Turnbull government to undertake further consultation to extend safe harbour provisions of Copyright Act ahead of introducing new law

The government is reviewing an exten-sion of the safe harbour provisions of the Copyright Act ahead of introducing legisla-tion.

Announced on 21 April in a press release by Communications Minister Mitch Fifield, the consultation is aimed at expanding the safe harbour regime to provide rights holders with a useful mechanism to have infringing material removed from online platforms.

The government is progressing significant reforms to national copyright law that include legislating provisions to enable the block of websites promoting piracy. The government

has undertaken additional consultations to provide further opportunity for all matters of concern to be conveyed to the government to ensure the legislation achieves its objectives.

Reforms currently before parliament include educational licensing provisions and changes to improve the ability of libraries and archives to preserve copies of materials and access unpublished works.

In his statement, Mr Fifield highlighted that the government’s intention is to ‘develop safe harbour legislation that encourages the growth of Australia’s digital economy, supports a thriving and vibrant creative

Australia to extend copyright safe harbour legislation

Broadcast market expansion in UAE

Abu Dhabi Media (ADM) has announced the launch of two radio stations, Radio 1 and Radio 2, as part of the company’s expan-sion of English-language radio stations.

Launched in April, the stations bring ADM’s total number of radio networks under its umbrella to eight

Radio 1 will specialise in delivering music content that targets 18-30 year olds while Radio 2 will broadcast content aimed at 30-45 year olds, who favour content from 1980s and 1990s.

Mohamed Ebraheem Al Mahmood, chairman and managing director at ADM, said: “The official launch of Radio 1 and Radio 2 under Abu Dhabi Media underscores our strategic efforts to create tangible change in media content at Abu Dhabi Media, and diversify the media brands under its umbrella.”

He added: “The addition of Radio 1 and Radio 2 reaffirms our continuous commitment to enhancing Abu Dhabi Media as a comprehensive and diverse media platform. It also highlights our ongoing efforts to further advance the media sector in the UAE and the region by supporting all traditional and modern media”.

The Arab Media Outlook Report 2016, which provides expansive data on media sector development in the pan-Arab region, highlights the broadcast sector as a significant market segment.

The reports states: ‘Radio in the UAE is expected to grow, led by its ability to substitute for expensive media such as print. Digitisation trends are also becoming more prevalent in the UAE, with many stations offering their content online and via apps.’

What’s inside1-2 MEDIA MARKET NEWS COVERAGE3 US: WILL THERE BE A NEW WORLD ORDER AT FTC?4-7 SIMMONS & SIMMONS LEGAL PRACTICE GUIDE: DF UK PUBLISHING SECTOR

Research, analysis and opinion on international media law

Cont

ribut

ors

M E D I A L A W I N T E R N A T I O N A L ®

e-Zine03/17

ContactZineb Serroukh-OuardaManaging Editorzserroukh@medialawinternational.com+44 7446 525 299

Shutterstock/ Claudio Bertoloni

March - April 2017 | Media Law International ® e-Zine | 32 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.comwww.medialawinternational.com

News

sector, while supporting the interests of copyright holders.’

The extension of safe harbour provisions, to include online service providers not just internet service providers, has been the subject of debate for over a decade.

The topic of wider media reform has also dominated discussions in the political and business spheres as the market seeks to remove the “reach rule”, which prevents

media companies from broadcasting to more than 75 per cent of the population.

A government spokesperson told Fairfax that the Communications Minister continues to have constructive discussions with his crossbench colleagues regarding the media reform bill.

Speaking to Fairfax, she said: “Labor’s opposition to the media law reform bill is a direct threat to local media jobs.”

The spokesperson added: “License fees are being examined in the budget context and the government does not comment on budget speculation.”

Other debated changes to media law include the removal of the contentious “two out of three rule”, which stops media networks from having a television network, radio station and a newspaper in the same market, Fairfax reported.

Italian media regulator blocks Vivendi’s expansion into Italy citing violation of anti-trust law

Italian media regulator Agcom has ruled against the expansion of Vivendi into Italy on the grounds that it violates the country’s anti-trust laws.

French media conglomerate Vivendi has built large stakes in Telecom Italia and has significant shareholder voting rights in broadcaster Mediaset, almost a 30 per cent stake and rapid fire share purchases.

Agcom’s ruling, issued in April, includes a one year deadline within which Vivendi must reduce its stake in one of the two media companies. Agcom’s review into Vivendi’s purchase of Mediaset shares followed a complaint filed by Fininvest, the holding

company of Mediaset that is controlled by former Prime Minister Silvio Berlusconi.

