20140701 HU MediaLaw reader

This reader provides you with the texts as referred to in the (links in) the studyguides. You can use
it as an aid when studying the studyguides. For technical, copyright and other reasons the text as
available in the original linked documents apply in case of doubt or otherwise.

Inhoudsopgave
Studyguide Week 2...............................................................................................................................3
World Map Law Systems (Source: http://www.juriglobe.ca/eng/index.php )...........................3
Introductory Remarks .................................................................................................................3
Civil law Systems and Mixed Systems with a Civil law Tradition ................................................5
Common law systems and mixed systems with a common law tradition..................................5
Customary law systems and mixed systems with a customary law tradition.............................5
Muslim law systems and mixed systems with a muslim law tradition .......................................5
Mixed legal systems....................................................................................................................6
From: The ABC of European Union Law .....................................................................................7
The legal order of the EU............................................................................................................7
The EU as a creation of law and a community based on law..........................................................7
The legal sources of Union law........................................................................................................7
THE EU FOUNDING TREATIES AS THE PRIMARY SOURCE OF UNION LAW.............................8
THE EU LEGAL INSTRUMENTS AS THE SECONDARY SOURCE OF UNION LAW.......................8
INTERNATIONAL AGREEMENTS OF THE EU............................................................................9
Association agreements..............................................................................................................9
Agreements that maintain special links between certain Member States and non-member
countries......................................................................................................................................9
Agreements as preparation for accession to the Union or for the establishment of a customs
union...........................................................................................................................................9
Agreement on the European Economic Area (EEA)..................................................................10
Cooperation agreements..........................................................................................................10
Trade agreements.....................................................................................................................10
SOURCES OF UNWRITTEN LAW............................................................................................10
General principles of law...........................................................................................................10
Legal custom..............................................................................................................................10
Agreements between the Member States................................................................................11
The EU's means of action...............................................................................................................11
DIRECTIVES...........................................................................................................................12
DECISIONS.............................................................................................................................14
RECOMMENDATIONS AND OPINIONS..................................................................................15
RESOLUTIONS, DECLARATIONS AND ACTION PROGRAMMES.............................................15
PUBLICATION AND COMMUNICATION.................................................................................16
The legislative process in the eu....................................................................................................16
Course of the procedure Formulation stage.............................................................................17
First reading in Parliament and in the Council..........................................................................18
Second reading in Parliament and in the Council.....................................................................18

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Third reading in Parliament and in the Council........................................................................19
Publication.................................................................................................................................19
APPROVAL PROCEDURE........................................................................................................19
Audiovisual Media Services directive .......................................................................................20
Regulatory Framework - Audiovisual Media Services Directive - what's new ?.......................21
Studyguide: week 3............................................................................................................................28
Definitions regarding treaties...................................................................................................28
First Amendment.......................................................................................................................30
What Does Free Speech Mean?................................................................................................31
Countries party to the ECHR.....................................................................................................32
Article 10 ECHR .........................................................................................................................33
Trademark and Free Expression Rights: Are They Reconcilable?..............................................33
Studyguide: week 4............................................................................................................................37
WIPO NATIONAL SEMINAR ON COPYRIGHT, RELATED RIGHTS, AND COLLECTIVE
MANAGEMENT..........................................................................................................................51
The concept of faire use in U.S. Law.........................................................................................64
Studyguide: week 5............................................................................................................................65
Harvard Law Review: the right to privacy.................................................................................65
EPIC --- Privacy and Human Rights Report 2006 ......................................................................82
Models of Privacy Protection....................................................................................................84
Comprehensive Laws................................................................................................................84
Sectoral Laws.............................................................................................................................84
Self-Regulation..........................................................................................................................84
Technologies of Privacy.............................................................................................................84
About privacy .....................................................................................................................................85
What is covered by privacy? (Australian example)...................................................................85
Protection of personal data (EU directive)................................................................................85
IMPLEMENTATION REPORT.......................................................................................................88
Factsheet - Right to the protection of one's image...................................................................93
Photography rights international............................................................................................104
Studyguide week 6...........................................................................................................................104
FTA: Division of Advertising Practices.....................................................................................104
Student Media Guide to Advertising Law...............................................................................106
Intermediate Scrutiny.............................................................................................................111
Legal: Comparative Advertising, Competitors' Trademarks, and Infringement......................111
Google Wins Legal Battle Over AdWords Trademark Issue In Europe....................................113

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Studyguide Week 2
World Map Law Systems (Source: http://www.juriglobe.ca/eng/index.php )

Explanation (Source: http://www.juriglobe.ca/eng/sys-juri/intro.php )
Remark: as pointed out by several students: where Muslim law is indicated the preferred correct
name would be Islamic law.

Introductory Remarks
Five categories were selected for the creation of this Website on World Legal Systems: Civil law,
Common law, Customary law, Muslim law and Mixed law systems, the latter referring not to a
single system but to a combination of systems. This categorization - and the admittedly imperfect
classification of political entities resulting there from - calls for a few preliminary remarks.
The term "political entities" encompasses member States of the United Nations, as well as the few
independent territories which are not part of it. It can also refer to political subdivisions of
countries as well. Indeed, it seemed important to identify the legal systems of a number of nonindependent territories (some of which even enjoy varying degrees of autonomy), either because
their geographic location obscures their connection to the legal systems of distant countries (e.g.
the French territories in the Pacific Ocean, Indian Ocean or West Indies) or because they belong to
a federal or other political structure, yet their legal system has acquired or maintained distinct

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even though they may be used for certain means. It should be noted that the taking into account of these nonindependent territories separately has sometimes created an obligation to break down some of the national population figures or to increase the apparent importance of the number of countries related to a given system. The drawbacks which could arise and prevent a correct interpretation of the different charts are diminished by the fact that clear reference to such territories. Thus we wanted to account for the fact that each legal system (as a classification category) tends to acquire particular characteristics according to the territories and populations it serves. for example (Common law countries) and that the differences between the positive laws of France. some initially religious law systems have since lost their character and distinct status due to the fact that a number of their components have more or less been absorbed into customary or other legal systems. whereas on the whole we have given greater importance to the methodological and technical aspects of the legal systems. But the criterion which governed the creation of a category of "Socialist law". they do not represent a key characteristic of the relevant political entity's legal system. Marxist-Leninist thought still plays a sometimes significant role in the legal organization of certain countries. but it is human in origin and belongs unquestionably to the Civil law family. Quebec. despite recent political upheavals. is essentially a product of codified Civil law while. Furthermore. without confining ourselves to superficially formal criteria. would not have served our immediate purposes any better. it must be pointed out that canon law is not a religious law system : it is a law inspired by religious dogma. Customary law systems and of course mixed law systems). Upon reflection. However. as opposed to western law. we have ruled out the category of "Socialist law" whose inclusion. was a material one. Civil law systems. Furthermore. we have included only Muslim law because of its permanent.characteristics within such structure (e. in the rest of Canada. Customary law. our attempts should not be construed as a rejection of classification efforts (e. Germany and Chile. at least in important areas pertaining particularly but not exclusively to private law. provinces or States is followed by the name of the State to which they are attached.g. the United Kingdom and Australia. Need we be reminded that. despite their affiliation to the same legal family. As for religious law systems. which is a mixed law jurisdiction whose general law. Timsit and Glenn) which. Muslim law systems. for example (Civil law countries) are no less substantial! In concluding it may be wise once again to emphasize the very modest objectives we have set ourselves with this information. to legal concepts and to methods of developing and expressing law. Also. general law is essentially based on the Common law). Zweigert and Koltz. True. Thus we have confined ourselves to categories which are easily identifiable for the international legal community. which category also includes what is known as “Aboriginal laws” have not been highlighted in cases where. those of Constantinesco. Common law systems.g. in the past.g. you will note that the headings in the chapter entitled "Classification of Legal Systems and Corresponding Political Entities" refer to the legal systems in the plural rather than in the singular form (e. However we referred once to Jewish law to take into account the particularities of Israel's mixed legal system. though more scientific or more refined. there are significant differences between the positive laws of the United States. broadlybased nature. was unavoidable in certain classifications. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 4 van 114 .

but for which Common law jurisprudence retains its character as the fundamental law (e. for example. customary law (as a system. Common law systems and mixed systems with a common law tradition Like that of Civil law. not merely as an accessory to positive law) still plays a sometimes significant role. depending on whether it is rooted in wisdom born of concrete daily experience or more intellectually based on great spiritual or philosophical traditions. legislation and non-jurisprudential normative instruments. Scandinavian countries. Custom can take on many guises. This is the original text. have drawn their inspiration largely from the Roman law heritage and which. you will also find political entities. Muslim law systems and mixed systems with a muslim law tradition (rem. Notwithstanding the significant nuances that such diversity can sometimes create. This obviously applies to a number of African countries but is also the case. for the most part.g. On the other hand. Scotland).g. is founded on a perception of the role of statute law which. Please read “Islamic law” where applicable) The Muslim legal system is an autonomous legal system which is of a religious nature and predominantly based on the Koran. albeit under very different circumstances. have resolutely opted for a systematic codification of their general law. generally with mixed legal systems. In a number of countries of Muslim tradition. which occupy an original position in the Civil law. family). or sometimes called "RomanoGermanic". as opposed to legislation. Be that as it may. a sufficient number of elements of Roman law as "Raison écrite" to warrant their affiliation to the civilian tradition (e. in a relatively high number of political entities with mixed legal systems. is technically based on English Common law concepts and legal organizational methods which assign a pre-eminent position to case-law. Thus this category includes political entities that have more or less close ties with the English tradition and that sometimes possess an abundance of codes.Civil law Systems and Mixed Systems with a Civil law Tradition In this category you will find political entities that. Customary law systems and mixed systems with a customary law tradition Today. whether codified or not. apart from other sources. it tends to be limited to the laws relating to personal status. as regards the law of China or India. by giving precedence to written law. this category includes political entities whose law. California in the United States). hardly any political entity in the world operates under a legal system which could be said to be typically and wholly customary. this category also includes political entities less influenced by Roman law but whose law. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 5 van 114 . although personal status can be rather broadly defined. namely in matters of personal status. as the ordinary means of expression of general law. approaches that of countries with a "pure" civilian tradition (e.g. to varying degrees. However. which may not have resorted to the technique of codification but which have retained. and which political circumstances further accentuate. the Common law system has taken on a variety of cultural forms throughout the world. in many regards.

Thus this category includes political entities where two or more systems apply cumulatively or interactively.Mixed legal systems The term "mixed". as certain authors have done. but also entities where there is a juxtaposition of systems as a result of more or less clearly defined fields of application. which we have chosen over other terms such as "hybrid" or "composite". should not be construed restrictively. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 6 van 114 .

In legal parlance. Thus the individuals themselves become a main focus of the Union. Like any legal order. the motivation behind the creation of a legal construct. i. two cornerstones of the EC. According to this definition. That is the insight underlying the Treaties that created the European Union. They must facilitate the achievement of the EU's tasks and abstain from any measure that could jeopardise the attainment of the objectives of the Treaties. directives and decisions — of enacting legal instruments binding on the Member States and their citizens. and protected and translated into reality by law. 'legal source' refers to the origin and embodiment of the law. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 7 van 114 . The common economic and social life of the peoples of the Member States is governed not by the threat of force but by the law of the Union. the EU is not merely a creation of law but also pursues its objectives purely by means of law. that of the EU provides a selfcontained system of legal protection for the purpose of recourse to and the enforcement of Union law. on the other hand. It is a community based on law.e. This is the basis of the institutional system. It accords them rights and imposes obligations on them. This makes the EU a legal reality in two different senses: it is created by law and is a community based on law. Law is intended to achieve what 'blood and iron' have for centuries failed to bring about. so that as citizens both of their State and of the Union they are governed by a hierarchy of legal orders — a phenomenon familiar from federal constitutions. THE EU AS A CREATION OF LAW AND A COMMUNITY BASED ON LAW This is what is entirely new about the EU. It lays down the procedure for decision-making by the Union institutions and regulates their relationship to each other. For only unity based on a freely made decision can be expected to last: unity founded on the fundamental values such as freedom and equality. It works not by means of force or subjugation but simply by means of law. can be brought to life and given substance only through Union law. THE LEGAL SOURCES OF UNION LAW The term 'legal source' has two meanings: in its original meaning. the 'legal source' of Union law is the will to preserve peace and create a better Europe through closer economic ties.From: The ABC of European Union Law (source: http://bookshop.eu/en/the-abc-of-european-union-law-pbOA8107147/ ) The legal order of the EU The constitution of the EU described above.europa. it refers to the reason for the emergence of a legal provision. and particularly the fundamental values it embodies. and what distinguishes it from earlier attempts to unite Europe. Union law also defines the relationship between the EU and the Member States. Its legal order directly affects their daily life to an ever-increasing extent. The Member States are answerable to the citizens of the EU for any harm caused through violations of Union law. The Member States must take all appropriate measures to ensure fulfilment of the obligations arising from the Treaties or resulting from action taken by the institutions of the Union. However. It provides the institutions with the means — in the shape of regulations.

They thus set the constitutional framework for the life of the EU. The objectives. This delegation of power can be revoked by the Council or the European Parliament at any time. Amsterdam. 'Implementing acts' are an exception to the principle whereby all the measures required to implement binding EU legal acts are taken by the Member States in accordance with their own national provisions. organisation and modus operandi. and. scope and duration of the delegation of power are explicitly defined in the legislative act concerned. THE EU LEGAL INSTRUMENTS AS THE SECONDARY SOURCE OF UNION LAW Law made by the Union institutions through exercising the powers conferred on them is referred to as secondary legislation. It consists of legislative acts. appendices and protocols attached to them. 'Legislative acts' are legal acts adopted by ordinary or special legislative procedure (Article 289 TFEU). the European Parliament and the Council lay down in advance the rules and general principles concerning the mechanisms for control by Member States of the 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 8 van 114 . The Treaties. and parts of its economic law. this is done by means of appropriate implementing acts. Where uniform conditions are needed for implementing legally binding EU acts. implementing acts and other legal acts. which is then fleshed out in the Union's interest by legislative and administrative action by the Union institutions. in certain exceptional cases. They are adopted by the Commission. the second important source of EU law. and later additions and amendments. 'Delegated acts' are non-legislative acts of general and binding application to supplement or amend certain non-essential elements of a legislative act. by the Council.THE EU FOUNDING TREATIES AS THE PRIMARY SOURCE OF UNION LAW The first source of Union law in this sense is the EU founding Treaties. which are generally adopted by the Commission. delegated acts. are known in legal circles as primary Union law. However. a legislative act must be drawn up explicitly delegating power to the Commission for this purpose. Nice and Lisbon) and the various Accession Treaties contain the basic provisions on the EU's objectives. content. with the various annexes. being legal instruments created directly by the Member States. A delegated act may enter into force only if no objection has been raised by the European Parliament or the Council within a period set by the legislative act (Article 290 TFEU). These founding Treaties and the instruments amending and supplementing them (chiefly the Treaties of Maastricht.

As one of the focal points of the world. these range from treaties provid ing for extensive cooperation in trade or in the industrial. The EU therefore concludes agreements in international law with nonmember countries ('third countries') and with other international organisations. The introduction of a common external tariff in the EU would have seriously disrupted trade with these territories. there are a whole range of preferential agreements enabling goods to be imported from these countries and territories at reduced or zero customs rates. They also provide for the Union institutions to issue non-binding statements. it has to concern itself with economic.Commission's exercise of implementing powers (Article 291 TFEU). France. Financial and technical assistance from the EU was channelled through the European Development Fund. the Caribbean and the Pacific ('the ACP'). Europe cannot confine itself to managing its own internal affairs. Finally. These legal acts can take very different forms. their legal effect and those to whom they are addressed. gradually giving the ACP countries free access to the European internal market. The creation of secondary Union legislation is a gradual process. so cial and political relations with the world outside. technical and social fields. The arrangement serves as a preliminary stage towards accession during which the applicant country can work on converging its economy with that of the EU. A distinction may be drawn between three different types of association agreement. such as agreements or arrangements between the institutions. Three kinds of agreement between the EU and non-member countries are particularly worth mentioning. these differences will be dealt with in more detail in the section on the 'means of action'. There are considerable differences between the various acts in terms of the procedure involved. or internal rules of procedure. INTERNATIONAL AGREEMENTS OF THE EU A third source of Union law is connected with the EU's role at the international level. This agreement was recently converted into a set of economic partnership agreements. Far and away the most important agreement in practice is the EU-ACP Partnership Agreement between the EU and 70 States in Africa. they include both general and abstract legal provisions on the one hand and specific. Many other legal acts do not fit into specific categories. Its emergence lends vitality to the primary legislation deriving from the Union Treaties. to agreements on trade in particular products. Agreements that maintain special links between certain Member States and non-member countries One particular reason for the creation of the association agreement was the existence of countries and territories outside Europe with which Belgium. indi vidual measures on the other. Italy. As a result. there is a whole set of 'other legal acts' which the Union institutions can use to issue non-binding measures and statements or which regulate the inter nal workings of the EU or its institutions. These include resolutions. declarations. The most important of these are listed and defined in Article 288 TFEU. and progressively generates and enhances the European legal order. The purpose of association is therefore to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole (Article 198 TFEU). however. Agreements as preparation for accession to the Union or for the establishment of a customs union Association arrangements are also used in the preparation of countries for possible membership of the Union. the Netherlands and the United Kingdom maintained particularly close economic ties as a legacy of their colonial past. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 9 van 114 . which meant that special arrangements were needed. Denmark. action programmes or White and Green Papers. Association agreements Association goes far beyond the mere regulation of trade policy and involves close economic cooperation and wideranging financial assistance from the EU for the country concerned (Article 217 TFEU). This list of acts is not exhaustive. As binding legal acts.

Trade agreements The Union also has a considerable number of trade agreements with individual non-member countries. services and capital. the protection of legitimate expectations. persons. and which adds to or modifies primary or secondary legislation. Morocco and Tunisia). This is understood to mean a practice which has been followed and accepted and thus become legally established. Like all systems of law. however. including in particular the General Agreement on Tariffs and Trade (GATT 1994). In the EEA. particularly in the judgments of the Court of Justice. by requiring them to incorporate nearly two thirds of the EU's legislation. and is only to a limited extent capable of laying down rules of this kind. with groupings of such countries or within international trade organisations relating to tariffs and trade policy. The first hurdle is the existence of a 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 10 van 114 . however. These are rules reflecting the elementary concepts of law and justice that must be respected by any legal system. being aimed solely at intensive economic cooperation. Alongside the principles of autonomy. Lebanon and Syria) and Israel. the principle of proportionality. These principles are given effect when the law is applied. there is to be free movement of goods. The EU has such agreements with the Maghreb States (Algeria. and closer cooperation on horizontal and flanking policies (environment. and the Understand ing on Rules and Procedures Governing the Settlement of Disputes. which is responsible for ensuring that 'in the interpretation and application of this Treaty the law is observed'. the EU legal order cannot consist entirely of written rules: there will always be gaps which have to be filled by unwritten law. the General Agreement on Trade in Services (GATS). uniform rules on competition and state aid. Written Union law for the most part deals only with economic and social matters. education). They allow gaps to be filled and questions of the interpretation of existing law to be settled in the fairest way. other legal principles include the guarantee of basic rights. SOURCES OF UNWRITTEN LAW The sources of Union law described so far share a common feature in that they all produce written law. the right to a proper hearing and the principle that the Member States are liable for infringements of Union law. research and development. on the basis of the acquis communautaire (the body of primary and secondary Union legislation). The main points of reference for determining the general principles of law are the principles common to the legal orders of the Member States. for instance. the Agreement on Trade. Jordan. Cooperation agreements Cooperation agreements are not as far-reaching as association agreements. the Mashreq States (Egypt. There are considerable limitations on its becoming established in the context of Union law. the Antidumping and Subsidies Code.Agreement on the European Economic Area (EEA) The EEA Agreement brings the (remaining) countries in the European Free Trade Association (EFTA) (Iceland. The most important international trade agreements are: the Agreement establishing the World Trade Organisation (WTO Agreement) and the multilateral trade agreements deriving from it. lays a firm basis for subsequent accession. direct applicability and the primacy of Union law. Legal custom Unwritten Union law also encompasses legal custom. The possible establishment of legal custom in Union law is acknowledged in principle. Liechtenstein and Norway) into the internal market and. General principles of law The unwritten sources of Union law are the general principles of law. They provide the background against which the EU rules needed for solving a problem can be developed.Related Aspects of Intellectual Property Rights (TRIPS). which means that the general principles of law form one of the most important sources of law in the Union.

even on points of detail. they were not to interfere in the domestic systems of law any more than necessary. but no powers have been transferred to the Union institutions.e. Agreements between the Member States The final source of EU law comprises agreements between the Member States. however. i. the conditions and limitations arising from primary Union legislation must also be borne in mind here. there are also full-scale international agreements (treaties and conventions) between the Member States aimed especially at overcoming the drawbacks of territorially limited arrangements and creating law that ap plies uniformly throughout the EU. the Convention on the Mutual Recognition of Companies and Legal Persons (1968). However. but where this is not necessary due account must be taken of the existing legal orders in the Member States. either on the Member States or on the citizens of the Union. The most drastic action is the replacement of national rules by Union ones. Measures may also be taken that affect only a defined or identifiable addressee. must apply in all Member States. been replaced by a Council regulation of 2001. This is important primarily in the field of private international law. which might alter the legal implications and scope of the legal act concerned. legal custom can under no circumstances be established by the Union institutions. and do so effectively. THE EU'S MEANS OF ACTION The system of legislative acts had to be devised afresh when the EU was set up. The entire EU legislative system is therefore based on the principle that where the same arrangement. There are also Union rules by which the Union institutions act on the Member States' legal systems only indirectly. except in the case of Denmark. provision is also made for legal acts that have no binding force. If we look at the range of EU legal instruments in terms of the persons to whom they are addressed and their practical effects in the Member States. national arrangements must be replaced by Union legislation. in order to deal with a particular case. Lastly. social and not least environmental conditions in the various Member States. they can be broken down as follows. but it does make the criteria according to which a practice is deemed to have been followed and accepted for a substantial period much harder to meet. Agreements of this kind may be concluded for the settlement of issues closely linked to the EU's activities. however. The institutions had to be able to align the disparate economic. Another hurdle to the establish ment of legal custom in the Union institutions is the fact that any action by an institution may derive its validity only from the Treaties. the Convention on the Elimination of Double Taxation in connection with the Adjustment of Transfers of Profits between Associated Enterprises (1990) and the Convention on the Law Applicable to Contractual Obligations (1980).special procedure for the amendment of the Treaties (Article 54 TEU). and not from that institution's actual conduct or any intention on its part to create legal relations. These agreements include: the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968). On the other hand. only the Member States can do this — and then only subject to the stringent conditions mentioned above. at most. and is therefore now part of secondary Union legislation. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 11 van 114 . be drawn on when interpreting the legal rules laid down by them. This does not rule out the possible emergence of legal custom. It had to be decided first and foremost what forms Union legislation should take and what effects these should have. which has. Procedures and practices followed and accepted as part of the law by Union institutions may. This means that. at the level of the Treaties. without depending on the goodwill of the Member States. so that the best possible living conditions could be created for all the citizens of the Union. Against this background a range of instruments was developed that allowed the Union institutions to impact on the national legal systems to varying degrees.

other EU bodies. A directive is binding on the Member States as regards the objective to be achieved but leaves it to the national authorities to decide on how the agreed Community objective is to be incorporated into their domestic legal systems. A Member State has no power to apply a regulation incompletely or to select only those provisions of which it approves as a means of ensuring that an instrument which it opposed at the time of its adoption or which runs counter to its perceived national interest is not given effect. regardless of international borders. they lack the essential characteristics of legislation of this kind. from a procedural point of view at least. is not the unification of the law. and apply in full in all Member States. The idea is to remove contradictions and conflicts be tween national laws and regulations or gradually iron out inconsistencies so that. Its purpose is to reconcile the dual objectives of both securing the necessary uniformity of Union law and respecting the diversity of national traditions and structures. which are only enacted by the Council or the European Commission and thus. individuals Not binding All or specific Member States. Parliament has no responsibility for regulations. other EU bodies Not binding Not specified Not binding REGULATIONS AS UNION 'LAWS' The legal acts that enable the Union institutions to impinge furthest on the domestic legal systems are the regulations. specific natural or legal persons Directly applicable and binding in their entirety RECOMMENDATION AVIS All or specific Member States. natural and legal persons Directly applicable and binding in their entirety DIRECTIVE All or specific Member States Binding with respect to the intended result. the same material conditions exist in all the Member States. but its harmonisation. If they are enacted with the involvement of the European Parliament (under the co-decision-making procedure — see next section). then. The Member States and their governing institutions and courts are bound directly by Union law and have to comply with it in the same way as with national law. The similarities between these legal acts and statute law passed in individual Member States are unmistakable. The directive is one of the primary means deployed in building the single market. as far as possible. The reasoning behind this form of legislation is that it allows intervention in domestic economic and legal structures to 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 12 van 114 . they are described as 'legislative acts'. which means that they lay down the same law throughout the Union. DIRECTIVES The directive is the most important legislative instrument alongside the regulation. What the directive primarily aims for. Directly applicable only under particular circumstances DECISION Not specified All or specific Member States.ADDRESSEES EFFECTS REGULATION All Member States. Nor can it invoke provisions or practices of domestic law to preclude the mandatory ap plication of a regulation. ■ The second is direct applicability. which means that the legal acts do not have to be transposed into national law but confer rights or impose obligations on the Union citizen in the same way as national law. Two features highly unusual in international law mark them out. ■ The first is their Community nature. which is the regulation's purpose.

