16 August 2024
Regulation - Good Morning Britain reportedly receives over 15,000 Ofcom complaints
On 5 August 2024, ITV’s Good Morning Britain covered the riots that had been sparked by the 29 July knife attack in Southport in which three children were killed.
The coverage has now reportedly attracted more than 15,000 complaints to Ofcom.
The complaints fall into two camps: first, some viewers have criticised GMB for allowing ex-Labour MP Ed Balls to interview the Home Secretary and his wife of 26 years, Yvette Cooper, about the national unrest. Specifically, Balls asked Cooper about the role played by social media, and whether there was a ‘two-tier’ approach to policing, with officers responding more firmly to protests held by the far right than by pro-Palestine activists. The interview led to allegations of a conflict of interest and lack of due impartiality.
Similar impartiality complaints were previously upheld in respect of an episode of GB News’ Saturday Morning with Esther and Phil, in which married couple and both then-sitting MPs, Esther McVey and Philip Davies, interviewed the then-Chancellor Jeremy Hunt about his Spring Budget. Rules 5.11 and 5.12 of the Ofcom Broadcasting Code require that an appropriately wide range of significant views must be included and given due weight in programmes dealing matters of major political controversy and current public policy. Ofcom found that two sitting MPs interviewing a Chancellor from their own Party about the budget fell foul of these rules.
The second group of complaints about GMB concern an earlier interview with Labour MP Zara Sultana, in which Ed Balls has been accused of defending his wife and his former Party. The segment saw tense exchanges between Balls, Kate Garraway and Sultana, who was repeatedly interrupted when calling for the Labour Party’s condemnation of the “Islamophobic” and “racist” protests.
A spokesperson for Good Morning Britain said: “Following a weekend of rioting and national unrest, GMB featured a range of interviews and discussion around this national emergency on today’s programme which included James Cleverly, shadow home secretary, and Yvette Cooper, home secretary. We are satisfied that these interviews were balanced, fair and duly impartial.”
Ofcom has announced that it is currently assessing the complaints but has not yet decided whether to investigate.
Defamation - Dale Vince’s libel claim against the Daily Mail is struck out
In June 2023 the Daily Mail published an article entitled “Labour repays £100,000 to ‘sex harassment’ donor’”, in which a man called Davide Serra was described as a “high-flying financier accused of sex harassment”. In 2022 an Employment Tribunal found Serra to have made sexist comments to a female coworker, which amounted to unlawful harassment related to sex.
The article also discussed other donations that had been made to the Labour Party and included two photographs of Dale Vince, an entirely separate Labour donor and millionaire green energy businessman, with the caption “Road blockers: Dale Vince in London yesterday, and circled as he holds up traffic with Just Stop Oil”.”
Vince brought a claim for £100,000 and alleged that he was defamed “by innuendo” because his image was shown under a defamatory headline, and readers would assume that he was the Labour donor accused of sex harassment in the headline.
The Daily Mail successfully applied to strike out Vince’s claim on the basis that the hypothetical reader would be expected to read the whole article and would appreciate that Vince was not the person being accused of sex harassment. Judge Jaron Lewis agreed that the headline and picture could not be isolated, and that the pleaded case would not amount to an innuendo meaning. Accordingly, he struck out the case as it was ‘bound to fail’.
Vince has vowed to appeal, stating: “A substantial number of people only read headlines and would have thus been given an entirely false impression. As it stands the Daily Mail can get away with this kind of personal smear – I’m trying to change that.”
Copyright (US) - AI startup Suno argues use of copyright songs was “fair use”
The artificial intelligence platform Suno has defended its use of copyrighted music to train its AI music model, arguing that “learning is not infringing”.
The Recording Industry Association of America (‘RIAA’) recently commenced copyright proceedings in the US State of Massachusetts against Suno, claiming the platform copied copyrighted sound records “en masse and ingested them into its AI model”. It has also argued that Suno could not avoid liability by claiming fair use, submitting that: “The doctrine of fair use promotes human expression by permitting the unlicensed use of copyrighted works in certain, limited circumstances, but Suno offers imitative machine-generated music—not human creativity or expression.”