Vivendi highlighted its surprise at the ruling, stating that it may file a formal complaint to the European Commission and an appeal to an Italian regional court.

In a statement, the company said: ‘Vivendi has always operated within Italian law, and specifically the Gasparri Law regarding the protection of media pluralism from the creation of dominant positions.’

Adding: ‘Vivendi neither controls nor exercises a dominant influence on Mediaset which is controlled on an exclusive basis by Fininvest with a stake close to 40 percen.’

Turnbull government to extend safe harbour rules continued from page 1

Award-winning intelligent IoT message platform

Unified Inbox Pte. Ltd. (UIB) has announced the public launch, in April, of their intelligent IoT messaging demo website, demo.unifiedinbox.com.

The site showcases live, interactive cases for smart homes, smart enterprises and smart cities using the UnificationEngine intelligent IoT messaging platform, which provides users and manufacturers with increased security and interoperability.

On 04 April, the website received a 2017 Webby Award for Website Features and Design — Technical Achievement for Websites. The UnificationEngine intelligent IoT messaging platform is compatible with over 20 different messaging channels, including WhatsApp, Viber, Facebook, Twitter and many others.

Carsten Czech, UIB Head of Design, said: “Demo.unifiedinbox.com allows users to connect their smartphones to control and query a virtual smart home or smart city. Users can message connected devices, vehicles, and infrastructure — from lights to ovens to buses to cameras — using the most popular communications channels.”

The messaging platform is used by global smart device manufacturers and governments to enable users to communicate with their appliances, electronics and cities as easily as they do with their friends.

According to Aby Varghese, UIB CTO, the UnificationEngine platform was created to increase security and convenience, which have been IoTs two main problems.

US: Federal Trade Commission ReformBy Andrew Lustigman, Olshan

Many think that the Federal Trade Commission will no longer be the significant enforcement power it has been in recent decades. While time will tell how things play out with the new administration and presuambly, new FTC Commissioners, it is likley that the FTC will remain a very powerful and thoughtful consumer protection agency focused on protecting consumers from harm. What constitutes consumer harm, however, and the appropriate remedy for noncompliance, may change under the current administration.

From reading FTC Commissioner Ohlhausen’s recent presentations, it appears that there will be a greater focus on bringing enforcement actions that have caused significant consumer injury, but not necessarily actions that have more of a theoretical harm. The Commissioner believes that innovation and

Will there be a new world order at the Federal Trade Commission? Andrew Lustigman

consumer benefit should be factored into an FTC action and resolution.

At the ABA Consumer Protection Conference in Atlanta, Georgia in February 2017, Chairwomen Maureen K. Ohlhaus outlined the FTC’s consumer protection goals. She expressed that the FTC must strike a balance between protecting consumers from potentially unfair and deceptive market practices, and limiting the encumbrances placed on legitimate businesses to the point where consumers are deprived of potential market-generated benefits.

Addressing areas of reform, Ms Ohlhausen discussed her intention to re-focus resources toward strengthening the FTC’s anti-fraud programme. She spoke of her plan to dedicate enforcement resources to address evident and objective consumer injury, as opposed to speculative injury, or subjective consumer harm.

In defining objective harm, Ms Ohlhausen noted that this may be financial harm, or something more than that. As an example of consumer injury alternative to financial harm, she cited the FTC’s recent settlement with website, Ashley Madison, and evidence that several people had committed suicide after their names and other information was exposed.

Ms Ohlhausen went on to address the negative implications that may affect consumers if the FTC fails to focus its energies toward cases of objective consumer injury. Namely, she cited the FTC’s settlement with start-up company, Nomi.

Further, Ms Ohlhausen opined that consumer injury should be the focus when deciding what remedies to seek. She noted that in several recent cases, as opposed to seeking a remedy aimed to redress the injury of the consumer, the FTC sought disgorgement, the company’s total revenues as monetary relief, even in cases where the company did not exhibit fraudulent behavior.

Citing the FTC’s recent USD20 million settlement with Uber, Ms Ohlhausen opined that such disproportionate settlements, disconnected from the actual consumer harm caused, ultimately harms businesses without advancing the consumer’s position.

