We are pleased to introduce our fourth media law newsletter. This month, we cover judgments by the Court of Justice of the European Union (CJEU) and EU General Court dealing with broadcasting, a change to the recoverability of success fees in defamation and privacy cases, and consider in depth some recent case law on the liability of publishers for statements by third parties.

This month, we welcome Ryan Dunleavy to our Media Disputes team. Ryan joins Stewarts from DMG Media, the brand name for Associated Newspapers Limited, which is the publisher of the world’s most visited English-language newspaper website, the Mail Online, as well as the Daily Mail newspaper, Metro newspaper and the metro.co.uk website. Ryan is a solicitor-advocate who has worked with the media sector for around 20 years both in private practice and in house. You can view Ryan’s profile here.

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CJEU judgment on streaming of broadcasts

The CJEU handed down its decision in the France Télévisions v Playmédia case on 13 December 2018. Playmédia operates a content streaming platform called PlayTV. France Télévisions is a broadcaster that objects to PlayTV carrying its channels without paying a licence fee and considers that the streaming of its channels on PlayTV infringes its copyright. Playmédia argues that it is obliged to, and therefore entitled to, carry France Télévisions’ channels by virtue of a “must carry obligation” under French law.

The reference to the CJEU came from the Conseil d’Etat, which is hearing an appeal by France Télévisions against a decision of the French telecoms regulator, the CSA, requiring France Télévisions to permit Playmédia to stream its broadcasts online.

The CJEU’s decision considered various directives, and in particular the Universal Service Directive (USD). The USD provides that Member States can impose a must carry obligation (which France has chosen to do) on undertakings that “provide an electronic communications network used for the distribution of radio or television channels to the public”. The CJEU considered that PlayTV was not subject to this regime as PlayTV offers access to content, ie the live streaming of television programmes, and does not provide a network.

However, the CJEU ruled that the USD does not prevent French law from imposing a must carry obligation on live streaming services such as PlayTV (which it does, meaning that PlayTV should be able to stream France Télévisions’ channels).

While an interesting case generally, the case is an example of the on-going battles between traditional broadcasters, and their over-the-top (OTT) challengers, who are building business models based on the online distribution of TV content. In a case also concerning the steaming of TV channels, Stewarts is instructed by Molotov.tv in its dispute with French broadcaster M6 over its right to make M6’s channels available on its platform.

General court considers geo-blocking in Canal+ Pay-TV case

On 12 December 2018, the EU General Court handed down its long-awaited decision in the Canal+ v Commission case concerning the Commission’s investigation into agreements between the major US studios and broadcasters in the EU.

In 2015, the Commission provisionally found that agreements between the studios and UK broadcaster Sky infringed the Article 101 prohibition on anti-competitive agreements. The clauses in question prevented Sky from providing access to its services to consumers outside of the UK and Ireland, and obliged the studios to conclude similar agreements with licensees in other territories.

These types of territorial restriction are common and form the basis of most content licensing around the world. As a general rule, agreements that provide for “absolute territorial protection” are considered anti-competitive “by object”.

Following the Commission’s preliminary finding, Paramount offered commitments not to enforce these clauses in Europe and to phase them out as licences come up for renewal. The Commission accepted these commitments and that decision was appealed by Canal+, which could see a clear threat to its business in France.

In a collision between IP rights (which are generally territorial) and competition law, the General Court came down firmly on the side of competition law upholding the Commission’s decision to accept the commitments. In so doing, it also accepted the Commission’s finding that the geo-blocking clauses went further than competition law allows.

This will have major implications for content licensing of audiovisual content in Europe, which we will cover in InDepth next month.

The end of recoverable success fees in defamation and privacy cases

Success fees are an uplift on the standard rate payable to lawyers acting on a “conditional fee agreement” (CFA, also known as no-win no-fee agreements).

Before the introduction of section 44 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) in 2013, success fees were generally recoverable from the losing party in all proceedings.

LASPO ended the recoverability of success fees (as well as after the event insurance (ATE), which protects litigants from adverse costs orders) in most cases. A notable exception was proceedings for privacy and publication claims, ie defamation, malicious falsehood, breach of confidence involving publication to the general public, misuse of private information and harassment by news publishers.

In a move long pushed for by publishers and producers, the Government has announced that success fees will no longer be recoverable in such cases where the CFA was entered into on or after 6 April 2019. However, ATE premiums remain recoverable from defendants “at least for the time being”.

The government believes that this reduction in the amount of costs recoverable from publishers will bring the UK into line with its obligations to balance free expression and privacy rights in line with the decision in MGN v UK. This decision comes after the government announced on 1 March 2018 that it would not bring into force section 40 of the Crime and Courts Act 2013 (which provided for claimants to receive their costs from defendant publishers even if they lost), and that it intended to repeal the section.

Statements by third parties – What are the liabilities of publishers and broadcasters?

Publishers, producers and broadcasters are familiar with the basic principle that they are liable for the words that they publish, produce and broadcast. For example, it is settled law in the UK that a publisher is generally liable for anything it publishes on its pages, and it cannot rely on the fact that someone else said it (or said it first) to escape liability (save, for instance, where the publisher can benefit from the website operators’ defence). Those defamed by others therefore have relative freedom to pick and choose their defendants, whether that be the publisher or a contributor to the publication.