17 Oct 18 October 2019
In this issue of zoom-in brief, cricketer Ben Stokes sues The Sun for breach of privacy, Californian judge rules Leaving Neverland claim to go to arbitration and Jerry Seinfeld successful in Comedians in Cars copyright claim.
England cricketer Ben Stokes and his mother Deborah have issued a claim against the publisher of The Sun for the invasion of their privacy in relation to a front-page story which dredged up details of an historic family tragedy.
The claim was issued in the High Court at the end of September, less than two weeks after publication of the story, which detailed events in New Zealand 31 years ago surrounding the murder by Deborah Stokes’ ex-husband of their two children before he went on to kill himself.
Stokes’ immediate response at the time of publication was to take to Twitter to criticise the piece as “the lowest form of journalism, focused only on chasing sales”, and to urge people to respect his family’s privacy and right to home life.
He wrote: “To use my name as an excuse to shatter the privacy and private lives of – in particular – my parents is utterly disgusting.”
But now Stokes appears to be the latest high-profile claimant to respond to unwanted tabloid coverage through the courts, following action taken against the publishers of the Mail on Sunday and the now-defunct News of the World by Meghan, Duchess of Sussex, and Prince Harry.
The newspaper defended its coverage at the time, saying:
“The Sun has the utmost sympathy for Ben Stokes and his mother but it is only right to point out the story was told with the cooperation of a family member who supplied details, provided photographs and posed for pictures. The tragedy is also a matter of public record and was the subject of extensive front-page publicity in New Zealand at the time.”
Despite this stance, the story was subsequently taken down from the newspaper’s website and tweets from its account referring to it were removed.
The claim is likely to raise a number of interesting media law issues.
Before and in the aftermath of the introduction of the Human Rights Act and the associated development of the law of misuse of private information, the presence of information in the public domain was generally thought to be a complete answer to any claim for breach of confidence or privacy.
The statement by The Sun reflects this principle and, along with its reliance on the involvement of a family member who was telling their own story, indicates how it might defend any claim.
But developments in the law of privacy, including a recognition that it protects against intrusion as well as the loss of secrecy, and that an expectation of privacy which did not exist initially may develop with the passage of time (what’s known online as the “right to be forgotten”) mean that the fact information was once in the public domain may no longer be enough to defeat a claim.
The Sun also referred in its statement to a lack of objection to the story when Stokes was contacted before publication.
A failure to provide a denial or comment might weigh against a claimant in a defamation claim, where a media publisher relies on “responsible journalism”, but the relevance of a failure to comment is less clear-cut where the claim is in privacy.
The story attracted widespread public criticism. If the courts take a similarly dim view of it, the case may have a significant impact on wider journalistic activity.
A Judge in California has agreed with Michael Jackson’s estate that its claim against HBO over the network’s Leaving Neverland documentary must go to arbitration.
The documentary focuses on the experiences of two men, James Safechuck and Wade Robson, who say they were sexually abused by Jackson when they were children.
The $100 million claim by the singer’s estate was issued before the broadcast of the documentary, in an apparent attempt to prevent it being aired.
It alleges that, in making and distributing the documentary, and in omitting the estate’s denial of the allegations against Jackson, HBO is in breach of a non-disparagement clause connected to the network’s 1992 agreement to air a concert film of Jackson’s Dangerous tour.
HBO is said to have promised that it would not “do any act that may harm or disparage or cause to lower in esteem the reputation of [Jackson].”
The estate sought to compel HBO to arbitrate, but the network said that the provisions of the 26 year-old agreement are no longer applicable.
HBO’s attorneys had also attempted to have the case dismissed under California’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) statute, which is intended to counter litigation which seeks to chill free speech on public interest issues.
In response to the Judge’s initial ruling that the statute does not apply to requests for arbitration, HBO asked him to reconsider.
“It was filed to chill speech,” the company’s attorney argued.
“It was filed to tell the world, ‘Don’t talk about child sex abuse.’… A company like HBO may be able to fight back and move forward. Others might not be able to do that.”
The Judge acknowledged the force of the competing interests and the likelihood of an appeal.
“You’re a big company, they’re a wealthy estate,” he said to HBO’s lawyers. “It’s a clash of the titans.”
The Judge made a final ruling which denied HBO’s anti-SLAPP motion while granting the petition by the estate to compel arbitration.
Outside court, John Branca, of Jackson’s estate, said that HBO has been trying to avoid publicity.
“I’ve never seen a media organization fight so hard to keep a secret,” he said.
“We’re saying let’s get all the facts out there, not just two stories from two accusers with a financial interest.”
Where Jackson is dead and cannot bring a personal claim to protect his reputation, and in light of the generous protections given to free speech in the US, the litigation over a historic contractual provision does seem to be a vehicle for an exercise in reputation management.
Comedian Jerry Seinfeld has seen off a copyright infringement claim by an erstwhile collaborator over the rights to his successful Netflix show Comedians in Cars Getting Coffee.
A Judge in Manhattan has ruled that the claim by Christian Charles relating to his involvement in the show, in which a different guest comedian joins Seinfeld in each episode, is barred by the three-year statute of limitations which applies to such claims in New York.
Charles had worked with the comedian and star of the eponymous sitcom since 1994, and had previously directed adverts featuring Seinfeld, as well as the 2002 road-movie documentary Comedian.
He claimed that he had pitched the concept for Comedians in Cars to Seinfeld in 2002 as Two Stupid Guys in a Stupid Car Driving to a Stupid Town.
He then directed the pilot in October 2011, but the working relationship between the two broke down over the credit and compensation he would receive.
Charles sought ownership and royalties, but Seinfeld wanted him to direct episodes on a work-for-hire basis, and the director had no further involvement after the pair parted ways in 2012.
Charles then waited until December 2017 to issue his claim for copyright infringement.
This delay was fatal to his claim, explained the Judge:
“Because Charles was on notice that his ownership claim had been repudiated since at least 2012, his infringement claim is time-barred”
“His joint authorship claim is also time-barred for the same reasons.”
“And his request for an injunction fails, because it was premised on Charles’ assertion that he is the sole owner.”
Seinfield’s attorney, Orin Snyder, called the ruling a “complete vindication.”
“Jerry created ‘Comedians in Cars’ and this lawsuit was nothing but a money-grab seeking to capitalize on the success of the show,” Snyder said in a statement. “We are pleased that the Court saw through the noise and dismissed the case.”
The litigation came at a time of increasing recognition for the show, following its move to Netflix in 2018.
The application of strict rules regarding limitation shows the importance of acting swiftly to resolve a legal dispute, rather than waiting until it is clear how valuable any claim might be.
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