Ms Ohlhausen also addressed several recent advertising cases, whereby she believes the FTC’s “more strict than necessary” substantiation standards effectively disadvantage consumers by banning potentially truthful claims by companies to consumers. She argued that such strict substantiation rules “overprotect” consumers, and restrict their access to information. Finally, Ms Ohlhausen talked about her intention to reduce unnecessary regulatory burdens on businesses, in conjunction with added FTC transparency.

In conclusion, reports of the FTC’s death have been greatly exaggerated. While the FTC will likely remain a powerful agency addressing unfair or deceptive advertising, it is likely that the FTC intends to shift its focus and scale back certain substantiation standards placed on businesses to allow consumers access to more information about the products they are consuming as it becomes available. But, time will tell.

jaafar.laidi@garrigues.com+212 522 77 72 40

www.garrigues.com

FTC reform to focus on strengthening anti-fraud and enhancing consumer protection

March - April 2017 | Media Law International ® e-Zine | 54 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.comwww.medialawinternational.com

Simmons & Simmons : Legal Practice Guide

Alexander Brown, a partner at Simmons & Simmons UK, highlights trends in the publishing sector, providing a legal practice overview

What significant trends are you seeing in your market?

Sales of printed media have been steadily on the decline, with seven of the UK’s national papers losing sales at a rate of more than 10 per cent year on year to December 2016. This contrasts with the growing popularity of digital media. Taking the Financial Times as a case in point, during 2016 its number of digital subscribers rose 14 per cent and digital subscribers

Shutterstock/ Bohbeh

now account for more than 75 per cent of the Financial Times’ total paying audience. Various printed newspapers have also transformed into free titles (paid for by advertising revenue) in light of the increasing challenges in the industry.

Following a sharp decrease in physical book sales from 2010 to 2014 linked to the emergence of e-books, there was a rise in the sale of physical books in 2015 (+0.4 per cent )and 2016 (+7 per cent) matched by a decline in the

sale of e-books (-1.6 per cent (2015) and -4 per cent (2016)).

What are the most significant publishing cases or transactions over the past year?

Immediate Media, parent company of the Radio Times and other magazine titles such as Top Gear, was sold to Hubert Burda Media by private equity group, Exponent, for an estimated GBP 260 million.

Is there any government-owned media? If so, how does the government media differ in operation from the private media, if at all?

Newspapers in the UK are privately-owned.

What, if any, bodies regulate publishing activity? Are they governmental, quasi-governmental, or independent? What are some of the major laws or regulations? The press in the UK has long been subject to self-regulation. The Independent Press Standards Organisation (IPSO) is an independent body regulating over 1,500 printed titles, including all the major national print newspapers except the Financial Times and The Guardian.

Members of the IPSO are required to comply with the Editors’ Code of Practice. The IPSO replaced the former Press Complaints Commission in 2014.

To what extend and by what process can the government censor publishing activity?

The self-regulated status of the press prevents government intervention and censoring of published activity. The right to freedom of speech has long been recognised as a common law right in the UK but it also has a statutory basis in Article 10 of the European Convention on Human Rights (ECHR) which is incorporated into UK law by the Human Rights Act 1998.

The UK’s participation in the ECHR will be unaffected by Brexit and the right to freedom of speech will remain a fundamental right protected in the UK.

Notwithstanding the general principle of freedom of speech, the Official Secrets Act 1989 allows the Government to prevent the publication of official information where it is in the interests of national security to do so.

Similarly “D-A Notices” are official requests made by Government that the press does not publish items on specified subjects for national security reasons. However these notices are not legally enforceable.

Is there any limitation of the number of publishing media (including broadcast outlets) that any one entity can own or control (for anti-trust reasons or otherwise)?

March - April 2017 | Media Law International ® e-Zine | 76 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.comwww.medialawinternational.com

Yes, there are a number of restrictions on cross media ownership. Under the national cross media ownership rules contained in Ofcom Media Ownership Rules, no entity can own both a television licence allowing broadcasting on Channel 3 and one or more national newspapers with an aggregate market share of 20 per cent or more.

Similarly, an owner of one or more national newspapers with an aggregate market share of 20 per cent or more is not allowed to own more than 20 per cent interest in a Channel 3 licence holder.

On a local level, the cross media ownership rules prohibit cross ownership in all three of: one or more local newspapers with an aggregate local market share of more than 50 per cent, a local radio station and a regional Channel 3 licence.

Do news organisations receive any different rights or protections than ordinary citizens and/ or businesses?

In defamation claims journalists can rely on the defence of public interest under section 4 of the Defamation Act 2013. Where a journalist makes a defamatory statement it may be protected from any action provided that it is in the public interest to make that statement similarly it may rely on the common law “qualified privilege” defence.

