Half-time Score: Single Market 1 Sky Sport 0

On Wednesday, the European Union advised that EU law could not prevent UK pubs from using foreign broadcasters to show football matches. The face of selling sports rights and other IP rights look set to change drastically if the Court upholds this opinion.

UK pub landlady, Karen Murphy was fined for using a cheaper Greek Decoder to show Premier League matches in her pub. Sky currently has exclusive rights to show Premier League matches in the UK. Murphy argued that the legal concept of the EU single market should allow her to use any European broadcaster.

Attorney General, Juliane Kikott maintained that territorial exclusivity agreements about broadcasting matches did contradict EU law. The Attorney General’s opinion is not binding but can be very persuasive. The European Court of Justice is not commonly known for regularly deviating from these opinions. The ECJ will make a ruling on the issue later in the year.

The Premier League has also told the press that they are concerned about the ruling. It can be argued that the interests of viewers and broadcasters may be harmed by territorial agreements being no longer legitimate. The way in which intellectual property rights are managed throughout the UK could change radically. The Premier League has expressed unease at the constitutional implications if the ruling follows Kilkott. They argue that changes to laws should be made through the proper legislative process and not by the courts.

The extent of how the ruling could affect other rights in music, literature, film etc, will not be realised until after the ECJ judgement later in the year.

By Nicola Mallon

Further Reading

BBC

Digital Look

The Guardian

Eur-lex

Europa

ACS Law Update: Death threats force firm to drop copyright litigation

ACS law is a firm with experience in file sharing infringement cases. The London based law firm hit the headlines in September when they sent out thousands of letters to people accused of file-sharing. Concerns had been raised over this method and its potential to incriminate those who have been wrongly identified. The Solicitors Regulation Authority is now investigating the firm’s practices.

Andrew Crossley of ACS law revealed that death threats, bomb threats and hacked email accounts were amongst the reasons for withdrawing from the case. ACS law have been the targeted before. Last year their website was hacked, leaking details of thousands of people stored on their servers. The details included names, address and telephone numbers. This incident could cost ACS law £500,000 in fines if the information commissioner concludes that ACS law held the information insecurely.

Currently, the tables appear to be turned. It is the law firm who brought the infringement cases are now on trial for the methods and practices employed during communications with accused infringers. Events have been further complicated by the new role by law firm GCB Ltd issuing similar payment demands on behalf of MediaCAT. The relationship between this new firm and ACS law is to be scrutinised.

By Nicola Mallon

Further Reading

Guardian

BBC

Naomi wins and loses: What price for privacy?

In 2004, following the House of Lords ruling that photographs of supermodel Naomi Campbell leaving a drug rehabilitation unit breached her privacy, Mirror Group Newspapers were obliged to pay £500k in costs and success fees. On Tuesday, the European Court of Human Rights held on appeal six votes to one that there had been no violation of the applicant’s Article 10 rights.

The applicants largely relying on the HOL dissenting comments of Lord Nicholls and Lord Hoffman, argued that their freedom of expression under Article 10 was weightier than Article 8’s respect for Campbell’s private life. Strasbourg followed a line of reasoning that is well established in Human Rights law when determining whether an interference of a right is justified. It was concluded that the interference with the freedom of expression was prescribed by law for a legitimate aim and was necessary in a democratic society.

The applicant noted that the House of Lords had failed to put sufficient weight into the editor’s assessment. While the European Court did refer to the press and its preeminent role as a “public watch dog” it did take note of the private nature of drug addiction and its possible detriment to Campbell resulting from its release into the public domain. Strasbourg concluded that the press do have a right to release information for public interest, even if it conflicts with Article 8. The facts were distinguished in this case that Naomi Campbell’s private life was only an interest to society to the extent that she was a famous figure of interest to the public. The judgement today remarked that the House of Lords were in fact unanimous on these main principles but differed in narrower issues.

Interestingly, the partly dissenting opinion of Judge David Thor Bjorgvinsson disagreed with the decision that Article 8 took precedence over freedom of expression in this instance. The judge found the distinction between justifying the use of the original story and the supplementary material (photographs etc) unconvincing. He stated that although Campbell may have found the story “annoying” the supplementary material did not reveal any fundamental information, it merely “added colour to the conviction”.

MGN won their second ground at Strasbourg, as it was decided unanimously that 100% success fees in Conditional Fee Agreements for privacy and defamation cases violate freedom of expression prescribed by Article 10. It was found that the cost regime did follow a legitimate aim, primarily offering claimant’s with little money but deserving causes access to justice. However, referring mainly to the Jackson Review, the court highlighted that the cost system was not necessary in a democratic society. Qualifying requirements for claimants to enter into a conditional fee agreement (CFA) were absent, secondly there was no incentive for the claimant to control legal costs incurred as they would not be obliged to pay if the case was lost, thirdly this system had a “blackmail,” as Lord Hoffman put it, effect on parties who were often driven to settle cases quickly.

This case will have an impact on civil actions not covered by legal aid. The decision is binding on government but only persuasive in the domestic courts. The Jackson Review is largely supported by the government and implementation of its suggestions are a likely outcome for the future. However, the extent of the review’s efficiency is still uncertain in light of the recent proposals for legal aid cuts.