2 February 2024
Defamation (Fr): French football star, Karim Benzema, sues French interior minister
Former Real Madrid football star, Karim Benzema, is suing the French interior minister for defamation.
This action arose because Benzema tweeted his support for the people of Gaza in an October tweet, where he said, “Our prayers to the people of Gaza, victims once again of unjust bombardments that spare neither women nor children”.
Following this, Gérald Darmanin, the French interior minister, told conservative TV station CNews that Benzema had failed to express similar sympathy to the Israeli victims of Hamas on 7 October 2023. Darmanin said Benzema was “well-known for his links with the Muslim Brotherhood”, a Sunni Muslim Islamist group.
Benzema issued a denial and threatened legal action against the interior minister for defamation. A ninety-two-page complaint has been filed by Benzema at the Court of Justice of the Republic.
In the complaint, which has been reported in the French media, Benzema says he “…has never had the slightest link with the Muslim Brotherhood organisation, nor to (his) knowledge with anyone who claims to be a member of it”.
Benzema’s lawyer told French media organisation RTL that Benzema is the victim of “political exploitation” and said Darmanin was “sowing division in France”. At the time of publication, Darmanin has not commented on the complaint.
A number of prominent MPs have been embroiled in defamation actions in the UK over the years, both as claimants and defendants. Normally if UK MPs intend to make statements which are capable of being defamatory, they do so during parliamentary proceedings as they benefit from ‘absolute privilege’ meaning that they cannot be sued.
In England and Wales, parliamentary privilege exists to protect defamatory words from a defamation suit against a member of either House of Parliament, no matter how malicious, if they are spoken in the course of any parliamentary debate or proceeding. It is said that this privilege is limited to what is said or done by a member in the exercise of their functions as a member and in the transaction of parliamentary business.
Parliamentary privilege has been utilised on a number of occasions by MPs to exercise freedom of speech and enjoy legal immunity, including in 2011 when John Hemming exercised parliamentary privilege to name Ryan Giggs as the litigant in CTB v News Group Newspapers; in 2018 when Lord Hain named Sir Philip Green as the person at the centre of harassment allegations (claims Green rejected); and in 2021, when Social Democratic and Labour Party leader, Colum Eastwood, used parliamentary privilege to name “Soldier F”, a former soldier facing two murder charges over his actions in 1972 on Bloody Sunday.
In the UK, statements made outside parliament are not protected by absolute privilege.
Copyright (US) - Kat Von D Successfully Defends Copyright Tattoo Claim
In 2021, professional photographer Jeffrey Sedlik brought a copyright infringement claim against tattoo artist Kat Von D over a free tattoo that she gave, which depicted Sedlik’s photograph of legendary jazz musician, Miles Davis. Sedlik took the photo of the musician in 1989 for the cover of JAZZIZ Magazine.
Sedlik, a teacher at the Art Center College of Design in Pasadena, regularly licenses his photo of Davis for use on clothing and as a reference photo for artwork – with some licences rumoured to cost $100,000. Other artists using his work without permission have faced similar claims.
The primary issue for the jury was whether Kat Von D’s use of Sedlik’s photograph amounted to ‘fair use’, such that permission was not required from copyright holder Sedlik. Von D (Katherine Von Drachenberg), known for her appearance on TLC reality shows, LA Ink and Miami Ink, told the California court that she had never purchased a licence for a reference photograph for a tattoo, nor did she ever hear of an artist doing the same. Sedlik’s attorney told the jury that this did not make it ‘okay’. However, after deliberating for only two hours, the jury found that Von D did not violate Sedlik’s copyright because the tattoo was not similar enough to the photograph and, in any event, the tattoo, social media and preparatory work fell within the doctrine of fair use. Goldsmith’s attorney says that he plans to appeal the verdict.
The US defence of ‘fair use’ has wider application than the equivalent UK defence of ‘fair dealing’. In determining whether the fair use defence applies, US courts consider four factors: the purpose and character of the use, the nature of the work, the amount and the substantiality of the content used, and the effect of the use on the market value. Whether or not a work is being ‘fair used’ and protected by US law, is a fact-based analysis – does the use of the work fall into or out of each of the four factors and, in the end, does the weight of the four factors end up on the user’s side or the copyright holder’s side?
On the other hand, the UK’s ‘fair dealing’ defences require the use to be not only ‘fair’ (encompassing many of the US factors) but also to fall within specific, set, categories of use, including for ‘non-commercial research or private study’, ‘criticism or review’, ‘reporting current events’, ‘quotation’, and ‘parody, caricature or pastiche’.
