1. EU Law and Media and Information Law
Aidan O’Neill QC
Sara Mansoori
Chair: Hugh Tomlinson QC
Title goes here

2. Summary
Charter of Fundamental Rights
DPA & PECR
Jurisdiction & Conflict of Laws
ATVOD

3. 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”

4. Charter: Field and Scope
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.”

5. 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"

6. Article 11: Freedom of expression & information
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.
The freedom and pluralism of the media shall be respected.

7. 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

8. 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

9. 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.”

10. 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

11. 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

12. 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)

13. 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

14. 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

15. 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

16. 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]

17. 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”?

18. 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

19. 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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