Rights and obligations for the citizen flow only from the measures enacted by the authorities of the Member States to implement the directive. This detriment should be considered as a negative legal reflex that stems inevitably from the Member States' obligation to reconcile their legal order with the objectives of a directive at the end of the transposition period. the directive lays down the objective that is to be achieved at EU level by any or all Member State(s) to which it is addressed within a specified time-frame. nor does it have a sufficiently high profile.take a milder form. if appropriate. This is an abuse of rights by the Member State and the recognition of direct effect of the directive seeks to combat it by ensuring that the Member State derives no benefit from its violation of Union law. The result is generally a two-stage law-making process. ■The exercise of the rights is not conditional. at the national stage. First. Directives do not as a rule directly confer rights or impose obligations on the Union citizen. by its very nature. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 13 van 114 . The general principle is that a legal situation must be generated in which the rights and obligations arising from the directive can be recognised with sufficient clarity and certainty to enable the Union citizen to invoke or. Direct effect is defined by the Court as follows. Member States can take account of special domestic circumstances when implementing Community rules. Direct effect thus has the effect of penalising the offending Member State. be changed at will by the authorities concerned. there is no further detriment caused by recognition of the vertical effect of the directives. and this has in fact been done in directives on technical standards and environmental protection. The decisions of the Court of Justice concerning direct effect are based on the general view that the Member State is acting equivocally and unlawfully if it applies its old law without adapting it to the requirements of the directive. The Union institutions can actually spell out the objective in such detailed terms as to leave the Member States with no room for manoeuvre. EU criteria are used to assess whether they have done so in accordance with EU law. What happens is that the directive does not supersede the laws of the Member States but places the Member States under an obligation to adapt their national law in line with Commu nity provisions. Second. ■The provisions of the directive must lay down the rights of the EU citizen/undertaking with sufficient clarity and precision. The Court of Justice has refused to tolerate such disadvantages. or where the measures taken are inadequate. But there are disadvantages for Union citizens where a Member State does not take the requisite implementing measures to achieve an objective set in a directive that would benefit them. Even if the Member States are in principle free to determine the form and methods used to transpose their EU obligation into domestic law. In that context it is significant that the Court of Justice has applied the principle solely in cases between citizen and Member State. However. application of the vertical direct effect of directives does not prevent the fact that the direct effect of a directive to the benefit of an individual may be to the detriment of another individual (the dual-effect directive. at the initial stage. Administrative custom on its own is not enough since it can. challenge them in the national courts. ■The national legislative authorities may not be given any room for manoeuvre regarding the content of the rules to be enacted. This normally involves enacting mandatory provisions of national law or repealing or amending existing rules. and then only when the directive was for the citizen's benefit and not to their detriment — in other words when the citizen's position under the law as amended under the directive was more favourable than under the old law (known as 'vertical direct effect'). In particular. This point is of no importance to citizens as long as the Member States actually comply with their Union obligation. ■The time allowed for implementation of the directive has expired. They are expressly addressed to the Member States alone. which is often found in procurement and environment law). and a long line of cases has determined that in such circumstances Union citizens can plead that the directive or recommendation has direct effect in actions in the national courts to secure the rights conferred on them by it. the objective set at EU level is translated into actual legal or administrative provisions in the Member States.

they were to be funded by employers. since its full effect would not be secured and the rights conferred by it would not be protected if Union citizens did not have the possibility of seeking and obtaining compensation for infringement of their rights by Member States acting in contravention of EU law. from any measure which could jeopardise the attainment of the objective of the directive. This opens the way to a horizontal application of the directly applicable provisions of directives in situations concerning. Even if the duty to compensate is not written into Union law. administration and courts of the Member States. The problem facing the Court was that. In some cases the Union institutions may themselves be responsible for implementing the Treaties and regulations. since in the absence of measures transposing the directive the guarantee fund had not been established and it was not possible to ascertain who was the debtor in connection with the insolvency. In view of the binding nature of a directive and their duty to facili tate the achievement of the Union's tasks (Article 4 TEU). are bound by the directive and must automatically comply with it and apply it as Union law with primacy. guarantee funds were to be established with protection from creditors. the provisions of a directive have a direct effect insofar as they have the effect of objective law. meaning that they could not enforce it against the national authorities. The Court ruled that. the Court of Justice held that Member States are liable to pay damages where loss is sustained by reason of failure to transpose a directive in whole or in part. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 14 van 114 . In addition. Where this is the case. What the citizen needs to rely on is certainty in the law and the protection of legitimate expectations. for example. Member States must abstain. To that end. Italy had deprived the employed workers in question of their rights and was accordingly liable for damages. the only exception being that. this right could not be given direct effect by the national courts. DECISIONS The third category of EU legal acts is that of decisions. The Court concludes from the punitive nature of the principle that it is not ap plicable to relations between private individuals. by failing to implement the dir ective. i. Both cases were brought against Italy for failure to transpose on time Council Directive 80/987/EEC of 20 October 1980 on the protection of employees in the event of the employer's insolvency.e. It is limited to situations in which one contracting party invokes a right stemming from the directive against a right of the other party stemming from national law. the Court of Justice has tempered its rejection of the direct effect of directive law in private-law issues. for example. and this will be possible only if they are in a position to take measures binding on particular individuals. In fact. all institutions. compliance with objective national law (when. the Court of Justice sees it as an integral part of the EU legal order. in its more recent case-law. they also therefore have an obligation to interpret national law in accordance with the directives or give the provision of the directive in question priority of application over conflicting national law. a clear and pre cise obligation is established for the Member States. undertakings or Member States. In its judgments in Francovich and Bonifaci in 1991. the directives have certain limiting effects on the Member States — even before the end of the transposition period. instead of clear and precise law being set out for the Union citizen or enterprise. which sought to protect the employee's rights to remuneration in the period preceding insolvency and dismissal on grounds of insolvency. However. legislation will be applied by the authorities in an individual case by means of an administrative decision. although the aim of the directive was to confer on employed workers a personal right to continued payment of remuneration from the guarantee funds. In concrete terms. The situation in the Member States' own systems is more or less the same. The citizen must be able to count on the effect of a directive being achieved by national implementing measures. before the end of the transposition period. The direct effect of a directive does not necessarily imply that a provision of the directive confers rights on the individual. an enterprise wishes to oblige a competitor to comply with a national law which infringes on the law of the directive) or the implementation of obligations from national law which contradict appli cation of the directive (such as the refusal to fulfil a contract with invocation of national prohibitory provisions that infringe the law of the directive). The same conditions apply to the recognition of this effect as for the recog nition of a direct effect. the legislator. since they cannot be held liable for the consequences of the Member State's failure to act.The direct effect of directives in relations between citizens themselves ('horizontal direct effect') has not been accepted by the Court of Justice. the public authorities or both.

at the timethe decision is issued. regional policy. In recommendations. given the authority of the Union institutions and their broader view and wide knowledge of conditions beyond the narrower national framework. However.In the EU legal order this function is assumed by decisions. ■It is directly binding on those to whom it is addressed. the drafters of the Treaties anticipated that. The Union institutions can thus require a Member State or an individual to perform or refrain from an action. For example. by reason of personal qualities or circumstances that distinguish them from others. the Union institutions also have available a variety of other forms of action for forming and shaping the EU legal order. Opinions. In providing for legal acts of this kind. on the other hand. which are the means normally available to the Union institutions to order that a measure be taken in an individual case. with basic questions regarding political union. the party to whom they are addressed is called on. As manifestations of a commonly held political will. but not placed under any legal obligation. those concerned would voluntarily comply with recommendations addressed to them and would react appropriately to the Union institutions' assessment of a particular situation. the Council and the European Parliament. which must be such as to have a direct. A decision addressed to a Member State may in fact have the same direct effect in relation to the citizen as a directive. ■It is distinguished from the directive in that it is binding in its entirety (whereas the directive simply sets out the objective to be attained). ■ It is distinguished from the regulation by being of individual appli cability: the persons to whom it is addressed must be named in it and are the only ones bound by it. TFEU). They set out jointly held views and intentions regarding the overall process of integration and specific tasks within and outside the EU. the Commission may recommend to the State concerned such measures as are appropriate to avoid this distortion (Article 117(1). energy policy and economic and monetary union (particularly the European Monetary System). DECLARATIONS AND ACTION PROGRAMMES Alongside the legal acts provided for in the Treaties. Resolutions: These may be issued by the European Council. recommendations and opinions can have indirect legal effect where they are a preliminary to subsequent mandatory instruments or where the issuing institution has committed itself. in cases where the adoption or amendment of a legal or administra tive provision in a Member State causes a distortion of competition in the European internal market. or can confer rights or impose obligations on them. for example. resolutions make it con siderably easier to achieve a consensus in the Council. The real significance of recommendations and opinions is political and moral. This requirement is met if. they also prepare the way for sub sequent. they are individually affected and are identifiable as such in the same way as the addressee. are issued by the Union institutions when giving an assessment of a given situation or developments in the Union or individual Member States. Reference is made to the actual content of the decision. in addition to which they guarantee at least a minimum degree of correlation 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 15 van 114 . or are a prerequisite for the institution of proceedings before the Court of Justice (Articles 258 and 259 TFEU). second sentence. and in some cases to individual citizens. declarations and action programmes. Resolutions relating to the internal working of the EU are concerned. Even a third party may fall within the definition if. They enable the Union institutions to express a view to Member States. which is not binding and does not place any legal obligation on the addressee. The basic characteristics of a decision can be summed up as follows. The primary significance of these resolutions is that they help to give the future work of the Council a political direction. individual impact on the citizen's situation. legally binding acts. The most important of these are resolutions. thus generating legitimate expectations that must be met. RESOLUTIONS. to behave in a particular way. RECOMMENDATIONS AND OPINIONS A final category of legal measures explicitly provided for in the Treaties is recommendations and opinions. In some cases. the category of addressees can be identified and can thereafter not be extended.

directives addressed to all Member States and decisions which do not specify to whom they are addressed are published in the Official Journal of the European Union (Series L = Legislation). but they are usually also published in the Official Journal ('Notices'). If a declaration is concerned with the further development of the Union. They are published in the Official Journal (Series C = Communication). Under the Treaty of Lisbon these co-decision powers of the Parliament became the 'ordinary legislative procedure'. PUBLICATION AND COMMUNICATION Legislative acts in the form of regulations. if no date is specified. secondary Union legislation granting direct rights to individuals cannot be restricted by secondary agreements that have not been made public. These did not simply transfer part of their sovereignty to the EU.e. it was for a long time the representatives of the Member States' governments meeting in the Council who played the decisive role in expressing the will of the EU. Such programmes are published in the Union as Green Papers. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 16 van 114 .making hierarchies in the Community and the Member States.between decision. if the declaration receives the necessary public attention. However. Interpretative declarations of this kind are standard practice in the Council and are an essential means of achieving compromises. In the Union. has evolved into something much more balanced. The original procedure whereby Parliament was merely consulted was first of all broadened to include cooperation with the Council. on the 20th day following their publication. as the process of Union integration has developed and deepened. Action programmes: These programmes are drawn up by the Council and the Commission on their own initiative or at the instigation of the European Council and serve to put into practice the legislative programmes and general objectives laid down in the Treaties. however. these programmes are published in the form of White Papers. Declarations of this type are mainly used to reach a wide audience or a specific group of addressees. they should remain a flexible instrument and not be tied down by too many legal requirements and obligations. Their legal significance should be assessed under the basic principles of interpretation. Any assessment of their legal significance must also take account of these functions. This was simply because the EU does not consist of a 'European nation' but owes its existence and form to the combined input of its Member States. and decisions which specify to whom they are addressed. however. On the other hand. such as the Declaration on the EU. directives or decisions. other programmes are in practice merely regarded as general guidelines with no legally binding effect. They are. Non-legislative acts adopted in the form of regulations. i. There is no obligation to publish and communicate non-binding instruments. this is because. and Parliament was eventually given powers of co-decision in the EU's legislative process. when the latter do not specify to whom they are addressed. an indication of the Union institutions' intended actions. THE LEGISLATIVE PROCESS IN THE EU Whereas in a state the will of the people will usually be expressed in parlia ment. Declarations: There are two different kinds of declaration. according to which the key factor when interpreting the meaning of a legal provision should in all cases be the underlying intention of its originator. Other directives. They enter into force on the date specified in them or. for example. with constant enhancement of the status of the European Parliament. are signed by the President of the institution which adopted them. This principle is only valid. it is more or less equivalent to a resolution. the Declaration on Democracy and the Declaration on Fundamental Rights and Freedoms. The other type of declaration is issued in the context of the Council's decision-making process and sets out the views of all or individual Council members regarding the interpretation of the Council's decisions. If a programme is specifically provided for in the Treaties. but pooled it on the understanding that they would retain the joint power to exercise it. this division of powers in the EU decision-making process. the Union institutions are bound by those provisions when planning it. are notified to those to whom they are addressed and take effect upon such notification. originally geared towards the defence of national interests by the Member States.

constitute a special legislative procedure.i. directive or de cision by the European Parliament with the participation of the Council. In addition to these legislative procedures. 'the general rule'. set in motion by the Commission.e. which is used when non-binding instruments are issued by only one Union institution. which draws up a proposal for the Union measure to be taken (known as the 'right of initiative'). The proposal is prepared by the Commission department 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 17 van 114 . which gives the European Parliament the final decision on the entry into force of a legal instrument. there are also the 'approval procedure'. or by the latter with the participation of the European Parliament. The co-decision procedure consists in the joint adoption by the European Parliament and the Council of a regulation. Only in a few explicit cases does the adoption of a regulation. directive or decision on a proposal from the Commission. in principle. and the 'simplified procedure'. thereby further enhancing the EU's democratic credentials. Course of the procedure Formulation stage The machinery is.

A qualified majority is sufficient if the Commission is also in agreement with the amendments. with detailed explanatory remarks. Second reading in Parliament and in the Council The European Parliament has three months starting from the communication of the Council's position to do one of the following: (1) approve the Council's position or not take a decision. It is now a 'Commission proposal' and is sent simultaneously to the Council and the European Parliament and. which delivers an opinion on those amendments. where consultation is required. ■If it approves Parliament's position. setting out the content and form of the measure to the last detail. this results in a conciliation procedure. and is set out in an opinion which may accept or reject the proposal or pro pose amendments. by a majority of its members. The Commission informs the European Parliament fully of its position. by a majority of its component members. (2)reject. However. this marks the end of the legislative process. the Council's position. the act in question is then deemed to have been adopted. At its heart is the Conciliation Committee. The outcome of the committee's deliberations is discussed at a plenary session of Parliament. The Council informs the European Parliament fully of the reasons which led it to adopt its position. if not. Parliament then sends its position to the Council. it adopts its position at first reading and communicates it to the European Parliament. The Commission takes part in the Conciliation Committee's proceedings and takes all the necessary initiatives with a 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 18 van 114 . (3)make. frequently the department will also consult national experts at this stage. The Council discusses the amended position and has three months from the date of receiving Parliament's amendments to do one of the following. the Council can approve Parliament's amendments only by unanimity.Conciliation procedure The conciliation procedure is initiated by the President of the Council in agreement with the President of the European Parliament. which is currently composed of 27 representa tives each from the Council and the European Parliament. The draft drawn up by the Commission. the proposed act is then deemed not to have been adopted and the legislative process ends. The Conciliation Committee has the task of reaching agreement on a joint text by a qualified majority within six weeks of its being convened. (2)It can choose not to approve all Parliament's amendments or it does not attain the required majority. the act is adopted in the form of that position. the text thus amended is then forwarded to the Council and to the Commission. when a simple majority is sufficient to have it adopted. ■If the Council does not approve Parliament's position. experts may have questions put to them by the relevant departments of the Commission. alternatively. This sometimes takes the form of deliberations in specially convened committees. amendments to the Council's position. First reading in Parliament and in the Council The President of the European Parliament passes the proposal on to a Parliamentary coordination committee for further consideration.dealing with the particular field. goes before the Commission as a whole. to the European Economic and Social Committee and the Committee of the Regions. The Council can now act as follows in the first reading. the act concerned is then deemed to have been adopted in the wording which corresponds to the position of the Council. the Commission is not obliged to accept the advice of the national experts when drawing up its proposals. (1)It can approve all of Parliament's amendments. on the basis of the positions of the European Parliament and the Council at second reading.

it cannot propose any amendments or secure their acceptance during the approval procedure. the procedure also radically changes the relationship between Parliament and the Council. For example. acting by a qualified majority. Czech. Greek. Slovenian. agreements with important budgetary implications for the EU and agreements with nonmember countries in policy areas to which the ordinary legislative procedure applies (Article 218(6) TFEU). Estonian. there must be an agreement in the Conciliation Committee. Spanish and Swedish) is signed by the Presidents of the European Parliament and the Council. The two institutions are now placed on an equal footing in the legislative process. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 19 van 114 . APPROVAL PROCEDURE Another principal form of Parliamentary involvement in the legislative process is the approval procedure. Latvian. Provision is made for this procedure in connection with the accession of new Member States. Portuguese. the proposed act is deemed not to have been adopted. Finnish. If. However. acting by a majority of the votes cast. each have a period of six weeks from that approval in which to adopt the act in question in accordance with the joint text. The co-decision procedure represents both a challenge and an opportunity for Parliament. German. Polish. Dutch. and then published in the Official Journal of the European Union or. Romanian. the European Parliament. If the procedure is to operate successfully. Publication The final text (in the 23 current official languages of the Union: Bulgarian. Slovak. the conclusion of association agreements. its role is restricted to accepting or rejecting the legal instrument submitted to it. the proposed act is deemed not to have been adopted and the legislative process is ended. Third reading in Parliament and in the Council If. within the six-week period. the Conciliation Committee approves a joint text.view to reconciling the positions of the European Parliament and the Council. and it is up to Parliament and the Council to demonstrate their capacity for compromise and to direct their energies in the Conciliation Committee towards coming to an agreement. Irish. Maltese. notified to those to whom it is addressed. Italian. give Parliament any scope for directly influencing the nature of the legal provisions. Danish. This procedure does not. If they fail to do so. French. whereby a legal instrument can only be adopted with the prior approval of Parliament. Lithuanian. the Conciliation Committee does not approve the joint text. Hungarian. within six weeks of its being convened. English. if it is addressed to a specific group. however. and the Council.

eu/avpolicy/reg/avms/index_en.htm ) 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 20 van 114 .europa.Audiovisual Media Services directive Remark: be sure to check the website (http://ec.

-'Which country's rules apply? As under the old rules. This is essential to give them legal certainty and help them develop new cross border business models. does the EU country whose satellite capacity is used gain jurisdiction.Regulatory Framework .eu/archives/information_society/avpolicy/reg/avms/index_en. neo-Nazi propaganda . -1 Countries can restrict broadcast of unsuitable content (Article 2 (4)-(6)) Under the new rules.htm Audiovisual Media Services Directive (AVMSD) What's new ? The Audiovisual Media Services Directive amends and renames the Television without Frontiers Directive.that means traditional television (linear service) and video-on-demand (non-linear services). only a basic tier of rules applies to them. These services must be directed at the general public and intended to inform. that country will have jurisdiction.e. -'Different levels of strictness ("graduated regulation") Because users have different degrees of choice and control over on-demand audiovisual media services. Only when there is no up-link in the EU.europa.g. EU countries can restrict the retransmission of unsuitable on-demand audiovisual content .Audiovisual Media Services Directive .what's new ? Remark: compare the original website: http://ec. This reverses the criteria defining jurisdiction under the old rules. And it modernises TV advertising rules to better finance audiovisual content. But the rules on advertising and protecting children are stricter for television broadcasts. -'jurisdiction for satellite broadcasts (Article 2) 1 van 3 6-7-2014 13:41 When a broadcaster based outside the EU uses a satellite up-link in an EU country. service providers are subject only to the rules applicable in their own country (country of origin principle).that may not be banned in its country of origin. providing less detailed but more flexible regulation. What's new? Wider coverage (Article 1 (l)(a)) The new Directive covers all audiovisual media services . entertain and educate under the editorial responsibility of a media service provider. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 21 van 114 .

including sponsorship. -'Promoting European works (Article 13) Member States must ensure that not only television broadcasters but also on-demand audiovisual media services promote European works. provided that those rules comply with EU law. identification requirement. whatever mode of delivery is used for the programmes to which they are associated. -'Short news reporting (Article 15) In order to promote the free flow of information. any broadcaster established in the EU has guaranteed access to exclusively transmitted events of high public interest for the purpose of transmitting short news reports. teleshopping. etc). etc.with the Commission's prior approval . -1 Definition of audiovisual commercial communication (Article l(l)(h)) The new rules have a broad definition of what constitutes advertising. the objecting country can also . no undue prominence. it can use a consultation procedure (cooperation procedure) to address the country of origin.take binding measures (circumvention procedure). • if the broadcaster circumvents these national rules. product placement. which programmes. The latter shall then issue a non-binding request for the broadcaster to comply with the stricter rules of the targeted country.g.-1 Two-step safeguard for receiving countries (Article 4 (2) -(5)) • if a country objects to the content in a foreign television broadcast which is wholly or mostly directed to it. J Transparency obligations for editorial decisions (Article 5) All audiovisual media service providers must indicate all the relevant data needed to ensure that whoever makes the editorial decisions can be held liable. Member countries are 2 van 3 6-7-2014 13:41 free to adopt stricter rules for media companies under their jurisdiction. -'Product placement (Article 11) The new rules define the conditions under which product placement is permitted (e. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 22 van 114 . This is to ensure that all forms of commercial audiovisual content are covered by the same common set of rules.

