary, dramatic, musical or
artistic works, may include the following:
• the precise running order of the show;
• the design of the stage;
• any nomination and voting processes;
• the script for the show;
• the musical score (depending on whether it was
commissioned for the show); and
• the name of the show (although the protection here
would be trademark-based rather than copyright).
Relevant UK case law
Green v Broadcasting Corporation of New Zealand (1989) 2
All ER 1056
This case concerned a well-known talent show contest
on British TV. Green’s complaint was that a New
Zealand TV station had copied the show and infringed
his copyrights. The common elements in the two shows
were: the programme title ‘Opportunity Knocks’; the
use of ‘sponsors’ to introduce contestants; the use of an
applause meter (the wonderfully named ‘Clapometer’)
to identify the winner; and, the use of a number of
recognisable catchphrases. Green lost as the court held
that there was nothing to protect which was the subject
of copyright. However, it was relevant that he was
unable to produce his actual scripts (the literary
works). Had he been able to produce such scripts his
chances of success would have been significantly
improved. However, the reasoning of the court is not
the most lucid in that the Privy Council managed to
confuse three separate concepts, namely fixation,
originality and that of mere idea or concept.
IPC Media Limited v Highbury Publishing Limited (2004)
EWHC 2985 (Ch)
IPC claimed that its copyright in Ideal Home magazine
had been infringed by a rival publication. IPC’s
allegations centred around claims that themes, styles
and ideas in its magazine had been copied. Laddie J
referred approvingly to the US case of Nicholls v
Universal Pictures and specifically stated that copyright
infringement could not be established by taking away
all the distinctive elements and then concentrating on
any resulting similarities.
The judge reiterated that copyright needed to be
established in a literary, artistic, dramatic or musical
work. In this regard he specifically referred to the issue
of format rights and the difficulty in divorcing the
elements making up a concept from content which is
changeable and describing this as an original dramatic
work.2
19 TV v Syco and Fremantle Media
Simon Fuller (19 TV), pop impresario and ex manager
of the Spice Girls, created Pop Idol, which was broadcast
in the United States as American Idol. Simon Cowell
(Syco), another pop impresario, created The X Factor,
one of the top five most popular shows on UK TV.
Fuller claimed there were over 25 points of similarity
between The X Factor and Pop Idol. He also sued some of
the production staff, who worked on Pop Idol and
latterly The X Factor, for breach of contract. This case,
right on point, settled in 2006 just prior to the court
hearing. Cowell and Fuller reached a settlement deal
whereby they both shared in the profits from both
shows. This way both Messrs Cowell and Fuller
continue to profit from American Idol whilst avoiding
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
FORMAT RIGHTS AND UK LAW – THE EMPEROR‘S NEW CLOTHES?
the uncertain result of any litigation, particularly if
such litigation had put substantial doubts against the
validity and value of their underlying assets.
Baigent and Leigh v The Random House Group (2007)
EWCA Civ 247
The claimants, authors of the book The Holy Blood and
the Holy Grail (HBHG), brought copyright infringement
proceedings against the defendant, a UK publisher,
in relation to The Da Vinci Code. The Court of Appeal
rejected the claimants’ claim that The Da Vinci Code had
infringed the copyright in HBHG by copying its central
theme and a number of individual themes. In line with
Green, the court required certainty in the subject matter
for which protection was sought and copying of the
expression of the themes. Although the court held that
there had clearly been copying in The Da Vinci Code of
11 of the 15 elements of HBHG, the court upheld the
judgment of Mr Justice Peter Smith at first instance.
The court held that the central theme of the claimants’
work was an artificial construct, which was not capable
of attracting copyright protection, and that a
‘substantial part’ of the claimants’ work had not been
copied. The central theme was found to fall on the
wrong side of the line between an idea and the
expression of an idea. Therefore, the claimants’ appeal
failed.
Since the central theme which the claimants alleged
had been copied was not capable of attracting
copyright protection, the court made clear that in such
disputes it could only address evidence of infringement
of the constituent copyrights which were capable of
protection, here literary copyright in respect of the
language and structure of the HBHG.3 In accordance
with the previous authorities, this judgment plainly
demonstrates that a claimant must specifically plead,
and prove, infringement of one of the constituent
elements of a concept in order to successfully bring
proceedings.
Other jurisdictions
Formats per se are capable of copyright protection in
some jurisdictions. Perhaps not coincidentally one such
jurisdiction is the Netherlands and one of the largest
format-based companies, Endemol, is Dutch. In
Castaway Television Productions and Planet 24 Productions
Limited v Endemol (2004), the Dutch Supreme Court
found that the claimants’ format for Survivor was
entitled to copyright protection because of its unique
combination of 12 elements.4 In Brazil, Endemol
successfully brought an action for copyright
infringement of its Big Brother format by the show Casa
Dos Artistas.
On the other hand, in the US District Court of New
York in CBS v ABC (2003), CBS sought an injunction
against ABC to prevent the airing of I’m a Celebrity Get
Me Out Of Here on the ground that it was a copy of
Survivor format. Judge Preska denied the injunction on
the basis that the Survivor format was not capable of
protection as both shows combined standard elements
of pre-existing shows to create their respective
programmes. The reasoning in this case is consistent
with UK case law in that there is no recognition of a
format right per se due to the generic nature of its
composite elements.
Computer formats
Examination of the law pertaining to computer
programs is instructive in relation to TV formats as it
demonstrates the ambit and boundaries of literary
copyright. Recent case law has dispelled the argument
that copyright exists in the schematics of a computer
program, which is analogous to the structure of a TV
format. In Nova Productions Ltd v Mazooma Games Ltd
(2007) EWCA Civ 219, the claimant appealed to the
Court of Appeal in respect of the dismissal of his claim
against the defendants for infringement of the
copyright in its pool computer game, Pocket Money.
