16 April 2021

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In this issue of ZOOM-IN Brief, Arlene Foster sues Dr Christian Jessen over ‘affair’ Tweet; Mayoral candidate Laurence Fox is sued for libel; ‘fair use’ in the USA comes under the spotlight in two copyright cases; and Ofcom takes no further action in relation to a Capital XTRA DJ’s pay-for-play requests.

Guy Bell / Alamy Stock Photo
Guy Bell / Alamy Stock Photo
Dr Christian Jessen: no defence

Defamation - Arlene Foster sues Dr Christian Jessen over Tweet

Northern Ireland First Minister Arlene Foster is suing TV’s Dr Christian Jessen over a Tweet of his about an unsubstantiated rumour that Foster was having an affair. Dr Jessen, who has 311,000 Twitter followers, posted the Tweet on 23 December 2019.

Foster told the High Court in Belfast that the Tweet was ‘humiliating’, and that it came at a particularly stressful time during talks over power-sharing in Northern Ireland. Foster said she spoke to her husband and two oldest children, then aged 17 and 19, and her elderly mother, and took the decision to take legal action. Foster also told the court she finds it very distressing when people call her homophobic, saying that she has a traditional, church-based view of marriage, but is not a homophobe.

Dr Jessen, best known for appearing on Channel 4’s Embarrassing Bodies, was said to have responded to a Tweet by Foster’s solicitor putting him on notice about the Tweet with just “lol”. He later responded to an email from Foster’s solicitor and deleted the Tweet on 7 January. Whilst it was live, the Tweet was retweeted over 500 times and prompted a discussion thread between Twitter users which was described as ‘unpleasant’. Foster’s lawyers also told the court that there was a ‘further aggravating Tweet’ on 26 December. The court was told that Dr Jessen has failed to respond to correspondence since, despite having been served with the papers; and he has not served a defence.  Although the Tweet had been removed, there was ‘no acknowledgement of wrongdoing’. The Judge reserved judgment, saying he would give a written decision as soon as possible.

Libel law in Northern Ireland differs from that in England & Wales. The Defamation Act 2013 has no application there. So, the law is very similar to the legal position in England & Wales pre-2014. Northern Irish legislators are considering whether to bring in similar changes to the law but have not yet done so. Broadcasters operating across the UK should be aware of the legal differences that apply. In particular, there is no ‘serious harm’ threshold in Northern Ireland, and cases can still be heard by juries, although Foster’s case was dealt with by a judge alone.

Defamation - Laurence Fox sued for libel

Actor and London mayoral candidate Laurence Fox is being sued for libel. The lawsuit comes after he called Coronation Street actress Nicola Thorp, Drag Race UK star Crystal and mental health campaigner and deputy chair of Stonewall Simon Blake “paedophiles” on social media.

The posts from last October came after Fox tweeted about Sainsbury’s marking Black History Month, saying it “promoted racial segregation and discrimination”. He called for a boycott of the supermarket. A number of social media users, including Thorp, Blake and Crystal responded to Fox, which resulted in Fox publishing the posts he is now being sued over.

At the time of the Tweets Crystal referred to an accusation of paedophilia being ‘one of the oldest homophobic tropes’ and confirmed that lawyers were instructed. Blake also confirmed that he has instructed lawyers, expressing regret at the language he used in the Twitter exchange, but making it clear that he would always stand against racism. The legal action was filed on 1 April.

Asked about the lawsuit Fox said he was not aware of it, but defended his comments saying he was called a racist and claiming that calling the three individuals paedophiles was just a meaningless and baseless insult. He said: ‘Free speech. You throw meaningless and baseless insults at someone you get a meaningless and baseless insult in return.’ The Tweets have since been deleted.

Fox’s response has echoes of the defence raised by Tesla and Space-X billionaire Elon Musk, when he was sued for libel in the US in 2019 over calling diver Vernon Unsworth “a pedo guy” on Twitter. Musk said that it was just an insult, common in Musk’s native South Africa. The Los Angeles jury found that Musk had not defamed Unsworth, a diver who was instrumental in rescuing 12 boys who were trapped in a cave in Thailand in 2018.

