In this issue of zoom-in brief, Paul O’Grady in legal dispute with Liverpool brewery over ale named after former, alter ego Lily Savage; Channel 5 is to pay damages over Can’t Pay? We’ll Take It Away privacy complaint; the High Court issues an injunction preventing the BBC from identifying a possible MI5 agent; whilst separately the broadcaster is ordered to hand over un-broadcast documentary material to Northern Irish police, in connection with terrorism offences.

TV actor Paul O’Grady is reportedly involved in a dispute with a Liverpool brewery after it named a beer after his drag queen alter ego Lily Savage.

According to reports, Dead Crafty Beer Company produced a Bakewell Tart IPA called “Savage” to celebrate International Women’s Day, with the beer’s artwork including a cartoon likeness of Savage. The London law firm Beck Greener subsequently sent a letter to the brewery warning that the “name and persona of Lily Savage” was created in the 1970s and alleging trademark infringement against the company, on the basis that it had not obtained permission to use it.

The brewery rebranded the IPA as “Salvaged”, with profits going to an animal sanctuary. Owner Vicky Morgan told the Mirror newspaper that she was shocked to receive the letter and hoped that would be the end of the matter.

O’Grady responded, saying: “I wouldn’t mind if this brewery showed me the courtesy by asking me if they could use the name, particularly when it comes to promoting alcohol”.

Complaints of this nature can be brought as a trade mark infringement claim, where registered trademarks are involved, and/or as a claim in ‘passing off’. This is a type of legal action which can be brought by someone who has a reputation and goodwill in a brand or product, where someone else makes a misrepresentation (intentional or otherwise) leading the public to think that their product is part of or endorsed by the brand, and which results in or threatens loss or damage to the brand.

Formula One driver Eddie Irvine for example succeeded in a passing off action some years ago against Talksport Ltd, after the company issued leaflets containing a doctored photograph of Irvine associating him with their radio station.

More recently, in 2013, the pop star Rihanna successfully sued in passing off over the unauthorised sale of T-shirts bearing her image in Topshop stores. Her claim was upheld on appeal in 2015.

Channel 5 has apologised and will pay “substantial damages” to an 88-year-old optometrist after settling a privacy claim brought over an episode of the TV show ‘Can’t Pay? We’ll Take It Away!’

Brian Hitchin had brought a claim for misuse of private information against the TV broadcaster over the filming, making and broadcasting of the episode, which first aired in October 2016. It showed Mr Hitchin in ‘a state of distress’ as High Court Enforcement Agents attended his business premises to enforce a ‘Writ of Control’ obtained by an equipment supplier to seize goods unless the optometrist paid money owed.

A court subsequently held that Mr Hitchin did not owe the debt in question to the equipment supplier. Channel 5 then updated the episode’s epilogue informing viewers of this. More than 5.7 million people saw the programme in a form which showed Mr Hitchin’s face, and almost 6.2 million more saw it with his face blurred and name removed.

Channel 5 denied Mr Hitchin’s case but said in a statement in open court, read out in the High Court in London on 1 April, that it was prepared to settle the claim as “…it may have got the balance wrong” on this occasion between matters of public interest and the right to respect for privacy. It apologised to Mr Hitchin for the distress caused to him, as part of a settlement which Mr Hitchin’s Counsel said involved, “the payment of substantial damages as well as… his reasonable legal costs”.

Mr Hitchin’s case recalls an earlier claim against Channel 5 by a married couple, Shakir Ali and Shahida Aslam, over a 2015 episode of ‘Can’t Pay? We’ll Take It Away!’, in which footage of their eviction from their rented Essex home was broadcast. The couple successfully sued for misuse of their private information and were granted £10,000 each, an award later upheld by the Court of Appeal in 2019.

The High Court has granted an interim injunction preventing the BBC from revealing the identity of an alleged MI5 agent which it says is a “dangerous extremist and misogynist who physically and psychologically abused two female partners” and who told one of them he worked for MI5,“in order to terrorise and control her”.

The Attorney General had sought an order preventing the BBC from broadcasting the programme about the alleged ‘covert human intelligence source’, referred to as ‘X’. The programme, in addition to the claims regarding X’s behaviour, was to allege that MI5should have known about X’s conduct and realised it was inappropriate to use him as an agent.