The appeal was dismissed and the court held that the
Software Directive 91/250/EEC, which applies to the
copyright of computer programs, was not intended to
apply to the ideas or schematics upon which a
computer game is based. Where functions have been
emulated without copying of the source code or
graphics, no infringement can have taken place.5
Clearly, therefore, computer formats are not protected
from copying under UK copyright law, only their
source codes and graphics.6
What is capable of protection and how?
The works comprising a format are capable of
copyright protection. Consequently, since there is no
specific proprietary format right in a show, a
programme may be ‘based’ on another show as long as
it does not infringe any of its constituent copyrights
and there is no implication of an association or
endorsement between the two.
The constituent elements of a show which might
attract copyright are as follows:
• running order – a possible literary work;
• stage design – a possible artistic work;
• script – a possible literary work;
• musical score – a possible musical work;
• nomination and voting process – a possible literary
work; and
• design of award – a possible artistic work.
In each case there would be a substantive issue as to
whether any of these would qualify for copyright
protection. They would have to show that they were
original, more than de minimis works (for example
there is no copyright protection for a single word or
musical note) and not just an idea.
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
FORMAT RIGHTS AND UK LAW – THE EMPEROR‘S NEW CLOTHES?
Where the dividing line falls between a lawful
programme and one that may infringe copyright is a
matter of fact and degree. It is evident from the
authorities that there would have to be substantial
copying of a number of the above constituent elements
to establish copyright infringement of a programme.
In addition to copyright it is worth adding that if a
programme were made which is so similar to another
show, particularly one using a name very similar to the
show it is ‘based’ on, then there would be potential for a
passing off action. Passing off is a common law cause of
action which enables name or brand owners to prevent
others from passing off their goods and services as those
of (or endorsed by) the brand owner. Passing off is a
UK-specific remedy in that a trader with a reputation
in the United Kingdom can protect his name or brand
in the United Kingdom but not elsewhere.
Prior to the airing of any particular series, and while
a format remains confidential, the law of confidence
may protect a party disclosing the idea for a show. This
may have a limited prospect of success but is an area of
the law which appears to be increasing in its viability as
a cause of action in the United Kingdom. A disclosing
party should, at the very least, ensure that a nondisclosure agreement is signed by the party to which a
concept is disclosed. This will provide some level of
protection in the event that a format is copied.
Nevertheless, in the majority of cases a format will
already be in the public domain so the law of
confidence will be inapplicable.
Alternatively, the Format Recognition and Protection
Association (FRAPA (www.frapa.org)), an ‘international
industry body to combat television piracy’, has been
established as a means of protecting television formats
and seeks to:
• register formats;
• undertake mediation of format disputes;
• educate the industry; and
• create guidelines for fair competition.
It remains to be seen what impact FRAPA will have on
the protection of formats.
Conclusion
Notes
1 As stated by the leading UK copyright law text, Laddie, Prescott and
Vitoria, The Modern Law of Copyright and Designs: ‘…ideas, thoughts
and facts merely existing in someone’s mind are not “works”, but once
reduced to writing or other material form the result may be a work
susceptible of protection. Given that there exists a good copyright in
a work, the law does not protect a general idea or concept which
underlies the work, nor any one fact or piece of information
contained therein. However, a detailed collection of ideas, or patterns
of incidents, or compilation of information may amount to such a
substantial part of the work that to take it would be an infringement
of the copyright, although expressed in different language or other
form, it being a matter of fact and degree whether the dividing line
has been impermissibly crossed…’
2 Laddie J stated, ‘…it is stretching the original use of the word “format”
a long way to use it metaphorically to describe the features of a
television series such as a talent, quiz or game show which is presented
in a particular way, with repeated but unconnected use of set phrases
and with the aid of particular accessories. The difficulty in finding an
appropriate term to describe the nature of the work in which
copyright subsists reflects the difficulty of the concept that a number
of allegedly similar features of a television series can be isolated from
the changing material and identified as “an original dramatic work”…
the protection which copyright gives creates a monopoly and there
must be certainty in the subject matter to avoid injustice to the rest of
the world…the subject matter of the copyright claimed for the
dramatic format for Opportunity Knocks [the Green case above] is
conspicuously lacking in certainty’.
3 As per Mummery LJ, ‘The position is that the individual elements of
the Central Theme Points distilled from HBHG…are not of a
sufficiently developed character to constitute a substantial part of
HBHG. In the words of the judge they are “too generalised” to be a
substantial part of HBHG. They are an assortment of items of
historical fact and information, virtual history, events, incidents,
theories, arguments and propositions. They do not contain detailed
similarities of language or “architectural” similarities in the detailed
treatment or development of the collection or arrangement of
incidents, situations, characters and narrative, such as is normally
found in cases of infringement of literary or dramatic copyright.’
4 Although it was held that Big Brother was not an infringing copy.
5 This affirmed Navitaire v easyJet [2004] EWHC 1725 (Ch), a case where
the claimant’s claim for infringement of a website with the same
functions, schematics and look of the claimant’s website failed.
6 The policy behind not extending copyright protection was set out by
Jacob LJ who stated, ‘Mr Carr [Counsel for the defendants] submitted
that not all things are covered by copyright, that most if not every work
is, to some extent, influenced or derived from other works. So it is very
important that copyright is not allowed to intervene to stifle the
creation of works that are actually very different, as the individual
games are here…I agree with Mr Carr. If protection for such general
idea as are relied on here were conferred by the law, copyright would
become an instrument of oppression rather than an incentive for
creation which it is intended to be. Protection would have moved to
cover works merely inspired by others, to ideas themselves.’
In order to protect a format which has been copied, a
format owner will have to identify the elements of its
format which have been copied and specifically plead
copyright infringement in respect of each. Proving that
a substantial part of each of these elements has been
copied will be complicated (as it usually is in copyright
actions) and factually, as a result, only programmes
which fall into that well-known legal category ‘you
know it when you see it’ are likely to cross the line. The
difficulty in protecting a format may not currently be
reflected in format licence fees. It remains to be seen
whether the commercial balance between format
owner and licensee continues ‘as-is’ over the coming
year or two.