‘Fair use’ of photographs as reference pieces has recently been considered by the US Supreme Court (‘SCOTUS’). In 2023, long-deceased artist, Andy Warhol, was held to have infringed the copyright of photographer Lynn Goldsmith by using a photograph she had taken of singer Prince in 1981 on a series of fourteen silkscreens and two illustrations commissioned for Vanity Fair.
Goldsmith had granted a limited, one-time, licence for her photo to be used as an “artists reference for an illustration” in 1981 but issued proceedings against Warhol’s estate after discovering the series of works following Prince’s death in 2016.
SCOTUS specifically considered whether Warhol’s work had a ‘transformative’ purpose – such as for parody or education – but held that the use had not been transformative: both Warhol’s prints and Goldsmith’s photo had been created with the same commercial purpose, namely, to depict the singer Prince in a magazine.
Despite their differences, the exercises of determining fair use and fair dealing are both highly subjective. However, this claim offers reassurance to tattoo artists that copyright fair use provisions extend to tattoos. Despite the win, the case has left a question mark over Von D's career as a tattoo artist. She reportedly told AP: “I think I don’t want to ever tattoo again, my heart has been crushed through this in different ways…We’ll see with time.”
This is not the first time that tattoos have been the subject of copyright infringement claims. Tattoo artists themselves, who create original artistic works, can also benefit from copyright protection. This was illustrated back in 2011 when tattoo artist S. Victor Whitmill filed a copyright infringement claim against Warner Bros over a facial tattoo worn by Ed Helms in The Hangover II movie, which he alleged duplicated a tattoo he had designed for boxing champ Mike Tyson. Ultimately the parties agreed a deal and the case was settled on confidential terms.
CONTRACT (US): ‘Netflix’s ‘Love is Blind’ in dispute over its Non-Disclosure Agreement’
Season 5 participant, of Netflix reality TV series, Love is Blind, Renee Poche, has accused Netflix and production company, Delirium TV, of emotional distress, and other violations of labour and civic codes.
Poche, was critical of her experience on the show. This led to the production company, Delirium TV, initiating a private arbitration against her for purportedly breaching her non-disclosure agreement. The company is suing Poche for $4 million.
According to Variety, Poche has subsequently sued Delirium TV and Netflix to nullify her contract, and claims intentional infliction of emotional distress in connection with her participation in the series, along with violations of the state’s labour and civic codes. A court declaration is sought that the NDA is ‘illegal, invalid and unenforceable’.
Poche’s lawyer told Deadline that, “...they knew exactly what they were doing by creating these illegal contractual provisions and secretly hiding the illegality in an effort to silence these participants”. He said, “…these agreements are being used as swords to threaten people to keep them silent and also as shields to hide their illegality behind a signature and an attitude of saying ‘well you signed it’”. Netflix and Delirium TV have so far not publicly responded to the lawsuit.
In the UK, the enforceability of non-disclosure agreements is an interesting topic. Currently NDAs cannot prevent a worker from making a protected disclosure (‘whistleblowing’), as defined by section 43A of the Employment Rights Act 1996. However, whether a protected disclosure has been made by an employee or worker is not always clear. In addition, in the UK, contributors to television programmes would not normally fall within the definition of ‘workers’.
Under s142 of the Equality Act 2010, a contractual clause is prohibited if it ‘constitutes, promotes or provides for’ discriminatory treatment under the Act. Yet the scope of this provision in the context of an NDA is uncertain.
The Government consulted on measures to prevent the misuse of NDAs in situations of workplace harassment or discrimination in March-April 2019. The Government responded to the consultation on 21 July 2019 and committed to bringing in legislation to regulate the use of NDAs in employment contracts and settlement agreements. However, there is, as yet, no timeframe for the legislation proposed to be brought in.
Defamation (UK) – Laurence Fox loses libel action
Laurence Fox has lost his libel battle with three users of social media site, X (formerly known as Twitter) who labelled him “a racist” and was found to have defamed two of them by calling them “paedophiles” in response. Damages will be determined at a later date.
The background to the case is that in October 2020 Fox responded to a tweet by Sainsbury’s which celebrated Black History Month, by saying that he would not be shopping in Sainsbury’s ever again, “while you promote racial segregation and discrimination”.
Simon Blake (CEO of Mental Health First Aid England), Colin Seymour (a professional drag artist) and Nicola Thorp (a former Coronation Street actor) each responded to Fox’s tweet claiming he was “a racist”.
Fox responded to each of them calling them “paedophiles”.
Blake, Seymour and Thorp sued Fox for defamation over the allegation that they were “paedophiles” and Fox counterclaimed against each of them for defamation over the allegation that he was “a racist”. Thorp’s claim was dismissed before trial as not having a defamatory tendency in the particular context.
