Media & Entertainment Law

Media &

Entertainment Law

SECOND EDITION

Ursula Smartt

With a Foreword by Michael Mansfi eld QC

Second edition published 2014

by Routledge

2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

and by Routledge

711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2014 Ursula Smartt

The right of Ursula Smartt to be identifi ed as author of this work has been

asserted by her in accordance with sections 77 and 78 of the Copyright,

Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or

utilized in any form or by any electronic, mechanical, or other means, now

known or hereafter invented, including photocopying and recording, or in any

information storage or retrieval system, without permission in writing from

the publishers.

Trademark notice: Product or corporate names may be trademarks or

registered trademarks, and are used only for identifi cation and explanation

without intent to infringe.

First edition published by Routledge 2011

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging in Publication Data

A catalog record for this book has been requested.

ISBN: 978–0–415–66270– (hbk)

ISBN: 978–0–415–66269–7 (pbk)

ISBN: 978–1–315–81563–3 (ebk)

Typeset in Joanna

by Refi neCatch Limited, Bungay, Suffolk

3

Contents

Foreword by Michael Mansfi eld QC vi

Preface ix

Acknowledgements xiii

Glossary of Acronyms and Legal Terms xvi

Table of Cases xxxiv

Table of Legislation lii

Table of International Instruments and Treaties lxvi

1 Media Freedom 1

1.1 Overview 2

1.2 Historical development of free speech and press freedom 3

1.3 Theoretical foundations of media freedom 11

1.4 The open justice principle 19

1.5 Scotland’s privacy principle of actio injuriarum (‘wounded feelings’) 26

1.6 The boundaries of a free press: analysis and discussion 27

1.7 Further reading 31

2 Privacy and Confi dentiality 33

2.1 Overview 34

2.2 The ‘red carpet’ rule: protection of private and confi dential information 37

2.3 Media practices and human rights 56

2.4 The impact of the Human Rights Act 1998 on UK common law 72

2.5 A child’s right to privacy 87

2.6 Superinjunctions: protection of privacy or freedom of expression? 93

2.7 Internet privacy 99

2.8 A tort of privacy 103

2.9 Further reading 103

3 Defamation 107

3.1 Overview 108

3.2 History of defamation law 116

3.3 Libel tourism 127

3.4 Defamation Act 2013 131

3.5 Defences 144

3.6 Defamation law in Scotland 151

3.7 Internet libel 158

3.8 Juries or no juries? 173

3.9 Academic and scientifi c debate 175

3.10 Defamation and human rights 183

3.11 Will the Defamation Act 2013 make a difference to academics and libel tourists? 186

3.12 Further reading 187

iv | CONTENTS

4 Contempt of Court 189

4.1 Overview 190

4.2 Contempt at common law 193

4.3 The Contempt of Court Act 1981 199

4.4 Reporting on court proceedings 206

4.5 Problems of identifi cation 209

4.6 Administration of justice 215

4.7 Procedure and punishment 219

4.8 Juries and contempt of court 227

4.9 Who still observes the law of contempt? Analysis and discussion 236

4.10 Proposals for law reform of the law on contempt 238

4.11 Further reading 240

5 Reporting Legal Proceedings 243

5.1 Overview 244

5.2 Hearings from which the public are excluded 246

5.3 Reporting on children and young persons 260

5.4 Special anonymity orders and restrictions 282

5.5 Sensitive court reporting and human rights: analysis and discussion 295

5.6 Further reading 297

6 Freedom of Public Information 301

6.1 Overview 302

6.2 Historical overview 304

6.3 The Freedom of Information Act 2000 (FOIA) 307

6.4 Legal challenges under freedom of information legislation 316

6.5 Data protection and freedom of information 324

6.6 Has the freedom of information legislation made a difference to public life?

Analysis and discussion 334

6.7 Further reading 336

7 Obscenity Laws, Extreme Pornography and Censorship 338

7.1 Overview 339

7.2 Abolition of blasphemy laws in the UK and new religious hate speech

provision: a legal historical perspective 340

7.3 Art or obscenity: obscene publication laws in the UK 345

7.4 Extreme pornography and human rights: the ‘margin of appreciation’ 365

7.5 Indecency or freedom of expression? Analysis and discussion 380

7.6 Further reading 383

8 Copyright I: Intellectual Property Law 385

8.1 Overview 386

8.2 The origins of copyright: historical overview 388