10
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
Google and copyright: organising the
world’s information
Kurt Wimmer1
Gannett Co, Inc, Washington DC
kwimmer@gannett.com
I
n just a decade, the word ‘Google’ has been
transformed from a fanciful mathematical term – a
‘googol’ is the numeral ‘1’ followed by 100 zeroes – to a
word that has come to epitomise internet innovation.
Its founders, Larry Page and Sergey Brin, earned their
initial success in the classic California tradition: they
developed a groundbreaking search algorithm in a
Stanford dormitory room, incubated a business around
that idea in a Silicon Valley garage and launched a
search engine with a unique and elegant interface.
They monetised this innovation by creating the wildly
successful AdWords and AdSense online advertising
programs. And they have supplemented their
company’s inventiveness with strategic acquisitions; first
YouTube in 2006 and now DoubleClick in 2007. The
company’s stock is at an all-time high, giving it a market
capitalisation of US$169 billion. In July 2007, it became
the 25th highest-valued company in the world, ahead of
brands such as IBM, Intel, Nokia and Coca-Cola.
The true ambition of Google, however, is much
broader than commercial success. Its self-avowed
mission is to ‘organise the world’s information and
make it universally accessible and useful’. Organising
the world’s information is a goal that has motivated
explorers, scholars and empires for thousands of years
– the Sumerians, Egyptians, Greeks and Romans
aspired to catalogue all then-existing knowledge.
Google, however, is using digital technologies to move
faster toward this goal than these empires could have
dreamed.
The Google mission is seductive. The benefits to
world understanding that could flow from a complete
democratisation of information are unimaginable: if
poor students in remote villages that could never hope
for a library could access all the world’s information
through the internet, they could have access on
balance with their peers in rich, industrialised
countries.
This mission, however, runs headlong into the
entrenched legal rights of others. Newspaper
publishers, for example, may not wish to have their
articles reproduced on Google ‘news’ pages that
compete with their publications for online traffic.
Photographers may not wish to have ‘thumbnails’ of
their images included on Google search pages. Authors
may not wish to have digital copies of their printed
works scanned and made accessible over the internet.
Individuals may not wish to have records of their search
queries, along with potentially identifying information,
kept on record for months or even years.
The conflict between the Google mission and
entrenched legal rights of others is being played out in
predictable venues – in courts, administrative agencies,
legislatures and private negotiations around the world.
Lawyers, judges and policymakers are on the front
lines, and the issues are literally leading edge. The
resolution of these issues will determine the course of
intellectual property, privacy and other concepts in the
digital world.
The crucial issues can be grouped in three general
categories: pure internet issues, digitisation of noninternet print works and privacy.
Pure internet issues: YouTube, Google News and image
search
The issue of using others’ copyrighted works in search
engines is, by far, the most mature of the issues being
played out. The E-Commerce Directive in Europe and
the Digital Millennium Copyright Act (DMCA) in the
United States created a foundation for many of the
most basic issues. Generally, under these laws and their
implementing legislation, an online provider such as
Google is not liable for copyright infringement unless
the provider is put on notice of a claim of
infringement. For many years, this foundation seemed
sufficient.
The explosion in user-generated content and new
digital technologies, however, has put the system under
strain. In 2006, billion-dollar legal challenges were filed
against Google by Viacom, the Premier League and
others, alleging that Google subsidiary YouTube was
engaged in systematic violation of copyright. The
DMCA, it is alleged, is insufficient to protect Google
because the technology it uses with YouTube permits
individuals to ‘upload’ video content, which may
include copyrighted television and music
programming, on a scale that is so massive that
copyright holders cannot possibly keep up. Because
Google directly gains financial benefits from this
massive uploading of infringing material, the plaintiffs
allege, it is ineligible for the DMCA’s ‘safe harbour’
from copyright infringement.
This dispute has wide-ranging ramifications. Literally
thousands of web publishers doing business in the
United States rely on the DMCA’s safe harbour and
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
11
google and copyright: organising the world’s information
follow its prescribed procedures for dealing with claims
of infringement. If a court were to rule that the DMCA
is not sufficient to shield publishers from infringement
claims for material uploaded by others onto their sites,
the enormous trend toward publishing user-generated
content alongside professionally generated content
would be threatened. The trial court is likely to resolve
the issues in 2008. Some speculate that the lawsuit is
really a negotiating tactic, and that Google will provoke
a settlement by adopting ‘watermarking’ technology
that can help track and prevent posting of infringing
material. This, of course, remains to be seen.
In a related area, a trial court in Belgium moved very
quickly in response to a suit filed by Copiepress, a
copyright organisation representing Belgian
newspapers. Copiepress alleged that Google infringed
the newspapers’ copyrights by directly linking to stories
published on the newspapers’ sites without their
permission. The court granted an injunction against
this practice at the outset of the litigation, with which
Google complied. In this case, the argument is over the
proper scope of the concept of ‘fair use’ (in the United
States) or ‘fair dealing’ (in Europe). The basic concept
is that a publisher has a defence to a claim of copyright
infringement if the publisher has used only a small
portion of the protected content, has not deprived the
copyright holder of the commercial value of the work
and has used the work for a transformative purpose.
Google (and other search engines) believe that
providing users with a link to a newspaper story and its
headline is a fair use that provides benefits to the
newspaper by driving traffic to its website. Some
publishers believe that aggregators taking too much of
their content are not engaged in a ‘fair’ use of their
content at all and are instead converting publishers’
content to their own use. In the Belgian case, the
parties came to an agreement on the scope of
information that could be used and settled the case.
Interestingly, the World Association of Newspapers has
begun a project to standardise a set of technologies
that could permit publishers to signal to search engines
how much content they are willing to have catalogued.
