15 January 2021

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In this issue of zoom-in brief ….Netflix reaches settlement on Enola Holmes’ Sherlock copyright claim; TV Indie has ICO data protection fine reduced from £120K to £20K over hospital filming; opera singer wins court battle over authorship of movie, Florence Foster Jenkins; MailOnline is ordered to pay £83,000 in privacy claim after identifying terror suspect following his arrest; whilst Ofcom adds long-awaited new ‘duty of care’ protections to the Ofcom Broadcasting Code and widens definition of hate speech.

Editorial credit: Featureflash Photo Agency / Shutterstock.com
Editorial credit: Featureflash Photo Agency / Shutterstock.com
Henry Cavill stars as Sherlock in Enola Holmes

Copyright - Netflix reaches settlement on Enola Holmes’ Sherlock lawsuit

Netflix has settled the lawsuit with Sir Arthur Conan Doyle’s estate that claimed Enola Holmes‘ Sherlock character was a copyright infringement.

The complaint was filed by the estate back in June last year against Netflix, Legendary Pictures, Nancy Stringer (whose book series forms the basis of the movie) and Random House (Stringer’s publishers). The estate claimed copyright infringement over the portrayal of Sherlock and trademark violations in Enola Holmes, a film about Sherlock Holmes’ younger sister played by Millie Bobby Brown from Stranger Things.

While the Doyle estate lost the rights to most of its works to the public domain in 2014, the estate still partially maintains authority over Doyle’s final ten original stories in The Case-Book of Sherlock Holmes published between 1921 and 1927. The stories feature a kinder and more empathetic Sherlock than the earlier Sherlock Holmes stories, which depicted him as cold, misogynistic, and incapable of friendship. Because Enola Holmes’ version of Sherlock, played by Henry Cavill, displays a level of kindness and warmness toward his sister, the lawsuit claimed that the film was infringing upon the estate’s copyright.

This is not the first time the Doyle estate has laid claims over the emotional Sherlock character. In 2015, they sued Miramax over their portrayal of Sherlock in the film Mr. Holmes, starring Sir Ian McKellen, but the lawsuit was also settled out of court.

As of January 1, 2023, the last of the ten stories will enter the public domain, meaning the Doyle estate will no longer have a claim over the kind and warm portrayal of Sherlock.

Data Protection – TV Indie has ICO fine reduced from £120k to £20k over hospital filming for Channel 4 documentary Child of Mine

The First Tier Tribunal has reduced – from £120,000 to £20,000 – the fine imposed by the Information Commissioner’s Office (ICO) on True Vision Productions (TVP) after it filmed patients at Addenbrooke’s Hospital without their explicit consent.

The filming, conducted using CCTV style cameras at the hospital in 2017, was for a Channel 4 documentary entitled Child of Mine 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.

The ICO launched an investigation after several patients at the clinic realised they had been filmed and complained to the media. Ofcom did not investigate because the footage in question was not actually used within the broadcast documentary, and thus did not fall within its remit.

The ICO found that the filming did not comply with the fairness requirements of data protection law because patients were not given sufficient information about it at the time and fined TVP £120,000 as a result.  TVP then appealed the ICO’s decision to the First Tier Tribunal.

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 because it could not have complied with the fairness requirements of the Act in the circumstances.

The ICO had rejected this argument and the Tribunal agreed with the ICO on appeal, finding that because alternative methods of filming, e.g. using hand-held cameras, were available to TVP and TVP could have used those methods instead, it could not rely on the journalism exemption.

The Tribunal did, however, significantly reduce the fine that the ICO had given TVP from £120k to £20k, because the breach had not been deliberate and did not justify such a serious penalty.

This decision is a reminder that data protection law applies to all stages of journalism and television programme-making and failing to ensure that filming is data protection law compliant can have significant consequences.