Each of the parties argued that they had defences to the claims. Blake, Seymour and Thorp argued ‘honest opinion’ and/or 'truth’, and Fox argued his tweets were ‘replies to attacks’ on him and thus protected by privilege. He made clear that he did not intend to claim the claimants were actually paedophiles, but had been making a rhetorical point. However, the main battleground was whether the respective tweets had caused serious harm to the reputations of the relevant parties and therefore whether the tweets were defamatory at all.
Due to provisions within the Defamation Act 2013 if a publication does not cause, or is not likely to cause, serious harm to reputation then it is not defamatory.
In relation to the claims about Blake and Seymour, the judge found that Fox’s tweets had caused, or were likely to cause, serious harm to their reputations and that his defence was “hopeless”.
In relation to the claims about Fox, the judge found that he had failed to establish that the tweets had caused, or were likely to cause, serious harm to his reputation, so his counterclaims against Blake, Seymour and Thorp failed, and there was no need to consider their defences.
Fox had claimed that his agent had dropped him and that he had faced a significant decline in the number and quality of acting roles he was offered following the claimants’ tweets. However, the judge found that there was no direct causal link between the tweets and any decline in Fox’s acting career. She said “I have insufficient evidence that it is to any material degree the tweets sued on, rather than Mr Fox’s chosen and sustained presentation as someone who sets out consciously to challenge public opinion on racism in the UK, including as expressed politically through his leadership of the Reclaim Party and through his choices about the tone and register of his public utterances, that materially account for his current profile and reputation in relation to racism among supporters and critics alike”.
Fox has indicated that he intends to appeal the decision.
This is not the first time that tweets have led to a high-profile defamation case – in 2017 former Apprentice contestant Katie Hopkins was ordered to pay journalist Jack Monroe £24,000 damages; and in 2013 Sally Bercow apologised and paid an undisclosed sum of damages to Lord McAlpine.
Court Reporting (UK) – Teenagers named in the Brianna Ghey murder case as reporting restrictions are lifted
Two 16-year-olds convicted of the murder of 16-year-old Brianna Ghey when they were 15 have now been named as Scarlett Jenkinson and Eddie Ratcliffe.
Under eighteens (U18s) in the Youth Court, whether victim, witness or defendant, are automatically entitled to anonymity in relation to the proceedings until they turn 18.
U18s appearing in an adult court – such as at a murder trial – do not have automatic anonymity, but generally an order will be made, as in this case, granting them anonymity until they turn 18.
Whether imposing, or lifting reporting restrictions, the court is required to balance the welfare of the U18s with the public interest in open justice.
Prior to conviction, a defendant’s welfare is likely to take precedence over the public interest, thereby ensuring those not convicted are not stigmatised for the rest of their lives by the charges they faced. In this case, throughout the trial, the two defendants were referred to as Girl X and Boy Y.
However, after conviction, the balance between the welfare of the U18s and the public interest in identification may shift and greater weight may be placed on the public interest in knowing the identity of those who have committed crimes, particularly serious crimes. So, frequently after a guilty verdict, the media will apply for the reporting restrictions to be lifted in whole or in part.
The court can lift the reporting restrictions: if they impose a substantial and unreasonable restriction on the reporting of the proceedings; and if it is in the public interest to remove or relax the restrictions.
In all cases, the starting point is that there is a strong presumption in favour of open justice and the full reporting of criminal proceedings including the identities of the defendants, as the public seek to understand how children could do something so dreadful. Against that, considerable weight will be given to the ages of the U18s, their welfare and the potential damage that could be caused to them by public identification as criminals.
Of particular significance in this case was the age of the defendants, both of whom will turn 18 in 2025 at which point the media would be free to identify them in any event.
The court decided that it was inevitable the identity of the defendants would become widely known and reported at some stage. While reporting of the case was currently at its peak and was likely to be less fervent by 2025, delaying identification until 2025 would then likely generate a new wave of reporting and commentary.
In the circumstances, the court decided that there was no good reason to maintain the reporting restrictions – there was a strong public interest in full and unrestricted reporting of what is plainly an exceptional case and waiting until 2025 would represent a substantial and unreasonable restriction on the freedom of the press.
In contrast, reporting restrictions were not lifted in the case of two brothers aged 10 and 11 convicted in 2010 of torturing two other boys in Edlington, South Yorkshire, or in the case of two girls aged 14 and 15 who murdered Hartlepool woman Angela Wrightson in 2014, due to the “extremely high” risk that one of the girls would take her own life if identified.
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