-'Television advertising

quality standards - existing rules on protecting consumers, children and human dignity are
maintained, and new challenges are addressed, e.g. potentially unhealthy foodstuffs (e.g. through
calls for industry self-regulation / codes of conduct).

limits on quantity - these are now more flexible, but the hourly limit of 12 minutes for spot
advertising and teleshopping spots remains (Article 23 (1)).
-'Advertising "unhealthy" food and drinks in children's programmes (Article 9 (2))
Governments and the Commission must encourage media service providers to develop codes of
conduct curtailing such advertising.
Protecting children from adult content (Article 12)
Content which might seriously impair children's development may be made available only in ways
that ensure children will not normally have access - e.g. with access codes or other means.
-'Access for the sight- and/or hearing impaired (Article 7)
The new rules aim to make audiovisual content increasingly accessible for these groups.
Governments must encourage media companies under their jurisdiction to do this, e.g. by
subtitling and audio description.
-•Self -regulation, combined with government regulation
(Article 4 (7))
The new rules require governments to encourage self-regulation in certain fields, sometimes
combined with government intervention ("co-regulation") - where their legal systems allow. Such
regimes must be broadly accepted by the main stakeholders and provide for effective
enforcement.
Independent regulators (Article 30)
The new rules recognise both the existence and the role of national independent regulators. To
ensure the correct application of the Directive, these regulators must cooperate closely both
among themselves and with the Commission, notably on issues of jurisdiction.

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Studyguide: week 3 Definitions regarding treaties 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 28 van 114 .

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Two clauses in the First Amendment guarantee freedom of religion. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. See U. and the implied rights of association and belief. and Fourteenth Amendments. amend. assembly and to petition the government for a redress of grievances. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action.S. The most basic component of freedom of expression is the right of freedom of speech. Furthermore. generally. not compel individuals to express themselves. The establishment clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. A less stringent test is applied for content-neutral legislation. Fifth. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The level of protection speech receives also depends on the forum in which it takes place. Const. The government may also. commercial speech and obscenity. For example. There are exceptions to this rule where the Court finds that governmental interests in disclosure/registration outweigh interference with first amendment rights. hold certain beliefs. See U.law. The First Amendment has been interpreted by the Court as applying to the entire federal government even though it is only expressly applicable to Congress.First Amendment first amendment: an overview (spirce: http://www. the due process clause of the Fourteenth Amendment as protecting the rights in the First Amendment from interference by state governments. The free exercise clause prohibits the government. I. Despite popular misunderstanding the right to freedom of the press guaranteed by the first amendment is not very different from the right to freedom of speech. The right to associate also prohibits the government from requiring a group to register or disclose its members or from denying government benefits on the basis of an individual's current or past membership in a particular group. providing bus transportation for parochial school students and the enforcement of "blue laws" is not prohibited. press. It does not afford members of the media any special rights or privileges not afforded to citizens in general.S. Freedom of expression consists of the rights to freedom of speech.cornell. It enforces the "separation of church and state. in most instances. The right to free speech includes other mediums of expression that communicate a message. XIV. This implicit right is limited to the right to associate for First Amendment purposes. Implicit within this right is the right to association and belief.edu/wex/first_amendment) The First Amendment of the United States Constitution protects the right to freedom of religion and freedom of expression from government interference. amend. or belong to 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 30 van 114 . It does not include a right of social association. The Supreme Court interprets the extent of the protection afforded to these rights. It is part of the constitutional protection of freedom of expression. the Court has interpreted. fighting words. Const. It allows an individual to express themselves through publication and dissemination. The Supreme Court has expressly recognized that a right to freedom of association and belief is implicit in the First." Some governmental activity related to religion has been declared constitutional by the Supreme Court. The government may prohibit people from knowingly associating in groups that engage and promote illegal activities. from interfering with a person's practice of their religion. The right to assemble allows people to gather for peaceful and lawful purposes.

675 (1986).S.g. • To advertise commercial products and professional services (with some restrictions). 403 U. “[S]hout[ing] ‘fire’ in a crowded theater. • Of students to make an obscene speech at a school-sponsored event. both direct (words) and symbolic (actions). What Does Free Speech Mean? Object 1 Among other cherished values. 15 (1971). 476 (1957). 1 (1976). • To burn draft cards as an anti-war protest. 260 (1988). • Of students to advocate illegal drug use at a school-sponsored event.S. • To permit students to print articles in a school newspaper over the objections of the school administration. in relevant part. 393 U.S. Buckley v. 350 (1977). 47 (1919). the First Amendment protects freedom of speech.S. Hazelwood School District v. that: “Congress shall make no law. 748 (1976). Virginia Consumer Council. 496 U. 503 (1969).. The First Amendment states. 391 U. Cohen v.S. 425 U. 478 U. Bethel School District #43 v. 397 (1989). that the Court has decided are either entitled to First Amendment protections.”). Morse v. 319 U. The following are examples of speech. 354 U. • To use certain offensive words and phrases to convey political messages. Kuhlmeier. Fraser.S.S. 491 U. The U.particular associations or groups. Frederick. Supreme Court often has struggled to determine what exactly constitutes protected speech. 624 (1943). or not. 367 (1968). 424 U. __ U. 249 U. • To engage in symbolic speech.g. United States v. • To contribute money (under certain circumstances) to political campaigns. United States v. (e. United States. Schenck v..S. Johnson.abridging freedom of speech. the right not to salute the flag). 433 U. 310 (1990). It works with the right of assembly by allowing people to join together and seek change from the government. Tinker v. Freedom of speech does not include the right: • To incite actions that would harm others (e.S. 484 U. __ (2007). • Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate. The right to petition the government for a redress of grievances guarantees people the right to ask the government to provide relief for a wrong through the courts (litigation) or other governmental action. burning the flag in protest).S. • To make or distribute obscene materials. Eichman.S. Valeo. United States.S.” Freedom of speech includes the right: • Not to speak (specifically.S. Barnette. O’Brien. California. State Bar of Arizona. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 31 van 114 . Texas v. Bates v... Roth v.S. Virginia Board of Pharmacy v. West Virginia Board of Education v.”).S. Des Moines.

Countries party to the ECHR 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 32 van 114 .

The exercise of these freedoms. The firm reproduces on its T-shirts a label design similar in I appearance and colour to Sabmark's Carling Black Label design mark. attempts to create a more predictable balancing of free speech and trademark rights than previously was the case. 2. ie. The High Court granted Sabmark (part of the SABMiller Group) an injunction based on violation of the anti-dilution provisions of the South Africa Trademarks Act. The TDRA 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 33 van 114 . The Supreme Court of South Africa affirmed. since it carries with it duties and responsibilities. "Carling Beer" with "White Guilt" and "America's lusty lively beer" with "Africa's lusty lively exploitation since 1652". Laugh It Off then appealed to the Constitutional Court of South Africa on the ground that its conduct was permitted as a right of free expression under section 16 of the Constitution Act of South Africa. The conflict between these competing rights is particularly evident in the United States of America. conditions. or a substantially similar mark. The Trademark Dilution Revision Act (TDRA). An important precondition for an action to lie under the TDRA is that the junior user must use the famous trademark. which became law on 6 October 2006. Everyone has the right to freedom of expression. essentially on the ground that Sabmark had failed to prove a likelihood of economic detriment to its Black Label trademark sufficient to outweigh the right of free expression conferred by the Constitution Act. the impugned use must be a "trademark" use. or for maintaining the authority and impartiality of the judiciary. 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. for the protection of the reputation or rights of others. for preventing the disclosure of information received in confidence. territorial integrity or public safety. for the protection of health or morals.Article 10 ECHR 1. section 34(l)(c). restrictions or penalties as are prescribed by law and are necessary in a democratic society. Corporate Counsel Daniel R Bereskin QC Laugh It Off markets T-shirts in South Africa for profit and claims to make social commentary by so doing. where the right of freedom of expression has long been enshrined in the First Amendment of the US Constitution. to indicate the source of his or her own goods or services. The Constitutional Court found in favour of Laugh It Off. may be subject to such formalities. television or cinema enterprises. in the interests of national security. Trademark and Free Expression Rights: Are They Reconcilable? (source: http://whoswholegal. replacing "Black Label" with "Black Labour". for the prevention of disorder or crime.com/news/features/article/12861/ ) FEBRUARY 2009 TRADEMARKS DANIEL BERESKIN QC Laugh It Off Promotions CC vSabmark International et al (2006) 1SA144 (CC) illustrates the tension between trademark rights and rights of free expression. This article shall not prevent States from requiring the licensing of broadcasting.

A number of commentators have argued that the TDRA's restriction of the tarnishment cause of action to use of a famous mark as a "designation of source" gives more expansive protection of free speech than pre-TDRA tarnishment law. affiliation. it is therefore likely that a case involving similar facts to Laugh It Off in Canada would have been decided in favour of the trademark owner. In Canada. On the other hand. 21 May 2008)). if such use is not as a trademark. despite having failed to do so under the previous legislation (VSecret Catalogue Inc vMoseley.Ky. A. quality. 2007). Proving harm is not easy. even though their main function is to signify source. The real conflict. 2d 495 (E.D. Louis Vuitton's claim was rejected on the ground that it had failed to prove that the defendant's allegedly inferior dog squeak toy Chewy Vuiton was likely to cause harmful dilution by tarnishment. and • as a result of such similarity. unless perhaps the impugned use involves sex.D. Trademark owners rightly regard trademarks as valuable property rights. In Louis Vuitton MalletierSA vHaute Diggity Dog LLC. Canadian case law to date indicates that the freedom of expression guaranteed by the Canadian Constitution does not extend to allowing appropriatbn of or substantial damage to a private property right of another. 2006). 464 F. it is hard to accept such activities as being a legitimate expression of free speech. That said. By requiring that the junior use constitute use as a trademark. In the author's view.The TDRA thus does not allow a trademark owner to prevent the unauthorised use of its mark to communicate ideas. Considering that the activities of the defendant in Laugh It Off were so offensive to the integrity and image projected by the Black Label trademark.269 (4th Cir. however. trademarks are not only property rights. Many famous trademarks are found in dictionaries. The experience to date of trademark owners seeking to prevent tarnishment under the TDRA has been mixed. aff'd. is between the right of the trademark owner to 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 34 van 114 . 3S8CV-335-S. 507 F3d 252. the TDRA shields many expressions including parodies from tarnishment claims. That said. Victoria's Secret finally was able to obtain an injunction enjoining the use of the Victor's Little Secret store name under the TDRA.Va. No. drugs or some illegal activity. the First Amendment cannot be relied upon to defend expressions that are false or misleading. Under the TDRA. In that sense. the plaintiff must show that: • its mark is nationally famous and distinctive. trademark owners should not be too sanguine about reliance on traditional trademark rights when issues of freedom of expression occur. the balancing between freedom of expression guaranteed by the Canadian Constitution and the statutory and common law rights of trademark owners has not been addressed as explicitly by statutory enactment. dilution by tarnishment is not easy to prove. • the defendant made a "trademark use" of a mark or trade name that is substantially similar to the famous mark (15 USC sections 1125(c)(1) and (2)(C)). and done with a profit motive in mind. then. inherently or through acquired distinctiveness (IS USC sections 1125 (c)(1) and (2)). 2008 WL 2152189 (W. etc. Conversely. a trademark itself is a form of expression. because they are part of the language. Supp. It is part of the language by which we communicate. Civ. they are also language tools by which a trademark owner communicates a message to the public. To succeed in a claim for dilution by tarnishment. the junior user created a mental association between the defendant's mark and the famous mark that is likely to harm the famous mark's reputation (15 USC sections 1125(c)(2)(C)).has also significantly expanded the scope of the fair use defence.

and therefore it appears likely that a Canadian court would find for SAB just as was the case at trial in the Laugh It Off case. (1983) 70 CPR 2d 61 (FC). CAW distributed pamphlets that used the word Michelin and also depicted a variation of the well-known Michelin cartoon figure. there was commercial activity in connection with the sale of T-shirts. An early Canadian case involving tarnishment is Source PerrierSA vFira-Less Marketing Co." Business and Human Rights TheUKBar IT IS NOT POSSIBLE TO BUY ENTRY INTO ANY WHO'S WHO LEGAL PUBLICATION Nominees have been selected based upon comprehensive. There was no traHpmark infrinopmpnt hprancp thprpwac nn IlkplihnnH nf rnnfncinn anH thp rniirt fnnnH that thprp hari been no actionable tarnishment under section 22 of the Trade-marks Act because the distribution of pamphlets was not considered to be the kind of commercial activity required by section 22. what are the limits of the right of free expression. and it attempted to unionise Michelin workers at a Michelin plant in Canada. 1967 contains a Charter of Rights and Freedoms. but it would be a violation of section 22 of the Trade-marks Act. In this case.communicate a truthful message to the public. Source Perrier was not amused. In the case of the Laugh It Off facts. and argued that even if there had been an infringement. As part of its recruitment efforts. Michelin sued CAW both for trademark and copyright infringement. especially when the exercise of that right interferes with. nor does it afford a licence to impair the business integrity of the owner of the marks merely to accommodate the creation of a spoof. and applied for and obtained an injunction restraining the use of Pierre Eh! for bottled water. with the following words: "The most liberal interpretation of "freedom of expression' does not embrace the freedom to depreciate the goodwill of registered trademarks. the defendant put out carbonated water in bottles marked Pierre Eh! as a spoof of the then Prime Minister Pierre Elliot Trudeau. Only specialists who have met independent international research criteria are listed. or damages a communication right of another. the constitutional argument was rejected by the court. the Michelin Man was shown crushing a worker with its foot. In Michelin. CAW denied there had been any infringement. A more important. In CAW's brochure. Section 2(b) of the Charter provides that everyone has the right to freedom of expression. the Charter gave them the right to express their position in the way they did. both the word Michelin and the Michelin Man figure were registered trademarks. the Constitution Act. the Laugh It Off T-shirts would not be an infringement of the trademark registration covering the Black Label trademark because there is no likelihood of confusion. and the right of the public to express ideas as a normal consequence of living in a free society. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 35 van 114 . (1996) 71 CPR (3d) 348. though roundly criticised. independent survey work with both general counsel and private practice lawyers worldwide. The question is. though. called Bibendum or the "Michelin Man". such as the right of a trademark owner to communicate with the public? In Canada. which provides that "no person shall use a trademark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto". In Perrier. case is Michelin v CAW Canada. In Canada. CAW is a labour union.

Although Michelin did not succeed in proving dilution under section 22. In summary. in any case it is likely that the Charter could be invoked in support of honest comparative advertising. the court stated: "When a W=b site is used for expression in a labour relations dispute. Thus. it was able to persuade the court that the reproduction of a depiction of the Michelin man was a copyright violation. a reasonable balance that must be struck between the legitimate protection of a party's intellectual property and a citizen's oraUnion's right of expression. rather than pamphlets.com and made other uses of trademarks registered by the association. the court found that there is no justification for using another's private property under the guise of freedom of speech. although it also displayed disclaimers of any endorsement by the association. In answer to the Charter defence. The Michelin case has been criticised as being too simplistic an analysis. British Columbia Automobile Association v Office and Professional Employees' International Union (2001). In dismissing the passing off claim. Honest comparative advertising in Canada is another example of the tension between trademark property rights and rights of free expression. 10 CPR (4th) 423 (BCSC). the court held that the "Union is entitled to express its positions and speak freely provided it does not violate section 22. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 36 van 114 . this decision follows the criticised "commercial use" analysis found in the Michelin case. The association brought actions for passing off and breach of section 22 of the Trade-marks Act. It has been argued that the mere fact that a trademark or copyright is a property right should not mean that the freedom of expression right is trumped.. In such a situation. Although such advertising has been held to not be an infringement of a registered trademark on the ground that it is not a trademark "use" properly speaking. The union created a website that was accessed by domain names such as bcaaonstrike. there is. the right of a competitor to make an honest expression of commercial speech trumps the right of the trademark owner to the exclusive use of its registered mark. including "BCAA". How and where one shculd draw the line between the competing rights of trademark owners and persons relying on the right of Free expression of ideas will no doubt occupy the attention of courts and legal scholars for many years to come in Canada as well as elsewhere.. of the analysis.. under Canadian law the mere fact that a property right has been used without authority is the beginning. I think. not the end. as opposed to commercial competition. the common law should not be interpreted in a way to unreasonably infringe a person's freedom of expression." In dismissing the section 22 claim.. The Michelin case was followed in another more recent labour dispute involving the use of "gripe sites" on the internet. I think that to accept the argument that the reference to an employer's trademark to identify a Union site depreciates goodwill associated with that trade-mark would be a result that goes far beyond what Parliament intended by section 22". as well as a claim for copyright infringement.

............................................................ 11 BASIC NOTIONS OF RELATED RIGHTS................ Introduction 1................................................ Translation and adaptation rights......................... BASIC NOTIONS OF COPYRIGHT A....................... 7 c............................. 3 B.................... Right of reproduction and related rights... In the international sphere............. These rights of property are recognized under the laws of most countries in order to stimulate human intellectual creativity............................ Limitations on Rights..... In countries with Latin-based languages.......... Introduction............ 10 Enforcement of Rights..... 8 Duration of Copyright. a secretariat called the "International Bureau" was created for purposes of administration...................................... 3 2..................................................... Rights Protected................................................................. 6 b.............. 5........ to make the fruits of such creativity available to the public.............................................................................................................................. 4 1.. 6................................" which protects the interests of creators by giving them property rights over their creations.. Moral rights................................................................................................ however......................................................... Copyright....................................................................... 2........ 2 A....... Page BASIC NOTIONS OF COPYRIGHT......................................... Protected Works...... Rights of public performance.. the expression referred to both industrial property and copyright..... established under the Berne Convention for the Protection of Literary and Artistic Works of 1886........................... 4 2................................................................Studyguide: week 4 BASIC NOTIONS OF COPYRIGHT AND RELATED RIGHTS Document prepared by the International Bureau of WIPO TABLE OF CONTENTS I......... II...................... Copyright legislation is part of the body of law known as "intellectual property... and to ensure that international trade in goods and services protected by intellectual property rights is allowed to flourish on the basis of a smoothly functioning system of harmonized national laws......... "Property"..................................................................... 9 Ownership and Exercise of Copyright............................................. 7 d.... Under each Convention.................................... The resulting combined 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 37 van 114 ................................... and the two secretariats were combined in 1893................ reflecting the evolution of the two international unions created at the end of 19th century to protect both types of intellectual property: the Paris Union created by the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Union.............................................. "Intellectual" Property............................ 8 3........ the expression "intellectual property" referred only to copyright...................................................... 4. 2 1................. 12 Page 2 I............... 5 a............................... broadcastingand communication to the public.............

In order to gain a fuller understanding of the term "intellectual property. the car or the furniture can use these items of property. real property.secretariat was known under various names. industrial designs. which protects the creations of the human mind. 2." No one except the owner of the wristwatch. The third type of property is intellectual property. and commercial names and designations. namely "industrial" property. One is property consisting of movable things. scientific discoveries. This legal right is referred to as "exclusive. 8. performances of performing artists. In some legal systems. to refer to all creations of the human mind. and broadcasts. Roughly speaking. Today." known under its French acronym BIRPI. this is known as "movable property. such as a corporation. The second type of property is immovable property. such as houses. nobody else can lawfully use his property without his authorization. Land and things permanently fixed on it. the last of which was "United International Bureaux for the Protection of Intellectual Property. industrial designs. literary or artistic fields." 4. 3. because they cannot be lifted or moved. but without such authorization. the expression "intellectual property" is used even more broadly. are immovable property. the proprietor may authorize others to use the property. Other sources include legal instruments of regional bodies composed of groups of countries (such as the directives of the European Union). artistic and scientific works. 1. Article 2 (viii) of the Convention Establishing the World Intellectual Property Organization does not define intellectual property as such. service marks. a car. and "all other rights resulting from intellectual activity in the industrial. such as a wristwatch." because the owner has the "exclusive" right to use his property. phonograms. As noted above. such as the Berne Convention and the recent Agreement on the Trade Related Aspects of Intellectual Property Rights (the TRIPS Agreement). 7. The most important feature of property is that the owner of the property may use it as he wishes. scientific. which became what is now WIPO. This is why this kind of property is called "intellectual" property. or furniture in a home." it may be useful to approach it in terms of the notion of "property" in general. Naturally. and 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 38 van 114 . bilateral and plurilateral agreements among countries which contain provisions on intellectual property (such as the North American Free Trade Agreement). and multilateral agreements. but gives the following list of the subject matter protected by intellectual property rights: literary. protection against unfair competition. intellectual property has been divided into two branches. use by others is illegal. The property owner may be a human being or a legal entity. The most direct source of protection for intellectual property is national laws. or as it is sometimes known. inventions in all fields of human endeavor. which includes inventions (patents). concluded under the Uruguay Round of negotiations under the former GATT (now the World Trade Organization). trademarks. trademarks. 6. "Intellectual" Property 9. the human intellect. "Property" 5. there are three types of property.

12. 10. Also. for a fixed number of years. A patent is an exclusive right granted for an invention. is) simply declaratory." which protects literary and artistic works as well as creations in the field of so-called "related rights. and will be divided into the following sections: (1) the works protected by copyright. without damage to the public interest. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 39 van 114 . the law may state that the author of an original work has the right to prevent other persons from copying or otherwise using his work. i. such protection is short in duration-. or offers a new technical solution to a problem. in particular. not the ideas themselves. Under copyright. a person who has disclosed to the public an invention cannot prevent third parties from using that invention. The fact that the invention is protected must also be made known to the public-there must be an official notification that a specific. in general. What has been said so far has been an introduction. works of fine arts such as paintings and sculptures. Copyright law protects the owner of property rights in literary and artistic works against those who "copy" or otherwise take and use the form in which the original work was expressed by the author. Protection accorded to inventors is. Copyright law protects only the form of expression of ideas. From this basic difference between inventions and literary and artistic works. (3) limitations on such rights. B.usually about 20 years. musical notes. (2) therights grantedtothe owner of copyright. protection against any use of the invention without the authorization of the owner. must obtain authorization before he can exploit it. in most countries. for present purposes it is helpful to explore the distinction between industrial property and copyright. Since protection under patent law gives a monopoly right in the exploitation of an invention.geographic indications of source. it follows that the legal protection provided to each also differs. 11. and the owner must ensure that his invention appears in the register." While other types of intellectual property also exist. without copying or even being aware of the first inventor's work. fully described invention is the property. (4) duration of copyright (5) ownership and transfer of copyright. in other words. and technology-based works such as computer programs and electronic databases. the law can be (and. open to the public.e. therefore. The creativity protected by copyright law is creativity in the choice and arrangement of words. 13. which is a product or a process that provides a new way of doing something. of a specific owner. the basic difference between inventions and literary and artistic works. the duration of protection can be much longer than in the case of the protection of inventions. Without protection under a patent. The next part of this paper will explain the general structure of copyright law. colors and shapes. and "copyright. and (6) enforcement of rights. Literary and artistic works include books. Protection of inventions under patent law does not require that the invention be represented in a physical embodiment. music. registration of works is not a condition for protection. Copyright 14. Therefore. the protected invention must be disclosed in an official register. Legal protection of literary and artistic works under copyright prevents only unauthorized use of the expressions of ideas. Even a person who later makes the same invention independently..