Journalists also benefit from exemptions from UK data protection laws. The “journalism” exemption at section 32 of the Data Protection Act 1998 (DPA) applies to most provisions of the DPA, excluding the 7th principle (which allows individuals to see copies of their personal data) and section 55 offence (unlawful obtaining of personal data).

Under section 32 processing of personal data can be exempt from all sections of the DPA to which section 32 applies if that processing is undertaken with a view to publishing journalistic material and provided that the data controller reasonably believes that

publication would be in the public interest. The Police and Criminal Evidence Act 1984 provides a special regime for the police when they wish to obtain “journalistic material” – “that is material acquired or created for the purposes of journalism”.

Section 10 of the Contempt of Court Act 1981 also enables journalists to protect their sources of information in court cases unless one of four exceptions applies: (1) it is in the interests of justice; (2) it is in the interests of national security; (3) for the prevention of disorder; (4) for the prevention of crime.

The above rights are awarded to institutions (news organisations) as well as journalists.

Do online publishers receive any different rights or protections than traditional broadcast or printed publishers?

Online publishers do not receive any additional rights or protections than printed publishers.

Although online service providers providing services that consist of “mere conduit”, “caching” and/or “hosting” services are exempt from liability for content in some circumstances (under the E-Commerce Directive).

The ruling of the CJEU in Sotiris Papasavvas v O Fileleftheros Dimosia Etaireia Ltd and Others, Case C-291/13, confirmed that online news publishers in the EU can be held liable for unlawful material on their websites.

This ruling came after the district of Nicosia referred the question as to whether online news providers could be considered as providing “mere conduit” or “caching” or “hosting” services and were therefore protected the E-Commerce Directive.

Simmons & Simmons : Legal Practice Guide

Article byAlexander Brown, Partner at Simmons & SimmonsUKSimmons & Simmons DD: +44 20 7825 4954M: +44 7966 488 637alexander.brown@simmons-simmons.com

Are bloggers protected as news providers? Are “citizen journalists“ protected as news providers?

Section 32 of the DPA may apply to citizen journalists and bloggers according to the ICO guidance on “Data Protection and Journalism” provided that what they are publishing is in the public interest.

Similarly bloggers and citizen journalists can enjoy the protection of the public interest defence under the Defamation Act 2013 and the common law defence of “qualified privilege”.

Bloggers and citizen journalists could also enjoy the protection of section 10 Contempt of Court Act 1981 and the protections of “journalistic material” under the Police and Criminal Evidence Act 1984.

Bloggers and journalists will however struggle to gain membership to the National Union of Journalists (NUJ).

Membership to the NUJ is largely restricted to individuals who earn income through journalism. The press card obtained through such membership is important for access purposes.

What are the principle elements of a claim for defamation?

The claimant must establish the following in a claim for defamation: (i) the words complained of are defamatory of the claimant (i.e. damages his/ her reputation); (ii)the words complained of are published to a third party and that the defendant published or is responsible for the publication of the words; and (iii) the words complained of were published about the claimant.

Are there any restrictions on the types and/ or amount of advertising material in printed media?

Yes, advertisements in printed media are subject to UK Code of Non-broadcast

Advertising, Sales Promotion and Direct Marketing, which sets out the general compliance requirements as well as advertising guidelines for various kinds of products, including alcohol, tobacco, pharmaceuticals, diet products, financial services and gambling.

Does a publisher have liability for the third party advertising that it runs?

Yes, a publisher may also be liable for defamation if an advertisement on its newspaper is held to be defamatory by virtue of it allowing the advertisement to be published on its newspaper.

Shutterstock/ Bohbeh

8 | Media Law International ® e-Zine | March - April 2017 www.medialawinternational.com

Featured Firm: Gugushev& Partners

Leading Bulgarian Law Firm

“Gugushev & Partners has developed an established position in the market and is rising as one of the region’s most widely respected practices. Founding partner Stefan Gugushev has exceptional experience advising a broad range of clients and leads the team in its advice on broadcasting, programming and regulation. Working with peers, leading lawyer Petko Angelov advises on advertising, sponsorship and licensing matters.” Media Law International 2016

Gugushev & Partners Law Office Phone: +359 2 815 75 10

11A Aksakov St., fl. 5, office 3 Fax: +359 2 981 69 64

1000 Sofia office@gugushev.com

Bulgaria www.gugushev.com