8.3 Development of international copyright legislation 392

8.4 The Copyright, Designs and Patents Act 1988 (CDPA) 395

8.5 Duration of copyright 408

8.6 EU copyright acquis 416

8.7 Patents and trademarks 428

8.8 Cross- border measures for copyright infringement 441

8.9 Copyright infringements 448

CONTENTS | v

8.10 General defences 453

8.11 Remedies 460

8.12 The future of copyright in the digital age: analysis and discussion 466

8.13 Further reading 472

9 Copyright II: Entertainment Law 476

9.1 Overview 477

9.2 Artists in revolt: what price piracy? 478

9.3 Phonograms and the recording industry 487

9.4 Musical works 490

9.5 Sound recordings, performers’ rights and extended copyright 494

9.6 Performing rights and collecting societies 499

9.7 Acquiring rights from third parties: who sampled whom? 512

9.8 Codifying cyberspace: towards legislation to protect authors and

artists from piracy? 516

9.9 Further reading 524

10 Regulatory Authorities 527

10.1 Overview 528

10.2 Regulators and quangos 530

10.3 Regulating the print press 532

10.4 The Leveson Inquiry 546

10.5 What happens to the whistleblowers? Protection of journalistic sources 564

10.6 Regulating the communications industry 568

10.7 Film, video and games censorship 579

10.8 Advertising and online censorship 588

10.9 Media regulation ‘sans frontières’: codifying cyberspace or self- regulation

in the digital age? 597

10.10 Further reading 601

Bibliography 604

Internet Sources and Useful Websites 622

Index 624

Foreword by Michael Mansfi eld QC

The importance of this book cannot be overestimated. Its timing alone is impeccable. The book’s

publication comes at a time of global meltdown in numerous related fi elds – political, economic

and environmental. The forces at work in each of these arenas are underpinned by the dialectic,

power, and the needs of instant communications. The demands of state and corporate vested inter￾ests on the one hand are desperately seeking to control how we know what we know, whilst on the

other hand the awakening of popular conscience is inspired by the transparency and accountability

afforded by the possibilities of the information highway. No part of any continent can be untouched

by these movements.

We have arrived at the ‘global village’, a phrase coined by the Canadian philosopher and

Professor of English Marshall McLuhan. More than forty years before the development of the World

Wide Web, he had foreseen the ramifi cations of the electronic era. McLuhan popularized the idea

that our technologies have a profound effect upon our lives, culture and history.

His works, Understanding Media (1964) 1 and The Gutenberg Galaxy (1962) 2 explored concepts which

are popularly remembered in the well- worn adage ‘the medium is the message’. A sequel to this

became ‘the medium is the massage’. The later book’s opening chapter contains these poignantly

prophetic words:

The medium, or process, of our time – electric technology – is reshaping and restructuring

patterns of social interdependence and every aspect of our personal life. It is forcing us to

reconsider and re- evaluate practically every thought, every action and every institution formerly

taken for granted. 3

McLuhan’s central thesis then was the dominance of the ‘medium’ over its content, which has been

rapidly overtaken by the signifi cance of the ‘message’ which can be conveyed across the globe in a

moment – the ‘message’ has become the means. It has the potential to transcend temporal customs

and laws, which struggle to keep up and grapple with the fallout.

With the medium of the internet and social media, we have all become world citizens with

responsibilities for what we communicate. This has particular resonance for the weak, the vulner￾able, the impoverished and the powerless. Oppression and exploitation are best countered by the

universality of knowledge rather than the sword.

A major contribution to that knowledge is provided by the data and discussion in the chapters

of this book. Here is a work which all of us, not just the lawyers, would do well to digest in order

to assess and analyse the challenges we face at every stage of everyday life. This book is not some

esoteric or arcane legal backwater, but the frontline or interface of our social relationships. It charts

and pinpoints with alarming accuracy the shape of current dilemmas.