Photography and image search is another issue that is
currently being resolved in European and US courts. In
the leading case, a publisher of explicit photographs,
Perfect 10, sued Google, alleging that Google’s image
search function infringed Perfect 10’s copyright by
permitting users to access its images on a Google
search page, thus avoiding paying for them or even
accessing them on the Perfect 10 website. In May 2007,
the US Court of Appeals for the Ninth Circuit in San
Francisco resolved the litigation in favour of Google. It
found that Google’s serving of ‘thumbnail’ versions of
Perfect 10’s photographs was a ‘fair use’ under
copyright law. There are further proceedings before
the courts on some issues in the case, but this crucial
fair-use determination is essentially final.
12
A similar holding resulted from litigation brought in
a German court, although the cases in Germany do not
appear to be settled. An artist sued Google in the
Landgericht Erfurt (Erfurt District Court), alleging
that she did not consent to Google providing
thumbnail versions of her artwork in its search results.
The court held for Google, pointing out that the artist
could prevent Google from accessing her work entirely
by imposing a technical barrier to her site being
catalogued by Google’s spiders. Because she had not
chosen to block all access, she had implicitly provided
Google with authorisation to catalogue her work.
Another case in Hamburg, however, has reportedly
held that thumbnail reproductions of artwork by a
search engine can be an infringement of copyright.
Digitisation of analogue works:
the Google Print project
In late 2004 at a book fair in Hamburg, Google
announced an audacious project. In addition to
cataloguing all available digital information on the
World Wide Web and making that digital information
accessible universally, Google would begin digitising
works that exist only on paper. In partnership with
major university libraries in the United States and
Europe, Google has begun scanning books. It is not
charging copyright holders for scanning their work, but
it is also not asking their permission. Those who wish to
object may ‘opt out’, and Google will agree not to
digitise their work. But any copyright holders who do
not object, and whose works are available in hard copy,
will have their works digitised and made available on
the internet.
Google and Amazon have made books available with
the consent of their publishers for some time, but even
some publishers who have agreed to consensual digital
access to their works oppose the broader library
project. In addition, both Yahoo! and Microsoft have
launched book digitisation projects, but are digitising
only books that are in the public domain because their
copyright has expired.
Google’s theory in pursuing its broader library
project is that its activity is wholly covered by the fair
use defence. Individual users of the Google Print
service are served only a ‘snippet’ of the text of the
book in response to specific searches. The user will not
be able to print entire books, or even entire pages.
Because the ‘snippet’ provided to the user will be
strictly limited, Google asserts, it should be considered
fair use. The wholesale copying of the works to permit
the service is a more challenging matter: copying and
distribution are among the exclusive rights held by
copyright owners, and Google’s project hinges on
being able to copy the works in their entirety and
distribute these digital copies to servers around the
globe for use in its search engine. Again, Google asserts
that this is a fair use because its efforts are wholly
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
google and copyright: organising the world’s information
dedicated to serving only a snippet of information to
the user (who then, incidentally, may wish to purchase
a copy of the book from the copyright owner or visit a
library to borrow a copy of the book). The Authors
Guild and the Association of American Publishers have
sued Google, and the trial court is expected to issue a
preliminary decision on the copyright issue in late
2007 or early 2008.
It is interesting to consider other non-digital works
that could fall under a similar theory of the law. If it is
permissible under copyright law to digitise an entire
work to serve a fair-user protected ‘snippet’, the project
might not be limited to books. Films, music, artwork,
even architectural plans could fall within the same
holding. The result of this litigation, then, will have a
broad impact on Google’s ability to truly achieve its
goal of making all of the information of the world
accessible.
Privacy: data retention and DoubleClick
Google, and many other internet companies, obtain
significant data about individual behaviour on the
internet. Google, Microsoft, Yahoo! and others
generally retain search queries so that they can use
information resulting from those queries. This practice
has become controversial in Europe, which has a highly
developed data protection regime under which service
providers have generally been required to destroy
personal information about subscribers after a short
period of time. The Article 29 Working Party, a group
of national privacy officers from each EU Member
State, has raised this issue with all three major search
providers. Google has now agreed formally to retain
such data for no longer than 18 months and to shorten
the lifespan of its ‘cookies’ from 30 years to two years.
(Cookies are small text files that websites place on
users’ computers so that the websites can know the
users’ preferences when they next visit the site in
question.) Yahoo! and Microsoft are expected to make
similar announcements in the near term.
In addition, Google has agreed to acquire
DoubleClick, one of the leading companies that
produces and serves advertising on the internet. The
combination of Google and DoubleClick has raised
competition concerns among its competitors, who are
also striving to take advantage of the burgeoning
market for internet advertising. Microsoft has alleged
that a Google–DoubleClick combination violates US
antitrust law, a turnabout for a company that has
traditionally found itself on the receiving end of
competition complaints. The proposed acquisition is
being reviewed by the European Commission and the
Federal Trade Commission in the United States.
Competition concerns, however, are not the only
issues that have been raised against the merger.
Consumer groups in the United States and Europe
have expressed concern that the merger could lead to
the invasion of consumer privacy rights through the
combination of Google’s ability to gain access to
individual behaviour through its retention of search
information and DoubleClick’s ability to tie that
information to personally identifiable consumer data.
The Electronic Privacy Information Center, the Center
for Digital Democracy and other groups have asked the
US Federal Trade Commission to investigate the impact
the proposed acquisition would have on personal
privacy rights. In addition, Privacy International, a
London-based privacy advocacy group, has issued a
wide-ranging report ranking Google’s privacy practices
last among 22 companies surveyed.
Conclusion
Google has made impressive progress toward its equally
impressive goal of cataloguing the world’s information.
To continue towards achieving its goal, it must resolve a
number of challenges before courts, agencies and
legislatures. It will need to act globally in securing the
legal context it requires to succeed because, as its
mission statement points out, ‘the need for information
crosses all borders’. It is a daunting task for any one
company, but Google appears to be up for the
challenge.
