Need To Know - 12th April 2021

• Published date: 20 April 2021
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Privacy, Coronavirus (COVID-19), Data Protection, Copyright, Music and the Arts, Gaming, Social Media, Reporting and Compliance
• Law Firm: Wiggin
• Author: Wiggin LLP

Introduction

With all the talk of Covid-19 "vaccine passports" or "certification schemes" recently, the Information Commissioner, Elizabeth Denham, has sought to reassure the public that data protection laws and her office, the ICO, will ensure that people's personal data will be protected. Ms Denham says that the ICO has already engaged with the Government on the issue and stressed that, in order to ensure trust and confidence in any certification scheme, the Government must make certain that, "from the start, thought is given to how data can be used fairly and how this can be explained clearly to people ...". In the courts, we report this week on Johnny Depp's failed attempt to obtain permission to appeal the High Court's finding of truth in his libel claim against publishers of The Sun, and on the Court of Appeal's dismissal of an appeal by online radio aggregation service, TuneIn, against the High Court decision that its streaming service amounted to acts of communication to the public and was therefore an infringement of the claimant music companies' copyright (Wiggin acted for the music companies). In internet news, the newly created Digital Markets Unit has commenced work and published its terms of reference, the European Commission is consulting on an initiative to produce guidance on strengthening the Code of Practice on Disinformation and the Department for Culture, Media and Sport Select Committee has launched an inquiry to examine the power of influencers.

Speed read

Music

Streaming: Court of Appeal dismisses appeal by online radio aggregation service against decision that it was liable for acts of communication to the public, thereby infringing copyright.

Statistics: IFPI publishes Global Music Report 2021.

Online piracy: PRS for Music announces that its Member Anti-Piracy System has reported over 6.7 million URLs to websites linking to or hosting music illegally.

Publishing

Judgment: Court of Appeal refuses application for permission to appeal finding of truth in defamation judgment in Johnny Depp case.

Film & TV

ODPS: Ofcom publishes for consultation draft guidance on "On-demand programme services - who needs to notify to Ofcom?"

Broadcasting

DAB: Ofcom awards second wave of small-scale DAB multiplex licences.

Betting & Gaming

Commission: Gambling Commission publishes data showing the impact of COVID-19 on gambling behaviour in January and February 2021.

Data Protection

COVID-19: Information Commissioner publishes blog post on role of ICO and data protection law in creating public trust and confidence around COVID-19 status certification schemes.

Data sharing: European Parliament adopts non-binding report in response to Commission's Communication on a European Data Strategy.

GDPR: European Parliament adopts resolution on Commission's evaluation report on implementation of GDPR two years after its application.

Internet

DMU: Government announces that Digital Markets Unit has commenced work and publishes terms of reference.

Fines: Phonepaid Services Authority fines provider who took advantage of vulnerable consumers trying to call government helplines.

Fines: Phonepaid Services Authority fines company '750,000 over misleading discount service that charged people without consent.

Consultation: Phonepaid Services Authority consults on new Code of Practice, Code 15.

Disinformation: European Commission consults on roadmap initiative to produce guidance on strengthening the Code of Practice on Disinformation.

Telecoms: Ofcom publishes statement on its review of wholesale call markets.

Social media: Department for Culture, Media and Sport Select Committee launches inquiry to examine the power of influencers.

Music

Court of Appeal dismisses appeal by online radio aggregation service against decision that it was liable for acts of communication to the public, thereby infringing copyright.

Facts

Warner Music UK Ltd and Sony Music Entertainment UK Ltd, and the groups they represent, own or license the exclusive rights to copyright in sound recordings of music.

TuneIn Inc. operates a global online radio service, which provides access to tens of thousands of music radio stations from around the world through its website and apps. TuneIn essentially acts as a "one- stop shop" for users wishing to browse, search for and listen to radio stations. It aggregates links to radio station streams, categorises and curates station lists, and recommends stations to users based on their location and other factors.

The record companies contended that TuneIn itself requires a licence where its service includes radio stations that play sound recordings within their repertoires in circumstances where those stations are not licensed for reception in the UK. TuneIn disputed this on the basis that it does not transmit or host any music content and merely provides hyperlinks to radio streams that are freely available on the internet without any geographic or other restriction.