Protected Works 15. are protected also by many copyright laws. Collections of literary or artistic works such as encyclopaedias and anthologies which. scientific and artistic domain. dramatic or dramatico-musical works." The list is not intended to limit the modes or forms of expression which are protected by copyright law. sculpture. whatever may be the mode or form of its expression. recent example of a type of work not listed in Article 2 of the Berne Convention. architecture or science. not included in the list. but which is clearly included in the notion of a creation "in the literary. and many other countries. scientific and artistic domain. but which is undoubtedly included in the notion of a "production in the literary. scientific and artistic domain" within the meaning of Article 2 of the Convention. Computer programs are a good example of a type of work which is not included in the list contained in the Berne Convention. architecture. A computer program is a set of instructions which controls the operations of a computer in order to enable it to perform a specific task. Article 2 of the Berne Convention reads in part as follows: "The expression 'literary and artistic works' shall include every production in the literary. addresses. choreographic works and entertainments in dumb show." The expression "literary and artistic works" is a general concept to be understood.1. by reason of the selection and arrangement of their contents. whatever may be the mode or form of its expression. painting. musical compositions with or without words. arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. lectures. maps. constitute intellectual creations shall be protected as such. such as the storage and retrieval of information. While no acceptable legal 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 40 van 114 . A computer program is produced by one or more human authors but. without prejudice to the copyright in each of the works forming part of such collections. such as books. works of drawing. computer programs are protected under the copyright laws of a number of countries. topography. All countries which are members of the Berne Convention. provide protection under their copyright laws to the categories of works contained in the preceding list. Translations. scientific and artistic domain. in its final "mode or form of expression. not by humans. adaptations. pamphlets and other writings. Other modes or forms of expression of works in the literary. irrespective of its literary or artistic merit. scientific and artistic domain. and under the TRIPS Agreement. indeed. sermons and other works of the same nature. Another. engraving and lithography. sketches and three-dimensional works relative to geography. photographic works." is multimedia productions. 18." it can be understood directly only by a machine (the computer). illustrations. From this provision. it may be seen that copyright applies to "every production in the literary. scientific and artistic domain. to which are assimilated works expressed by a process analogous to photography." 16. plans. 17. It is not an exhaustive list. as including every original work of authorship. works of applied art. for the purposes of copyright protection. cinematographic works to which are assimilated works expressed by a process analogous to cinematography. which illustrates and gives examples of what is meant by the expression "every production in the literary.

and "moral rights. The right of the owner of copyright to prevent others from making copies of his works is the most basic right under copyright. Most copyright laws state that the author or owner of rights has the right to "authorize or prevent" certain acts in relation to a work. 2. which we must examine. of course." but this does not mean that he may drive his car recklessly and create danger to others. the owner of a car may use it "as he wishes. The owner of copyright in a protected work may use the work as he wishes. For example. subject to the legally recognized rights and interests of others. Therefore. Moral rights will be discussed later in this paper. nor that he may disregard traffic regulations. translation of the work. Thus. public performance of the work. Other rights are recognized in national laws in order to ensure that the basic right of 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 41 van 114 .e. 21. there is a consensus that the combination of sound. 20. it was noted that there are three kinds of property—movable property. and that nobody else can lawfully use it without his authorization. i. whether in the form of printed copies or digital media such as CD-Roms. There are two types of rights under copyright. 24. Copyright is a branch of intellectual property. Such acts include the following: reproduction of the work (making copies). as he wishes. The next question. broadcasting or other communication to the public of the work. When we say that the owner of property can use it "as he wishes" we do not. embodies an original expression of authorship sufficient to justify the protection of multimedia productions under the umbrella of copyright. Earlier in this lecture. the making of copies of a protected work is th act performed by a publisher who wishes to distribute copies of a text -based work to the public. Rights Protected 19. the right of a phonogram producer to manufacture and distribute compact discs (CDs) containing recorded performances of musical works is based.definition has been developed. in part. 22. economic rights. For example. Right of reproduction and related rights 23." which allow the author to take certain actions to preserve the personal link between himself and the work. text and images in a digital format which is made accessible by a computer program. on the authorization given by the composers of such works to reproduce their compositions in the recording. the rights granted under national laws to the owner of copyright in a protected work are normally "exclusive rights" to authorize others to use the work. which allow the owner of rights to derive financial reward from the use of his works by others. and adaptation of the work. a.. immovable property and intellectual property--and that the most important feature of property is that the owner may use it exclusively. the right to control the act of reproduction is the legal basis for many forms of exploitation of protected works. is what is meant by "using" a work protected by copyright. mean that he can use it regardless of the legally recognized rights and interests of other members of society. and may prevent others from using it without his authorization. Likewise.

by giving it away or even by reselling it. whether by radio. musical works embodied in phonograms are considered "publicly performed" when the phonograms are played over amplification equipment in such places as discotheques. such as musical works included in phonograms. but it bears mention here that an area of major concern at present relates to the scope of a limitation. There are some acts of reproducing a work which are exceptions to the general rule. obviously. for example." a signal is distributed. the legitimate economic interests of the copyright owner would be endangered if he could not exercise the rights of reproduction and distribution on a territorial basis. unauthorized copies of works which are virtually indistinguishable from the source (and thus a perfect substitute for the purchase of. a "public performance" is considered any performance of a work at a place where the public is or can be present. Another right which is achieving wider and wider recognition. some laws include a right to authorize distribution of copies of works. broadcastingand communication to the public 26. and shopping malls. b. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 42 van 114 . the right of reproduction would be of little economic value if the owner of copyright could not authorize the distribution of the copies made with his consent. is the right to authorize rental of copies of certain categories of works. after the copyright owner has sold or otherwise transferred ownership of a particular copy of a work. Under numerous national laws. or satellite. 27. which creates the possibility of making high-quality. but where a substantial number of persons outside the normal circle of a family and its closest social acquaintances is present. An example of "communication to the public" is cable transmission. such as the presentation of a play in a theater or an orchestra performance of a symphony in a concert hall.reproduction is respected. Finally. Public performance also includes performance by means of recordings. or other legitimate access to. which means that. For example. the author or other owner of copyright may authorize live performances of a work. or at a place not open to the public. authorized copies). and therefore. that the right to control rental practices was necessary in order to prevent abuse of the copyright owner's right of reproduction. the owner of that copy may dispose of it without the copyright owner's further permission. because they do not require the authorization of the author or other owner of rights. which can be received only by persons who possess the equipment necessary to decode the signal. has called into question the continuedjustification for such a limitation on the right of reproduction. by wire or wireless means. some copyright laws include a right to control importation of copies as a means of preventing erosion of the principle of territoriality of copyright. and computer programs. thus. The emergence of digital technology. The right of distribution is usually subject to exhaustion upon first sale or other transfer of ownership of a particular copy. including in the TRIPS Agreement. On the basis of the right of public performance. The right of rental is justified because technological advances have made it very easy to copy these types of works. When a work is "communicated to the public. audiovisual works. experience in some countries has shown that copies were made by customers of rental shops. The subject of limitations on rights will be discussed later in this presentation. Rights of public performance. The right of "broadcasting" covers the transmission by wireless means for public reception of sounds or of images and sounds. which allows individuals to make single copies of works for private. that is. these are known as "limitations" on rights. personal and non-commercial purposes. airplanes. traditionally present in copyright laws. 25. television.

The Berne Convention requires Member countries to grant to authors: (i) the right to claim authorship of the work (sometimes called the right of "paternity").. or other derogatory action in relation to. in order to reproduce and publish a translation or adaptation. broadcasting and communication to the public of their works. for example adapting a novel to make a motion picture. "Translation" means the expression of a work in a language other than that of the original version. on the other hand. such as broadcasting. and the rights of users to make changes which seem to be part of a normal use of works in digital format. on the one hand. Translations and adaptations are works protected by copyright. Moral rights 33. and (ii) the right to object to any distortion. the exclusive right of the author or other owner of rights to authorize broadcasting is replaced. Under some national laws. mutilation or other modification of. With digital technology. These developments have blurred the legal distinctions between the traditional forms of making works available to the public by incorporeal means. 32. 31. The acts of translating or adapting a work protected by copyright also require the authorization of the owner of rights. communication to the public and public performance have been the subject of much discussion. the work which would be prejudicial to the author's honor or reputation (sometimes called the right of "integrity"). the rights of broadcasting. by adapting an instructional textbook originally prepared for higher education into an instructional textbook intended for students at a lower level. sound and images by the user is quick and easy. Translation and adaptation rights 30. Under the Berne Convention. d. the scope of the right of adaptation has been the subject of discussion. which has produced what is referred to as the "convergence" of telecommunications and computer technology. by a right to equitable remuneration. or the modification of a work to make it suitable for different conditions of exploitation. New questions have arisen as a result of technological developments. In recent years.28. which are generally known as the moral rights of authors. discussions have focused on the appropriate balance between the rights of the author to control the integrity of the work by authorizing modifications. although such a limitation on the broadcasting right is less and less common. c. communication to the public and public performance. are required to be independent of the economic rights and to remain with the author 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 43 van 114 . e.g. In recent years. Therefore. manipulation of text. in particular digital technology. because of the increased possibilities for adapting and transforming works which are embodied in digital format. in certain circumstances. Discussions will continue in an effort to adapt the legal definitions of such uses to new technological and commercial realities. authors have the exclusive right of authorizing public performance. 29. "Adaptation" is generally understood as the modification of a work to create another work. authorization must be obtained from both the owner of the copyright in the original work and of the owner of copyright in the translation or adaptation. These rights.

Examples of free uses include the making of quotations from a protected work. In some (but not all) countries. a work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. the laws of some countries recognize the concept known as "fair use" or "fair dealing". but with the obligation to compensate the owner of rights. numerous laws contain provisions allowing reproduction of a work exclusively for the personal. which allows use of works without the authorization of the owner of rights. the texts of laws. and use of works for the purpose of news reporting. under circumstances specified in the law. and do not result from the exercise of the exclusive right of the copyright owner to authorize particular acts. 38. As noted above. The second category of limitations on the rights of authors and other owners of copyright concerns particular acts of exploitation. moreover. In respect of a free use for reproduction. rather than an explicit limitation: Article 9(2) provides that member States may provide for free reproduction in "special cases" where the acts do not conflict with normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. There are two basic types of limitations in this category: (1) "free uses.even after he has transferred his economic rights. private and non-commercial use of human individuals. the nature of the work used. is mentioned and that the extent of the quotation is compaible with fair practice. for example. 3. be done without authorization." which are acts of exploitation of works which may be carried out without authorization and without an obligation to compensate the owner of rights for the use. the Berne Convention contains a general rule. As noted above. Such licenses are called "non-voluntary" because they are allowed in the law. normally requiring the authorization of the owner of rights. Limitations on Rights 34. The first limitation is the exclusion from copyright protection of certain categories of works. provided that the source of the quotation. but require that compensation be paid in respect of the use. works are excluded from protection if they are not fixed in tangible form. 35. taking into account factors such as the following: the nature and purpose of the use. which may. a film producer or a publisher). 37. 36. "non-voluntary licenses" allow use of works in certain circumstances without the authorization of the owner of rights. the ease and quality of individual copying made possible by recent technology has led some countries to narrow the scope of such provisions. It is worth noting that moral rights are only accorded to human authors. even if someone else is the owner of economic rights in a work (for example. including whether it is for commercial purposes. and (2) "non-voluntary licenses". court and administrative decisions are excluded from copyright protection. including through systems which allow certain copying but incorporate a mechanism for payment to owners of rights for the prejudice to their economic interests resulting from the copying. including the name of the author. In addition to specific free uses enumerated in national laws. only the individual creator has moral interests at stake. and the likely effect of the use on the potential commercial value of the work. under which the acts of exploitation may be carried out without authorization. Non-voluntary licenses were usually created in circumstances where a new technology for 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 44 van 114 . In some countries. use of works by way of illustration for teaching purposes. the amount of the work used in relation to the work as a whole.

as from July 1. can never be transferred). since effective alternatives now exist for making works available to the public based on authorizations given by the owners of rights. and where the national legislator feared that owners of rights would prevent the development of the new technology by refusing to authorize use of works. when it has been expressed in a tangible form. Under an assignment. 42. at least in the first instance. The period of duration continues. Transfers of copyright may take one of two forms: assignments and licenses. the duration of copyright provided for by national law is. which contains a set of rules for determining initial ownership of rights in cinematographic works (Article 14bis). moral rights always belong to the individual human author of the work. 43. a duration. the person who created the work--that is to say. or. that the justification for nonvoluntary licenses is called increasingly into question. including in the form of collective management of rights. The Berne Convention also establishes periods of protection for works in respect of which the duration cannot be based on the life of a single human author. Also.the dissemination of works to the public had emerged. The law provides for a period of time. The period or duration of copyright begins from the moment when the work has been created. certain national laws provide that. not the author. Ownership and Exercise of Copyright 41. and in many other countries. in general. being personal to the author. whoever is the initial owner of rights in a work. the duration of copyright under the national laws of the member States be fixed at 70 years following the death of the author. several. This was true of two non-voluntary licenses recognized in the Berne Convention. 5. which allow the mechanical reproduction of musical works and broadcasting. Copyright does not continue indefinitely. under some national laws. 1995. It should be noted. posthumous and cinematographic works. anonymous. The laws of many countries provide that. 40. all economic rights may be transferred (moral rights. It should be noted that a trend exists in certain national laws toward lengthening of the duration of copyright. As noted above. An assignment is a transfer of a 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 45 van 114 . as a general rule. however. For example. a recent directive of the European Union requires that. the author of the work. for example. whoever may be the owner of economic rights. or all rights under copyright. when a work is created by an author who is employed for the purpose of creating that work. until some time after the death of the author. during which the rights of the copyright owner exist. The owner of copyright in a work is generally. In countries which are party to the Berne Convention. Duration of Copyright 39. is the owner of the copyright in the work. including in the Berne Convention. 4. There are exceptions to this general principle. then the employer. however. the life of the author and not less than 50 years after his death. The purpose of this provision in the law is to enable the author's successors to benefit economically from exploitation of the work after the author's death. the owner of rights transfers the right to authorize or prohibit certain acts covered by one.

criminal sanctions.judicial authorities may have the authority to order that provisional measures be carried out without advance notice to the alleged infringer. generally for a specific period of time and for a specific purpose. An advantage to authors in authorizing collective management lies in the fact that. anywhere in the world. 44. to preserve relevant evidence in regard to an alleged infringement. digital technology. which contains detailed provisions on the enforcement of rights. The Berne Convention contains very few provisions concerning enforcement of rights. to prevent and detect infringement of rights. Licenses may be exclusive. Licensing means that the owner of the copyright remains the owner but authorizes someone else to carry out certain acts covered by his economic rights. The following paragraphs identify and summarize some of the enforcement provisions found in recent national legislation. the author of a novel may grant a license to a publisher to make and distribute copies of his work. and second. which means that the copyright owner may authorize others to carry out the same acts. at the same time. if all rights are assigned. including entry of imported goods after clearance by customs. and in particular. A license. and measures. thus. is ample evidence of this new link between intellectual property and trade. For example. and only licensing is allowed. to collect and distribute remuneration. a single body is capable of ensuring that mass uses take place on the basis of authorizations which are easily obtainable from a central source. and. The recently-concluded TRIPS Agreement. In some countries. which may be divided into the following categories: conservatory or provisional measures. including works protected by copyright. unlike an assignment. Under collective management. In this way. which acts on their behalf to grant authorizations. but the evolution of new national and international enforcement standards has been dramatic in recent years. to prevent infringements from occurring. Conservatoryorprovisional measures have two purposes: first. The first is the galloping advances in the technological means for creation and use (both authorized and unauthorized) of protected material. 45. measures to be taken at the border. which means that the owner of copyright agrees not to authorize any other person to carry out the licensed acts. which makes it possible to transmit and make perfect copies of any "information" existing in digital form. authors and other owners of rights grant exclusive licenses to a single entity. particularly to prevent the entry of infringing goods into the channels of commerce. an assignment of copyright is not legally possible. worldwide business. 6.property right. Licensing may also take the form of collective management of rights. he may grant a license to a film producer to make a film based on the novel. does not generally convey the right to authrize others to carry out acts covered by economic rights. and to seek remedies for infringement. or non-exclusive. The most common provisional 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 46 van 114 . with multiple possibilities for unauthorized use of works resulting from new technologies. remedies and sanctions against abuses in respect of technical devices. due to two principal factors. 47. civil remedies. Enforcement of Rights 46. simply put. Thus. the alleged infringer is prevented from relocating the suspected infringing materials to avoid detection. the person to whom the rights were assigned becomes the owner of copyright. The second factor is the increasing economic importance of the movement of goods and services protected by intellectual property rights in the realm of international trade. trade in products embodying intellectual property rights is now a booming.

Technical devices are also used to prevent the reception of encrypted commercial television programs except with use of decoders. Civil remedies compensate the owner of rights for economic injury suffered because of the infringement. 48. Border measures allow the owner of rights to apply to customs authorities to suspend the release into circulation of goods which are suspected of infringing copyright. particularly in cases of repeat offenses.measure is a search of the premises of the alleged infringer and seizure of suspected infringing goods. where there is a danger that infringing acts may be continued. forfeiture and destruction of infringing goods. in that they involve action by the customs authorities rather than by the judicial authorities. includes measures. 49. The purpose of punishment is served by the imposition of substantial fines. as well as the materials and implements the predominant use of which has been to commit the offense. and create an effective deterrent to further infringement. and the customs authorities in case the goods turn out to be non-infringing. the only practical means of preventing copying is through so-called "copy-protection" or "copy-management" systems. The final category of enforcement provisions. and by sentences of imprisonment consistent with the level of penalties applied for crimes of corresponding seriousness. importation and distribution should be considered infringements of copyright to be sanctioned in ways similar to other violations. which has achieved greater importance in the advent of digital technology. The purpose of deterrence is served by orders for the seizure. to deter further infringement. must provide a detailed description of the goods so that they may be recognized. often in the form of a judicial order to destroy the infringing goods and the materials and implements which have been predominantly used for producing them. and all relevant documents and other records of the alleged infringing business activities. Criminal sanctions are intended to punish those who willfully commit acts of piracy of copyright and related rights on a commercial scale. The purpose of the suspension into circulation is to provide the owner of rights a reasonable time to commence judicial proceedings against the suspected infringer. usually in the form of monetary damages. which contain technical devices that either prevent entirely the making of copies or make the quality of the copies so poor that they are unusable. Measures to be taken at the border are different from the enforcement measures described so far. as in the case of civil remedies. and. 51. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 47 van 114 . may be circumvented. it is technically possible to manufacture devices by means of which copy-protection and copymanagement systems. the owner of the goods. failure to comply with which would subject the infringer to payment of a fine. However. the court may also issue injunctions against such acts. In certain cases. The owner of rights must generally satisfy the customs authorities that there is prima facie evidence of infringement. the equipment used to manufacture them. as well as encryption systems. 50. and must provide a security to indemnify the importer. remedies and sanctions against abuses in respect of technical means. The theory behind provisions against abuse of such devices is that their manufacture. without the risk that the alleged infringing goods will disappear into circulation following customs clearance.

Likewise. The rights of producers of phonograms are recognized because their creative. The rights of performers are recognized because their creative intervention is necessary to give life. whether it be through the making and distribution of unauthorized copies (piracy) or in the form of unauthorized broadcasting or communication to the public of their phonograms.of the Rome Convention. as they are "related" to the protection of works of authorship under copyright. that the exercise of related rights should leave intact and in no way affect the protection of copyright. indeed. the European Union has required that all its Member States adhere to the Convention. financial and organizational resources are necessary to make recorded sound available to the public in the form of commercial phonograms. the Rome Convention was an attempt to establish international regulations in a new field where few national laws existed at the time. The first organized international response to the need for legal protection of the three categories of related rights beneficiaries was the conclusion. the Rome Convention remains the international benchmark for protection in this field: for example. to musical works. The expression "neighboring rights" is also used to refer to such rights. This part of the lecture is dedicated to the subject of what are called "related rights. for example. but express creativity or technical and organizational skill sufficient tojustify recognition of a copyright-like property right. and motion pictures. 53. 54. Since the adoption of the Convention in1961. however. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 48 van 114 . and a number of others are considering such legislation." Unlike most international conventions. related rights have been granted to three categories of beneficiaries: performers. or more specifically. and because of their legitimate interest in having the legal resources necessary to take action against unauthorized uses. Producers of Phonograms and Broadcasting Organizations. producers of phonograms and broadcasting organizations. BASIC NOTIONS OF RELATED RIGHTS 52." or more correctly. and in light of their justified interest in controlling the transmission and retransmission of their broadcasts. Some laws make clear. the laws of many such States exceed the minimum levels of protection established by the Convention." The purpose of related rights is to protect the legal interests of certain persons and legal entities who either contribute to making works available to the public or produce subject matter which. dramatic and choreographic works. which follow in the wake of national legislation and are intended to synthesize existing laws. and it was the basis for inclusion of provisions on the rights of performers.II. producers of phonograms and broadcasting organizations in the TRIPS Agreement (even though the levels of protection are not the same). This meant that most States would have to draft and enact laws before adhering to the Convention. will not qualify as "works" under the copyright systems of all countries. in1961. the "International Convention for the Protection of Performers. "rights related to copyright. Traditionally. the rights of broadcasting organizations are recognized because of their role in making works available to the public. The law of related rights deems that the productions which result from the activities of such persons and entities are deserving of legal protection in themselves. and because they have a justifiable interest in legal protection of their individual interpretations. While there is a widespread view that it is out-of-date and in need of revision or replacement by a new set of international norms in the field of related rights.a large number of States have legislated in matters related to the Convention.

58. and measures. which may be exercised to prevent unauthorized uses of their name and image. conservatory or provisional measures. remedies for infringement or violation of related rights are. criminal sanctions. 56. measures to be taken at the border. (2) the performance took place. In the TRIPS Agreement. and some countries grant specific rights over cable transmissions. since it is often through the intervention of performers that they are communicated to the public. audiovisual works). use of short excerpts in connection with the reporting of current events. As in the case of copyright. remedies and sanctions against abuses in respect of technical devices. The rights granted to the three beneficiaries of related rights in national laws are as follows. the rights of performers and producers of phonograms are to be protected for 50 years from the date of the fixation or the performance. 57. Under some laws. developing countries may also provide a means for protection of the vast. although not all rights may be granted in the same law. and broadcasts. and the right to equitable remuneration for broadcasting and communication to the public of phonograms. including the possibility of non-voluntary licenses. phonograms. By providing related rights protection. 59. in the countries of the European Union. namely. and use for teaching or scientific research. for broadcasts. producers of phonograms (as well as any other right holders in phonograms under national law) are granted a right of rental. producers of phonograms and performers are granted a right of rental in respect of phonograms (and. ancient and invaluable cultural expression 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 49 van 114 . as regards performances not incorporated in phonograms. Some countries allow the same kinds of limitations on related rights as their laws provide in connection with protection of copyright. In terms of enforcement of rights. The largely unwritten and unrecorded cultural expression of many developing countries. some national laws also grant performers moral rights. broadcasting and communication to the public of their live performances without their consent. a word should be said concerning the relationship between the protection of related rights and the interests of developing countries. private use. of protected performances. in the case of phonograms and performances included in phonograms. and the rights of broadcasting organizations for 20 years from the date of the broadcast. or (3) the broadcast took place. Under the TRIPS Agreement. generally known as folklore. in respect of performers.55. The duration of protection of related rights under the Rome Convention is 20 years from the end of the year (1) the fixation (recording) is made. may be protected under related rights as performances. similar to those available to owners of copyright described above. the rights in respect of broadcasting and communication to the public may be in the form of equitable remuneration rather than a right to prevent. or modifications to their performances which present them in an unfavorable light. Due to the personal nature of their creations. civil remedies. Broadcasting organizations are provided the rights to authorize or prohibit rebroadcasting. It is to be noted that many national laws which protect related rights grant a longer term than the minima contained in the Rome Convention. and the right to prevent reproduction of fixations of their performances under certain circumstances. in general. fixation and reproduction of their broadcasts. for example. Finally. Producers of phonograms are granted the rights to authorize or prohibit reproduction. importation and distribution of their phonograms and copies thereof. the Rome Convention and national laws contain limitations on rights allowing. additional rights are granted: for example. likewise. Performers are provided the rights to prevent fixation (recording).

indeed. the enormous current popularity of what is called "world music" demonstrates that such markets exist. protection of producers of phonograms and broadcasting organizations helps to establish the foundation for national industries capable of disseminating national cultural expression within the country and. the essence of what separates each culture from its neighbors across the frontier or across the world. Likewise.which is a metaphor for their own existence and identity. In sum. but it is not always the case that the economic benefits from the exploitation of such markets return to the country where the cultural expressions originated. in markets outside it. perhaps more important. protection of related rights may serve the twin objectives of preserving national culture and providing a means for commercially meaningful exploitation of international markets 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 50 van 114 .

