In this issue of zoom-in brief, comedy legends sue streaming service Pandora for copyright infringement; in an important judgment for the UK’s media, the Supreme Court confirms that an individual has a reasonable expectation of privacy prior to criminal charge; Coleen Rooney is refused permission to include Rebekah Vardy’s agent in the ‘Wagatha Christie’ litigation; whilst Sarah Palin has her libel claim against the New York Times dismissed by the judge.

Comedy heavyweights Andrew Dice Clay, Bill Engvall and Ron White and the estates of Robin Williams and George Carlin are suing the streaming service, Pandora, for copyright infringement, claiming that the platform fails to properly license their performances.

The lawsuits claim that the platform pays for the recording of the works, but not for the composition of the underlying material. The claimants argue that they are akin to song writers who earn a separate royalty for publishing rights to the underlying musical and literary work.

Robin Williams’ estate claims that attempts by its agent – Word Collection – to negotiate a licensing agreement in respect of his work have been rebuffed and that his estate has not received ‘a fraction of a penny’ for 16 works offered through its streaming service.

The lawsuit also states that Pandora’s infringement was willful – citing previous filings to the US Security and Exchange Commission in 2010 (prior to its $3.5bn acquisition by SiriusXM in 2018) which acknowledged that spoken word comedy was distributed on its platform ‘absent a specific license from any… performing rights organisation’, nor any licence for the underlying literary works, which could subject the platform to ‘significant liability for copyright infringement’.

The claimants seek payments of up to $150,000 per infringement, the maximum amount of statutory damages in the US, which could see the audio streamer paying out damages to the tune of $41.55m.

These lawsuits follow similar complaints against Spotify, which has since removed the works of notable comedians from its service, including Kevin Hart, Robin Williams, Amy Schumer and Lisa Lampanelli. These claims have the potential to lead to a seismic change in how comedy performers are paid by streaming platforms.

Pandora spokesperson Patrick Reilly told Rolling Stone on Monday that the platform made no comment on the lawsuits.

The Supreme Court has upheld the findings of Mr Justice Nicklin and the Court of Appeal, that, as a legitimate starting point, prior to charge, an individual has a reasonable expectation of privacy in information relating to a criminal investigation into their activities.

‘ZXC’ was chief executive of a division of ‘X Ltd’, a company which was under criminal investigation by a UK Law Enforcement Body (UKLEB) focusing on allegations of corruption, bribery and fraud.  The UKLEB sent a Letter of Request to a foreign government seeking assistance in relation to the investigation.

Bloomberg obtained a copy of the Letter of Request and, in 2016, published an article concerning its contents and details about the investigation – including that ZXC had been interviewed by the UKLEB. The UKLEB quickly wrote to Bloomberg to express its displeasure on confidentiality grounds.

ZXC then sued on the basis of misuse of private information, breach of confidence and breach of the Data Protection Act 1998 and applied for interlocutory injunctive relief. This interim relief was refused by Garnham J in February 2017, although he had not been provided with a copy of the Letter of Request. After a 4-day trial for misuse of private information (the other causes of action falling away), Nicklin J found in favour of ZXC, placing weight on the confidential nature of the Letter of Request. Applying the 2-stage test, he held that: (1) the information had been private, and (2) when weighed against Bloomberg’s Article 10 rights, the balance came down in favour of ZXC’s Article 8 right. He awarded damages of £25,000.

Bloomberg’s appeal against Nicklin J’s decision was dismissed by the Court of Appeal. Bloomberg appealed again to the Supreme Court.

Unanimously dismissing Bloomberg’s appeal, the Supreme Court held, as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in this case ZXC had such a reasonable expectation of privacy.  Publication of such information would have a negative effect on an innocent person’s reputation which was not, as Bloomberg argued, safeguarded by the presumption of innocence.

Further, the Judge was right to take into account the confidentiality of the Letter of Request as a relevant factor, as the torts will often overlap, such that information which is confidential is also likely to be private. It was also held that there were no grounds for intervening with the balancing exercise conducted by Nicklin J.

This case clearly supports the proposition that, as a starting point, a person has a reasonable expectation of privacy in information relating to a criminal investigation before charge – at which point the balance tips the other way, in favour of identification, owing to their appearance in open court engaging principles of open justice.

Readers of zoom-in may recall that, in 2018, the High Court awarded Sir Cliff Richard hundreds of thousands of pounds in damages in his privacy claim against the BBC for naming him as a criminal suspect and televising live a police raid on his home. Sir Cliff was never arrested and, eventually, the CPS announced that no charges would be brought against him.  In that case, the High Court similarly found that Sir Cliff had a reasonable expectation of privacy in relation to the information that he was a criminal suspect and the coverage of the raid on his home.  After consideration of Sir Cliff’s and the BBC’s competing rights and interests, the Court found that the BBC’s Article 10 rights to freedom of expression and the public interest did not justify the interference with Sir Cliff’s Article 8 privacy rights.  The BBC ultimately decided not to appeal.

In view of the way the common law of the United Kingdom has now developed, journalists and programme-makers wishing to identify a suspect before charge should tread very carefully and seek legal advice.

Mrs Justice Steyn this week handed down her ruling in the latest round of applications in the Rebekah Vardy v Coleen Rooney libel dispute. Among the applications was a request by Ms Rooney to join Caroline Watt (Vardy’s friend and agent) to her claim, alleging that she misused her private information in leaking stories to the Sun (which Watt denies). Both sides also applied for further disclosure.

Most of the applications were refused, including the joinder application, which was denied on the basis that: it was brought too late, would substantially delay proceedings by up to 12 months; and would be unfair to Ms Vardy – who denies the allegations and seeks to vindicate her reputation.

On disclosure, the Judge criticised both parties for the ‘incomprehensible lack of progress’ in requesting data from Instagram but gave permission to request it. The Judge also gave Rooney permission to search WhatsApp messages between Vardy and Watt.

Ms Rooney was ordered to pay 20% of Ms Vardy’s costs for the hearing, as well as Ms Watt’s costs in responding to the joinder application. In total, once her own legal costs are factored in, she is expected to pay out around £250,000.

The applications follow the disclosure of incendiary messages sent between Vardy and Watt, including one in which Vardy states, ‘She’s a nasty bitch’ (although Vardy denies that this comment was about Rooney).

The trial is due to start in May.

zoom-in last week reported on Sarah Palin’s libel trial against the New York Times, over an article which wrongly linked her political rhetoric to a mass shooting. The Times had issued a correction the following day.

Judge Rakoff has now thrown out the case, on the basis that Palin’s legal team failed to produce sufficient evidence to meet the high standard of showing that the defendants acted with ‘actual malice’ (reckless disregard for the truth).

Whilst the jury deliberated on Monday, the Judge indicated that he would not be finding for Ms Palin but would wait for the jury to deliver a verdict before he made his order (and would set aside any verdict to the contrary). Although an unusual move, the Judge explained that, as Ms Palin is expected to appeal the ruling, it would assist the appeal court to know what a jury would have decided.

On Tuesday the jury returned its verdict, also finding the Times not liable.

Some jurors acknowledged that they knew about the Judge’s decision to dismiss during deliberations (primarily due to notifications on their smartphones) but were said by Judge Rakoff to ‘have repeatedly assured the court’s law clerk that the notifications had not affected them in any way or played any role whatever in their deliberations.’

The case was of particular interest to US freedom of speech lawyers, given its potential to lower the currently high ‘actual malice’ hurdle, established in New York Times v Sullivan, that public figure claimants must overcome to sue in defamation.

zoom-in will report on any further developments in this case should there be any.

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