Note
1������������������������������������������������������������
Kurt Wimmer is Senior Vice President and General Counsel of
Gannett Co, Inc, which publishes USA Today and 84 other newspapers
in the United States, 18 daily newspapers in the United Kingdom,
hundreds of websites in the United States and the United Kingdom
and operates 23 television stations. The opinions expressed in this
article are solely those of the author, and should not be taken to
indicate positions of his employer.
This Newsletter is intended to provide general information of interest to lawyers involved in media law. Views expressed are not necessarily those of the International Bar Association.
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
13
From Afghanistan to Zimbabwe:
discouraging forum shopping on the
World Wide Web
Peter Jacobsen1
Bersenas Jacobsen Chouest Thomson Blackburn LLP, Toronto
pjacobsen@lexcanada.com
T
he general assumption is that if an article is
published ‘to the world’ it is widely read and, if
defamatory, can give rise to an award of damages to
an aggrieved plaintiff. There is, however, a growing
body of law from several jurisdictions to suggest that,
in the case of internet publications, the assumption is
rebuttable and if a plaintiff wants to sue in a particular
jurisdiction he/she must be able to show the offending
article was accessed by a significant number of readers
in the jurisdiction where the suit is brought.
In an effort to discourage opportunistic forum
shopping, the common law courts have increasingly
looked to the number of readers of an article as an
indication of a real and substantial connection to the
jurisdiction.
In Dow Jones & Co, Inc v Gutnick,2 the High Court of
Australia in 2002 dealt with the issue of a well-known
Australian businessman who brought an action against
Dow Jones for the publication of an article in Barron’s
Online that was available over the internet to some
1,700 Australian subscribers.
The publisher argued that the action should have
been brought in New Jersey, where the article was
uploaded, citing the US single publication rule.
However, the High Court decided that Gutnick could
sue in Australia where he suffered damages and
rejected the publisher’s in terrorem argument that they
would now be exposed to actions anywhere in the
world due to the wide reach of the internet.
The Australian court was not convinced, as argued by
Dow Jones, that allowing plaintiffs to sue where the
reputation is damaged would require publishers on the
world wide web to consider ‘…the laws of every country
from Afghanistan to Zimbabwe’, noting that in all but
the most unusual cases publishers could well anticipate
the jurisdiction where the individual would suffer
harm.
In 2005, the Ontario Court of Appeal decided the
case of Bangoura v The Washington Post.3 The
complainant was a former UN worker who sued the
Washington Post and three of its reporters for
defamation in respect of two newspaper articles that
related to his posting with the United Nations in the
Ivory Coast. At the time of publication, there were only
seven subscribers to the Washington Post in Ontario and
Bangoura was not an Ontario resident. More than six
years after the publication of the articles, Bangoura
14
commenced the action in Ontario where he had
subsequently become resident.
On appeal, the Court of Appeal overturned the
decision of the lower court and held that it was not
appropriate for the Ontario courts to assume
jurisdiction. The court noted that while the articles
were available online, free of charge, for 14 days
following publication, after the 14 days they were only
available through a paid archive. Only one person,
counsel for Bangoura, had accessed the articles
through the paid archive. Furthermore, Bangoura did
not move to Ontario until more than three years after
the publication of the articles. While the court
recognised that summaries of the articles containing
the gist of the allegations made against Bangoura
continued to be available free of charge from the
Washington Post archive, it held that the connection
between Ontario and Bangoura’s claim was minimal at
best.
Predictably, the plaintiff in Bangoura tried to rely on
the Gutnick case in support of his position. However,
the Ontario Court of Appeal distinguished Gutnick,
emphasising that the case involved a well-known
Australian businessman who resided in the state of
Victoria at the time of the publication, and there was
evidence of some 1,700 internet subscribers in
Australia.
In 2005, a Saudi businessman brought a claim with
respect to an article published on an internet website
and its hyperlink which led to the alleged defamatory
page (Jameel v Dow Jones, Inc).4 He argued that the
article was available to between 5,000 and 10,000
subscribers within the English jurisdiction and invited
the inference to be drawn that a ‘substantial number of
readers’ of the main article would have read the page
to which the hyperlink led.
However, the wily defendant publishers adduced
evidence that revealed that while there were 6,000
subscribers within the jurisdiction, only five subscribers
in the jurisdiction had been able to access the article
through the hyperlink. Of those five, three were
members of the claimant’s ‘camp’.
The Court of Appeal struck out the claim ruling that
it would be an abuse of process to continue to commit
the resources of the English court to an action ‘…
where so little is now seen to be at stake’. In effect, the
court found the publication within the jurisdiction was
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
from afghanistan to zimbabwe
minimal and did not amount to a real and substantial
tort.
Following on Jameel, the High Court of Justice in
England in Amoudi v Brisard and JCB Consulting
International5 found that the ‘presumption’ that
substantial publication of an article occurred where it
was open to general access on an internet website was
rebuttable.
The publisher adduced evidence that there were only
a few ‘hits’ from the United Kingdom. Furthermore,
although the judge found that the evidence was
inconclusive because there were many hits that were
either not recorded or whose providence was unknown,
he held that the general rule is that the claimant bears
the burden of proving that the words complained of
were read by a third party. From that proposition, he
reasoned that, in the case of internet libel, the claimant
must prove that the material in question was accessed
and downloaded.
As to how this might be done, the judge suggested
the claimant could establish a ‘platform of facts’ from
which the trier of fact could properly infer that a
substantial publication within the jurisdiction has taken
place, such as establishing the period of online
availability of the article, and the accessibility of the
article.
Despite the dire warnings of counsel for Dow Jones in
Gutnick, it appears that the Canadian, UK and
Australian courts are not inclined to automatically
assume that a publication has been viewed by a
‘substantial’ number of readers in their respective
jurisdictions simply because the article is available on
the world wide web.
What this means is that evidence must be adduced by
the complainant to establish that enough readers
within the jurisdiction were exposed to the defamation
in order for the courts to assume jurisdiction. What
constitutes a ‘substantial’ number of readers is left up
to the court, but seems to be informed by whether
there is evidence of real damage to the reputation of
the complainant within the jurisdiction.