Stockholm 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 51 van 114 . and Special Government Adviser. Henry Olsson. AND COLLECTIVE MANAGEMENT organized by the World Intellectual Property Organization (WIPO) in cooperation with the Ministry of Culture Khartoum. Judge at the Court of Appeal.WIPO/CR/KRT/05/1 b ORIGINAL: English DATE: January 2005 WIPO NATIONAL SEMINAR ON COPYRIGHT. February 28 to March 2. Ministry of Justice. RELATED RIGHTS. 2005 THE TRIPS AGREEMENT prepared by Mr.

What is TRIPS ? • TRIPS is • The Agreement on Trade-Related Aspects of Intellectual Property Rights.TRIPS) • General Agreement on Services 4 "plurilateral" agreements 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 52 van 114 . • TRIPS is one of the 14 multilateral trade agreements within the World Trade Organization and one result of the Uruguay Round within GATT. The Uruguay Round • • A trade negotiations "Round" within GATT. Including Trade in Counterfeit Goods. • Main results: • Establishing WTO • 14 multilateral trade agreements (incl. Why TRIPS ? • Reason 1: Intellectual property had become important in international trade relations • Reason 2: Existing conventions in the IP field lacked efficient enforcement provisions against counterfeitng and piracy.

• Result of Uruguay Round = one package. Transitional/institutional arrangements TRIPS: Industrial property standards • Provisions on the contents of the rights in respect of • patents 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 53 van 114 . Standards on enforcement 4. Standards for the substantive protection of all essential IP rights 2.g.. • Membership of WTO = binding as regards all the multilateral agreements • No opt-out possibility as regards e. • Started functioning on January 1. Provisions on dispute settlement 5. 1995 What is the WTO. Provisions on basic principles (national treatment and Most-Favoured-Nation t.) 3. TRIPS.What is the WTO ? • World Trade Organization = WTO: an intergovernmental organization with now 146 members • Not a specialized agency under the UN • Was set up as a result of the Uruguay Round. TRIPS: General 1.

TRIPS dispute settlement procedures applicable in case of breach) - This does not apply to moral rights (which are consequently outside the scope of TRIPS). • General principle: . TRIPS: Copyright Standards.• • trademarks • geographical indications • industrial designs • lay-out designs of integrated circuits protection of undisclosed information (trade secrets) TRIPS: Copyright Standards 1. procedures.. 1-21 of the Berne Convention (result: e. methods of operation or mathematical concepts as such. General obligation - Compliance with art.g..Copyright protection applies only to expressions and not to ideas. • Special obligations: 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 54 van 114 . TRIPS: Copyright Standards.

TRIPS: Copyright Standards. the term shall be calculated from the year of the making of the work) TRIPS: Copyright standards.. 2) Compilations of data which by means of the selection and arrangement of their contents are intellectual creations shall be protected as such. 3) Rental right "at least" as regards - computer programs (except where the program is not the essential object of the rental) - cinematographic works (subject to the "material impairment test). 5) Three-step test as regards limitations a) certain special cases b) c) no conflict with a normal exploitation of the work..1) Computer programs in both source code and object code shall be protected as literary works under the Berne Convention.. 4) Special provision on term of protection for anonymous works (if not published. and no unreasonable prejudice of the legitimate interests of the author 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 55 van 114 . (phonograms) TRIPS: Copyright standards.

c) wireless broadcasting + communication to the public of live performances. • Sound performers: .) Term of protection: 50 years from fixation 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 56 van 114 .Possibility of preventing (not exclusive right) a) fixation of unfixed performances. -Nothing about right of remuneration for public performance of sound recordings TRIPS: Related Rights standards. phonogram producers and broadcasters.. 3) Deal only with sound performers and not audiovisual performers TRIPS: Related Rights standards. • Sound performers: .Term of protection: 50 years from performance or fixation of it.. but self-standing.TRIPS: Related Rights standards • Features: 1) Concern performing artists. 2) No reference to the Rome Convention. b) reproduction of sound recordings of performances. TRIPS: Related Rights standards • • Phonogram producers: • Right to authorise or prohibit: • direct or indirect reproduction of recordings • right of commercial rental • (no remuneration right for public perform..

c) wireless rebroadcasting broadcasts. • National treatment application: 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 57 van 114 .... 3) TRIPS: Basic operational principles. b) reproduction of fixations. TRIPS: Related Rights standards.TRIPS: Related Rights standards. • Sound radio and TV broadcasters: • Right to prohibit (no exclusive right): a) fixation of broadcasts. • Limitations: - Same as permitted under Rome Convention. - Three-step test applicable. TRIPS: Basic operational princples • National treatment: "each Member shall accord to the nationals of other Members treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property"' (Art. • Term of protection: 20 years from year of broadcast.

3). TRIPS: Basic operational principles. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 58 van 114 .- Copyright: applies to all rights. also if not mentioned in TRIPS - Related Rights: "this obligation applies only in respect of the rights provided under this Agreement "(Art. any advantage favour.. • Most-Favoured-Nation Treatment.. • Art 4: "With regard to the protection of intellectual property. privilege or immunity granted by a Member to the nationals of any other country shall be accorded immidiately and unconditionally to the nationals of all other Members'' TRIPS: Enforcement standards • Why enforcement provisions ? • Discontent as to the way in which counterfeiting and piracy was dealt with in national laws and applied.

TRIPS: Enforcement standards.enforcement procedures must be available. and • Specific obligations. - re-distribute resources between IP enforcement and enforcement in general.TRIPS: Enforcement standards.. • No obligation to - create a judicial IP enforcement system different from enforcement in general. possibility must exist for judicial review of final administrative decisions. • Part of the TRIPS Agreement. procedures to be fair and equitable. must include expeditious and deterrent remedies. • General obligations. TRIPS: Enforcement standards. must not be unnecessarily complicated or costly or entail unwarranted dealys. TRIPS: enforcement standards. • Special obligations as regards: - Civil and administrative procedures - Broder measures - Criminal procedures 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 59 van 114 ... • General obligations: . breach may entail panel procedures and trade sanctions..

• Border Measures: • Main provision: • Procedures on the suspension for 10 working days of the release of suspected counterfeit trademark goods or pirated copyright goods.TRIPS: Enforcement standards • Civil and administrative procedures: 1) fair and equitable procedures 2) Evidence 3) Injunctions 4) Damages 5) Disposal of infringing goods 6) Right of information TRIPS: Enforcement standards.) 7) Indemnification of the defendant 8) Provisional measures TRIPS: Enforcement standards... 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 60 van 114 . Civil and administrative procedures (cont.

TRIPS: Dispute settlement. TRIPS: Dispute settlement. • TRIPS system: • • prevention of disputes through provisions on transparency settlement of disputes through panel procedures and decisions andtrade sanctions in case decisions are not adhered to.. only diplomatic pressure was available. • Remedies: imprisonment or fines or both. • Why provisions on dispute settlement ? • Reason: when states were in breach international IP conventions the only remedy was referral to the International Court of Justice in the Hague.. • Must be strong enough to constitute a deterrent.TRIPS: Enforcement standards. • Criminal procedures to be applied "at least" • in respect of wilful trademark counterfeiting or copyright piracy on a commercial scale. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 61 van 114 . Never used. • Consequently.

• Dispute settlement: Legislative framework: . • Steps: 1) Consultations 2) Panel and Panel Reports 3) Possibly recourse to Standing Appellate Body 4) DSB decision on Panel Report 5) Suspension of concessions (trade sanctions)..Dispute Settlement Understanding (DSU) -Dispute Settlement Body (DSB). • Least-Developed Countries: . notification of IP laws to the TRIPS Council.TRIPS: Dispute settlement. • Dispute prevention: • transparency. e.g. TRIPS: Dispute settlement.. TRIPS: Dispute settlement.. TRIPS: Dispute settlement. due restraint in 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 62 van 114 ..Particular consideration to be given to LDC situation.

TRIPS: Application in time. 2000 (special rules on NT and MFN and certain provisions on patents in new areas). 1996 2) Developed Countries and Countries in Transition: by January 1. TRIPS: Application in time. 2006 • Doha Ministerial Declaration: patent protection for pharmaceuticals only from January 1. 2016 • • Provisions on incentives to promote technology transfer. • Least-Developed Countries: • Upon request the TRIPS Council to postpone application to January 1. Provisions on technical cooperation WTO/TRIPS Main bodies • Supreme body of WTO: the Ministerial Conference 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 63 van 114 ..raising matters and in requesting concessions/trade sanctions. 1) General application of TRIPS: by January 1.

lines. teaching. Code). The effect of the use upon the potential market for. use in a parody of some 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 64 van 114 . scholarship.S. The purpose and character of the use. This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17.html ) One of the rights accorded to the owner of copyright is the right to reproduce or to authorize others to reproduce the work in copies or phonorecords. or value of. news reporting. and research. or notes that may safely be taken without permission. The 1961 Report of the Register of Copyrights on the General Revision of the U. One of the more important limitations is the doctrine of “fair use. 1. quotation of short passages in a scholarly or technical work. S.” The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.S. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair. Copyright Law cites examples of activities that courts have regarded as fair use: “quotation of excerpts in a review or criticism for purposes of illustration or comment.• • In between: the General Council TRIPS: The TRIPS Council The concept of faire use in U. comment. including whether such use is of commercial nature or is for nonprofit educational purposes 2.copyright. Law (source: http://www. U. The nature of the copyrighted work 3. the copyrighted work The distinction between what is fair use and what is infringement in a particular case will not always be clear or easily defined. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. for illustration or clarification of the author’s observations. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. There is no specific number of words.gov/fls/fl102. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair. such as criticism.

for trespasses vi et armis.of the content of the work parodied. summary of an address or article. when applied to a new subject. IV December 15. It does not extend to any ideas. in very early times. 4 Burr. Taylor. and the common law. you should consider avoiding the use of copyrighted material unless you are confident that the doctrine of fair use would apply to the situation. much more when received and approved by usage. The safest course is to get permission from the copyright owner before using copyrighted material. The Copyright Office can neither determine whether a particular use may be considered fair nor advise on possible copyright violations. 2303. moral fitness. social. reproduction of a work in legislative or judicial proceedings or reports. When it is impracticable to obtain permission. of a work located in the scene of an event being reported. Political. The Copyright Office cannot give this permission.. and public convenience. J. If there is any doubt. in Millar v. Reviewed June 2012 Studyguide: week 5 Harvard Law Review: the right to privacy Vol. but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Thus. reproduction by a teacher or student of a small part of a work to illustrate a lesson." Willes. make common law without a precedent . or factual information conveyed in a work. and economic changes entail the recognition of new rights. reproduction by a library of a portion of a work to replace part of a damaged copy. in a news report. 1890 No. systems.” Copyright protects the particular way authors have expressed themselves. FL-102. the law gave a remedy only for physical interference with life and property. in its eternal youth. which. 2312 THAT the individual shall have full protection in person and in property is a principle as old as the common law. 5 THE RIGHT TO PRIVACY "It could be done only on principles of private justice. in a newsreel or broadcast. grows to meet the new demands of society. incidental and fortuitous reproduction. with brief quotations. Then the "right to life" served only to protect the subject 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 65 van 114 . it is advisable to consult an attorney.

From corporeal property arose the incorporeal rights issuing out of it . the putting another in fear of such injury. and the term "property" has grown to comprise every form of possession — intangible. Recent inventions and business methods call attention to the next step which must be taken for 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 66 van 114 . and then there opened the wide realm of intangible property. and profit of life lay in physical things. liberty meant freedom from actual restraint . — the right to be let alone . pleasure. against dust and smoke. the protection against actual bodily injury was extended to prohibit mere attempts to do such injury . and the beautiful capacity for growth which characterizes the common law enabled the judges to afford the requisite protection. as in its refusal to recognize the intrusion by seduction upon the honor of the family. the action per quod servitium amisit.6 as works of literature and art. and by allowing damages for injury to the parents' feelings. and the heightening of sensations which came with the advance of civilization.from battery in its various forms . A mean fiction.4 Occasionally the law halted. 5 Similar to the expansion of the right to life was the growth of the legal conception of property. 8 trade secrets. with the recognition of the legal value of sensations. Thoughts. 9 This development of the law was inevitable. Gradually the scope of these legal rights broadened . was considered. and now the right to life has come to mean the right to enjoy life. The intense intellectual and emotional life. 1 Much later there came a qualified protection of the individual against offensive noises and odors. Later. the standing among his fellow-men. 2 So regard for human emotions soon extended the scope of personal immunity beyond the body of the individual. an adequate remedy was ordinarily afforded. and excessive vibration. of his feelings and his intellect. and the alienation of a wife's affections was held remediable. and the law of slander and libel arose. the right to liberty secures the exercise of extensive civil privileges . Thus. and trademarks. His reputation. The law of nuisance was developed. emotions. made it clear to men that only a part of the pain. But even here the demands of society were met. as well as tangible. From the action of battery grew that of assault. was resorted to. there came a recognition of man's spiritual nature. without the interposition of the legislature. that is. and sensations demanded legal recognition. 3 Man's family relations became a part of the legal conception of his life. in the products and processes of the mind. and the right to property secured to the individual his lands and his cattle. 7 goodwill.

and for securing to the individual what Judge Cooley calls the right "to be let alone" 10 Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life . Of the desirability — indeed of the necessity — of some such protection. Nor is the harm wrought by such invasions confined to the suffering of those who may be the subjects of journalistic or other enterprise. what wonder that the ignorant and thoughtless mistake its relative importance. When personal gossip attains the dignity of print. when widely and persistently circulated. Gossip is no longer the resource of the idle and of the vicious. under the refining influence of culture. there can. It both belittles and perverts. The press is overstepping in every direction the obvious bounds of propriety and of decency. To occupy the indolent. far greater than could be inflicted by mere bodily injury. becomes the seed of more. has been but recently discussed by an able writer. which is pursued with industry as well as effrontery. 12 The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago. through invasions upon his privacy. attendant upon advancing civilization. but has become a trade. which can only be procured by intrusion upon the domestic circle. long keenly felt. results in the lowering of social standards and of morality. and numerous mechanical devices threaten to make good the prediction that "what is whispered in the closet shall be proclaimed from the house-tops. has become more sensitive to publicity. is potent for evil. it is believed. as in other branches of commerce. and. Easy of 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 67 van 114 . Even gossip apparently harmless. the supply creates the demand. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. but modern enterprise and invention have. be no doubt. thus dwarfing the thoughts and aspirations of a people. column upon column is filled with idle gossip. and the question whether our law will recognize and protect the right to privacy in this and in other respects must soon come before out courts for consideration. Each crop of unseemly gossip. have rendered necessary some retreat from the world." For years there has been a feeling that the law must afford some remedy for the unauthorized circulation of portraits of private persons . so that solitude and privacy have become more essential to the individual . in direct proportion to its circulation.11 and the evil of invasion of privacy by the newspapers. In this. 13 directly involved the consideration of the right of circulating portraits . thus harvested. The intensity and complexity of life.the protection of the person. subjected him to mental pain and distress. and crowds the space available for matters of real interest to the community. It belittles by inverting the relative importance of things. and man.

covers. in order to be actionable. Triviality destroys at once robustness of thought and delicacy of feeling. unlike the Roman law. and even if in writing or in print. must subject him to the hatred.comprehension. and however unsuited to publicity. but from an intentional and unwarranted violation of the "honor" or another. appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors. must. or contempt of his fellowmen. It deals only with damage to reputation. while a legal remedy for such injury seems to involve the treatment of mere wounded feelings. does not afford a remedy even for mental suffering which results from mere contumely and insult. as a substantive cause of action. In short. The matter published of him. — the effect of the publication upon his estimate of himself and upon his own feelings nor forming an essential element in the cause of action. no generous impulse can survive under its blighting influence. and. however. It is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual . the injury inflicted bears a superficial resemblance to the wrongs dealt with by the law of slander and of libel. On the other hand. by lowering him in the estimation of his fellows.15 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 68 van 114 . No enthusiasm can flourish. a radically different class of effects from those for which attention is now asked. yet if the act itself is otherwise lawful. the suffering inflicted is dannum absque injuria. with the injury done to the individual in his external relations to the community. what the nature and extent of such protection is. though purely wanton or even malicious. ridicule. no one can be surprised that it usurps the place of interest in brains capable of other things. However painful the mental effects upon another of an act. however widely circulated. That branch of the law simply extends the protection surrounding physical property to certain of the conditions necessary or helpful to worldly prosperity. The principle on which the law of defamation rests. if it does. Injury of feelings may indeed be taken account of in ascertaining the amount of damages when attending what is recognized as a legal injury . our law recognizes no principle upon which compensation can be granted for mere injury to the feelings. the wrongs and correlative rights recognized by the law of slander and libel are in their nature material rather than spiritual.14 but our system. have a direct tendency to injure him in his intercourse with others. Owing to the nature of the instruments by which privacy is invaded.

It is immaterial whether it be by word 17 or by signs. or in music. 23 It is entirely independent of the copyright laws.20 Neither does the existence of the right depend upon the nature or value of the thought or emotions. or artist the entire profits arising from publication . unless there is a publication . but instances and applications of a general right to privacy. to what extent his thoughts. and even if he has chosen to give them expression. but the common-law protection enables him to control absolutely the act of publication. to injuries sustained. publishes it. or emotions is expressed. to a botch or daub and to a masterpiece.18 in painting. composer. a song sung. a drama acted.24 The statutory right is of no value. It may exist independently of any corporeal being. which is but superficial. — in other words. This right is wholly independent of the material on which. which properly understood afford a remedy for the evils under consideration. and in the exercise of his own discretion. without forfeiting any proprietary right in the composition itself. sentiment. and their extension into the domain of art. the thought. the commonlaw right is lost as soon as there is a publication. 22 No other has the right to publish his productions in any form.21 The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay. sentiments. to invoke the analogy. to decide whether there shall be any publication at all.It is not however necessary. nor upon the excellence of the means of expression. In every such case the individual is entitled to decide whether that which is his shall be given to the public. he can never be compelled to express them (except when upon the witness stand). The existence of this right does not depend upon the particular method of expression adopted. in order to sustain the view that the common law recognizes and upholds a principle applicable to cases of invasion of privacy. ordinarily. it is believed. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 69 van 114 . The right is lost only when the author himself communicates his production to the public. the author may have parted with the paper. and emotions shall be communicated to others. without his consent.19 by sculpture. for the legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are. 16 Under our system of government. The common law secures to each individual the right of determining. either by an attack upon reputation or by what the civilians called a violation of honor . The aim of those statutes is to secure to the author. as in a poem in writing. Or if expressed on any material. as in words spoken. he generally retains the power to fix the limits of the publicity which shall be given them.

not the intellectual act of recording the fact that the husband did not dine with his wife. or the publication of some of the facts contained therein. A man writes a dozen letters to different people. but also "the publishing (at least by printing or writing). in the common acceptation of that term. they are transferable . Strange. it is difficult to regard the right as one of property. that he did not dine with his wife on a certain day. they have a value ." 27 Likewise. whether in the form of a catalogue or otherwise. so long as we have only to deal with the reproduction of literary and artistic compositions. No one into whose hands those papers fall could publish them to the world. But the copyright law would not prevent an enumeration of the letters. appears the more clearly when the subject-matter for which protection is invoked is not even in the form of intellectual property. Suppose a 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 70 van 114 . the restraint extends also to a publication of the contents. or in his diary. But where the value of the production is found not in the right to take the profits arising from publication. but has the attributes of ordinary tangible property. the basis. If the letters or the contents of the diary were protected as literary compositions.What is the nature. the court held that the common-law rule prohibited not merely the reproduction of the etchings which the plaintiff and Queen Victoria had made for their own pleasure. a description of them. No person would be permitted to publish a list of the letters written. the scope of the protection afforded should be the same secured to a published writing under the copyright law.25 and no difficulty arises in accepting this view. but the domestic occurrence. but it would not prevent a publication of list or even a description of them. The copyright of a series of paintings or etchings would prevent a reproduction of the paintings as pictures . whether more or less limited or summary.28 That this protection cannot rest upon the right to literary or artistic property in any exact sense. but that fact itself. They certainly possess many of the attributes of ordinary property . It is not the intellectual product. but in the peace of mind or the relief afforded by the ability to prevent any publication at all. of this right to prevent the publication of manuscripts or works of art? It is stated to be the enforcement of a right of property . though not by copy or resemblance. and the prohibition would not be confined to the publication of a copy of the letter itself.26 Yet in the famous case of Prince Albert v. A man records in a letter to his son. an unpublished collection of news possessing no element of a literary nature is protected from privacy. even if possession of the documents had been obtained rightfully . or of the diary entry . What is the thing which is protected? Surely. and publication or reproduction is a use by which that value is realized.

it should not equally be enjoined. wholly independent of the material. yet there are recognitions of a more liberal doctrine. and yet the articles enumerated are certainly not intellectual property in the legal sense. Thus in the case of Prince Albert v. Although the courts have asserted that they rested their decisions on the narrow grounds of protection to property. also. or why. or to gain an 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 71 van 114 . any right of privacy. in several cases. "and that it was "evident the plaintiff could not have considered the letters as of any value whatever as literary productions." 30 But those decisions have not been followed. if any. be an infraction of other rights which constitutes the wrongful act.man has a collection of gems or curiosities which he keeps private : it would hardly be contended that any person could publish a catalogue of them. or the mode in which. if such a publication would be restrained when it threatened to expose the victim not merely to sarcasm. already referred to. in such a case. it must. The possibility of future profits is not a right of property which the law ordinarily recognizes . yet it is difficult to perceive how. upon which. therefore. show a more or less clearly defined perception of a principle broader than those which were mainly discussed. the thought or sentiment was expressed. would be drawn in question. To deprive a man of the potential profits to be realized by publishing a catalogue of his gems cannot per se be a wrong to him. but to ruin. injunctions against the publication of private letters.31 and it may not be considered settled that the protection afforded by the common law to the author of any writing is entirely independent of its pecuniary value. ViceChancellor Knight Bruce referred to publishing of a man that he had "written to particular persons or on particular subjects" as an instance of possibly injurious disclosures as to private matters. the opinions of both the Vice-Chancellor and of the Lord Chancellor. and on which they both place their chief reliance. any more than a collection of stoves or of chairs. or of any intention to publish the same and. on the ground that "letters not possessing the attributes of literary compositions are not property entitled to protection . if it threatened to embitter his life. for a letter cannot be considered of value to the author which he never would consent to have published. on appeal. and that infraction is equally wrongful. that the courts would in a proper case prevent . of course. Strange. 29 The belief that the idea of property in its narrow sense was the basis of the protection of unpublished manuscripts led an able court to refuse. its intrinsic merits. whether its results are to forestall the profits that the individual himself might secure by giving the matter a publicity obnoxious to him. in the narrow sense.