At first instance, Mr Justice Birss found that TuneIn was liable for linking to foreign stations that are unlicensed for reception in the UK. He also found that TuneIn had authorised both infringing acts of reproduction by UK users who made copies of the claimants' recordings using TuneIn's "Pro app", as well as acts of communication of the public by the operators of stations not licensed for the UK, and to be jointly liable with these parties. TuneIn appealed that decision on no less than 44 grounds and invited the Court of Appeal to depart from EU case law on the issue of communication to the public.

Decision

The Court of Appeal declined to accept TuneIn's invitation to exercise its powers under the European Union (Withdrawal) Act 2018 to depart from EU case law on hyperlinking, including CJEU Case C- 466/12 Svensson v Retriever Sverige AB and Case C-160/15 GS Media BV v Sonoma Media Netherlands BV.

Lord Justice Arnold, giving the leading judgment, set out eight reasons why the Court should not depart from the established principles laid down by the CJEU. Amongst other things, the Judge dismissed TuneIn's argument that the provision of a hyperlink could not be an act of communication because it was not a "transmission or retransmission". This was because communication to the public includes the "making available" right, and so encompasses potential transmissions (not just actual transmissions). Arnold LJ concluded that it was difficult to see why a hyperlink should not be covered, particularly in the cases of framing and in-line linking to a continuous stream of content.

Arnold LJ also observed that departure from the GS Media decision alone would not assist TuneIn as the claimants would argue both that the principles articulated in later CJEU decisions, such as Filmspeler, Pirate Bay and Renckhoff, would be sufficient to determine the issues in their favour, and that the principles in the earlier case law were sufficient.

The Master of the Rolls stated in his judgment that "[t]he wholesale departure that [TuneIn] suggested would, in large part, not anyway have helped it. ... I do not exaggerate when I say that I regard this as a paradigm case in which it would be inappropriate for the Court of Appeal to exercise its new-found power to depart from retained EU law ... the CJEU's approach to the law of infringement of copyright by communication to the public is neither impeding nor restricting the proper development of the law, nor is it leading to results which are unjust or contrary to public policy".

On the issue of targeting, the Court found that TuneIn's service targets foreign stations at UK users. It rejected TuneIn's arguments that, whilst its platform was targeted at the UK, the individual communication to the public of foreign stations was not.

In relation to the "category 3" stations, which were licensed in their home territory pursuant to a statutory scheme, the Court upheld Birss J's finding that TuneIn Radio is a "different kind of communication (in the sense that it has the features of aggregation, categorisation, etc. ...) targeted at a different public in a different territory." Even if the relevant statutory schemes were to amount to a form of "deemed consent" (in relation to which Arnold LJ expressed doubt) there was no reason to conclude that that authorisation extended to the UK public targeted by TuneIn. The Court confirmed that Birss J had not failed to strike a fair balance in coming to this conclusion, stating that "striking a fair balance does not involve giving freedom of expression precedence over copyright, which is the effect of TuneIn's argument."

In relation to stations licensed for their home territory pursuant to consensual licences (which were not addressed specifically at first instance), the Court held that Birss J's reasoning should apply equally. Absent evidence to the contrary (such as a licence whose terms have extra-territorial effect), the Court held that the rightsholder would only have taken into consideration the local audience for the station when authorising the initial communication to the public by the foreign stations, and not UK users targeted by TuneIn's links to the streams. Accordingly, TuneIn's communication was to a new public.

Like Birss J, the Court agreed that TuneIn could not be in a better position in respect of unlicensed stations, including stations operating in territories with statutory remuneration schemes that were not yet running or where no remuneration was being paid ("category 2" stations). These stations engaged the Court's consideration of the knowledge presumption under GS Media.

Arnold LJ considered that the presumption was clear: it was "that that posting has occurred with the full knowledge of the protected nature of that work and the possible lack of consent to publication on the internet by the copyright holder". He considered that Birss J had been entitled to conclude that the checks undertaken by TuneIn were generally inadequate to rebut the GS Media presumption in relation to...