From a practical perspective, it is interesting to note
that common to the cases is the fact that the
publications were generally limited to subscribers and
therefore readership could be tracked. It would be
prudent for all publishers on the world wide web to
take note and establish the already common practice of
implementing a registration system that tracks readers
who view articles online. Furthermore, in order to
avoid having to consider ‘…the laws of every country
from Afghanistan to Zimbabwe’, publishers and
authors need to know where the targets of their articles
are most likely to suffer injury to their reputations. On
the other side, complainants should be ready to adduce
evidence of the number of readers of the publication
about which they complain.
Notes
1 I am grateful to Tae Mee Park for her assistance in preparing this
article.
2 Dow Jones & Co, Inc v Gutnick [2002] HCA 56.
3 Bangoura v The Washington Post, Ontario Court of Appeal Docket
C41379, reversing (2004) 235 DLR (4th) 564 (SCJ), leave to appeal to
Supreme Court of Canada denied without reasons: 16 February 2006.
4 Jameel v Dow Jones, Inc [2005] EWCA Civ 75.
5 Amoudi v Brisard and JCB Consulting International SARL [2006] EWHC
1062 (QB).
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
15
Argentina: cease and desist order against Yahoo!
and Google to stop access and referral to
certain websites by web users
Pablo Crescimbeni
Zang Bergel & Viñes, Buenos Aires
p.crescimbeni@ezabog.com.ar
T
he recent decision issued by the Federal Court of
Appeals in Civil and Commercial Matters in re
Unteruberbacher, Nicole v Yahoo! de Argentina SRL and
Google Inc,1 is part of an emerging trend in
Argentina.2
The plaintiff, artistically known as Nicole Neumann,
is a model who sought injunctive relief from a first
instance court and had obtained an order that forced
the defendants to prevent third parties from having
access, through http://ar.yahoo.com and www.google.
com.ar, to any site that could link the name of the
model, and her images, with erotic and pornographic
pages, on the grounds that such pages were harming
her name and her right to her own image. The first
instance court held such use of the plaintiff’s name
and images to be unlawful.
The cease and desist order issued by the first instance
court was appealed by Yahoo! de Argentina SRL and
Google, Inc.3 The appellant argued that it had only
been a ‘broker’ of access, by users, to certain content
that third parties had published on the world wide web.
Therefore, the defendants could not be held liable
as a consequence of such use, merely ‘allowed’ by the
search engines but with no affirmative intervention
by the defendant.
Moreover, the defendant argued that the cease and
desist order would not be able to reach its goal, given
the fact that the link between the name and images of
the plaintiff and the allegedly infringing sites would
survive through other search engines.
Furthermore, the defendant maintained that the
first instance court ruling had affected:
(1)the right, vested in any potential user, to be
conveyed a complete search of any webpage related
to a given topic;
(2)the right, vested in the owners of sites, to be
mentioned among the results of any search; and
(3)the defendant’s right to provide the users with full
results to each search.
The defendant also claimed that the cease and desist
order had affected its constitutional right to work and
develop its commercial exploitation, aside from
infringing other rights that had been recognised in the
National Constitution and also in international treaties
(ie, freedom of speech and right to full access to
information).
16
In addition, the defendant stated that it had not been
possible for it to choose the pages indicated by the
plaintiff in order to remove them from the search
engine. In this regard, the defendant pointed out that
the persons who had been responsible for the allegedly
infringing sites had to be held liable for the content of
their sites.
On the contrary, the Court of Appeals held that the
defendant was technically able to remove the pages
from the engine and therefore compelled the
defendant to do so in order not to increase the scope
of damages that the plaintiff would eventually suffer.
The Court of Appeals reasoned that the defendant was,
technically, in a better position to adopt preventive
measures to minimise the allegedly harmful action by
the targeted sites. The Court of Appeals made
reference to EC regulations to strengthen its decision.
Despite the cease and desist order, the Court of
Appeals remarked that the injunction did not imply
that the defendants could necessarily be held liable,
because such liability should rest only on who finally
bore responsibility for the site where the images of the
plaintiff had been posted.
Some very well-known scholars have supported the
Court of Appeals’ decision.4 However, in the author’s
opinion, the defendant’s position was reasonable. The
actual owners of the allegedly infringing sites could
eventually be held responsible, but not the defendants.
We live in an era of accelerated digital traffic, with
millions of new ‘journalists’, ‘cameramen’ and
‘producers’ being born every minute (everybody may
nowadays be considered as potentially acquiring the
features of each of the quoted professions). Therefore,
we are all highly exposed to suffer any possible ‘attack’
on our rights of intimacy and privacy. Moreover, many
people who work with their image actually use the web
as a multiplier advertising environment and generally
benefit from such use. These people have voluntarily
entered into the ‘universal’ web-based community and,
in principle, should accept that the level of exposure
freely chosen may lead to certain ‘collateral’ effects
that, up to a certain extent, must be accepted.
Moreover, the standards of what is construed, by each
society, as ‘moral’ or ‘private’ are changing rapidly, and
new generations have generally been exposing, and
encouraged to expose, their lives through any means,
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
argentina: cease and desist order against yahoo! and google
with little concern (to the point where such activity may
be considered part of modern culture).5 Therefore, it
might be useful to consider whether the levels of
protection of the rights to intimacy and privacy should
be decreased in cases like the one under analysis in
order to preserve some of the rights that have allowed
our societies, or some of them, to achieve high
standards of freedom. Yet, it must be admitted that it is
easier for someone to adopt this position who, up to
now, has not suffered such ‘attacks’ or who is not
‘public’.
Notes
1 Federal Court of Appeals in Civil and Commercial Matters, 15
2
3
4
5
March 2007 C 3042/2006 -I- Unteruberbacher Nicole c/ Yahoo de
Argentina SRL y otro s/ medidas cautelares.