"and Lord Cottenham declared. the photographer. in the king's lifetime. that "privacy is the right invaded. to the effect that "if one of the late king's physicians had kept a diary of what he heard and saw. the facts relating to his private life.advantage at the expense of his mental pain and suffering." and cited with approval the opinion of Lord Eldon. which he has seen fit to keep private. as reported in a manuscript note of the case of Wyatt v. In each of these rights. the court would not. is merely an instance of the enforcement of the more general right of the individual to be let alone. so far as it consists in preventing publication. Lord Cottenham stated that a man "is that which is exclusively his. The principle which protects personal writings and all other personal productions. in respect to the acts of the defendants in the case before him. But. have permitted him to print and publish it .32 If we are correct in this conclusion. is in reality not the principle of private property. Wilson. there inheres the quality of being owned or possessed — and (as that is the distinguishing attribute of property) there may some propriety in speaking of those rights as property. the interposition of the courts cannot depend on the particular nature of the injuries resulting. in 1820. not against theft and physical appropriation. and emotions. not to products of the intellect. These considerations lead to the conclusion that the protection afforded to thoughts. the right not be imprisoned. expressed through the medium of writing or of the arts. but that of an inviolate personality. but against publication in any form. sentiments. it is still true that the end accomplished by the gossip-monger is attained by the use of that which is another's." But if privacy is once recognized as a right entitled to legal protection. or the possessor of any other modern device for rewording or reproducing scenes or sounds. obviously. respecting an engraving of George the Third during his illness. For the protection afforded is not confined by the authorities to those cases where any particular medium or form of expression has been adopted. they bear little resemblance to what is ordinarily comprehended under that term. the right not to be maliciously prosecuted. the right not to be defamed. as indeed in all other rights recognized by the law. The same protection is afforded to emotions and sensations expressed 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 72 van 114 . If the fiction of property in a narrow sense must be preserved. the existing law affords a principle from which may be invoked to protect the privacy of the individual from invasion either by the too enterprising press. It is like the right not be assaulted or beaten.

then. in some instances where protection has been afforded against wrongful publication. in conversation. and the intention of publishing must be abandoned. — the right to one's personality.in a musical composition or other work of art as to a literary composition . a sonata performed. in attitudes. little to recommend it. a pantomime acted. has. emotions. all considerations of the amount of labor involved. it may be contended that the protection afforded is granted to the conscious products of labor. and sensations.33 This contention. After the decisions denying the distinction attempted to be made between those literary productions which it was intended to publish and those which it was not. the value of the product. It should be stated that. not on the ground of property. is no less entitled to protection than if each had been reduced to writing. but it has no significance as a matter of substantive right. If the test of deliberateness of the act be adopted. we might well find that the effort to conduct one's self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book . or in facial expression. In other words. and words spoken. in fact. much casual correspondence which is now accorded full protection would be excluded from the beneficent operation of existing rules. the degree of deliberation. whether expressed in writing. except the right to privacy. and no basis is discerned upon which the right to restrain publication and reproduction of such so-called literary and artistic works can be rested. and hence may be important from the point of view of evidence. It may be urged that a distinction should be taken between the deliberate expression of thoughts and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 73 van 114 . as a part of the more general right to the immunity of the person. but upon the ground of an alleged breach of an implied contract or of a trust or confidence. The circumstance that a thought or emotion has been recorded in a permanent form renders its identification easier. however plausible. or at least not wholly on that ground. the jurisdiction has been asserted. one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life. perhaps as an encouragement to effort. these should receive the same protection. the decisions indicate a general right to privacy for thoughts. If. or in conduct. If the amount of labor involved be adopted as the test.

The Lords Justices differed as to the application of the copyright acts to the case. and then brought suit for an injunction and damages. holding "that when persons were admitted as pupils or otherwise." In Prince Albert v. Strange." Later. although they were orally delivered. a distinguished surgeon. but held unanimously that independently of those acts. for profit. Justice North interjected in the argument of the plaintiff's counsel the inquiry: "Do you dispute that if the negative likeness were taken on the sly. a photographer who had taken a lady's photograph under the ordinary circumstances was restrained from exhibiting it. in Abernethy v. stated.. on appeal.B. and offered them for sale in England at a lower price. Subsequently. and although the parties might go to the extent. Div. 639 (1887). Photographic Co. and also from selling copies of it.Thus. In Tuck v. 25 (1849). and employed the defendant to make a certain number of copies. short of doing what is libellous or 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 74 van 114 . 19 Q. that which they had not obtained the right of selling. but granted the injunction on the ground of breach of confidence. yet they could do that only for the purposes of their own information. to hear these lectures. or contract. I McN. the person who took it might exhibit copies?" and counsel for the plaintiff answered: "In that case there would be no trust or consideration to support a contract. 3 L. and could not publish. Priester. after discussing the evidence. the plaintiffs were owners of a picture. the defendant's counsel argued that "a person has no property in his own features . confidence. if they were able to do so. and made also a number of other copies for himself. on the ground that it was a breach of an implied term in the contract. where the plaintiff. the plaintiffs registered their copyright in the picture. of putting down the whole by means of shorthand. Hutchinson. He did so. and also that it was a breach of confidence." and that upon such ground also the plaintiff's title to the injunction was fully sustained. J. 40 Ch. the plaintiffs were entitled to an injunction and damages for breach of contract. In Pollard v. 345 (1888). Lord Cottenham. that he was bound to assume that the possession of the etching by the defendant had "its foundation in a breach of trust. while recognizing a right of property in the etchings which of itself would justify the issuance of the injunction. & G.D. Lord Eldon doubted whether there could be property in lectures which had not been reduced to writing. sought to restrain the publication in the "Lancet" of unpublished lectures which he had delivered as St. Bartholomew's Hospital in London. 209 (1825). Ch. Mr.

otherwise illegal. affords alone that broad basis upon which the protection which the individual demands can be rested. private justice. in searching for some principle upon which the publication of private letters could be enjoined. but it required little consideration to discern that this doctrine could not afford all the protection required. there may be no objection to working out the desired protection though the doctrines of contract or of trust. for instance. it is 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 75 van 114 . but since the latest advances in photographic art have rendered it possible to take pictures surreptitiously. but now that modern devices afford abundant opportunities for the perpetration of such wrongs without any participation by the injured party. since it would not support the court in granting a remedy against a stranger . is nothing more nor less than a judicial declaration that public morality. or of implying a trust (particularly where a contract is written. and so the theory of property in the contents of letters was adopted. the doctrines of contract and of trust are inadequate to support the required protection. and of an implied contract . the state of the photographic art was such that one's picture could seldom be taken without his consciously "sitting" for the purpose. or to supply relations upon which a trust or confidence can be erected. still seems to have felt the necessity of resting the decision also upon a right of property. there is no restriction on the photographer's using his negative. including all rights and privileges. While. So long as these circumstances happen to present a contract upon which such a term can be engrafted by the judicial mind. while expressly finding a breach of contract and of trust sufficient to justify its interposition. and general convenience demand the recognition of such a rule. the courts. 34 in order to bring it within the line of those cases which were relied upon as precedents. 36 Indeed. and hence embracing the right to an inviolate personality. The narrower doctrine may have satisfied the demands of society at a time when the abuse to be guarded against could rarely have arisen without violating a contract or a special confidence . The right of property in its widest sense. 35 This process of implying a term in a contract. the protection granted by the law must be placed upon a broader foundation. But the court can hardly stop there. and that the publication under similar circumstances would be considered an intolerable abuse." But the court. including all possession. naturally came upon the ideas of a breach of confidence. and the law of tort must be resorted to. Thus. the law of contract or of trust might afford the prudent man sufficient safeguards against the improper circulation of his portrait . and where these is no established usage or custom).

however expressed.40 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 76 van 114 . as above stated. that obligation is simply to observe the legal right of the sender. Winyard. by wrongfully looking into a book in which the secret was recorded. Suppose a letter has been addressed to him without his solicitation.37 A similar groping for the principle upon which a wrongful publication can be enjoined is found in the law of trade secrets. But can it be supposed that the court would hesitate to grant relief against one who had obtained his knowledge by an ordinary trespass. is guilty of a breach of contract. rarely happen that any one would be in possession of a secret unless confidence had been reposed in him. He cannot. whatever it may be.38 It would. he has not made any contract . and to personal relation. Surely. sayings. or of an abuse of confidence. Lord Eldon "granted the injunction. unless that word be used in an extended and unusual sense. 394 (1820). and whether it be called his right or property in the contents of the letter. where an injunction was granted against making any use or of communicating certain recipes for veterinary medicine. are not rights arising from contract or from special trust. or his right to privacy. I J. but are rights as against the world . in the ordinary acceptation of that term. or of any breach of trust. and. in Yovatt v. and. There.&W. whatever their exact nature. injunctions have generally been granted on the theory of a breach of contract. have come under any obligation save what the law declares . the principle which has been applied to protect these rights is in reality not the principle of private property. express or implied. is the right to privacy. upon the ground of there having been a breach of trust and confidence. acts.39 We must therefore conclude that the rights. The principle which protects personal writings and any other productions of the intellect of or the emotions.difficult to conceive on what theory of the law the casual recipient of a letter. or by eavesdropping? Indeed." but it would seem difficult to draw any sound legal distinction between such a case and one where a mere stranger wrongfully obtained access to the book. had surreptitiously got access to his book of recipes. He opens it. he has not accepted any trust. domestic or otherwise. and reads. of course. by opening and reading the letter. and the law has no new principle to formulate when it extends this protection to the personal appearance. it appeared that the defendant while in the plaintiff's employ. — for instance. and copied them. so protected. who proceeds to publish it.

and what remedies may be granted for the enforcement of the right. the elements for demanding redress exist.41 It remains to consider what are the limitations of this right to privacy. would be a more important and far-reaching one. in that large class of cases in which the reasonableness or unreasonableness of an act is made 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 77 van 114 . how much less should be tolerated the reproduction of her face. since already the value of mental suffering. has already found expression in the law of France. but they are inherent in the subject-matter. but also against description and enumeration.If the invasion of privacy constitutes a legal injuria. In determining the scope of this rule. aid would be afforded by the analogy. The right to privacy. how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity.42 There are of course difficulties in applying such a rule . To determine in advance of experience the exact line at which the dignity and convenience of the individual must yield to the demands of the public welfare or of private justice would be a difficult task . and are certainly no greater than those which exist in many other branches of the law. the right to protect one's self from pen portraiture. if handiwork. of cases which deal with the qualified privilege of comment and criticism on matters of public and general interest. and her actions. The right of one who has remained a private individual. The right to privacy does not prohibit any publication of matter which is of public or general interest. in the law of libel and slander. If you may not reproduce a woman's face photographically without her consent. and in the law of literary and artistic property. but the more general rules are furnished by the legal analogies already developed in the law of slander and libel. limited as such right must necessarily be. is recognized as a basis for compensation. presents the simplest case for such extension . to prevent his public portraiture. If casual and unimportant statements in a letter. however inartistic and valueless. 1. by graphic descriptions colored to suit a gross and depraved imagination. caused by an act wrongful in itself. — for instance. her form. if possessions of all sorts are protected not only against reproduction. from a discussion by the press of one's private affairs.

the test of liability. The design of the law must be to protect those persons with whose
affairs the community has no legitimate concern, from being dragged into an undesirable
and undesired publicity and to protect all persons, whatsoever ; their position or station,
from having matters which they may properly prefer to keep private, made public against
their will. It is the unwarranted invasion of individual privacy which is reprehended, and
to be, so far as possible, prevented. The distinction, however, noted in the above
statement is obvious and fundamental. There are persons who may reasonably claim as a
right, protection from the notoriety entailed by being made the victims of journalistic
enterprise. There are others who, in varying degrees, have renounced the right to live
their lives screened from public observation. Matters which men of the first class may
justly contend, concern themselves alone, may in those of the second be the subject of
legitimate interest to their fellow-citizens. Peculiarities of manner and person, which in
the ordinary individual should be free from comment, may acquire a public importance, if
found in a candidate for public office. Some further discrimination is necessary, therefore,
than to class facts or deeds as public or private according to a standard to be applied to
the fact or deed per se. To publish of a modest and retiring individual that he suffers from
an impediment in his speech or that he cannot spell correctly, is an unwarranted, if not an
unexampled, infringement of his rights, while to state and comment on the same
characteristics found in a would-be congressman could not be regarded as beyond the
pale of propriety.
The general object in view is to protect the privacy of private life, and to whatever degree
and in whatever connection a man's life has ceased to be private, before the publication
under consideration has been made, to that extent the protection is likely to be
withdrawn.43 Since, then, the propriety of publishing the very same facts may depend
wholly upon the person concerning whom they are published, no fixed formula can be
used to prohibit obnoxious publications. Any rule of liability adopted must have in it an
elasticity which shall take account of the varying circumstances of each case, — a
necessity which unfortunately renders such a doctrine not only more difficult of
application, but also to a certain extent uncertain in its operation and easily rendered
abortive. Besides, it is only the more flagrant breaches of decency and propriety that
could in practice be reached, and it is not perhaps desirable even to attempt to repress

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everything which the nicest taste and keenest sense of the respect due to private life
would condemn.
In general, then, the matters of which the publication should be repressed may be
described as those which concern the private life, habits, acts, and relations of an
individual, and have no legitimate connection with his fitness for a public office which he
seeks or for which he is suggested, or for any public or quasi public position which he
seeks or for which he is suggested, and have no legitimate relation to or bearing upon any
act done by him in a public or quasi public capacity. The foregoing is not designed as a
wholly accurate or exhaustive definition, since that which must ultimately in a vast
number of cases become a question of individual judgment and opinion is incapable of
such definition ; but it is an attempt to indicate broadly the class of matters referred to.
Some things all men alike are entitled to keep from popular curiosity, whether in public
life or not, while others are only private because the persons concerned have not
assumed a position which makes their doings legitimate matters of public investigation. 44
2. The right to privacy does not prohibit the communication of any matter, though in its
nature private, when the publication is made under circumstances which would render it
a privileged communication according to the law of slander and libel.
Under this rule, the right to privacy is not invaded by any publication made in a court of
justice, in legislative bodies, or the committees of those bodies ; in municipal assemblies,
or the committees of such assemblies, or practically by any communication in any other
public body, municipal or parochial, or in any body quasi public, like the large voluntary
associations formed for almost every purpose of benevolence, business, or other general
interest ; and (at least in many jurisdictions) reports of any such proceedings would in
some measure be accorded a like privilege.45 Nor would the rule prohibit any publication
made by one in the discharge of some public or private duty, whether legal or moral, or in
conduct of one's own affairs, in matters where his own interest is concerned.46
3. The law would probably not grant any redress for the invasion of privacy by oral
publication in the absence of special damage.
The same reasons exist for distinguishing between oral and written publications of private
matters, as is afforded in the law of defamation by the restricted liability for slander as

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compared with the liability for libel.47 The injury resulting from such oral communications
would ordinarily be so trifling that the law might well, in the interest of free speech,
disregard it altogether.48
4. The right to privacy ceases upon the publication of the facts by the individual, or with his
consent.
This is but another application of the rule which has become familiar in the law of literary
and artistic property. The cases there decided establish also what should be deemed a
publication, — the important principle in this connection being that a private
communication of circulation for a restricted purpose is not a publication within the
meaning of the law.49
5. The truth of the matter published does not afford a defence. Obviously this branch of the
law should have no concern with the truth or falsehood of the matters published. It is not
for injury to the individual's character that redress or prevention is sought, but for injury
to the right of privacy. For the former, the law of slander and libel provides perhaps a
sufficient safeguard. The latter implies the right not merely to prevent inaccurate
portrayal of private life, but to prevent its being depicted at all. 50
6. The absence of "malice" in the publisher does not afford a defence.
Personal ill-will is not an ingredient of the offence, any more than in an ordinary case of
trespass to person or to property. Such malice is never necessary to be shown in an action
for libel or slander at common law, except in rebuttal of some defence, e.g., that the
occasion rendered the communication privileged, or, under the statutes in this State and
elsewhere, that the statement complained of was true. The invasion of the privacy that is
to be protected is equally complete and equally injurious, whether the motives by which
the speaker or writer was actuated are taken by themselves, culpable or not ; just as the
damage to character, and to some extent the tendency to provoke a breach of the peace,
is equally the result of defamation without regard to motives leading to its publication.
Viewed as a wrong to the individual, this rule is the same pervading the whole law of
torts, by which one is held responsible for his intentional acts, even thought they care
committed with no sinister intent ; and viewed as a wrong to society, it is the same

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public opinion will rally to his support. even to his own officers engaged in the execution of its command.] 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 81 van 114 . V. Each man is responsible for his own acts and omissions only. forged in the slow fire of the centuries. but for this. 52 It would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law. If he condones what he reprobates. December 1890. Has he then such a weapon? It is believed that the common law provides him with one. with a weapon at hand equal to his defence. 53 Perhaps it would be deemed proper to bring the criminal liability for such publication within narrower limits . Warren. Shall the courts thus close the front entrance to constituted authority. IV. Louis D. often. impregnable. December.principle adopted in a large category of statutory offences. legislation would be required. but that the community has an interest in preventing such invasions of privacy. and in the law of literary and artistic property. namely: — 1. An action of tort for damages in all cases. and to-day fitly tempered to his hand. If he resists. in perhaps a very limited class of cases. Brandeis. sufficiently strong to justify the introduction of such a remedy. [Originally published in the Harvard Law Review. cannot be doubted. 1890. Still. The common law has always recognized a man's house as his castle. 2. he is responsible for the results. 5. and open wide the back door to idle or prurient curiosity? Samuel D. BOSTON. The remedies for an invasion of the right of privacy are also suggested by those administered in the law of defamation. the protection of society must come mainly through a recognition of the rights of the individual.51 Even in the absence of special damages. No. substantial compensation could be allowed for injury to feelings as in the action of slander and libel. An injunction.

html Defining Privacy Of all the human rights in the international catalogue. or those of his family. embarrassment. It protects the inviolate personality. As one writer observed."[7] According to Edward Bloustein. the individual's independence. "nowhere have we found a wholly satisfactory statutory definition of privacy. future United States Supreme Court Justice Louis Brandeis articulated a concept of privacy that urged that it was the individual's "right to be left alone.[9] The Calcutt Committee in the United Kingdom said. and he was concerned that it should be reflected in the Constitution.worldlii."[5] Some viewpoints on privacy: In the 1890s. anonymity and solitude. all human rights are aspects of the right to privacy. "in one sense. privacy is an interest of the human personality. or accountability and the attempt to control the time and manner of disclosures of personal information about ourselves. which interprets privacy in terms of management of personal information. It is a state which can be lost.Privacy and Human Rights Report 2006 Source: http://www. editor of the Privacy Journal. defined privacy as "the desire by each of us for physical space where we can be free of interruption. Outside this rather strict context. dignity and integrity.EPIC --." But the committee was satisfied that it would be possible to define it legally and adopted this definition in its first report on privacy: The right of the individual to be protected against intrusion into his personal life or affairs. by direct physical means or by publication of information. privacy is perhaps the most difficult to define. the concept has been fused with data protection. there are three elements in privacy: secrecy.[3] Definitions of privacy vary widely according to context and environment." Brandeis argued that privacy was the most cherished of freedoms in a democracy. privacy protection is frequently seen as a way of drawing the line at how far society can intrude into a person's affairs. intrusion.[6] Robert Ellis Smith. whether through the choice of the person in that state or through the action of another person. In many countries.[10] 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 82 van 114 .[4] The lack of a single definition should not imply that the issue lacks importance.org/int/journals/EPICPrivHR/2006/PHR2006-Defining.[8] According to Ruth Gavison.

and limits on the power of both state and private organizations to intrude on that autonomy . Bodily privacy.The Preamble to the Australian Privacy Charter provides. Sydney (1994). University of New South Wales. WorldLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 83 van 114 . [9] Privacy and the Limits of Law. Fernando. . drug testing and cavity searches. It is also known as "data protection". Privacy and the Family" in Henkin (ed). Privacy is a key value which underpins human dignity and other key values such as freedom of association and freedom of speech. [3] James Michael. 4 Harvard Law Review 193-220 (1890). telephones. [8] Privacy as an Aspect of Human Dignity. . which concerns the setting of limits on intrusion into the domestic and other environments such as the workplace or public space."[11] Aspects of Privacy Privacy can be divided into the following separate but related concepts: Information privacy. 428 (1980). video surveillance and ID checks. 89 Yale Law Journal 421. "Legal Pesonality. Privacy of communications. This includes searches. The International Bill of Rights (Columbia University Press 1981). Privacy and Human Rights 1 (UNESCO 1994). 39 New York University Law Review 971 (1964). 1102." published by the Australian Privacy Charter Group. [5] Volio. . which covers the security and privacy of mail. . e-mail and other forms of communication. and medical and government records. Law School. which involves the establishment of rules governing the collection and handling of personal data such as credit information. Chairman David Calcutt QC. Privacy is a basic human right and the reasonable expectation of every person. [10] Report of the Committee on Privacy and Related Matters. [4] Simon Davies. and Territorial privacy. [7] Robert Ellis Smith. [6] Samuel Warren and Louis Brandeis. which concerns the protection of people's physical selves against invasive procedures such as genetic tests. . Cmnd. Ben Franklin's Web Site 6 (Sheridan Books 2000). Big Brother: Britain's Web of Surveillance and the New Technological Order 23 (Pan 1996). [11] "The Australian Privacy Charter. 1990. London: HMSO. at 7. "A free and democratic society requires respect for the autonomy of individuals. The Right to Privacy.

all of the models are used together to ensure privacy protection. these efforts have been disappointing. Self-Regulation Data protection can also be achieved. However. This is the preferred model for most countries adopting data protection laws and was adopted by the European Union to ensure compliance with its data protection regime. In many countries. sectoral laws are used to complement comprehensive legislation by providing more detailed protections for certain categories of information. these models can be complementary or contradictory. through various forms of self-regulation. The lack of legal protections for individual's privacy on the Internet in the United States is a striking example of its limitations. There is also the problem of a lack of an oversight agency. in many countries. such as telecommunications. such as the United States. Users of the Internet and of some physical applications can employ a range of programs and systems that provide varying degrees of 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 84 van 114 . especially the United States. industry develops rules for the protection of privacy that are enforced by the industry and overseen by the privacy agency." was adopted in Canada and Australia. Technologies of Privacy With the recent development of commercially available technology-based systems.URL: http://www. at least in theory. use and dissemination of personal information by both the public and private sectors. In such cases. In most countries reviewed in the survey. Depending on their application.Privacy and Human Rights Report 2006 Models of Privacy Protection There are four major models for privacy protection. several models are used simultaneously. In the countries that protect privacy most effectively. which is described as a "co-regulatory model. A variation of these laws. there is a general law that governs the collection. Under this approach. video rental records and financial privacy.worldlii. Industry codes in many countries have tended to provide only weak protections and lack enforcement. have avoided enacting general data protection rules in favor of specific sectoral laws governing. in which companies and industry bodies establish codes of practice and engage in self-policing.org/int/journals/EPICPrivHR/2006/ EPIC --. police files or consumer credit records. enforcement is achieved through a range of mechanisms. Sectoral Laws Some countries. for example. An oversight body then ensures compliance. privacy protection has also moved into the hands of individual users. Comprehensive Laws In many countries around the world. A major drawback with this approach is that it requires that new legislation be introduced with each new technology so protections frequently lag behind. with little evidence that the aims of the codes are regularly fulfilled. Adequacy and enforcement are the major problem with these approaches.