Ursula Smartt’s book demonstrates that we are all entwined in a ‘screen culture’. This at

one time was limited to fi lm and television but now embraces every form of information

1 See McLuhan (1964; reprint 2013).

2 See McLuhan (1962).

3 See McLuhan (1964; reprint 2013), Part 1, Chapter 1 at p. 9.

FOREWORD | vii

dissemination. Wherever you are, people are locked into their personal iPads, tablets, i-pods

and mobile phones. Messaging is instant, social networking is rampant, and twitterspeak is prolifi c.

We now occupy real space and virtual reality at the same time. We are almost more commonly

identifi ed by our electronic footprint rather than our physical appearance. Without a second

thought we choose to place an enormous quantity of information about ourselves at the disposal

of others.

As a result the boundaries of privacy are blurred to non- existence, and the tentacles of surveil￾lance by state and corporate agencies are pervasive. It amounts to two sides of the same coin. It is

the same facility which drives our private communication convenience as well as the aspirations of

authority: the internet.

The last two years have witnessed an eruption of volcanic proportions whereby the tensions

between these disparate and often opposing forces have been laid bare.

Internally the Leveson Inquiry has exposed an unhealthy relationship between three so- called

pillars of the state – high- ranking politicians, the tabloid media and the police. Leveson revealed

that methods were employed which struck at the very heart of our democracy and revealed a vein

of unaccountable governance.

Externally the process has been even more seismic: from the massive WikiLeaks revelations

contained in the 400,000 documents compendiously known as the ‘Iraq War Logs’ to the oppres￾sive prosecution conviction and sentence of 35 years’ imprisonment for Bradley Manning in the

USA to the relentless pursuit of Edward Snowden on espionage charges. There was the unjustifi ed

nine- hour detention and confi scation of property on Sunday 18 August 2013 of David Miranda

(friend of Guardian journalist Glenn Greenwald) under Schedule 7 of the Terrorism Act 2000; and

fi nally the extraordinary government demand to the Guardian for the destruction of the hard drives

containing US National Security Agency (NSA) documents, which was then overseen by GCHQ

operatives in the UK.

What we have been witnessing is the very eye of the storm. The central thrust is a remarkable

inversion in which the whistleblowers are hunted as spies whilst the perpetrators of illegality upon

law- abiding citizens go unpunished. The magnitude of this operation implicates the United

Kingdom. It should be of concern to us all. What is at stake is the threat to freedom of thought,

conscience and expression, and ultimately the essence of truth itself.

This has been echoed by the European human rights watchdog, the Council of Europe, repre￾senting its 47 Member States, which moved quickly to question what the UK was up to. The

Secretary General of the Council of Europe, Thorbjørn Jagland, observed that the detention of

Miranda and the destruction of materials at the Guardian ‘may have a potentially chilling effect on

journalists’ freedom of expression as guaranteed by Article 10 of the ECHR’. 4

What has been uncovered is the capability and capacity to mine, monitor, record and store

unlimited quantities of personal data produced by electronic means. This permits the possibility of

manipulation, distortion and misconceived assertion.

The NSA in America, through its Prism program, is able to collect data directly from servers

operated by companies such as Microsoft, Yahoo, Google and Facebook. There is close collaboration

and fi nancial input with GCHQ in the UK, which administers another programme entitled Tempora,

which engages in mass tapping of the internet and phone traffi c. The ultimate system was revealed

on 31 July 2013 by Glenn Greenwald in the Guardian. XKeyscore is another NSA tool which can

collect nearly everything on the internet, data that is known as digital network intelligence (DNI).

Edward Snowden claimed he could accomplish this from his desk. The problem now is merely

storage! The pretext for all of this activity is palpably thin: looking after our security and commer￾cial welfare!

4 Source: ‘Council of Europe asks UK to explain intimidation against the Guardian’, by Nicholas Watt and Lisa O’Carroll, The

Guardian , 22 August 2013.

viii | FOREWORD

Successive chapters in this book pinpoint with alarming accuracy the shape of current

dilemmas. Clearly and concisely presented for ease of reference, the commentary is constantly

accompanied by a historical perspective, citation of the appropriate ECHR articles and a compara￾tive cross- border analysis.

The tensions described above surface in Chapter 1 with the concepts of freedom of expression

and open justice confronting the individual right to privacy. The arguments surrounding the

Justice and Security Act 2013 and the proposal for Closed Material Procedures (CMP) to ‘protect

secret service intelligence gathering’ are redolent of the justifi cations put forward for mass secret

cable trawls.