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

Copyright - Opera singer wins court battle over Florence Foster Jenkins authorship

Opera singer Julia Kogan has won a court battle over the authorship of Florence Foster Jenkins and will now receive a co-writing credit on the 2016 film starring Hugh Grant and Meryl Streep.

Julia Kogan played a key part in the creation of Nick Martin’s script for the 2016 film but was uncredited when it was released. Ms Kogan said she asked for a credit when the film was released, and sued Mr Martin after she continued to be shut-out of the project.

The case centred on claims made by Kogan that she made significant contributions to many aspects of the screenplay based on the life of Florence Foster Jenkins, including the original idea, the characters, the story and the dialogue.

The film centres on a wealthy heiress in 1940s New York who dreamed of becoming an opera singer, despite having a terrible singing voice.

Kogan maintained that the process of writing the screenplay was a creative collaboration in which she participated as a partner.

Martin, whose previous writing credits included UK drama series Midsomer Murders and The Bill, originally brought proceedings in 2015 to dispute that Kogan was a co-author and sought a declaration that he was the sole author and copyright owner of the screenplay.

An earlier trial of the case found in Mr Martin’s favour.

Kogan raised a counterclaim to Martin to declare that she was joint author and joint copyright owner of the screenplay and sought relief for copyright infringement and infringement of her moral rights by Martin’s exploiting it without her consent and without her being given a credit.

She also brought a similar claim against Pathé Productions and Qwerty Films, the film companies that produced and distributed the film.

The retrial was ordered by the Court of Appeal in October 2019, which found that Kogan’s contribution may indeed have been made as part of a collaboration and passed the quantitative threshold for joint authorship.

The High Court, earlier this week, has now ruled that Ms Kogan had come up with the original idea for the screenplay and had been more than merely a “sounding board” for Mr Martin’s ideas as the script was created.

“Ms Kogan had the initial idea”, Mr Justice Meade said in the ruling. “This is almost the only thing that she contributed alone. She “had a feeling for the musicality of the screenplay and its interaction with the characters and their development.  She had an understanding of musical tuition and the feel of the world of opera and 1940s New York. She made plot and character suggestions based on this.  She made some suggestions for dialogue which were worked up with Mr Martin into important scenes.”

Florence Foster Jenkins producers Pathé and Qwerty Films have issued a response to the High Court verdict.

“We regret that Julia Kogan’s dispute with Nick Martin over authorship of the screenplay for Florence Foster Jenkins could not be resolved out of court,” they said. “Nick believed that he was the sole author of the screenplay and the court found that Pathé and Qwerty had no reason to doubt his word.”

“The judge also found that in the circumstances there was no criticism of Pathé or Qwerty for the fact that Julia had not been accorded a co-author credit on the film’s release. As requested by the court, the credits that appear on the Internet Movie Database are being amended to state that the screenplay was written by Nicholas Martin and Julia Kogan. We trust that this now lays the matter to rest.”

Privacy – MailOnline ordered to pay £83,000 after identifying terror suspect

Associated Newspapers, publishers of MailOnline, have been ordered to pay £83,000 in damages to a man arrested on suspicion of terrorism offences but never charged.

Alaedeen Sicri was arrested at his home in West Sussex after the terrorist attack at the Ariana Grande concert at the Manchester Arena in May 2017. Mr Sicri was released without charge some days later, the police having found no evidence of his being involved with the bombing at all. After the arrest, Greater Manchester police issued a press release saying that a 23 year old man had been arrested, without naming or otherwise identifying Mr Sicri. MailOnline however, did identify him. Mr Sicri sued for breach of confidence and misuse of private information. He said that he had been deeply distressed by the coverage of him, he feared for his safety and had received hostile messages on social media.

The court found Mr Sicri had a reasonable expectation of privacy in the fact of his arrest, having not been charged or named by the police. Any public interest in identifying him did not outweigh this reasonable expectation of privacy. Indeed the judge did not think that the identification of Mr Sicri was capable of making any contribution to any public debate about the Manchester bombing or the investigation that followed. The judge accepted that the naming of individuals in press reports can be important in engaging the public in the story but made clear that whether naming is justified will always depend upon the facts of a particular case. In this case, it was not.

