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In this issue of zoom-in brief, Ofcom rejects Michael Jackson documentary complaints; the ICO issues a tv indie a £120,000 fine over hospital filming; the Supreme Court rules on the words “tried to strangle” and the BBC settles a defamation claim from the Ukranian President.

Regulation - Ofcom rejects Michael Jackson documentary complaints

Editorial credit: Vicki L. Miller / Shutterstock.com
Editorial credit: Vicki L. Miller / Shutterstock.com

Michael Jackson

Ofcom has rejected 230 fairness complaints about Channel 4’s Michael Jackson documentary Leaving Neverland.

The documentary, which was in two 90-minute episodes, aired in March and provoked a widespread re-evaluation of Jackson’s legacy.

It focused on the accounts of two men, Wade Robson and James Safechuck, who alleged the star sexually abused them when they were children.

The complaints were to the effect that the sexual abuse accusations against Jackson were presented as fact despite not being proved in court and that constituted unfair treatment as a result.

Rule 7 of the Broadcasting Code says that “Broadcasters must avoid unjust or unfair treatment of individuals or organisations in programmes”.

The regulator, however, did not view the complaints as giving rise to a breach of the Code.

An Ofcom spokesman said: “We understand that this two-part documentary gave rise to strong opinions from viewers.

“In our view, the allegations were very clearly presented as personal testimonies and it was made clear that the Jackson family rejects them.”

The watchdog has also rejected four complaints about the level of detail involved in the descriptions of sexual abuse.

Section 1 of the Broadcasting Code says “Children must also be protected by appropriate scheduling from material that is unsuitable for them” and section 2 says standards must be applied so as to “provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material”.

The regulator said that the descriptions were to be expected in a programme shown after the watershed, and with clear audience expectations about its sexual content.

DATA PROTECTION – TV INDIE FINED £120,000 BY REGULATOR ICO OVER HOSPITAL FILMING

The Information Commissioner’s Office (ICO) has fined True Vision Productions (TVP) £120,000 for filming patients at Addenbrooke’s Hospital’s maternity assessment unit without their explicit consent.

The filming, conducted using CCTV style cameras in three rooms of the Hospital in 2017, was for a Channel 4 documentary about still births and was done with the permission of the relevant NHS Trust.

Neither TVP nor clinic staff directly and specifically informed patients they would be filmed although TVP had posted filming notices near the cameras and in the waiting area and left letters about filming in the waiting room.

In total, almost 2,000 people were affected by the filming.  The ICO launched an investigation after several patients at the clinic realised they had been filmed and complained to the media.

The ICO found that TVP failed to comply with data protection law because the filming involved the processing of personal data which was neither fair nor lawful in the circumstances.

It considered that patients would not have reasonably expected cameras to be present, were not given sufficient information about the cameras and some of the information provided was inaccurate because it stated that mums or visitors would not be filmed without permission which was not the case.

Data protection legislation includes a so called journalism exemption that relieves programme makers of certain obligations under data protection law where they can demonstrate filming is for a journalistic purpose and in the public interest and such obligations are incompatible with their programme making.

TVP had argued that the exemption applied and it could not have complied with the Act in the circumstances because if it had sought consent from patients before filming it could have caused them distress, distracted clinical staff and delayed treatment.

While the ICO accepted that the filming was done for journalistic purposes and did not dispute that there was a public interest in the subject matter, it considered that the company could have still complied with the Act in this case.

It dismissed TVP’s argument about patient distress, indicated TVP could have ensured production staff were on site to assist with the consent process and noted that TVP still managed to make a successful programme after changing its processes, suggesting compliance was not a barrier to its programme making.

When considering the penalty it imposed, the ICO took into account that TVP had destroyed the footage in question, had worked in close liaison with the Trust from the outset and had cooperated with the ICO.

The ICO noted however that TVP did not undertake a data protection or privacy impact assessment prior to filming and did not notify the ICO of the matter once patients raised concerns which it considered were aggravating factors in the circumstances.

In a statement TVP said “We are disappointed in the outcome of the ICO’s decision after we made strong legal representations and now will be appealing against the decision”.  Channel 4 issued a statement emphasising the public interest nature of the documentary and stating it was supportive of the decision to appeal.

While the decision was made under the Data Protection Act 1998, which has now been replaced by the Data Protection Act 2018, the 2018 Act contains equivalent provisions and so the decision is still a timely reminder of the importance of considering data protection at every stage of the production process.  This decision makes clear that the stakes can be very high for programme-makers.

Abbas Media Law are experts in all aspects of data protection and privacy law and regularly advise broadcasters and production companies on just these sorts of matters.  AML provides regular training to production staff on data protection and privacy matters.  If you are interested in receiving training or need any advice, please contact AML at info@abbasmedialaw.com

Defamation – Supreme Court rules on “tried to strangle” case, BBC settles Ukrainian President’s claim

The Supreme Court has decided that a Facebook post in which a woman claimed her husband “tried to strangle her” meant he grasped her by the neck, not that he attempted to kill her, overturning a finding that she libelled him.

The appeal was by Nicola Stocker, who had divorced her husband Ronald, and wrote on Facebook  “Last time I accused him of cheating, he spent a night in the cells, tried to strangle me” in a post to his new partner that was seen by other users.

Mr Stocker sued for libel and, at trial, the Judge consulted the Oxford English Dictionary, which provided two possible meanings of the verb “strangle”: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully.

The Judge decided that because Mrs Stocker said her husband “tried” to strangle her, that could not mean he had constricted her neck painfully, and could only mean he had tried to kill her.

The Supreme Court decided that this “anomalous result was the product of confining the meaning of the words exclusively to two dictionary definitions”.

The Court reviewed the law relating to meaning, and in particular to the meaning of statements on social media, which the Courts have generally found should be assessed without being over-analytical to reflect the approach of a typical reader.

As a result of the Judge’s “impermissible” use of the dictionary, the Supreme Court re-determined the meaning and held that the post meant Mr Stocker had grasped his wife by the neck.

The undisputed evidence was that Mr Stocker had grasped his wife by the throat, leading to red marks being left on her neck which were visible to police officers two hours after the attack.

Nicola Stocker said of her victory “I’m delighted and hugely relieved. It highlights the danger that the courts are being used by men to continue an abusive process whether it be in libel courts or the family court”.

David Price QC, who acted for her, said: “I’m delighted that she has finally got some common sense and justice.

“While the judgment clarifies the issue of interpreting words, it doesn’t solve the formidable problem of the English libel law, which makes it difficult if not impossible for ordinary people to defend themselves because of the costs.”

In a separate case, the BBC has settled a claim brought by the Ukrainian President Petro Poroshenko, after the High Court ruled a BBC report about a payment allegedly made to Donald Trump’s personal lawyer, Michael Cohen, accused Mr Poroshenko of corruption.

The broadcaster has agreed to pay damages and issue a correction.  It must also pay legal costs.

Mr Poroshenko’s lawyer, Graham Atkins, read a statement to the High Court, in which he said: “Mr Poroshenko did not authorise or procure any payment to Mr Cohen of any kind, nor was any such payment ever made to Mr Cohen or any other individuals for that purpose.”

Atkins told the court the damage has been exacerbated because the article remained online for so long. “He believes that the resulting delay will inevitably have increased the damage caused to his reputation by the publication of this allegation,” he said of his client.

The BBC said ““We believed that the publications made a less serious allegation against Mr Poroshenko, but in the light of a finding by the High Court that the allegation was as set out above, we are happy to accept that this allegation was untrue.”

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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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