Chapter 2 deals with privacy and whether the internet has rendered ‘the territorial demarca￾tion of national jurisdictions ineffective’. Is there any aspect of life that can be characterized as

private? Similar issues arise over obscenity in Chapter 7, given what is available at the press of a

button online.

The culmination of this dialectic comes in Chapter 10, which traverses the Leveson Report

(2012) with consummate clarity and precision. The author’s perceptive and diligent research has

brought to light, buried in the pages of the Report, the opposition of the Director of Liberty to the

idea of statutory regulation of the press. On this Shami Chakrabarti was in agreement with Prime

Minister David Cameron.

This is understandable when looking at the roles of the Daily Telegraph, over the parliamentary

expenses scandal, and the Guardian, as outlined above. But the problem comes with unscrupulous

media moguls, some of whom own more than one print outlet as well as online sites, and whose

motivation is plain profi t.

The information highway is saturated and it may be that the only real redress is not from

the law but from the ability of the individual to control, collate and analyse what is signifi cant

and accurate and what can be ignored. Education is the key. Children under the age of fi ve are

keyboard and iPad profi cient and from that moment need to realize that it is not just entertainment

nor a game. There are messages; some obvious, some hidden, some benefi cial, some corrosive.

Otherwise, the risk is that ‘we become what we behold. We shape our tools and thereafter our tools

shape us.’ 5

Michael Mansfi eld QC

London

December 2013

5 McLuhan (1967), p. 23.

Preface

The second edition of Media and Entertainment Law is a fully revised publication at a time when legisla￾tion is fast changing, particularly in the entertainment branch of the law. The chapters (8 and 9) on

intellectual property have been completely revised, providing readers and practitioners with the

latest case law and details of changes in the duration of copyright in the music industry, both for

the original copyright holder and now also protecting performances and recording artists.

Chapters 1 and 2 debate privacy and confi dentiality issues, set against freedom of speech and

media freedom, which was hard fought for by ‘freedom of speech’ fi ghters through the ages, from

John Milton ( Areopagitica, 1644) to Sir Salman Rushdie ( The Satanic Verses, 1988), or more recently the

‘Pussy Riot’ members, with Yekaterina Samutsevich set free by a Moscow appeal court, leaving

Maria Alyokhina and Nadezhda Tolokonnikova – found guilty of hooliganism and blasphemous

religious rioting – serving a two- year prison sentence at a Russian prison labour colony (October

2012).

Wainwright v The Home Offi ce (2003) 1 and Kaye v Robertson (1991) 2 confi rmed that the UK does

not have an established law of privacy. Individuals seeking to protect their private lives from media

intrusion have instead brought their grievances to the courts via a number of creative means such

as the law of confi dence, defamation, Article 8 ECHR, breach of copyright and the Data Protection

Act 1998. In the absence of any privacy legislation, the UK courts have been left to develop this area

to such an extent that Sedley LJ said in Douglas v Hello! Ltd (2001) : 3 ‘we have reached a point at

which it can be said with confi dence that the law recognizes and will appropriately protect the right

of personal privacy.’

The book reports on fast- moving human rights legislation, in a constant battle between

Article 8 (‘right to privacy’) and Article 10 (‘freedom of expression’) of the European Convention

with a growing body of UK and Strasbourg case law, moving on from Naomi Campbell’s and Max

Mosley’s privacy litigations against British tabloid newspapers to the two von Hannover actions at the

Strasbourg Human Rights Court (No 1 in 2005 and No 2 in 2012).

In von Hannover No 1, Princess Caroline of Monaco (married to German Ernst August von

Hannover) was granted her Article 8 right, but not in the second. In each of these cases, the Grand

Chamber had to decide whether the publication of private photos in German ‘gossip’ magazines

(e.g. Frau im Spiegel, 2002; Frau aktuell, 2008) were in the public interest. In von Hannover No 2, the

European Court of Human Rights (ECtHR) agreed with the German Federal Constructional Court

that the magazines and tabloid press were entitled to report on the manner in which Princess

Caroline and her family were taking a skiing holiday in St Moritz at a time when her father, Prince

Rainier of Monaco, was seriously ill. The ECtHR dismissed Princess Caroline’s constitutional

complaint, rejecting in particular the allegation that the German courts had disregarded or taken

insuffi cient account of Strasbourg case law as well as Article 8 ECHR.

