12 Jul 12 July 2019
In this issue of zoom-in brief, fashion brand Missguided is ordered to pay $2.7m damages to Kim Kardashian West; Tommy Robinson is given a prison sentence for contempt of court; and “released under investigation” by police cases still active for contempt purposes.
Fast fashion brand Missguided has been ordered by a Court in California to pay $2.7m damages to Kim Kardashian West following a complaint by her against the company’s US arm.
The reality TV star claimed that the company was responsible for unauthorised use of her “trademarked name and likeness to promote its website and products”.
The company showed a model wearing a gold dress on Instagram similar to one Kardashian West had shown herself wearing, and a caption tagging Kardashian West that said: “The devil works hard but Missguided works harder.”
In the allegations against Missguided USA, court documents said the company “not only knocked off the clothing of other designers, but it has unabashedly misappropriated the rights of celebrities like Kardashian in selling these knock-offs on its websites”.
It was said that the company “systematically uses the names and image” of stars to promote its website.
Missguided did not defend the claim and Kardashian West was awarded default judgment.
In addition to awarding damages and costs of $60,000 to Kardashian West, the Court ruled that the company was prohibited from using the reality star’s “name, images, likeness, persona, and trademarks… in connection with the sale, marketing or distribution of its products”.
In a statement, Missguided said: “We note the view of the California Court. The legal process has not yet reached a conclusion.”
In February Kardashian West herself spoke out against fast fashion companies on Twitter, saying: “It’s devastating to see these fashion companies rip off designs that have taken the blood, sweat and tears of true designers who have put their all into their own original ideas.”
The case appears to have been based in part on allegations that the company was responsible for false endorsement, i.e. incorrectly associating Kardashian West with the brand, which is a type of claim that can be pursued in English law as passing off, as well as for straightforward trademark infringement.
However, California law also provides for “image rights”, which can be used by individuals to protect their name and likeness in other circumstances.
Rights of that kind do not exist in the UK but can be a powerful weapon in the armoury of celebrities seeking to protect their image in the US.
Former EDL leader Tommy Robinson has been sentenced to 9 months imprisonment for contempt of court, with his sentence to be reduced to take into account time he has already served in jail.
Robinson, real name Stephen Yaxley-Lennon, was found guilty of three types of contempt last week. This is the second time he has been found guilty of contempt in relation to this incident, his first conviction having been overturned on appeal as the Court of Appeal found that the correct procedure had not been followed. Robinson also admitted contempt of court in relation to a separate incident at Canterbury Crown Court in early May 2017, for which he received a suspended sentence.
The case related to a trial in which a number of men were accused of (and ultimately convicted of) sexual exploitation of girls and young women in the Huddersfield area. Robinson Facebook live-streamed from outside the trial at Leeds Crown Court, on a morning when the jury were out considering their verdict. The live-stream was viewed over 250,000 times. In the live-stream video, Robinson discussed the trial, aggressively confronted the defendants on their way into court, asking amongst other things: ‘‘You got your prison bag with you?’’, and encouraged viewers to harass a defendant: ‘‘You want to harass someone’s family? You see that man who was getting aggressive as he walked into court, the man who faces charges of child abduction, rape, prostitution – harass him, find him, go knock on his door, follow him, see where he works and what he’s doing. You want to stick pictures online and call people and slander people, how about you do it to them?’’
The trial was the second of three related trials, and there was a reporting restriction in place postponing the reporting of the trial until after its conclusion and the conclusion of the related trials. The first form of contempt was a breach of this reporting restriction.
The second form of contempt was that the publication of the video created a substantial risk that the course of the trial and related trials would be seriously impeded. This is the strict liability rule, which applies whenever proceedings are active. The court found there was a real risk of harassment of defendants and that the defendants would feel intimidated such that this would have a significant impact on their ability to participate in the trial.
The third form of contempt was interference with the administration of justice, by confronting some of the defendants aggressively as they arrived at court, and openly filming. Robinson was found to have filmed within the ‘precincts’ of Leeds Crown Court – such filming is prohibited by law. The filming was not akin to a tourist taking a photograph in a court building in ignorance of the prohibition, rather its nature was so serious that it amounted to contempt of court.
Although the men in the Leeds trial were convicted, defence lawyers had sought to have the jury discharged after the incident, and one of the men had sought permission to appeal his conviction, on the grounds that both the live-stream video and the protests relating to Robinson being imprisoned for contempt had prejudiced his trial. Both applications were refused.
The court rejected Robinson’s claim that this was an interference with his freedom of speech, affirming that contempt laws are compliant with Article 10 of the European Convention on Human Rights. They are lawful restrictions carefully designed to protect fair trial rights.
Robinson has claimed that he has been jailed for ‘journalism’, and his supporters reacted angrily, with confrontations with the police outside court.
In sentencing the judge said that ‘‘nothing less than a custodial penalty would properly reflect the gravity of the conduct we have identified’’, and went on to say that Robinson had ‘‘lied about a number of matters, and sought to portray himself as the victim of unfairness and oppression’’.
Where an individual who has been arrested by the police is released ’under investigation’ the case remains active for the purposes of strict liability contempt until they are told in writing that the investigation is being discontinued.
It is contempt of court under the strict liability rule to publish material that creates a substantial risk of serious prejudice to active proceedings. Proceedings become active when a person is arrested and continue to be active throughout an investigation and prosecution until the end of a trial or the case is discontinued.
Where individuals are released on police bail, proceedings had always remained active, however in February 2018 the law was changed without the media being consulted to extend that protection to those released ‘under investigation’. There has been a substantial increase in those released ‘under investigation’ rather than on bail since a 28 day time limit on police bail was introduced in 2017. Many have criticised the way police use ‘released under investigation’ for long periods saying it leaves individuals in limbo in the same way as being released on police bail for an extended period had prior to the introduction of the time limit. This was one of the reasons a time limit was introduced, as some had been left on bail for many months.
For those reporting on cases after an arrest has been made, it is important to remember that the strict liability rule applies equally whether the person is released on police bail or ‘under investigation’. If a case has been dormant for some time, it will be necessary to check whether the case has been discontinued, or whether the person remains ‘under investigation’ in order to assess the potential contempt of court risks.
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