EU Law and Media and Information Law

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EU Law and Media and Information Law Aidan
ONeill QC Sara Mansoori Chair Hugh Tomlinson QC

• Title goes here

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Summary

• Charter of Fundamental Rights
• DPA PECR
• Jurisdiction Conflict of Laws
• ATVOD

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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

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Charter Field and Scope

• Art 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.

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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"

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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.

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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

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Article 8 Protection of personal data

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

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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.

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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

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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

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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)

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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

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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

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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

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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

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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?

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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

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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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