There have been other cases similar to the one under analysis.
Mainly, the complaints have been brought by models against
Yahoo de Argentina SRL and Google Inc.
Diario Judicial, 23 June 2007 (e-edition), although the ruling
issued by the Court of Appeal (as published) only quotes the
position of the former.
Internet, comercio electrónico y derecho a la intimidad: un avance de los
tribunales argentinos, [Internet, e-commerce and invasion of privacy, an
advance by the Argentine Courts]. Sara Feldstein de Cárdenas y
Luciana B Scotti, eldial.com; Comment in re Sofía Zámolo v Yahoo!
de Argentina SRL and Google Inc.
Consider, for example, the ‘mobile’ culture developed by people,
including image sharing or the attraction of ‘reality shows’ where
human beings open up their most intimate thoughts and feelings
to the world audiences. Also, interactive communication through
the web allows many individuals to freely share intimate videos
about themselves with, potentially, all web users.
The decline of English libel trials?
Alasdair Pepper and Antonia Foster
Carter-Ruck, London
alasdair.pepper@carter-ruck.com
antonia.foster@carter-ruck.com
R
eading libel judgments from the English courts
provides information about developments in the
law but does much less in terms of informing on trends
and approaches being used by legal practitioners in the
field. Court judgments also state little about the vast
majority of claims which are settled without contested
hearings and often without court proceedings being
commenced at all.
Over recent years the balance in England has
undoubtedly shifted towards early settlement, with
fewer large scale trials. There are a number of driving
factors towards this:
Offer of Amends procedure
This is a statutory provision that permits a defendant,
in receipt of a libel complaint, to accept responsibility
for the publication and in effect to ‘own up’ to its
mistake. In making such an offer they commit to
making a ‘suitable correction’ and ‘sufficient apology’
and to pay ‘such compensation (if any) and such costs,
as may be agreed or determined’. These provisions
were designed to encourage the early resolution of
complaints and, although they came into force in 2000,
it is only over the last few years that they have been
increasingly used by defendants to good effect to do
just this. They not only reduce a defendant’s exposure
on costs but where the court is asked to determine
compensation, which is done by a judge alone, it will
often award substantially reduced damages (sometimes
by as much as 50 per cent) to reflect the benefit of an
early apology to the claimant and, in effect, reward a
defendant for admitting its mistake and seeking to
rectify it at an early stage.
Part 36 procedure
This is a formal procedure under which both claimants
and defendants can make a without prejudice offer to
the other to settle an action. Routinely such an offer will
include terms as to damages, an apology, costs and
undertakings. If an offer is not accepted and the party
that made the offer does better than the offer at trial, he
may recover a higher scale of costs from the losing party
and interest on damages and costs awarded to him.
These offers are being increasingly used by both
claimant and defendant lawyers to bring pressure to bear
on the other party to settle. They are particularly
effective in Offer of Amends cases because a tariff of
likely awards of damages has, and is, being established
from the cases that have received judicial determination.
Conditional Fee Agreements and After the Event
insurance
Libel litigation in England has traditionally been seen
as a rich man’s game, available only to those with
significant assets, which they can afford to lose, and less
often to the average man in the street. The inherent
unfairness of this has been that, very often, a libellous
article in a local newspaper is just as damaging to the
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
17
the decline of english libel trials?
reputation and livelihood of a sole trader making a
modest living, as a libellous article in a national
newspaper might be to a wealthy businessman, but only
one of them was likely to have the means to sue.
In recent years this balance has been redressed to
some degree with claimants, in particular, taking
advantage of the Conditional Fee Agreement (CFA) or
‘no win no fee’ regime, as well as After the Event (ATE)
insurance, the latter providing some protection against
any order made against a party for their opponent’s
costs. Taken together, CFAs and ATE have eased the
financial exposure individual claimants might
otherwise face and they are now commonplace in libel
proceedings. They have served to level the playing field
a little between a claimant with a good claim but
modest means, and substantial publishers.
The advent of CFAs and ATE has led to trials where
otherwise court action might have been impossible for
the claimant. However, the very considerable majority
of such cases are settled. One of the reasons for this is
that if a CFA case is won at trial, the successful lawyers
are likely to be entitled to a success fee of 100 per cent
of their normal professional charges recovered
between the parties, and the ATE premiums can be
very substantial. Therefore, losing to a CFA-funded
claimant is very expensive. However, the converse is
also true. A losing lawyer on a CFA receives no
payment. The consequence is that all involved are
bound very carefully to consider and explore the
options to settle and in this the Offer of Amends and
Part 36 procedures have become very important.
Defence of responsible journalism
Another reason for the decline in the number of trials
is the uncertainty of the state of particular aspects of
the law of defamation, and of the responsible
journalism or ‘Reynolds’ defence in particular. This
defence, which takes its name from the case brought by
Albert Reynolds, the former Irish Premier, against the
Sunday Times (Reynolds v Times Newspapers Ltd [2001] 2
AC 127 (Reynolds)), provides protection to a defendant
even where it has published allegations of a claimant,
which subsequently prove to have been untrue, but
where it can persuade the court that in all the
circumstances publication was reasonable and
responsible. The defence is based on the notion that
there are certain circumstances in which the public
interest dictates that an allegation should be protected,
regardless of whether or not it is true. The House of
Lords was seen, in that case, to have widened the scope
for reporting matters of public interest.
In Reynolds, Nicholls LJ laid down a list of ten factors,
not intended to be exhaustive, to be borne in mind
when assessing whether a defendant had been
responsible in its publication. These included matters
such as the seriousness of the allegation, the steps
taken to verify the information, the urgency of
18
publication, the tone of the article and whether the
allegation was put to the claimant prior to publication.
