We are pleased to introduce our third media law newsletter. We have included three important recent developments in the media sector and consider one topic in depth. This month, we cover the revised audiovisual media services directive and the impact of Brexit on its implementation.
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Defamation by retweet
Roslyn La Liberte, a woman who was photographed wearing a “Make America Great Again” hat and supposedly shouting at a Mexican teenager during a Californian City Council meeting, recently filed a lawsuit in California against Joy Rein, the host of US TV network MSNBC, for defamation. The story started with a tweet by a 17-year-old activist alleging that La Liberte had shouted at the boy, who turned out to be a US citizen, calling him a “dirty Mexican” and telling him he would be deported. Reid retweeted the tweet and also posted her own tweet making the same allegations.
La Liberte has decided to withdraw the claim over the retweet (apparently due to the risk of an order being made under the Californian “anti-SLAPP” law, which provides for claimants to pay defendants’ costs in free speech cases). This means that the US courts will not have an opportunity to consider whether a retweet can create liability or whether s.230 of the Communications Decency Act provides a defence.
In the UK, while the courts have also not had an opportunity to consider whether a retweet on its own constitutes a publication, it is likely to be the case that it does. For instance, in 2013, UK comedian Alan Davies reportedly paid £15,000 in damages for retweeting allegations of child sex abuse. Similarly, the courts in Switzerland have found that “liking” a defamatory post on Facebook created liability for the content of that original post.
Blocking websites and servers
Readers are likely to be aware that the UK and most European countries allow rightsholders to obtain injunctions against internet service providers (“ISPs”) to block websites and servers that offer illegal streams and downloads of infringing content. These rights derive from Article 8(3) of the Copyright Directive 2001/29/EC (aka the ‘InfoSoc’ Directive), which provides:
“Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
The UK right has been used by various rightsholders, from Hollywood studios to boxing promoters. While very useful, the procedure is fairly expensive, requiring detailed evidence in support of a High Court application. The UK Intellectual Property Office announced in June that it was considering introducing an administrative (non-court) procedure to streamline the process and bring the cost down. On 5 November, the UK IPO indicated that it is moving ahead with this process and referred to similar procedures in China and Vietnam.
Obviously, the UK IPO will not have the same freedom of action that an administrative body in a non-democratic state would have, but rightsholders (and likely the ISPs) will welcome the potential for costs savings and streamlining of the process, hopefully improving access to enforcement of IP rights.
Jeff Koons found liable for copying advert
French clothing brand, Naf Naf, has successfully sued the sculptor Jeff Koons for copyright infringement. In 1985, Naf Naf produced a distinctive advert featuring a pig nosing the hair of a woman lying in the snow and the phrase “Fait D’Hiver” (a play on the phrase, “fait divers”, meaning a sensational news story).
Three years later, Koons produced a sculpture that reproduced the image, albeit in a more sexually explicit manner. No dispute arose until 2014 when Naf Naf’s creative director saw the sculpture in the Pompidou Centre in Paris. Proceedings were issued in 2015 and judgment was given on 8 November 2018. Aside from being an interesting story, the case is interesting from a legal perspective in that it:
- demonstrates the extensive protection to creators granted under French law (droit d’auteur),
- represents a rare example of parody being argued (apparently unsuccessfully), and
- is an example of copyright in a 2D work being infringed by the creation of a new work in a different, 3D, form.
InDepth analysis – New Audiovisual Media Services Directive (and Brexit)
As we reported last month, the EU Council approved amendments to the Audiovisual Media Services Directive on 6 November 2018. The revised directive obliges EU member states to implement rules extending obligations previously applying only to broadcasters and video on demand services on video-sharing platforms (such as YouTube). Importantly, member states have until September 2020 to implement the directive, meaning that the UK will have to implement it if the UK-EU withdrawal agreement, and therefore the transitional period, is agreed.
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