Fox has been a controversial figure over the past year for his comments against lockdown and Corona virus measures, which he views as ‘tyranny’. He is standing for Mayor of London on a platform against lockdown and political correctness.

US Copyright – fair use in the firing line in the American courts

Two high profile American cases, one involving an Andy Warhol work based on a photo of Prince, and the other a mashup of Doctor Seuss and Star Trek, show the limits of fair use defences in copyright claims.

In the Warhol case, an Appeal court has ruled that the Pop Art pioneer violated the copyright of photographer Lynn Goldsmith when he created his “Prince Series” from one of her photographs.

A New York Federal Court had previously found that Warhol’s images of the singer-songwriter were fair use because they had transformed a “vulnerable, uncomfortable person” in the photographer’s original work into “an iconic, larger-than-life figure.”

But the Appeal court upheld the photographer’s appeal. It held that “The Prince Series works are substantially similar to the Goldsmith Photograph as a matter of law.”

It found that the Prince Series was likely “derivative”, and that both Goldsmith’s photograph and Warhol’s artwork served the same function as a portrait of the singer.

To be a transformative use, the Appeal Court added, the new work must offer “something more than the imposition of another artist’s style on the primary work”.

It compared Warhol’s distinctive silkscreen aesthetic to a filmmaker with an easily identifiable style turning a book into a film, a transformation which does not mean the film is no longer a derivative work.

Commenting on the victory, Goldsmith said that he had to fight the case on a point of principle, “to protect not only my own rights, but the rights of all photographers and visual artists to make a living by licensing their creative work and also to decide when, how, and even whether to exploit their creative works or license others to do so.”

In the Dr Seuss case, as previously reported in zoom-in, an Appeal court ruled that a book which combined the “Star Trek” and Dr Seuss universes in a mashup called “Oh, the Places You’ll Boldly Go!” did not come within the fair use defence to copyright infringement, because it was not a parody or otherwise transformative.

Following a similar pattern to the Warhol case, the trial judge sided with the defendant, ComicMix, which sought to rely on fair use, but was then overturned on appeal.

Now the claimant in that case, the Seuss estate, has filed a renewed application for summary judgment on its claim, saying that following the higher court judgment, it is plain that the mash-up “is an unexcused infringement of copyright.”

ComicMix continues to issue statements about the proceedings in Dr Seuss style verse, which is perhaps one way to uphold the right of parody.

Both cases illustrate the ongoing tension between those who create original copyright works, and those who subsequently seek to use those works for other artistic or creative purposes.

Commentators have suggested that the decisions show that the “fair use” pendulum in American law is shifting, although it remains unclear what quality makes a work derivative so as to exclude it from the doctrine.

In contrast to English law, where the scope of the “fair dealing” defence is defined by statute, the “fair use” defence is more general, which has led to less certainty about how it is to be applied.

Regulation – Quick response by broadcaster prevents Ofcom fine

Ofcom has ruled to take no further action in relation to a breach of the Ofcom Broadcasting Code by former Capital XTRA radio host DJ Tiiny who was found to be soliciting payments in return for featuring tracks on his weekly radio show.

So called “pay-for-play deals” are explicitly prohibited by section 10.5 of the Code which forbids commercial arrangements to influence the selection or rotation of music for broadcast. In January the producer “J Beatz Music” revealed a screenshot via Twitter of an email allegedly from DJ Tiiny stating, “If you wish for [your] track to be premiered on my Friday night radio show, there would be a charge of £200 for one track,” and that “[t]his would also include keeping the track within my radio playlist for 2 weeks.”

Considering the matter resolved, Ofcom found that Global, owners of Capital XTRA, had acted clearly and expeditiously in dealing with the breach. In a demonstration of their zero-tolerance approach to his behaviour, DJ Tiiny’s contract was terminated the day after the allegations were published, online references to his material were deleted and his show removed from the broadcast schedule. Ofcom noted that broadcasters can only minimise the risk of employees or freelancers independently engaging in pay-for-play agreements.

Publicly apologising in February, DJ Tiiny took to Twitter to say, “I was given an incredible opportunity within radio and carelessly and irresponsibly took advantage of my position… I take full responsibility for my actions and fully accept the consequences.”

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