Since Reynolds, case law concerning these ‘ten
factors’, and the court’s approach as to whether a
defendant has or has not reported responsibly, has
grown. This has helped in assessing the merits of any
particular claim. However, in October 2006 the House
of Lords handed down its judgment in Jameel v Wall
Street Journal Europe SPRL [2006] UKHL 44, in which it
found for the defendant. This was greeted warmly by
the media and some viewed it as the House of Lords
moving the ‘Reynolds’ defence in favour of media
defendants and in support of freedom of speech.
In the case, proceedings were brought against the
newspaper over allegations of links to terrorism. From
the outset the defendants never sought to argue that
the allegations were true, merely that they had been
published responsibly. The trial judge, who had heard
the case with a jury, did not agree with the defendants
that in the circumstances of that case the newspaper
had done enough and nor did the Court of Appeal.
However, the House of Lords took a different view
some three years later, and in so doing delivered their
analysis, and indeed criticism, of the way in which the
‘Reynolds’ defence had been operating. The House of
Lords decided that the lower courts had been applying
Lord Nicholls’ criteria too rigidly and thereby
subverting the initial intention of the defence. For
example, the House of Lords concluded that the Court
of Appeal was wrong to decide that the failure to put
the allegations to the claimant prior to publication was
fatal in the circumstances. This was notwithstanding the
seriousness of the allegations, but this will not
necessarily be the case in other circumstances.
The result is that the assessment of when defendants
will or will not have done enough to satisfy the court
that the article of which complaint has been made was,
in all the circumstances, the product of ‘responsible
journalism’, has become more difficult. This provides a
further inducement to claimants and defendants and
their lawyers to settle claims if possible, rather than face
the increased uncertainty and expense of a contested
trial.
The internet
Although the number of libel trials is diminishing,
there is less evidence that libel complaints are reducing
in number. One area in which libel complaints are on
the increase is those arising out of publications on the
internet. Given the use of the internet in all aspects of
our lives it is no wonder that claimants, including
international claimants with reputations in England to
protect, are increasingly looking to protect their
reputation there too.
However, often with complaints about material on
the internet, a claimant’s primary objective is to have
the offending material taken down and if this is done
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
the decline of english libel trials?
quickly, which it often is when English law is in play,
then the complaint can be settled quickly. Thus, to
date, the increase in internet-related complaints of libel
has not resulted in an increase in libel trials, although a
number of internet-related trials have taken place.
litigation. Mediation and arbitration is on the increase,
and costs and other protocols have been introduced by
some firms to try to avoid satellite litigation over costs
and other issues such as levels of success fees in CFA
cases. This too may have resulted in fewer cases issued
and, in turn, fewer trials.
Greater pragmatism and cooperation between claimant
and defendant lawyers towards resolving disputes
Summary
Possibly claimant and defendant lawyers in the field
have become more inclined, on behalf of their clients,
to take pragmatic approaches to matters in dispute
between clients and to look harder for possible means
by which those differences might be resolved without
Although the landscape is shifting and the number of
trials reducing, libel practitioners in England seem to
be as busy as ever, on behalf of both national and
international clients with reputations in England to
protect.
Online archives:
modern day resource or pillory?
Sebastian Seelmann-Eggebert
Latham & Watkins LLP, Hamburg
sebastian.seelmann@lw.com
G
erman courts are failing to agree as to whether
content considered legitimate at the date of
publication may be included in archives when its republication would be unlawful. The������������������
���������������������
disagreement has
been triggered by complaints from criminals that
articles on their crimes continue to be available in
online archives long after the conclusion of the trials.
The German Constitutional Court set the scene for
such complaints in 1973 by ruling that convicted
criminals are constitutionally entitled to reintegration
into society once they have been convicted and served
their sentence.1 Any reports that interfere with the
criminals’ reintegration, eg by reminding the public of
the crimes in connection with the imminent release
from prison, are therefore illegal. At the same time,
convicted criminals cannot have a legitimate
expectation that they will never again be confronted
with their crimes.2 For these reasons, the Constitutional
Court held that a television drama on a spectacular
murder case could not be broadcast to coincide with
the release of one of the perpetrators if the identity of
the perpetrator was disclosed. However, it could be
broadcast to the extent it avoided any such disclosure.
The application of these principles to online archives
has caused the courts difficulties because articles in
online archives are not published but made available
only to users actively seeking them out. As a result of
this distinction, the Courts of Appeal in Frankfurt,
Cologne and Berlin have held that online archives are
a modern day equivalent of paper archives which are
privileged as historic records.3 In the view of these
courts, archived articles do not drag a convicted person
into the public limelight and they do not specifically
endanger the reintegration of criminals into society. In
addition, it would impose an excessive burden on the
media if they were required to review their archives
continually in order to erase the identity of convicted
criminals or otherwise bring archived articles into
compliance with contemporary standards.
The Hamburg Court of Appeal disagrees. It
distinguishes online archives from paper archives on
the basis that online archives are more accessible,
particularly via search engines. In its view, online
archives are akin to re-publication and there is a very
real danger that articles made available through such
archives stigmatise former criminals and endanger
their right to reintegration.
The dispute is set to be decided by the German
Federal Court of Justice and, ultimately, the German
Constitutional Court. The decision of the federal
courts will have far reaching effects on the operation of
online archives. In particular, full online archives could
vanish if each archived article has to comply fully with
standards designed for publication as long as it is
available in an online archive. In the meantime, there
is already a discernible increase of cases brought by
plaintiffs’ lawyers before the Hamburg courts in order
to avail themselves of the more favourable jurisdiction.
Notes
1 Neue Juristische Wochenschrift 1973, p 1226 – Lebach I.
2�����������������������������
German Constitutional Court, Neue Juristische Wochenschrift 2000, p
1859 – Lebach II.
3���������������������������
Frankfurt Court of Appeal, Zeitschrift für Urheber- und Medienrecht 2007,
p 139; Cologne Court of Appeal Archiv für Presserecht 2007, p 126;
Berlin Kammergericht, decision dated 19 October 2001 (9 W 132/01).
IBA Legal Practice Division MEDIA LAW COMMITTEE NEWSLETTER September 2007
19
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