In this issue of zoom-in brief: Prince Harry sues Mail on Sunday over Marines allegation; Ofcom privacy complaint over BBC’s Claimed and Shamed not upheld; Ofcom sanctions Birmingham’s New Style Radio over show promoting Covid-19 conspiracy theories; and changes to laws in England see some production staff now partially exempt from the requirement to quarantine when returning from abroad.

Prince Harry, the Duke of Sussex, has brought a defamation claim against the publisher of the Mail on Sunday, over a story alleging that he had failed to maintain contact with the Royal Marines after stepping down from Royal duties in March of this year.

Harry’s claim against Associated Newspapers Limited (“ANL”) will join the privacy action brought by his wife Meghan, the Duchess of Sussex, against the same newspaper, over its article which published excerpts from a letter written to her estranged father.

The precise details of the complaint have yet to emerge, but Harry did give up his honorary military titles after formally stepping back from Royal duties in March.

He spent a decade in the forces and carried out two frontline tours to Afghanistan.

Earlier in the year, he spoke publicly of how he was “born into a life of duty” but that, during his time in the military, he “committed to a life of service”.

Despite this, Harry’s ceremonial roles as Captain General of the Royal Marines, Honorary Air Force Commandant of the Royal Air Force base Honington, and Honorary Commodore-in-Chief of the Royal Naval Commands’ Small Ships and Diving, were all put on hold when the Duke and the Duchess left the UK to live abroad.

This further claim against ANL is one of six lawsuits which the Royal couple have joined or initiated over the past year.

In addition to Meghan’s claim against ANL, Harry has joined both parts of the long-running phone-hacking litigation against the owners of the Sun, the defunct News of the World, and the Daily Mirror, in relation to claims that his mobile phone was hacked.

Harry and Meghan as a couple have brought a privacy claim on behalf of their son Archie against the Splash News and Picture Agency, over long lens pictures of Meghan with her son Archie in a sling on Vancouver Island, taken earlier this year.

And the couple have issued proceedings against paparazzi in California for invasion of privacy, after drones were alleged to have been used to take pictures of Archie, at the house where they were staying in Los Angeles.

Ofcom has not upheld a privacy complaint about an episode of the show Claimed and Shamed on BBC iPlayer. The complainant, Zoe Minkin, was featured in a segment relating to insurance fraud. Ms Minkin had been convicted of fraud relating to the incident. She complained that the programme’s use of her name (which she said was unusual) and voice recordings of her interactions with the insurance company, LV, were an infringement of her privacy. Ms Minkin had been burgled and sought to claim on her insurance, but had tried to claim for items that had not in fact been stolen. The BBC argued that the facts of Ms Minkin’s conviction were already in the public domain, and that there was a clear public interest in the work of insurance companies combating this type of illegal activity, which outweighed any privacy right asserted by Ms Minkin.

Ofcom took the view that although Ms Minkin was only referred to by her surname, there were no pictures of her and no details of the area in which she lived, as her surname and undisguised voice were used, some people who knew her would be able to identify her. Ofcom found that Ms Minkin did have a legitimate expectation of privacy in the audio recordings of her conversations, as they were not otherwise in the public domain, and she would not have reasonably expected them to be made public in a television programme. Nonetheless, the infringement of privacy was warranted because there was a genuine public interest in showing the work of insurance companies combating this kind of illegal activity. Specifically, there was a public interest in broadcasting the parts of Ms Minkin’s conversations with the insurance company because they were a key part of its investigation into her claim. The recordings were focused and limited, and did not reveal anything else particularly private or sensitive about Ms Minkin. On balance the BBC’s and public’s rights to freedom of expression outweighed Ms Minkin’s reasonable expectation of privacy, which was therefore not unwarrantably infringed.

This is an interesting example of Ofcom’s reasoning on material relating to an investigation of a criminal offence which was not otherwise in the public domain – for example by being referred to at a criminal trial.

A community radio station which broadcast a two-hour discussion of unsubstantiated coronavirus conspiracy theories, including the claim that the crisis is an orchestrated “plan-demic” linked to the rollout of 5G, has been sanctioned by the broadcasting regulator.

In a report on New Style Radio, a Birmingham-based station, Ofcom found that a programme presented by Simon Solomon, “had the potential to cause significant harm to listeners” and set out “a number of highly contentious, unevidenced conspiracy theories about the coronavirus, without sufficient challenge or context”.

Among many other false claims mentioned during The Family Programme on 1 November, the watchdog, which was responding to a listener’s complaint, highlighted suggestions that wearing facemasks can “cause serious neurological and respiratory damage”, that children were being put at risk, and that Bill Gates and Boris Johnson wanted to reduce the world population. These suggestions were read out by the presenter who was quoting from material written by a woman called Claire Edwards, whom Solomon described as a former UN worker. Ofcom noted that Mr Solomon strongly objected to the idea that he had endorsed or given weight to the claims of Ms Edwards in the broadcast, saying that he had only presented them to the audience and “advised [them] to make their own enquiries on the information presented”. However, Ofcom disagreed and said that “listeners would have been left in no doubt that the presenter supported the contents of Ms Edwards’ documents, lending them greater credibility and increasing the potential for harm”.

In responding to Ofcom, New Style Radio, said that it “wholeheartedly accepted [Ofcom’s] analysis and conclusions” and had subsequently broadcast another programme in the same time slot, which set out the views of genuine experts on the pandemic in order to “comprehensively refute all the conspiracy theories” of the initial broadcast.

Mr Solomon and his show have been suspended and an on-air apology has been broadcast. However, the watchdog is now considering whether to fine the station or issue any other sanctions – which could, at worst, see its license revoked

Changes made to the Health Protection (Coronavirus, International Travel)(England) Regulations 2020 now allow certain persons working on TV Productions to be partially exempt from the requirement to self-isolate on returning from abroad.

The Government has extended the list of those crew members considered to be “essential crew” for the purposes of qualifying for the exemption. Whereas previously it had been: an actor, a presenter or other significant on-screen participant, and a director, the list now also includes a producer, a lighting director, a director of photography, a creative director, other key members of the production crew at director level responsible for managing key aspects of the production, or a senior executive responsible for overseeing the production company’s operations in relation to the production.

The extended list sits in Schedule 2 section 40 of the Health Protection (Coronavirus, International Travel) (England) Regulations 2020.

It will be the responsibility of the TV production companies to manage and monitor the usage of this exemption and to ensure that it is used appropriately, logging their use of the exception with the BBC, ITV and Sky on productions with those broadcasters, or with Pact for any others.

This exemption is separate to that for HETV and Film productions, which remains the same. Currently, this update only applies to those travelling to England.

These changes are in addition to the Government’s Test to Release scheme which comes into effect on Tuesday 15th December. This will mean that the number of days individuals are required to self-isolate will reduce from 14 to 5, if they receive a negative COVID test result. Individuals will be required to book and pay for a test from a private provider on the Government list, which is not yet available.

The scheme is voluntary and applies to those self-isolating in England only.

If you are travelling from a destination not on the travel corridors list, do not have a job that qualifies you for a travel exemption and do not want to opt in to test to release, you will need to self-isolate for 14 full days after you were last in a destination not on the travel corridors list.

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.