1 [2003] UKHL 53 (HL).

2 [1991] FSR 62.

3 [2001] QB 967.

x | PREFACE

Chapter 2 discusses and features a number of recent superinjunctions, such as those sought by

footballers John Terry, Ryan Giggs and Rio Ferdinand, or TV personalities, such as Jeremy Clarkson

and Andrew Marr. Thanks to personalities like these, privacy law is expanding at great speed, though

the ‘media’ judges do not always protect the privacy of celebrities, certainly not when mere reputa￾tion is at stake. Social networks are among the biggest challenges that media law currently faces. We

can now see that Twitter is more than just a series of fragmented conversations, and it is even

permitted to tweet in court during ‘live’ trials, if the judge has allowed reporting and accredited

journalists to do so.

At the same time, libel law is changing and has changed. Without their legal stories, recounted

in this book in detail, this book would have been a lot less interesting. And without their willingness

to see their names in the law reports, the common law in the area of media law would not be so

exciting. Chapter 3 charts the slow progress of the Defamation Bill from 2010 to its fi nal Royal

Assent in April 2013. The chapter provides an up- to-date account and full explanation of the

Defamation Act 2013, but concludes that London may still remain the libel capital of the world in

spite of the new legislation.

Chapters 4 and 5 essentially deal with court reporting. Contempt of court is a British peculi￾arity and must be adhered to by all journalists who report on ‘active’ court proceedings. It will be

shown how the recent Attorney General, Dominic Grieve QC, has prosecuted those who do not

obey strict liability contempt laws in the UK. Some victims have received not only justice for being

persecuted but also compensation from the media, such as Christopher Jefferies (wrongly accused

by the media of Joanna Yeates’s murder, December 2010). Then there was jury foreman, Michael

Seckerson, who contravened s 8 Contempt of Court Act 1981 by publishing an article in The Times

on 29 January 2008, expressing his strong disagreement with the majority jury verdict of 10:2.

He believed childminder Keran Henderson had been wrongly convicted of shaking to death

11-month- old Maeve Sheppard from Slough. Nowadays, criminal juries are specifi cally warned by

trial judges that they must not talk to the media about matters discussed and deliberations during

jury trials, nor must they tweet or use the internet during a trial.

In July 2010, 19-year- old juror Danielle Robinson was found guilty of contempt of court for

sending text messages to another woman sitting in a second trial at Hull Crown Court. She had

passed on ‘gossip’ from her jury room during deliberation to her friend in another jury room.

Judge Roger Thorn QC called Robinson’s texting a blatant attempt to infl uence a jury and said that

her ignorance was no excuse for such contemptuous behaviour. She received an eight- month

suspended sentence.

Chapter 6 discusses the impact of the Freedom of Information Act 2000 (FOIA) on public life.

The book moves on from the fi rst disclosures of the parliamentary expenses scandal in 2009

(discussed in the fi rst edition of this book) to revelations in the Westminster Parliament in the

Trafi gura case, to the recent appeals against the Information Commissioner’s decisions. Section 6.3

focuses on the row over the publication of letters from Prince Charles, the Prince of Wales to minis￾ters, and the Guardian journalist Rob Evans’s quest to gain insight into Prince Charles’s letters since

2005 under the FOIA. In Evans v Information Commissioner (2012) , 4 the Upper Tribunal (UT) had to

consider the core question: would disclosure of the Prince of Wales’s letters be in the public interest?

Rob Evans’s interest was not to engage in royal gossip but a genuine interest in the continuance of

the monarchical system and the opinions and politics of the future reign of Charles III. The Attorney

General (AG), Dominic Grieve MP QC, had intervened under s 53 FOIA (statutory veto), barring

4 [2012] UKUT 313 (AAC).

PREFACE | xi

access to freedom of information in the Prince Charles case. Many legal and constitutional experts

argued that the AG’s decision to overrule the UT decision was wrong. The matter is still not fully

resolved.