Some are poorly designed while others may be designed to facilitate law enforcement access.’ Most Australian and Norfolk Island Government agencies and some private sector organisations are APP entities. the Directive sets strict limits on the collection and use of personal data and demands that each Member State set up an independent national body responsible for the protection of these data. What is covered by privacy? (Australian example) In Australia.[12] Users should be aware that not all tools effectively protect privacy. For more information about the APPs.1995] rsee amending actsl. Protection of personal data (EU directive) Directive 95/46/EC is the reference text. anonymous remailers.11. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 85 van 114 . see the Other legislation page. These include encryption. European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [Official Journal L 281 of 23. The Privacy Act includes thirteen Australian Privacy Principles (APPs). or an individual who is reasonably identifiable. rights and obligations for the handling. privacy law generally relates to the protection of an individual’s personal information. see Australian Privacy Principles. (For more discussion of this subject. For information about other Commonwealth privacy-related legislation. About privacy This section provides a basic introduction to what privacy is and what the Privacy Act 1988 (Privacy Act) covers. Who is covered by privacy? The APPs apply to ‘APP entities. on the protection of personal data. accessing and correction of personal information (including sensitive information). holding. proxy servers and digital cash. The Privacy Act also contains provisions that deal with: • tax file numbers • credit-related information For more information about what is covered by privacy. at European level. To do so. see the sub-section on Privacy Enhancing Technologies). The APPs set out standards. Personal information is information or an opinion about an identified individual. It sets up a regulatory framework which seeks to strike a balance between a high level of protection for the privacy of individuals and the free movement of personal data within the European Union (EU).privacy and security of communications. go to the What is covered by privacy page.

o for the purposes of the legitimate interests pursued by the controller. the prosecution of criminal offences. political opinions. the legitimacy of data processing: personal data may be processed only if the data subject has unambiguously given his/her consent or processing is necessary: o for the performance of a contract to which the data subject is party or.). such as operations concerning public security. a computer database of customers) and data contained in or intended to be part of non automated filing systems (traditional paper files). an important economic or financial interest of a Member State or of the European Union or the protection of the data subject. cases where processing is necessary to protect the vital interests of the data subject or for the purposes of preventive medicine and medical diagnosis. They must also be accurate and.SUMMARY This Directive applies to data processed by automated means (e. exemptions and restrictions: the scope of the principles relating to the quality of the data. special categories of processing: it is forbidden to process personal data revealing racial or ethnic origin. o for the performance of a task carried out in the public interest or. kept up to date. for example. either because of the incomplete or inaccurate nature of the data. explicit and legitimate purposes. religious or philosophical beliefs. on 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 86 van 114 . and the processing of data concerning health or sex life. information to be given to the data subject. defence. the purposes of the processing. in the course of an activity which falls outside the scope of Community law. o the rectification. It does not apply to the processing of data: by a natural person in the course of purely personal or household activities. trade-union membership. and the notification of these changes to third parties to whom the data have been disclosed. defence or State security.g. The guidelines relate to: the quality of the data: personal data must be processed fairly and lawfully. the data subject's right of access to data: every data subject should have the right to obtain from the controller: o confirmation as to whether or not data relating to him/her are being processed and communication of the data undergoing processing. information to be given to the data subject: the controller must provide the data subject from whom data are collected with certain information relating to himself/herself (the identity of the controller. o for compliance with a legal obligation to which the controller is subject or. right of access and the publicising of processing may be restricted in order to safeguard aspects such as national security. o in order to protect the vital interests of the data subject or. public security. recipients of the data etc. the right to object to the processing of data: the data subject should have the right to object. and collected for specified. The Directive aims to protect the rights and freedoms of persons with respect to the processing of personal data by laying down guidelines determining when this processing is lawful. where necessary. This provision comes with certain qualifications concerning. erasure or blocking of data the processing of which does not comply with the provisions of this Directive in particular.

He/she should finally be informed before personal data are disclosed to third parties for the purposes of direct marketing.1998 OJ L 281 of 23. the notification of processing to a supervisory authority: the controller must notify the national supervisory authority before carrying out any processing operation.11.1995 24.10. In addition. The Directive aims to encourage the drawing up of national and Community codes of conduct intended to contribute to the proper implementation of the national and Community provisions. the controller must implement appropriate measures to protect personal data against accidental or unlawful destruction or accidental loss. Each Member State is to provide one or more independent public authorities responsible for monitoring the application within its territory of the provisions adopted by the Member States pursuant to the Directive. In addition. REFERENCES - Entry into force Deadline for transposition in the Member States Official Journal I Directive 95/46/EC 13. including the processor himself. and be expressly offered the right to object to such disclosures. Transfers of personal data from a Member State to a third country with an adequate level of protection are authorised. unauthorised disclosure or access. Every person shall have the right to a judicial remedy for any breach of the rights guaranteed him by the national law applicable to the processing in question. Prior checks to determine specific risks to the rights and freedoms of data subjects are to be carried out by the supervisory authority following receipt of the notification. they may not be made to a third country which does not ensure this level of protection.12. the confidentiality and security of processing: any person acting under the authority of the controller or of the processor. composed of representatives of the national supervisory authorities. A Working Party on the Protection of Individuals with regard to the Processing of Personal Data is set up. to the processing of data relating to him/her. who has access to personal data must not process them except on instructions from the controller. alteration.legitimate grounds. representatives of the supervisory authorities of the Community institutions and bodies. However. except in the cases of the derogations listed. and a representative of the Commission. He/she should also have the right to object. to the processing of personal data that the controller anticipates being processed for the purposes of direct marketing.1995 Amending act(s) Entry into force Deadline for Official Journal 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 87 van 114 . on request and free of charge. any person who has suffered damage as a result of the unlawful processing of their personal data is entitled to receive compensation for the damage suffered. Measures are to be taken to ensure that processing operations are publicised and the supervisory authorities must keep a register of the processing operations notified.

11. It emphasises that the Directive should not undergo any amendments at present. Furthermore. of the national supervisory authorities. will launch official infringement proceedings. after consulting the Member States. It also notes that: it will continue in its cooperation with the Member States and.Not published in the Official Journal] First report on the implementation of the Data Protection Directive (95/46/EC) The report takes stock of the consultations carried out by the Commission to evaluate Directive 95/46/EC with governments.10. did not consider it necessary to amend the Directive at present.2003 1-1 OJ L 284 of 31. Despite the delays and gaps in implementation. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 88 van 114 . the Commission noted the fact that a majority of them and. business and consumer associations.2003 Successive amendments and corrections to Directive 95/46/EC have been incorporated in the basic text. it will continue its implementation of the Work Programme it will present EU-level sectoral legislation if there are major technological developments in a specific area. This Communication examines the work done under the Work Programme for improved implementation of the Directive on data protection contained in the First report on the implementation of Directive 95/46/EC. has all Member States have now transposed the Directive. The results of the consultations show that few contributors advocated a revision of the Directive. RELATED ACTS IMPLEMENTATION REPORT Communication from the Commission to the European Parliament and the Council on the followup of the Work Programme for better implementation of the Data Protection Directive rcQMM(2007^ 87 final . the Directive has fulfilled its principal objective of removing barriers to the free movement of personal data between the Member States.transposition in the Member States | Regulation (EC) No 1882/2003 20.Not published in the Official Journal]. in particular the US. it will continue cooperating with its external partners. This consolidated version © is for reference purpose only. The Commission also believes that the objective of ensuring a high level of protection in the Community has been achieved since the Directive has set out some of the highest standards of data protection in the world. and individual citizens. also. Report from the Commission of 15 May 2003 rcQM(2003^ 265 final . The Commission highlights the fact that this has improved. if necessary. it will prepare an interpretative communication regarding certain provisions in the Directive. institutions.

These new clauses will be added to those which already exist under the Commission Decision of June 2001 (see below). In order to ensure the better implementation of the Data Protection Directive. promotion of privacy enhancing technologies.2004] The European Commission has approved new standard contractual clauses which businesses can use to ensure adequate safeguards when personal data are transferred from the EU to third countries. These actions are made up of the following initiatives: discussions with Member States and data protection authorities on the changes needed to bring national legislation fully in line with the requirements of the Directive. With regard to the general level of compliance with data protection law in the EU. the use of cookies and the inclusion of personal data in public directories. The divergences in data protection legislation are still too great between Member States. an apparently low level of knowledge of their rights among data subjects. such as the Member States keeping connection data for the purposes of police surveillance (the retention of data). The Commission will therefore do what is required to remedy this situation whilst hoping.12. and these disparities prevent multinational organisations from developing pan-European policies on data protection. wherever possible. PRIVACY AND ELECTRONIC COMMUNICATIONS DIRECTIVE Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) [Official Journal L 201 of 31. the sending of unsolicited e-mail.07.Other Internal Market policy objectives have. been less well served.2002] This Directive was adopted in 2002 at the same time as a new legislative framework designed to regulate the electronic communications sector. the Commission has adopted a work programme comprising a number of actions which need to be taken between the adoption of this report and the end of 2004. simplification of the conditions for international transfers of data. very patchy compliance by data controllers. there are three main problems: an under-resourced enforcement effort. promotion of self-regulation and European Codes of Conducts. that it will not be necessary to proceed by way of formal action. however. association of the candidate countries with efforts to achieve a better and more uniform implementation of the Directive. It contains provisions on a number of more or less sensitive topics. improving the notification of all legal acts transposing the Directive. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 89 van 114 . STANDARD CONTRACTUAL CLAUSES FOR THE TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES Commission Decision 2004/915/EC of 27 December 2004 amending Decision 2001/497/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries [Official Journal L385 of 29. which may be at the root of the previous phenomenon.

based on two elements: First.fragmentation and incoherence Under the current Data Protection Directive 95/46/EC. The proposal . The flaws of the present system were illustrated in the Google Street View case. » Second. The Proposed General Data Protection Regulation: The Consistency Mechanism Explained Date: 06/02/2013 ! main innovations of the proposed General Data Protection Regulation (J3 relate to institutional system it creates rather than to the substance of data protection law. The current situation . There is no system to reconcile different DPA decisions apart from a non-binding discussion in the so-called Art 29 Committee.simplicity and consistency The proposed Regulation establishes a new system of supervision for businesses or organisations processing personal data in more than one EU Member State or with a pan-EU impact. and sets up a consistency mechanism at EU level to ensure coherent application of the rules which combines an advisory role for the European Data Protection Board (the 'Board') and a role for the Commission.07. That DPA is determined by the company's "main establishment" in the Union. which brings together EU DPAs. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 90 van 114 . This Regulation aims at ensuring the protection of personal data within the institutions and bodies of the European Union. the proposed Regulation provides for mandatory cooperation between DPAs. Yet they prompted uncoordinated and divergent responses from DPAs.Commission Decision 2001/497/EC of 15 June 2001 on standard contractual clauses for the transfer of personal data to third countries under Directive 95/46/EC [Official Journal L 181 of 04. The actions of a single company affected individuals in several Member States in the same way. and it provides for the establishment of an independent supervisory body to monitor the application of these provisions. The Decision requires Member States to recognise that companies or bodies which use these standard clauses in contracts relating to the transfer of personal data to third countries ensure an "adequate level of protection 1' of the data.2001] This Decision sets out standard contractual clauses to ensure an adequate level of protection of personal data transferred frcm the EU to third countries. PROTECTION OF DATA BY THE COMMUNITY INSTITUTIONS AND BODIES Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data [Official Journal L8 of 12. This leads to uncertainty for business and situations where different rules can apply in each Member State for the same operation.2001]. a company operating in more than one EU country will have to deal with several Data Protection Authorities CDPAs') with very different powers (up to one per Member State). i consistency mechanism is at the heart of this system. To this end: it includes provisions which guarantee a high level of protection of personal data processed by the Community institutions and bodies.01. only one DPA is responsible for taking legally binding decisions against a company Cone stop shop').

The proposed Regulation strengthens DPAs by making sure they act in conceit. the Board is engaged and issues an opinion. During this mandate. the Commission may adopt a (non-binding) opinion. This can only be done in two specific circumstances: In order to reconcile diverging positions between a DPA and the Board.The three basic principles of the consistency mechanism » DPAs take decisions on individual cases without an EU-wide impact. Without a role for the Commission. ensures cooperation between DPAs within the Board and gives the Commission a role as a backstop. the Commission has fought hard with several Member States over the 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 91 van 114 . The Board issues an opinion (non-binding) which must be taken into account by the national DPA. and where this is necessary in order to ensure the consistent application of the Regulation. This would entail enormous The role of the Commission does not interfere with the independence of DPAs who remain competent to tackle individual cases. the matter is referred to the Board. This is good for citizens and for business. The Regulation will not be prope-ly applied based on knowledge of data protection laws alone. The internal market must be brought about and the consistency mechanism. The Commission is the guardian of the internal market and is responsible for the proper implementation of EU law. » A consistency mechanism without the Commission would be bad for citizens. an alternative which has been proposed. » The Commission acts as a backstop to ensure the consistency mechanism is effective. The DPA has to take the Commission's opinion into account before adopting its measure. » The alternative would be the creation of a data protection super-agency. The Commission acts as a necessary backstop to the Board ensuring that the Board acts decisively and protects the right to data protection enshrined in the Charter of Fundamental Rights. is the only way to do this. Allowing the Board to take binding decisions. » Where there is an EU-wide impact. Where there is an EU-wide impact. the Board will be an intergovernmental club. only the Commission can take decisions that are binding on the Member States. » Only if the Commission or the Board have "serious doubts as to whether the measure would ensure the correct application of the Regulation" the Commission may require the DPA to suspend the draft measure by a maximum of 12 months. Under the Treaties. individual decisions are taken by national DPAs. would be illegal. » After the Board has issued its opinion. The importance of the Commission as a backstop » The role provided for by the Commission is the key supranational element of the proposal. To adopt an implementing measure in particular where the proper functioning of the internal market is at issue. This is the core of DPA independence. The Commission's initial intervention is non-binding. A consistency mechanism without the Commission would be bad for business. The consistency mechanism process > In cases where there is no EU-wide impact. The onus is for DPAs to agree a position together. The consistency mechanism establishes a graduated procedure that preserves the role of national DPAs. The threat of action by the Commission ensures that DPAs do not shy away from difficult cases. with the Commission as backstop. The Commission's role is to ensure coherence and build the single market.

20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 92 van 114 .independence of national data protection authorities.

The European Court of Human Rights held that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. just as there existed a commercial interest for the magazines to publish the photographs and articles.. in view of her origins. struck a fair balance between the interests at stake. 2). the criteria that had been established by the domestic courts for distinguishing a figure of contemporary society "par excellence" from a relatively public figure were not sufficient to ensure the effective protection of the applicant's private life and she should. The applicant alleged before the European Court of Human Rights that those decisions had infringed her right to respect for her private life as they had failed to afford her adequate protection from the publication of photographs taken without her knowledge by paparazzi on the ground that. in the circumstances of the case. had to have a "legitimate expectation" that his or her private life would be protected. It mainly presupposes the individual's right to control the use of that image. Princess Caroline von Hannover." (von Hannover v. in the Court's view. they did not have such a right in this instance. 2). "[F]reedom of expression includes the publication of photos . in special circumstances. as it reveals the person's unique characteristics and distinguishes the person from his or her peers." (von Hannover v. Grand Chamber judgment of 7 February 2012. those interests had. Germany (application no. Grand Chamber judgment of 7 February 2012. on the ground that they infringed her right to protection of her private life and of her own image. This is nonetheless an area in which the protection of the rights and reputation of others takes on particular importance. Hence everyone. to yield to the applicant's right to the effective protection of her private life. she was a figure of contemporary society "par excellence".. In the Court's view. Even if such a public interest existed. § 103). § 96).. The photographs were the subject of three sets of proceedings before the German courts.Right to the protection of one's image June 2014 This factsheet does not bind the Court and is not exhaustive "[A] person's image constitutes one of the chief attributes of his or her personality. 59320/00) 24 June 2004 The applicant. including. including the right to refuse publication thereof . finding that the German courts had not. have had a "legitimate expectation" that her private life would be protected.. The right to the protection of one's image is thus one of the essential components of personal development. The Court considered that the general public did not have a legitimate interest in knowing the applicant's whereabouts or how she behaved generally in her private life even if she appeared in places that could not always be described as secluded and was well known to the public. while the general public might have a right to information. including people known to the public.. Public or political figures von Hannover v. had applied to the German courts for an injunction preventing any further publication of two series of photographs relating to her private life which had appeared in German magazines. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 93 van 114 . as the photos may contain very personal or even intimate information about an individual or his or her family .. Germany (no. It observed in particular that.Factsheet . on the private life of public figures. in the present case. resulting in particular in landmark judgments delivered by the Federal Court of Justice in 1995 and by the Federal Constitutional Court in 1999 in which the applicant's claims were dismissed. Germany (no.

considered in the light of the accompanying articles. noting in particular that the German courts had carefully balanced the right of the publishing companies to freedom of expression against the right of the applicants to respect for their private life. In doing so. They had also examined the circumstances in which the photographs had been taken. Austria 21 February 2002 (decision on admissibility) Relying on Article 8 (right to respect for private life) of the Convention.von Hannover v. The characterisation of the subject of the article as an event of general interest. In those circumstances. while the Federal Constitutional Court. It observed in particular that it could not be asserted that the article in question had merely been a pretext for publishing the photograph in issue or that the connection between the article and the photograph had been purely contrived. 40660/08 and 60641/08) 7 February 2012 The applicants. for its part. The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. von Hannover (no. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 94 van 114 . had contributed to a debate of general interest. they had attached fundamental importance to the question whether the photographs. but had also undertaken a detailed analysis of the European Court's case-law in response to the applicants' complaints that the Federal Court of Justice had disregarded the Convention and the European Court's case-law. complained in particular about the use of his picture on stickers. Schussel v. They alleged in particular that the domestic courts had not taken sufficient account of the European Court's 2004 judgment in von Hannover v. the Deputy Prime Minister of Austria. and having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests. 2) (nos. the applicant. finding that the German courts had taken into consideration the essential criteria and the Court's case-law in balancing the different interests at stake in the case. had not only confirmed that approach. The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. Princess Caroline von Hannover and her husband Prince Ernst August von Hannover. Germany (no. The photograph was accompanied by an article about the trend amongst the very wealthy towards letting out their holiday homes. first by the Federal Constitutional Court and then by the Federal Court of Justice. Germany (n° 8772/10) 19 September 2013 This case concerned a complaint lodged by Princess Caroline von Hannover relating to the refusal of the German courts to grant an injunction prohibiting any further publication of a photograph of her and her husband taken without their knowledge while they were on holiday. halfoverlapped by the face of the right-wing politician Jorg Haider and with the following slogan: "The social security slashers and the education snatchers share a common face". The Court could therefore accept that the photograph in question had made a contribution to a debate of general interest. Germany (see above). The Federal Court of Justice had changed its approach following the first European Court's von Hannover judgment in 2004 (see above). the Court concluded that the latter had not failed to comply with their positive obligations under Article 8 of the Convention in the present case. could not be considered unreasonable. 3) v. complained of the German courts' refusal to prohibit any further publication of two photographs which had been taken during their holiday without their knowledge and which had appeared in two German magazines.

least restricted the exercise of the applicant company's rights. The impugned articles focused primarily on the private and professional consequences for the National Conciliator of an altercation that had taken place outside his home between himself. As a result. lodged an urgent application with the courts seeking the seizure of the copies of any magazines in which the photograph appeared and prohibition of their sale on penalty of fines. so they were justified in arguing that there had been an infringement of their right to respect for their private life. in view 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 95 van 114 . relying on their right to respect for their private life. The Court observed in particular that the result of publication of the photograph in question. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. she had been involved in an incident outside the home of a public figure which had received widespread media coverage. The prefect's widow and children. In the circumstances of the case. France 14 June 2007 A few days after the murder of a French prefect. his wife and his girlfriend. she had inevitably entered the public domain. in a magazine with a very high circulation. Then examining to what extent the punishment might have a dissuasive effect on exercise of freedom of the press. and was illustrated by a photograph of his girlfriend. who worked for two nationwide magazines. A two-page colour photograph taken moments after the murder showed the prefect's lifeless body lying on the ground in a pool of blood. the Court found that the facts were not sufficient in themselves to justify the applicants' conviction. whose name was given in full. the Court noted that the French courts had refused to order the seizure of the offending publications and found that. and notwithstanding the fact that the incident might have been presented in a somewhat colourful manner to boost the sales of the magazines. The applicant company complained of the order requiring it. to publish a statement that the photograph of the prefect had been published without his family's consent. for publishing information concerning the girlfriend of the National Conciliator at the time. One article in particular contained an interview with him concerning the incident and his subsequent conviction and dismissal.The Court declared the application inadmissible (manifestly ill-founded). considering that the order requiring Paris Match to publish a statement. had been to heighten the trauma felt by the victim's close relatives. the order to publish the statement was that which. and therefore necessary in a democratic society. Flinkkila and Others v. of all the sanctions permitted. facing the camera. It found that the Austrian Supreme Court had correctly weighed the general interest in an open political debate as protected by Article 10 (freedom of expression) of the Convention against the applicant's interest in protection against the publication of his picture. Finland 6 April 2010 This case concerned the conviction of the applicants. The limits of acceptable criticism were wider with regard to a politician than with regard to a private individual.to protect of the rights of others -. both in principle and as regards its content. While it was true that the National Conciliator's girlfriend was not herself a public figure. the weekly magazine Paris Match published an article entitled "La Republique assassinee" (The Murdered Republic). Lastly. had been proportionate to the legitimate aim it pursued . The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. Hachette Filipacchi Associes v. subject to a penalty for non-compliance. for which the French courts had given reasons which were both relevant and sufficient.