The hearing of the Attorney General’s application involved both ‘open’ hearings and ‘closed’ sessions pursuant to the Justice and Security Act 2013, due to the nature of some of the evidence relied upon. In the open proceedings, the Attorney General neither confirmed nor denied that X is or was an agent but contended that publishing the allegation that he is or was one would endanger him and “…cause material damage to national security”.

Mr Justice Chamberlain accepted that the BBC’s allegations and criticisms were “serious” and had “a credible evidential basis”, and that the relief sought by the Government represented, “a very significant interference with the right of the BBC to freedom of expression and the correlative right of the public to receive the information the BBC wishes to publish”.

However, the Judge concluded that the Attorney General was more likely than not to succeed at trial in establishing that the BBC should be prevented from disclosing X’s name and image. The information about X’s identity was confidential and known only to a small group of individuals. There would be a real and immediate risk that X would be killed or seriously injured if the information were to become publicly or widely known, and including X’s name and image would come at the expense of “material damage to the effectiveness of the work of the security and intelligence agencies and, therefore, the national security of the UK”.

Despite the interim injunction granted this month, the BBC will still be able to report on the key elements of the story, including the allegations that X abused his status as an agent and that MI5 is at fault for using or continuing to use him, as long as X is not identified.

The BBC has been ordered by Belfast Crown Court to hand over both broadcast and un-broadcast material from a documentary series, Spotlight On The Troubles: A Secret History, first transmitted in 2019. The order follows an agreement between the Police Service of Northern Ireland (PSNI) and the BBC.

The material includes interviews with Patrick Ryan, a former priest who told the programme that he had maintained a network of Europe-wide contacts used to generate arms and money for the IRA, and Laurence Maguire, a convicted killer, about his involvement with the Mid Ulster UVF, part of the Ulster Volunteer Force in Northern Ireland.

A PSNI lawyer told the court that there are ‘reasonable grounds’ to believe the material is likely to be of use to terrorist investigations. Considering his obligations under the Terrorism Act, the judge concluded that the order was sought “for the purpose of a terrorist investigation.”

Holding that he was “satisfied the public interest is in favour of granting an order”, the judge added that “there is a need to protect the public from terrorist activity”. Under the Order, the BBC is required to deliver material arising out of three episodes in the series, including both broadcast and un-broadcast material on the condition that it is “only to be used for the purposes of a terrorist investigation and any subsequent prosecution” and is “to be retained by the PSNI.”

In reaching his decision, the judge acknowledged that the Article 10 right of “free and investigative journalism are significantly to be respected”.

In a statement, the BBC said that as a matter of policy it does not, “supply un-transmitted material without a court order and where a judge is satisfied the relevant high threshold tests for the disclosure of journalistic material are met.”

West Midlands Police previously failed in their attempt, under the Terrorism Act, to require Chris Mullin to hand over journalist material concerning his investigations into the Birmingham pub bombings in 1974. The court in the Mullin case concluded that it did not “find an overriding public interest to displace the journalistic source protection right”.

Under UK law, material acquired or created for the purposes of journalism e.g. notebooks and rushes, are given special protection from seizure by the police by the Police and Criminal Evidence Act 1984 or ‘PACE’ as it is better known. If police want to get their hands on such material, they must apply to a judge for a ‘production order’. The court will only order that material is handed over if certain conditions are met, including that the court is satisfied that the material would be of ‘substantial value’ to an investigation into a serious offence, and that it would be in the public interest for the material to be handed over. Under PACE, so-called ‘excluded material’ – which includes journalistic material held in confidence e.g. from a source promised complete anonymity – is generally exempt from compulsory surrender, meaning that in most cases the police cannot seize it.

There are special provisions, however, when it comes to material held by the media relating to terrorist offences, which make it easier for the police to seize. When it comes to terrorist offences, the law states that, even for excluded material (journalistic material held in confidence), a court should order that it be handed over to the police where the judge is satisfied that there are reasonable grounds for believing the material will be of ‘substantial value’ to an investigation, and where it is in the public interest to do so.

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.