Where the law has not been moving and developing at such an alarming pace is in the UK’s

obscenity laws. Chapter 7 provides some astonishing case law covering the Obscene Publications

Act of 1959, which still provides for prosecutions of theatre productions, art gallery directors and

publishers if they provide material which may tend to ‘deprave and corrupt’ persons who come

into contact with, for instance, an ‘obscene’ play, painting or book. The chapter moves on from the

initial banning of D H Lawrence’s Lady Chatterley’s Lover to the play at the National Theatre The Romans

in Britain, to the question of ‘publication’ on the internet in the context of the 1959 Act in relation

to ‘obscene’ images which are either uploaded or downloaded by users. The Court of Appeal held

in Waddon 5 that the content of US websites could come under British jurisdiction when downloaded

in the UK. Section 1(3) of the Obscene Publications Act 1959 was duly amended to include elec￾tronically stored data or the transmission of such data.

Chapters 8 and 9 deal with new developments in intellectual property law, focusing mainly on

the music and publishing industries. Music publishing technology and copyright legislation has

moved on from Gilbert and Sullivan during the 1870s (section 8.2.2) to sampling contemporary

composers and parodies of well- known artists on YouTube. Where does the law sit on peer- to-peer

fi le-sharing? How long is the duration of copyright in songs and recordings? Thanks to ‘Cliff’s Law’

(championed by Sir Cliff Richard) the EU Parliament fi nally implemented the long- awaited EU

Copyright Term Directive 2011 (Directive 2011/77/EU). 6 The Directive extends the copyright and

the related performance right (or ‘term of protection’) for music performers and sound recordings

to 70 years. The implementation of the new Europe- wide legislation means that thousands of music

performers, from little- known session musicians to Dame Shirley Bassey, will now receive royalties

from songs released in the 1960s for an extra 20 years. Many of the most popular songs recorded

in the 1960s were due to come out of copyright, including songs recorded by artists such as Tom

Jones, the Beatles and, of course, the man himself, Cliff Richard. Copyright in their hit singles will

now not expire until at least 2033.

The fi nal chapter centres on the role of regulators. Some regulators have come and gone,

depending on governmental preference and policy issues. When Prime Minister David Cameron set

out to overhaul the ‘quango’ system (quasi- autonomous non-governmental organizations) in May

2010, he particularly declared war on Ofcom (the Offi ce of Communications). Section 10.6 shows

that Ofcom is still very much alive, now regulating not only broadcasting (largely the BBC) but also

postal services and product placement on TV and radio, being the fi nal enforcement agency for the

Advertising Standards Authority (ASA – section 10.8).

The regulation of the fi lm, games and commercial video industry is covered by the British

Board of Film Classifi cation (BBFC), a self- regulatory body with some statutory recognition such as

the Video Recordings Act 1984. The impact of new media in general, and the internet in particular,

continues to dominate the thoughts of those involved in the regulation of online audio- visual

material.

The main focus of the last chapter is on the Leveson Inquiry into media practices and the

phone- hacking scandal at the (now defunct) News of the World and possibly other tabloid newspapers.

Leveson essentially recommended statutory regulation of the press, similar to the Irish Press Council

model. The newspaper industry considered this an unacceptable violation of the freedom of the

5 R v Waddon (Graham) (2000) WL 491456 (6 April 2000).

6 Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC

on the term of protection of copyright and certain related rights.

xii | PREFACE

press – and if a statutory press regulator were to be set up, they would not join. The Spectator

magazine’s editor, Fraser Nelson, said as much. 7

The Leveson Report, published in November 2012, resulted in recommendations which led to

three different legislative proposals for the future of press regulation, replacing the Press Complaints

Commission (PCC). The fi nal question remains: should there be statutory press and online media

regulation or should editors be free to self- regulate, therein retaining the freedom of the press

which has been had fought for for centuries? Three different draft Royal Charters were presented to

the Privy Council at the start of the new Parliament in 2013: one by the phone- hacking victim

lobby ‘Hacked Off’, one by the Coalition Government and one by the newspaper industry, including

some of the most powerful proponents, such as Rupert Murdoch’s News UK, the Daily Mail

publishers Associated Newspapers and the Telegraph Media Group. They announced that the new

regulator replacing the PCC would be called the Independent Press Standards Organisation (Ipso),

with draft constitutional documents published for consideration by some 200 news organizations

(section 10.4.4).