This is the third recent case in which a court has found that an individual being investigated by the authorities has a reasonable expectation of privacy in respect of that information and found against news organisations who have published the information. Sir Cliff Richard was famously awarded £210,000 in relation to the BBC’s coverage of a police raid on his home. An anonymous businessman referred to as ZXC succeeded in a claim against news organisation Bloomberg in relation to information about an investigation by a UK law enforcement body involving him.

In light of these cases, it will generally not be appropriate to name individuals under investigation until they are charged, unless the particular circumstances justify it and outweigh the individual’s right to privacy.

However, in December 2020, Bloomberg were given permission to appeal the ZXC case to the Supreme Court. The case will be one to watch and zoom-in will report as it progresses.

Regulation - Ofcom adds new protections for people taking part in TV and Radio shows and widens definition of hate speech to include transgender intolerance

People taking part in TV and radio programmes must be properly looked after by broadcasters, under new rules introduced by Ofcom.

Ofcom launched a review of protections for participants in programmes in recognition of the growing openness and concern in society about mental health and wellbeing having also noted a steady rise in complaints about the welfare of people taking part in programmes in recent years.

The new safeguards include expanding the fairness rules in Section Seven of the Ofcom Broadcasting Code. There will be a new requirement for broadcasters to take due care over the welfare of people who might be at risk of significant harm as a result of taking part in a programme.

The measures are aimed at protecting vulnerable people and others not used to being in the public eye. Ofcom has said that broadcasters will need to take due care where, for example, a programme is likely to attract a high level of media or social media interest; the programme features conflict or emotionally challenging situations; or it requires a person to disclose life-changing or private aspects of their lives.

The measures do not apply where the subject matter is trivial, or a person’s participation is minor – or when the broadcaster is acting in the public interest, as is likely to be the case for most news and current affairs programming.

Under these new fairness provisions, people taking part in programmes must also be informed about any potential welfare risks that might be expected to arise from their participation, and any steps the broadcaster or programme-maker intends to take to mitigate these.

As part of the new safeguards, Ofcom is also strengthening the ‘offence’ rule under Section Two of the Code. The wording of Ofcom’s ‘Generally Accepted Standards’ rule will be strengthened and will state that material which may cause offence to viewers and listeners must be justified by the context.

Treatment of people who appear to be put at risk of significant harm as a result of taking part in a programme is now included as an explicit example of material that may cause offence to audiences.

In response to the consultation and the new safeguarding rules that are being introduced into the Code, Ofcom have said they will be publishing new guidance to help broadcasters comply with these new requirements.

The measures will apply to programmes that begin production on or after Monday 5 April 2021.

Ofcom has also widened its definition of hate speech to include intolerance of gender reassignment and “political or any other opinion”.

Ofcom now defines hate speech as: “All forms of expression which spread, incite, promote or justify hatred based on intolerance on the grounds of disability, ethnicity, social origin, sex, gender, gender reassignment, nationality, race, religion or belief, sexual orientation, colour, genetic features, language, political or any other opinion, membership of a national minority, property, birth or age.”

The changes have come about due to new requirements under the revised Audiovisual Media Services Regulation (AVMS) 2020 and “also take account of legislative changes following the end of the transition period for the UK’s withdrawal from the European Union”, said Ofcom.

Concerns were raised by broadcasters during the consultation period about whether the definition of hate speech was now too broad and whether Ofcom may fail to consider context when deciding what is hate speech.

Ofcom in response to these concerns said: “The importance of freedom of expression in relation to political matters and content that is in the public interest is central to Ofcom’s application of the code and the proposed amendment does not change this.”

It added context was a “very important part of Ofcom’s thinking when considering the rules”.

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