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EU Law and Media and Information Law

Aidan O’Neill QC

Sara Mansoori

Chair: Hugh Tomlinson QC

Summary

•Charter of Fundamental Rights

•DPA & PECR

•Jurisdiction & Conflict of Laws

•ATVOD

The Charter of Fundamental Rights

• Art 6 (1) TEU“The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties”

Charter: Field and ScopeArt 51• Charter only applies to Member States when they are

implementing Union law- R (Zagorski) v Secretary of State for Business, Innovation and Skills [2010] EWHC 3110 (Admin)- (C411/10) N. S. v Secretary of State for the Home Department, 22 September 2011

Art 52“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

Protocol to the Charter

• The Charter does not extend the ability of the court to find that UK laws are inconsistent with fundamental rights

• The Charter does not create "justiciable rights applicable to the United Kingdom"

Article 11: Freedom of expression & information

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.

Article 7: Respect for private & family life

“Everyone has the right to respect for his or her private and family life, home and communications.”

Art 8 ECHR• Alison Halford v UK (1997) 25 EHRR 523• Copland v UK (2007) 45 EHRR 37• J McB v LE (Case C-400/10 PPU) [2010] ECR I-nyr, [2011] 1 FLR 518

Article 8: Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

C-92/09 & C-93/09 Volker und Markus Schecke GbR v Land Hessen, [2010] ECR I-nyr [52]

S and Marper v UK (2009) 48 EHRR 50

Art 47: Right to effective remedy & fair trial

“Legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice.”

Article 47: Legal Aid

• Legal Aid in practice not available for Defamation claims

• CFAs under imminent threat

Case C‑279/09 DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v Germany, 22 December, [2010] ECR I-nyr

Damages under EU Law• ‘Francovich’ damages

– In relation to directly effective Treaty articles and regulations

– Any breach by Member State of its Treaty obligations

– Applies to emanations of the State (incl the police)

• Damages under relevant directive provisions

DPA: Compensation• Section 13 (1) and (2)Johnson v Medical Defence Union Ltd [2007] 3 CMLR 9 Case T-48/05 Yves Franchet and Daniel Byk v. Commission [2008] ECR II-1585

• Section 13 (3): Defence if took “such care as in all the circumstances was reasonably required to comply with the requirements concerned”

• Section 32: special purposes exemption• Quinton v Peirce [2009] EWHC 912 (QB)

Privacy and Electronic Communications (EC Directive) Regulations 2003

• Implements the Privacy and Electronic Communications Directive 2002/58

• Applies in addition to DPA

– Regulates direct marketing– Calling/connected line identification– Use of cookies without consent is restricted

– Limits on retention & use of traffic data

Privacy and Electronic Communications (EC Directive) Regulations 2003

• Reg 30: Compensation – Available for “damage” (not distress)

•Microsoft v McDonald [2006] EWHC 3410– Defence of reasonable care (Reg 30(2))

• Reg 32: Request IC to exercise enforcement functions – S.40 of DPA: Enforcement Notices – S.43 of DPA: Information Notices

Jurisdiction in EU Media cases

• Judgments Regulation (Council Regulation No. 44/2001)

• Arts 2: Court where the Defendant is domiciled; or• Art 5(3): Court where harmful event occurred or may occur.

• Shevill v Press Alliance [1995] 2 AC 18 (C-68/93)

• S.7 of Defamation Bill relating to “libel tourism” only applies to actions against a person not domiciled in the UK or a Member State etc

Choice of Law in EU Media Cases

• Media cases excluded from Rome II

• Private International Law (Misc Provisions) Act 1995, s.11: Law of country “where the events constituting tort occurred”– Defamation: where “communication received and understood”

– Privacy: Douglas v Hello! Ltd (2003) EMLR 28 [41]

Choice of Law in EU Media Cases

• Media excluded from Rome II• EP Working Document on amendments to Rome II – Considers conflict rule is necessary– Jurisdiction

AG opinion in eDate Advertising (C-509/09) & Martinez (C161/10): “centre of gravity of the conflict”

– ADR– An “EU Media Law”?

ATVOD: Regulatory authority for ODPS

• Audiovisual Media Services Regs 2009 & 2010

• ATVOD Rules set out compliance obligations

concerning editorial content– Harmful Material

•Material likely to Incite Hatred•Protection of Under-18s

– Sponsorship– Product Placement

ATVOD: Enforcement

• Determinations by ATVOD• Power to issue statutory enforcement notifications– Prevent publication of a programme– Publication of a correction– Publication of ATVOD findings

• Ability to bring Civil Proceedings• Ability to refer matters to OFCOM

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