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In this issue of zoom-in brief, Sacha Baron Cohen claims first win in Roy Moore libel claim; News Corp, owner of Australian newspaper The Daily Telegraph, is to appeal Geoffrey Rush libel award; and California moves a step closer towards privacy legislation akin to the GDPR.

(US) Defamation - First win for Baron Cohen in Roy Moore libel claim

Editorial credit: Featureflash Photo Agency / Shutterstock.com
Editorial credit: Featureflash Photo Agency / Shutterstock.com

Sacha Baron Cohen

Sacha Baron Cohen and Showtime have persuaded a judge to transfer a $95 million defamation claim by former Alabama judge and politician Roy Moore over an episode of the series Who is America from Washington to New York.

Moore ran for the Senate in 2017 but was unsuccessful after The Washington Post told the stories of six women who said Moore pursued them when he was a local prosecutor and they were teenagers. Moore denied any wrongdoing.

When making Who is America, Baron Cohen, in the persona of Israeli anti-terrorism expert “Erran Morad”, invited Moore to Washington, purportedly to receive an award for his support of Israel.

Cohen’s Morad claimed to have an Israeli-developed paedophile detecting machine, which then beeped as he waved it over Moore.

“It must be faulty. It’s malfunctioning,” Cohen said, asking “Is this your jacket? Did you lend the jacket to somebody else?”

Moore eventually walked out of the interview.

His legal claim alleges that he “suffered extreme emotional distress” for “being falsely portrayed as a sex offender and paedophile.”

However, a Judge has now allowed Baron Cohen and Showtime to rely on a forum selection clause in a consent agreement that Moore had signed in connection with his appearance on Who is America, which stipulated that disputes would be adjudicated in New York.

Moore’s lawyers had argued that the consent agreement was void due to fraud arising from misrepresentations surrounding the circumstances of Moore’s appearance in the programme.

The Judge found that Moore had not specifically claimed he was defrauded into agreeing to the forum selection clause.

Cohen’s lawyer pointed the Judge to the fact that his client had won on the same issue in a lawsuit brought over his movie Borat, where a case issued in Alabama was moved to a federal court in Manhattan because of a forum selection clause.

Moore’s lawyer indicated that he intends to appeal the case’s transfer. His statement said that “no matter where the case is ultimately heard, we are confident that Sacha Baron Cohen, Showtime and CBS will be held legally accountable by a jury for their low class, disgusting and malicious defamatory acts to harm a good man and his family.”

(Australia) Defamation - News Corp to appeal Geoffrey Rush libel award

News Corp, owner of the Australian newspaper The Daily Telegraph, is to appeal the decision which awarded actor Geoffrey Rush $850,000 in damages for defamation over allegations that he engaged in “inappropriate behaviour” during a theatre production of King Lear.

The Telegraph published its first article making the allegations about Rush’s conduct under the headline “King Leer” in November 2017, with follow-up articles the next day.

Nationwide News, the News Corp company which is the publisher of the Telegraph, claims that the award of damages was excessive, and that the federal court justice presiding over the trial who described the newspaper’s reports as “a recklessly irresponsible piece of sensationalist journalism of the worst kind”, appeared biased.

The Notice of Appeal, which seeks judgment in favour of the newspaper or a re-trial, says that the trial “miscarried in that the conduct of the proceedings by the primary judge gave rise to an apprehension of bias’’.

The Notice alleged that an example that gave rise to the apprehension included the finding that the newspaper’s witness, actress Eryn Jean Norvill, was “an unreliable witness prone to exaggeration and lacking in credibility”.

Norvill, who was not the source for the articles about Rush, but emerged late in the day to give evidence at trial, claimed in court that Rush made breast-groping gestures over her torso, called her “yummy” and “scrumptious”, stroked her lower back and touched her breast during a preview performance.

She said she “believed he had done it deliberately”, but Rush vigorously denied the claims, and the Judge accepted his evidence.

The Telegraph will also challenge the Judge’s “award of excessive special damages”, which have yet to be finally determined by the Court, saying in its Appeal Notice that they were awarded for a time exceeding the period the actor’s agent said it would take for him to receive job offers at the same rate as before the newspaper’s reporting.

Rush had claimed at trial to be entitled to between $4.8 million and $20 million for lost future income.

If the appeal does not succeed, the pay-out will be one of the largest defamation awards for a single claimant in Australian history.

Actor Rebel Wilson’s damages award was reduced on appeal from $4.5 million to $600,000 last year.

The tendency for claimants to win significant damages at trial when suing publishers for defamation means that Australia is a challenging legal environment for the media.

(US) Data protection – California moves towards privacy legislation

The US state of California is set to introduce privacy legislation in the form of the California Consumer Privacy Act of 2018 (CCPA) which may have a similarly wide-ranging impact to the GDPR.

The CCPA became law in California on 28 June 2018, and this month saw the introduction of a second in a series of bills to amend the law before enforcement begins on 1 January 2020.

The legislation will offer consumers the right to request that a business disclose the categories and specific pieces of personal information that it collects about them, through a process which appears to be similar to the right of subject access under the GDPR.

There will also be a right to delete personal information which appears to be similar to the “right to be forgotten”.

The process of amending the CCPA, which was first introduced subject to legislative time pressure in 2018, looks set to be a lengthy one with the potential for numerous further modifications and refinements.

Unsurprisingly, that process has seen the CCPA become a battleground for the diverging views of technology industry interests on the one hand and privacy advocates on the other, as to where the balance is to be struck between the interests of businesses and consumers.

Bills to carve out exemptions for certain categories of business were supported by lobbyists who represent companies such as Facebook, Google, Amazon, and Apple.

Privacy advocates suggested that industry interests were seeking to weaken privacy in California by means of the amendments.

Mary Stone Ross, who was involved in drafting the legislation when acting as president of Californians for Consumer Privacy, described attempts to erode the law as “painful” to watch.

“We forced the hand of the legislature, but now it’s shifted back again,” she said.

One debate which reflects wider concerns in the technology industry is around a provision of the CCPA which means that businesses wouldn’t be able to charge higher prices or offer different services to customers who opt out of having their data collected or sold.

Privacy advocates have said that, in stopping businesses from offering discounts in exchange for personal data, this will prevent a “pay-for-privacy” regime that creates separate cost structures for those who can afford to subsidise their privacy and those who cannot.

Whatever the status of the various amendments, following the introduction of the GDPR the CCPA seems to be a further step towards protecting the interests of individuals in the era of Big Tech.

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Abbas Media Law is a niche law firm, specialising in advice to independent production companies and broadcasters. We are true experts in our field: all lawyers and advisors have in the past worked either in-house for broadcasters and/or production companies. Accordingly, we fully understand production and the needs of our clients. We offer expert advice and representation on all programme content related matters (legal and regulatory), all aspects of business affairs, as well as complaints-handling and litigation. Visit www.abbasmedialaw.com or contact us directly at info@abbasmedialaw.com.

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