In paperwork filed this month, Suno acknowledged that: “the tens of millions of recordings that Suno’s model was trained on presumably included recordings whose rights are owned by the Plaintiffs in this case.” However, Suno maintained that this training technique did not breach copyright, arguing that it is fair use under copyright law to make a copy of a protected work as part of a back-end technological process which is invisible to the public, to create a non-infringing new product.
Suno also submitted that its output was lawful, as it created “new songs that didn’t and often couldn’t previously exist”, not a collage of samples stitched together from previous recordings. In a blog post published alongside the filing, Suno’s CEO Mikey Shulman wrote that: “just like the kid writing their own rock songs after listening to the genre — or a teacher or a journalist reviewing existing materials to draw new insights — learning is not infringing.”
As previously reported in zoom-in, similar issues have arisen in a lawsuit that Getty Images is bringing against Stability AI in the UK. Getty alleges that Stability AI “scraped” images from Getty’s website and used these to train its AI model. In December 2023, the High Court refused to strike out Getty’s claim and allowed the matter to proceed to trial. Stability AI has indicated that one strand of its defence will be s30A of the Copyright, Designs and Patents Act 1988, which protects fair dealing for the purposes of pastiche.
Zoom-in will report on developments in both cases over the coming months.
Copyright (US) – Access to school shooter’s writings blocked on copyright grounds
A Tennessee court has blocked a public records request to access the writings of a school shooter by relying on US copyright law.
In March 2023, six victims including three children were killed in a school shooting at Covenant School in Nashville, Tennessee. As part of its investigation into the shooting, Metro Nashville Police Department seized journals, photographs, artworks, writings and videos authored by the shooter Audrey Hale, who was shot by police at the scene. Several individuals and groups including The Tennessean newspaper and the Tennessee Firearms Association applied to access these materials under the Tennessee Public Records Act (the ‘TRPA’). The Police denied these requests on the basis of the open and ongoing criminal investigation.
In May 2023, the parents of the deceased children applied to intervene in the proceedings in an effort to shield the records from disclosure. The Court granted their application, holding that they had a “significant stake” in the outcome of the proceedings.
In an unusual development, Hale’s parents then announced that they would transfer any and all ownership rights in Hale’s materials to the parents of the victims.
The Court held that the Police were permitted to deny access under a range of exemptions to the TRPA. First, the records were relevant to a pending criminal investigation. The requesters had disputed this on the basis that Hale was announced dead at the scene, and therefore argued that the criminal investigation must be over. However, the Court was satisfied by the Police’s evidence that investigations were ongoing into whether Hale received any assistance planning of the attack or with weapons purchases, and whether there were any co-conspirators.
Second, the Court relied on a specific exemption relating to records about school security, and found that “the possibility that these records could be used by a copycat shooter … to be a real security concern for schools…”.
Third, the Court determined that federal copyright law is an exemption to the TRPA (which is a state law), and shields works of original authorship from public disclosure. As the Police were not the owners of the copyright in the materials, they could not usurp the exclusive rights of the copyright owners by permitting the requestors to inspect, display or copy them. As a result, the original writings, journals, art, photos and videos created by Hale could not be disclosed.
Under the Freedom of Information Act (England and Wales), similar exemptions exist under sections 30 and 31 to protect information which would undermine the work of law enforcement agencies or increase the risk of the law being broken.
However, the ICO has confirmed that disclosing information under an FOI request where the IP right is owned by a third party does not infringe copyright and therefore would not prevent disclosure. This is because section 50 of the Copyright, Design and Patents Act 1988 provides that copyright is not infringed where copyright or publishing information is specifically authorised by an Act of Parliament – which would include providing information in response to an FOI request. Material disclosed under an FOI request is still normally protected by copyright, however, and so anyone who receives such material is still required to use it in accordance with copyright law e.g. by looking to one of the defences to infringement.
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