The book concludes that the response to the Leveson Report has been plagued with confusion,

not only in policy terms, but also in ensuing legislation. Arguably the media are surrounded by a

wall of statute and common law, such as contempt of court, libel, surveillance (Regulation of

Investigatory Powers Act 2000 (RIPA)), harassment (Harassment Act 1997), data projection, forgery

and fraud (Fraud Act 2006). Will a Royal Charter on press regulation stop future malpractice such

as intrusion into a person’s grief and shock, topless photos of the Duchess of Cambridge and

phone-hacking of innocent victims such as the Dowlers and McCanns? No doubt the malpractice

of the News of the World has had a great impact on the future of journalism and media freedom, but

law enforcement offi cers could have intervened and pursued such malpractice. Instead, we learnt

that police and prison offers took bribes and back- handers for supplying information to investiga￾tive journalists. The Bribery Act 2010 could have stopped journalists paying police for information;

RIPA could have easily been used to pursue and investigate all those journalists and editors who

carried out surveillance, illegal phone-tapping or clandestine recordings of celebrities. The question

then remains: do we really need statutory press regulation?

Ursula Smartt

Guildford

January 2014

7 Source: ‘Why The Spectator won’t sign the Royal Charter’, by Fraser Nelson, The Spectator , 23 March 2013.

Acknowledgements

For the second edition of this book, there have been a large number of individuals and professionals

who have given their support, time and advice to shape the contents of the book.

First to my husband Mike Smartt OBE, for his love, support and patience with me, getting up

around 5am every morning for some nine months to write this book. When he reads the book, he

will fi nally understand why I spent so much time in front of the computer ‘nerding’, as he calls it.

I value Mike’s encouragement to write ‘yet another book’, and thank him for delivering copious

cups of tea. Above all I value his professional advice as an award- winning journalist with the BBC,

which made some of the news sections in the book more realistic against their legal background.

I am indebted to Michael Mansfi eld QC for writing the foreword to this book. He has long

been one of my legal heroes, more so after reading his autobiography, Memoirs of a Radical Lawyer

(2010) and listening to his being a castaway on BBC Radio 4’s Desert Island Discs (22 October 2010).

He is such an eminent barrister and, what is more, some of his music choices, such as Rachmaninov’s

Second Piano Concerto, would have been mine, had I been invited by Kirsty Young to be a castaway

on that programme. He is also an accomplished ballroom dancer, an interest that I share passion￾ately with him, and we are awaiting our turn on Strictly Come Dancing.

I tell my students about Michael Mansfi eld’s career as one of the best and most eminent barris￾ters in the UK. ‘You too can be like him,’ I tell them, but you have to be tenacious and, at times,

‘radical’ (as he describes himself). I learn from Desert Island Discs that there have been threats to his

life, as he represented the Birmingham Six, who were released in 1991, nearly 16 years after being

wrongly convicted. He also represented the family of Stephen Lawrence, the teenager murdered in

1993; he assisted in both Doreen and Neville Lawrence’s private prosecution to fi nd justice for their

murdered son, and in the Lawrences’ continued fi ght for justice, such as allegations by a former

undercover police offi cer in June 2013 that Doreen Lawrence’s phone was bugged to ‘fi nd some

dirt’ on the Lawrence family during the murder investigation.

The list of high- profi le cases Michael has taken on is incredible and so varied, such as acting

for the family of Jean Charles de Menezes, the Brazilian man shot dead by the London Metropolitan

Police at Stockwell Underground Station on 22 July 2005, after he was misidentifi ed as one of the

fugitives involved in the previous day’s failed bomb attacks on the London Underground. Michael

Mansfi eld also represented the families and victims of the ‘Bloody Sunday Inquiry’ in Derry and

London. The Saville Inquiry became the longest- running and costliest inquiry in British legal

history (1998 to 2010). Thirteen people died in Derry, Northern Ireland, when British soldiers

opened fi re on civil rights marchers on 30 January 1972.

