An extract from The Media and Entertainment Law Review, Edition 2

Overview

The focus on digital content continues. Of note is the UK's Online Harms policy development, which aims to tackle the issue and make the UK the safest place in the world to be online, and the national competition authority's report on online platforms and digital advertising, finding that competition is not working well in these markets and recommending a new pro-competitive regulatory regime.

Developments in the protection of personal rights continued, with several defamation cases being considered by the UK's highest court and an increase in claims for invasions of privacy and misuse of personal data, including against the traditional press and for use on social media.

The sector also began preparing for Brexit in earnest. Once the UK's Brexit transition period ends (due to be 31 December 2020) various rights granted to the UK as a Member State of the EU will no longer be available; for example, the country of origin principle for EU broadcast rights simplifies the clearance process for EU-wide broadcasts by permitting clearance only in the origin country. The UK will no longer benefit from that right post-transition period and broadcasters may be faced with more complex clearance processes.

Legal and regulatory framework

Broadcasting is regulated by Ofcom. Pursuant to the Communications Act 2003 and Broadcasting Act 1996, Ofcom provides a Broadcasting Code for television and radio covering standards in programmes, sponsorship, product placement in television programmes, fairness and privacy. Ofcom also regulates editorial content on UK video-on-demand services. Other relevant regulators include the Advertising Standards Authority, the British Board of Film Classification and the Video Standards Council.

The press is not regulated. As a result of the Leveson enquiry into the phone-hacking scandal, a Royal Charter created a new regulator, IMPRESS. However, IMPRESS is voluntary and many newspapers remain members of the Independent Press Standards Organisation (IPSO) (also voluntary). Both regulators have their own code. Certain major national newspapers (e.g., the Guardian, the Financial Times) do not belong to IPSO or IMPRESS and instead have their own complaints procedures.

The Copyright, Design and Patents Act 1988 (CDPA) is the main copyright legislation for the protection of original literary, dramatic, musical and artistic works as well as broadcasts, films, sound recordings and typographical arrangements. This legislation protects such works from unauthorised use.

Britain does not have a written constitution, which is typically where fundamental rights like freedom of expression are enshrined. However, the UK was the first country to accede to the European Convention on Human Rights (ECHR) in 1951. The ECHR protects the human rights of people in countries that belong to the Council of Europe, including the right to freedom of expression. The European Court of Human Rights (ECtHR) determines cases under the ECHR. The ECHR is not a creature of the EU and will not be affected by Brexit per se. Since 2000 the right to freedom of expression has been set out in UK statute under Section 12 of the Human Rights Act 1998 (HRA) (enacting Article 10 of the ECHR). This enactment means that UK individuals can enforce human rights in the UK courts, rather than having to go to the ECtHR. The HRA provides that the government has to ensure any new laws are compatible with the ECHR rights and that law is interpreted in line with those rights. The UK courts have incorporated the freedom of expression principle into various national laws and, notably for the purposes of the media industry, into the determination of when invasions of privacy are unlawful, if injunctive relief to prevent publication should be granted and the protection of journalistic sources.