Michael has represented many families at inquests, including the family of Patrick (‘Pat’)

Finucane, the Belfast solicitor who was shot dead in 1989. His killing was one of the most contro￾versial during the Troubles in Northern Ireland, as 39-year- old Finucane was considered a ‘thorn in

the side’ of the security forces during the Troubles of the 1980s. And more recently, he has helped

families of the Hillsborough victims, following the Hillsborough football stadium disaster on 15

April 1989 in Sheffi eld, during the FA Cup semi- fi nal match between Liverpool and Nottingham

Forest football clubs. The High Court had quashed the original inquest verdicts in December 2012,

returned on 96 Liverpool football fans who died as a result of the 1989 disaster, ordering a new

inquest scheduled for March 2014.

xiv | ACKNOWLEDGEMENTS

I would also like to take this opportunity to thank those who assisted my research for

this book. They helped me gain clarity and more detailed insight into the legal, historical, political

and socio- legal fi eld. I want to thank them for their time, assistance and patience with my

questions.

Lorna Aizlewood, Music and Intellectual Property Lawyer – Lorna is Managing Director of

IMG Artists (Europe) and General Counsel to the Company. Previously she was the Global Vice

President of Legal & Business Affairs for EMI/Virgin Classics. As with the fi rst edition of this book,

Lorna once again focused my attention on changes to copyright law and the complex layers of intel￾lectual property (IP) law which now exist in UK and EU law. The structure of the IP chapters

(Chapters 8 and 9) is largely due to her expertise and vast knowledge in this area of law. She

continues to be passionate about protecting artists’ copyright and is a tireless campaigner for the

protection of performers’ and artists’ rights.

Cheryl Grant – Having been Vice President at Decca Music and Senior Publishing Executive

at EMAP, Cheryl continues to provide me with unmatched knowledge and experience in the

music and music publishing industry (as indeed she did for the fi rst edition of this book).

She has also shaped Chapters 8 and 9, providing practical examples of copyright and trademark

cases which I could then incorporate in the chapters to make the law in the area more accessible.

I admire her enormous creative drive and entrepreneurial skills. She founded White Label

Productions (WLP) in 2002. As Chief Operating Offi cer of TargetMCG (of which WLP is a

part), Cheryl now has one of the key strategic development roles in the UK’s fastest- growing

entertainment agencies. She championed the fi rst edition of this book, which is now being used

in the entertainment industry as a standard text for practitioners. Above all, she is my best

friend, continues to make me laugh and encourages me to keep fi t during my long hours of writing

the book.

Campbell Cowie – Director of Internet Policy at the Offi ce of Communications (Ofcom).

Overlooking the Thames at Ofcom’s superb offi ces on Southwark Bridge Road at the time when the

London Olympics 2012 were at their peak in August, and the Royal Marines had just abseiled down

the Olympic Rings from Tower Bridge, I met with Campbell to discuss the impact of the Digital

Economy Act 2010. Trying to keep up with Campbell’s enthusiasm and the speed with which he

was describing the complex secondary legislation which was to accompany the 2010 Act, I knew

that his legal knowledge and practical thinking would shape Chapter 10 of this book. Section 10.6

was particularly shaped by Campbell, who leads Ofcom’s Internet Policy Team. His astute thinking

has shaped Ofcom’s policy on enforcing copyright breaches as well as educational policy. Campbell

fi rmly believes that educational thinking will harness and shape the way young people in particular

will view peer- to-peer fi le sharing in future. I found his technical and legal advice helpful, as well

as his academic specialist advice as an economist, as other sections in Chapter 10 show. Ofcom now

has enforcement powers not only in the communications, but also in postal services and advertising

(e.g. product placement) fi elds.

Media lawyer Mark Stephens CBE, Partner and Head of International Law at Finers Stephens

Innocent LLP, London – Mark also advised and shaped the contents of the fi rst edition of this book.

He also launched the book at the journalists’ Frontline Club, Paddington, London, in May 2011 at

the time when Mark was representing WikiLeaks founder Julian Assange, defending him against

extradition to Sweden, where allegations on charges of a sexual nature had been made against

Assange. This time, Mark was particularly infl uential in shaping Chapter 7, specifi cally with his

knowledge of and personal background in ‘obscenity and art’. Mark told me that he was inspired

by his father, who was a fi ne artist. Mark is an avid art collector and has undertaken some of the

highest profi le cases in cultural property and art law. He also alerted me to the new legislation on

‘extreme pornography’, which made for an interesting afternoon’s discussion on how this might

be enforced by law enforcement agencies (if at all). Mark was also the founder of the Internet Watch

Foundation (IWF) and now chairs the Contemporary Art Society.