In addition. In particular. contended that its publication had infringed his right to protection of his own image and his personality rights. accompanied by a similar picture. Sapan v. while the public interest had been satisfied by the publication of the core facts of the claimant's addiction and treatment. namely the freedom to impart information and the protection of the rights of others. The seizure order had been requested by the singer who. which were clearly distressing. the United Kingdom 18 January 2011 The applicant was the publisher of a national daily newspaper which published an article giving details of the drug-addiction treatment of a very well-known model. finding that the impugned seizure could not be considered to have been necessary in a democratic society as it had not been based on relevant and sufficient reasons. the book could not be equated with publications of the tabloid press or gossip columns. the photographs. It further complained of the requirement for it to pay the "success fees" agreed between the model and her lawyers in the same proceedings. The interference with the exercise by the applicant company of its right to freedom of 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 96 van 114 . The domestic courts could therefore not be said to have examined in detail the criteria to be taken into consideration for a fair assessment of the rights at stake. When the model's lawyer wrote to the applicant complaining of a breach of his client's privacy. The applicant company alleged an infringement of its right to freedom of expression on account of the judgment of the House of Lords finding that it had breached the model's privacy by publishing the impugned articles and pictures. had been taken covertly. In particular. The applicant complained of an order for seizure of the book which was applied for almost two years and eight months on the basis of judicial decisions for which no reasons were given. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. The article was accompanied by photographs. the penalties imposed on the applicants had been disproportionate. as the author had analysed the phenomenon of stardom and its emergence in Turkey through the singer and using scientific methods. in which it criticised the model's lifestyle and claim to privacy.of the fact that the National Conciliator's girlfriend had already been paid sums for damages because of the disclosure of her identity in a television programme and articles published in other magazines concerning the same incident. whose role was generally to satisfy the curiosity of a certain type of reader about details of celebrities' private lives. citing in particular the fact that the title of the book included his name and that the book contained photographs featuring him. the photographs illustrating the book were all pictures for which the singer had posed and which had already been published. one of them taken secretly near the Narcotics Anonymous centre she was attending at the time. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention with regard to the order requiring the applicant company to pay damages for breach of confidence. the same newspaper published a further two articles. Furthermore. The Court further held that there had been a violation of Article 10 of the Convention with regard to the order requiring the newspaper to pay the "success fees" sought by the opposing party's lawyers. Man Limited v. Turkey 8 June 2010 The applicant owned a publishing house which in 2001 published a book analysing the emergence of stardom as a phenomenon in Turkey and studying the case of a very well-known singer there. It considered that the House of Lords had given convincing reasons for its decision. they had not been necessary to ensure the credibility of the story.

the Court concluded that Article 8 of the Convention did not require a legally binding pre-notification requirement. he sought an injunction to restrain the newspaper from making the edited video footage available on its website. The Article 10 protection afforded to publications might cede to the requirements of Article 8 where the information was of a private and intimate nature and there was no public interest in its disclosure. the bride being brought to the groom by her father and the bride and groom returning to the mainland on foot by crossing the lake on stepping stones. Nevertheless. the claimant was wealthy and thus not at risk of being excluded from access to justice for financial reasons. about the alleged "Nazi" sexual activities of the applicant. the weekly magazine Se og Hor subsequently published a two-page article about the wedding accompanied by six photographs. to the doubts about its effectiveness and to the wide margin of appreciation afforded to the United Kingdom in that area. it undoubtedly benefited from the protection of Article 10 (freedom of expression) of the Convention. The order to pay "success fees" to the claimant had therefore been disproportionate having regard to the legitimate aim sought to be achieved. The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. having regard to the chilling effect to which a pre-notification requirement risked giving rise. as demonstrated by the difference of opinion between the domestic courts. Norway 16 January 2014 The applicants. The applicant complained of the absence of any legal requirement for a newspaper to give individuals advance notice of the publication of material concerning their private life in order to give them an opportunity to prevent publication by seeking an interim court injunction. the applicant's case had not been without merit. although the disclosure of information on the private lives of those in the public eye was generally for the purposes of entertainment rather than education. complained about press invasion of their privacy during their wedding in August 2005. The couple brought compensation proceedings against the magazine and won before the first two instances. Mosley v. in September 2008 the Supreme Court found against the couple.expression had been prescribed by law and pursued the legitimate aim of ensuring the widest possible public access to legal services for civil litigation funded by the private sector and thus the protection of the rights of others. and exceeded even the broad margin of appreciation accorded to the State in such matters. her father and bridesmaids arriving at the islet in a small rowing boat. It considered that. a well-known musician and actress in Norway. It considered that they had married in a place which was accessible to the public and that the article was neither offensive nor negative. They showed the bride. The applicants complained that their right to respect for private life had been breached by the Supreme Court's judgment. including intimate photographs taken from secretly recorded video footage. The wedding took place outdoors on an islet in the Oslo fjord accessible to the public. The applicant sued the publisher for breach of confidence and invasion of privacy and claimed damages. In addition. However. Lillo-Stenberg and Saether v. Without the couple's consent. An extract of the video and some still images were published on the newspaper's website and reproduced elsewhere on the Internet. a well-known figure in the International Automobile Federation and Formula One. However. the United Kingdom 10 May 2011 A national weekly newspaper published a front-page article. The Court held that there had been no violation of Article 8 (right to respect for private life) of the 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 97 van 114 . moreover.

The applicants alleged that the judgment against them had amounted to unjustified interference with the exercise of their right to freedom of information. in two newspapers. finding that. in spite of an interdiction order against the publishing company. The same applied to his right to protection of his own image in relation to the photograph published alongside the article. Having regard to the margin of appreciation enjoyed by the national courts when balancing competing interests. namely the protection of the reputation and rights of others. The case concerns the ongoing publication of photos of them. concern a dispute between the press and a public figure. Germany (no. etc. no reasonable relationship of proportionality existed between the restrictions imposed on the applicants' right to freedom of expression and the legitimate aim pursued. Professionals (lawyers. in spite of the margin of appreciation left to States. the fact that the interview had been initiated by the child's mother and that she had handed over the photographs to the magazine of her own free will was an important factor to be taken into consideration in balancing the protection of private life against freedom of expression. Pending application Kahn v. In this respect. a well-known lawyer and journalist who had frequently taken part in public debates on topical issues. alleged a breach of his privacy because of the use of the term "poacher" in a profile of him published in a magazine. the interests of the child and his mother in asserting the child's existence and having his identity recognised had also been at stake. It further observed that the case did not simply. Couderc and Hachette Filipacchi Associes v. The Court considered in particular that the judgment against the applicants had made no distinction between information which formed part of a debate of general interest and that which merely reported details of the private life of the Prince of Monaco. There followed a 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 98 van 114 . it found that the Supreme Court had not failed to comply with its obligations under Article 8 of the Convention.. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. He also complained of the publication of his photograph alongside the article. The Court declared the complaint inadmissible (manifestly ill-founded).the publication director and publisher of the weekly magazine Paris Match . journalists. endorsing the view of the Swiss Federal Court that the applicant could not claim absolute protection of his personality rights after having placed himself in the public eye.) Minelli v.Convention. which had been taken at a televised event in which the applicant had taken part. The Court communicated the application to the German Government and put questions to the parties under Article 8 (right to respect of private life) of the Convention. the secret child" and containing several photographs. Private persons accompanied to the meeting by a relative and by a journalist. 16313/10) Application communicated to the German Government on 7 December 2011 The applicants are the minor children of a very well-known former German football player (Oliver Kahn). announced on the magazine cover under the headline "Albert of Monaco: A. Switzerland 14 June 2005 (decision on admissibility) The applicant. France 12 June 2014[1] This case concerned the conviction of the applicants .following the publication in May 2005 of a ten-page article.

The baby's image had thus been retained in the hands of the photographer in an identifiable form with the possibility of subsequent use against the wishes of the child and/or his parents. which were published in a newspaper. shown facing the camera. The articles published by the two newspapers revealed the child's identity and gave details of his family life. Reklos and Davourlis v. The way in which they had dealt with the case had therefore not afforded the applicant sufficient and effective protection of his private life. and were accompanied by photographs showing him in a state of apparent pain and despair. illustrated by a photograph of the applicant. Immediately after birth the baby had been placed in a sterile unit to which only medical staff at the clinic had access. the domestic courts had not struck a fair balance between the competing interests. The Court was not convinced by the applicants' arguments that it had been necessary to publish a picture showing the child's suffering in order to draw public attention to the issue or to ensure the credibility of the story. the applicants brought an action for damages. Austria and Krone Verlag GmbH v. Faced with the clinic's indifference to their complaints and its refusal to hand over the negatives of the photographs. Austria 19 June 2012 The two cases concerned compensation proceedings under the Media Act brought by a mother and child against two publishing companies on account of their newspapers' reporting on the dispute between the parents over custody of the child. The domestic courts had not taken into account the lack of parental consent for the photographs to be taken or for the negatives to be kept by the photographer and had thus failed sufficiently to guarantee the child's right to the protection of his private life. the interference with the applicants' rights had been proportionate 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 99 van 114 . The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. given that neither the child nor his parents were public figures or had previously entered the public sphere. It was true that the articles had dealt with a matter of public concern. had violated his right to respect for his private life. which was dismissed as unfounded.series of interviews and articles. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. it had not been essential for understanding the case to disclose his identity. and the retention of the negatives. 2) v. with regard to the publication of the information and photograph in question. and the possible annoyance caused to the infant by being photographed from the front. in which the writer's daughter-in-law accused him of stealing the manuscript in question. However. Lastly. Kurier Zeitungsverlag und Druckerei GmbH (no. The following day the mother was presented with two photographs of the baby. Although the photographs showed the baby only from the front and not in a state which could be considered demeaning or was otherwise liable to damage his personality. It found that. the overriding consideration in this instance was not whether the photographs were harmless but the fact that the photographer had kept them without obtaining the applicants' consent. The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. Greece 15 January 2009 This case concerned the photographs of a new-born baby taken in a private clinic without the parents' prior consent. taken inside the sterile unit by a professional photographer based in the clinic. and also the decisions of the domestic courts in the matter. The applicant complained that the information and his photograph. reveal most intimate details of his life or publish a picture from which he could be recognised. The applicants complained of the photographer's intrusion into an environment to which only medical staff should have had access.

That news item also mentioned his deputy. The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. In the third case. Austria. upheld by the Austrian Supreme Court. which was published four times. Italy 11 January 2005 During an investigation into irregularities in the management of the school where she taught. who had previously 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 100 van 114 . two daily newspapers published articles on the facts giving rise to the prosecution. Kuchl v. requesting compensation for defamation and for the violation of their strictly personal sphere. The applicant submitted that the dissemination of her photograph at the press conference had infringed her right to respect for her private life. Austria and Verlagsgruppe News GmbH and Bobi v. illustrated by a photograph which featured the applicant. taken for the purposes of drawing up an official file. Persons arrested or under criminal prosecution Sciacca v. Austria 4 December 2012 The applicants in the first two cases were the principal and deputy principal respectively of a seminary where future Roman Catholic priests were trained. there was no law in Italy governing the taking of photographs of people under suspicion or arrested and assigned to residence and the release of photos to the press. Osterreichischer Rundfunk v. It noted in particular that the photograph. In the first two cases the Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention. Further. the magazine's publisher. The photograph. The Court therefore found that the interference with the applicant's right to respect for her private life had not been "in accordance with the law" within the meaning of Article 8 of the Convention. Rothe v. Following a press conference given by the public prosecutor's office and the Revenue Police.to the aims pursued. prohibiting them from publishing the first applicant's picture in connection with allegations of unwanted homosexual advances towards seminarians or sexual antics with seminarians. In the third case it held that there had been no violation of Article 10 (freedom of expression). was the one which had been taken by the Revenue Police when the file was drawn up on the applicant and which they had released to the press. had been released to the press by the Revenue Police. tax evasion and forgery. the applicant was prosecuted for criminal conspiracy. They complained about the final judgments of the Austrian courts refusing them compensation for the publication of the article and the photographs. It was rather an area in which a practice had developed. Both applicants brought proceedings against Verlagsgruppe News GmbH. the publisher and the editor-in chief of Profil complained about an injunction. The article was accompanied by a photograph showing the first applicant with his hand between the legs of one of the seminarians and two photographs showing the second applicant about to kiss and embrace a seminarian. In 2004 the weekly news magazine Profil published an article which stated that the applicants had had sexual relations with seminarians. They had not been fined in criminal proceedings but had simply been ordered to pay compensation to the child for the injury caused due to interference with his right to respect for his strictly private life. according to the information in the Court's possession. Austria 7 December 2006 In July 1999 the applicant (the Austrian Broadcasting Corporation) broadcast information about the release on parole of the head of a neo-Nazi organisation who had been sentenced under the National Socialist Prohibition Act.

namely that the facts mentioned in the news items were correct and complete and that the picture shown was related to the content of the report. the domestic courts had in particular not taken into account the deputy's notoriety and the political nature of the crime of which he had been convicted. Russia 23 October 2008 The applicants were arrested in April 1999 and subsequently charged with kidnapping and torture. in the circumstances of the present case.been convicted under the Act and had been released on parole five weeks earlier. Austria (no. The Court observed in particular that. A widely-read weekly magazine owned by the applicant company had printed an article on the investigation in progress. The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. a picture of the deputy at his trial was shown for a couple of seconds. the injunction in issue had only applied to the applicant and other media had remained free to publish the deputy's picture in the same context. Verlagsgruppe News GmbH v. The deputy successfully brought proceedings under the Copyright Act and the applicant's rights to publish the deputy's picture were restricted. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. had not been sufficient. the release of the first applicant's photograph from the criminal file to the press had not pursued any of the legitimate aims enumerated in paragraph 2 of Article 8 of the Convention. the article had reported on a matter of public interest. although relevant. The applicant complained that the Austrian courts' decisions violated its right to freedom of expression.a business magnate who owned and managed one of the country's most prestigious firms . Furthermore. the first applicant was not a fugitive from justice and 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 101 van 114 . It further complained that the contested injunction prohibited it from publishing the picture while other media remained free to do so. During the broadcast. With regard to the photograph. the absolute prohibition on publishing the picture of the claimant alongside the article reporting on the pending investigations against him had not been proportionate to the legitimate aim pursued. The first applicant complained in particular that the police had taken his passport photograph from the criminal case-file and. Nor had they had regard to other important elements. being in custody at the material time. When weighing the individual's interest not to have his physical appearance disclosed against the public's interest in the publication of his picture. The reasons adduced by the Supreme Court. the Court stressed that there was little scope for an absolute ban on publishing a public figure's picture in an article contributing to a public debate. finding that the reasons adduced by the domestic courts had not been relevant and sufficient enough to justify imposing the injunction. prohibiting it from publishing photographs of a businessman in the context of reports on investigations against him on the suspicion of large-scale tax evasion. a publishing company. finding that. a national television channel broadcast a talk show during which three prosecution officials discussed the case in detail. given it to a journalist who had used it in a television show.was by virtue of his position a public figure. accompanied by a photograph of the businessman. Thus. The claimant . A few days before their trial in July 1999. and that the interference with the applicant's rights could not be considered necessary in a democratic society. Khuzhin and Others v. namely the protection of his reputation and rights. 2) 14 December 2006 The case concerned an injunction against the applicant. without his consent. In addition.

his brother and two other men were posted on the "wanted persons" boards of various police stations. showing the applicant in police custody after he and another individual had been arrested by drug squad officers in possession of 800 grams of cannabis which. it emerged that the only wanted man was the applicant's brother and that operational measures were being taken to interview the applicant as a witness in view of his repeated refusals to appear before the district prosecutor. Moreover. complained of being ordered by the Finnish Supreme Court to pay damages after publishing an article reporting on the pending criminal proceedings against a businesswoman accused of fraud against the social security scheme and some insurance companies. the grounds relied on. they intended to sell. Eerikainen and Others v. with the woman's consent. In subsequent correspondence between the applicant's lawyer and the Ministry of the Interior. who was wanted by the judicial authorities. Although the article did not mention her by name. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 102 van 114 . according to the authorities. it was set alongside another wholly unrelated article which the journalist had written some years previously for another magazine. Toma v. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. The report in the impugned article concerning the criminal proceedings against the businesswoman had been based on a public document concerning a subject of legitimate public interest and designed to contribute to public discussion of the subject. Romania 24 February 2009 In this case the police had called journalists and allowed them to take pictures. wre not sufficient to justify the interference with the applicants' right to freedom of expression. the publishing company and editor-in-chief of a magazine and one of its journalists.the showing of his photograph could not have been necessary for enlisting public support to determine his whereabouts. Photographs of the applicant. Georgia 13 January 2009 This case concerned the arrest of a witness in order to put pressure on his brother. Giorgi Nikolaishvili v. albeit for the purposes of a previous article and in a different context. The four men were identified by name and said to be wanted in connection with a murder. as the posting of the applicant's photograph on the wanted board was not in accordance with domestic law. Finland 10 February 2009 The applicants. together with an article calling him a "drug trafficker". although relevant. The next day a photograph of the applicant showing visible traces of violence was published on the front page of the newspaper. The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. On the day of the arrest journalists from a local channel and a newspaper filmed and took photographs of the applicant at the police station. Accordingly. with a view to publication. the Finnish Supreme Court had not examined the implications of the fact that the photographs had been taken with the woman's consent with a view to their publication. and which gave her full name and included two photographs of her. Nor could it be said to have bolstered the public character of judicial proceedings because at the time of the recording and the first airing of the television show the trial had not yet begun.

He was taken to a police station on suspicion of drunk driving. Media Contact: Sylvie Ruffenach Tel. The Romanian Government had offered no explanation to justify such interference and there was nothing to suggest that the dissemination of the pictures concerned. and the fact that she had cooperated with the press on previous occasions could not justify depriving her of protection in these circumstances. without his consent and with a view to publishing the pictures in the media. as in the absence of the applicant's consent. Some of the footage was broadcast on public television the next day. Although the photographs had concerned a public event and had been taken in a public place at a time when the person's identity was already well known to the public. behaved in an unruly manner and would not leave the building when asked to do so. complained about their conviction and sentencing to a fine for publishing photographs of an individual about to be taken away to serve the long prison term to which she had just been sentenced for her involvement in a triple murder. The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. the Court found that their portrayal of her had been particularly intrusive. the applicant was a member of the Murmansk regional legislature. The applicant complained in particular of the filming of him at the police station and the broadcasting of the footage. The interference with the applicant's right to respect for private life was therefore not "in accordance with the law" within the meaning of Article 8 § 2 of the Convention. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. had been meant to serve the interests of justice. Furthermore. the requirements of the protection of privacy and the fair administration of justice had been sufficient to justify the restriction on the applicant editors' right to freedom of expression. Khmel v. which had no real news value as such. and that afternoon the applicant was filmed whilst in a dishevelled state and acting inappropriately.: +33 (0)3 90 21 42 08 [1]. which he claimed to be unlawful. The behaviour of the police in calling journalists and allowing them to film the applicant at the police station on the day proceedings were brought against him. Norway 16 April 2009 The two applicants. amounted to interference with the applicant's right to respect for his private life. Egeland and Hanseid v. In sum. the release of the video recording to the regional television had been in flagrant breach of the domestic law. Accordingly. Administrative and criminal proceedings were later brought against him for his actions on the day he was filmed. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 103 van 114 . In addition. the person concerned had not consented to the photographs being taken or to their publication. This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. the interference with the applicant's right to respect for his private life had not pursued one of the legitimate aims provided for in Article 8 § 2 of the Convention. The police chief invited television crews to the station. Russia 12 December 2013 At the time of the facts.The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. editors-in-chief of two major national newspapers in Norway. He refused to give his name. the fines imposed on the applicants had not been particularly severe.

Furthermore. the applicant had not had an effective remedy for breach of confidence. and monitors advertising and marketing of alcohol. at the relevant time. The Division also brings administrative lawsuits to stop unfair and deceptive advertising. She was Photography rights international attention: for copyright and technical reasons you are referred to the links in the studyguide Studyguide week 6 FTA: Division of Advertising Practices Source: http://www.Peck v. He therefore offered for sale a manuscript by a renowned writer.shtm The Division of Advertising Practices protects consumers from unfair or deceptive advertising and marke:ing practices that raise health and safety concerns. complained about the disclosure in the media of footage from a closed-circuit television (CCTV) camera mounted in the street showing him walking alone with a kitchen knife in his hand (he had subsequently attempted suicide by cutting his wrists. who was suffering from depression. prompting the writer's daughter-in-law to arrange a meeting with him. Gurgenidze v. in violation of Article 13 (right to an effective remedy) read in conjunction with Article 8 of the Convention.gov/bcp/bcpap. and food to ch Idren. which had resulted in images of himself being published and broadcast widely. decided to sell some manuscripts he had inherited from his father in order to support his family. It brings law enforcement actions in federal district court to stop fraudulent advertising practices. The Court found that the disclosure of the footage by the municipal council had not been accompanied by sufficient safeguards and constituted disproportionate and unjustified interference with the applicant's private life. violent entertainment media. Georgia 17 October 2006 The applicant. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 104 van 114 . coordinates FTC actions with federal and international law enforcement agencies sharing authority over health and safety products and services. a former university lecturer who was unemployed at the material time. tobacco. as well as those that cause economic injury. but the CCTV footage did not show this). the United Kingdom 28 January 2003 In this case the applicant.ftc. in breach of Article 8 (right to respect for private life) of the Convention. He further complained of the lack of an effective domestic remedy in that regard.

• monitoring and reporting on industry practices regarding the marketing of violent movies. reviews. Legal Resources: Advertising & Marketing 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 105 van 114 . as well as with industry self-regulation groups. • convening workshops with other government agencies. which provide businesses with guidance for claims they make for dietary supplements. RULES AND GUIDES The Division develops. consumer groups. • participating on the Interagency Coordinating Committee to Prevent Underage Drinking. including the impact of practices by food companies and the media on childhood obesity. which increases consumers' ability to shop around when buying contact lenses. including: • The Fairness to Contact Lens Consumers Act and the Contact Lens Rule. CONSUMER PROTECTION INITIATIVES The Division coordinates and addresses current consumer protection issues with state.ENFORCEMENT PRIORITIES The Division's enforcement priorities include: • combating deceptive advertising of fraudulent cure-all claims for dietary supplements and weight loss products • monitoring and stopping deceptive Internet marketing practices that develop in response to public health issues • monitoring and developing effective enforcement strategies for new advertising techniques and media. • monitoring and reporting on the advertising of food to children. and Guides. • working with sister agencies in other countries to combat the cross-border marketing of fraudulen: and potentially harmful health products. and enforces a variety of consumer protection laws. regulations. federal. • The Federal Cigarette and Smokeless Tobacco Acts. which require the FTC to review and approve tobacco company plans for rotating and displaying the statutory health warnings on tobacco labels and in ads. and • reviewing referrals for non-participation or non-compliance from self-regulatory groups. and community-based organizations. music. and • Dietary Supplement Guides. businesses. such as word-of-mouth marketing. and electronic games to children. These initiatives include: • working with the Food and Drug Administration to combat fraudulent products on the Internet throjgh joint warning letters. and international law enforcement agencies. • monitoring and reporting on alcohol and tobacco marketing practices.

This is important because even though. courts have upheld various state and federal laws that prevent newspapers from publishing discriminatory employment or housing advertisements. Public Service Commission. On the other hand. the government can only regulate that speech where it is able to answer "yes" to each of the following questions. commercial speech must concern lawful activity and must not be misleading. Speech that is unlawful or misleading is not protected by the First Amendment and the government is free to regulate or prohibit it."[4] Thus.org/knowyourrights/legalresearch. prostitutes or clear and serious invitations to participate in illegal activity (for example.[8] In Central Hudson Gas & Electric Corp. although other forms of legal protection may be available. In addition. see the SPLC's Private Schools and Press Freedom Guide.". commercial speech is protected by the First Amendment.[2] Given these numbers it is no wonder that legal questions about advertising are on the rise. commercial speech does not include all advertising. v. there are significant restrictions on the governments power to prohibit or regulate commercial speech. v.splc. What Is Commercial Speech? The U.S. the civil rights advertisement that was the subject of the libel claim in the landmark New York Times Co. Is the governmental interest in regulating the speech substantial? Courts have consistently found that school administrators have a substantial interest in insuring the orderly operation of schools and in preventing student expression that creates a material and substantial disruption of school activities. legal or similar information or those that advance political beliefs.[3] and which is "related solely to the economic interests of the speaker and its audience. Once it is determined that the commercial speech at issue is entitled to First Amendment protection.[1] For high schools. those that offer medical. such as a traditional news story or opinion column. Obvious examples of advertisements that school officials could prohibit include ads for illegal drugs or weapons.[6] Note to Private School Students The First Amendment only limits censorship by public government officials. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 106 van 114 . Supreme Court has defined commercial speech as expression that "does no more than propose a commercial transaction. Sullivan[5] case is an example of a noncommercial editorial ad that would not be subject to the lesser commercial speech standard. a school officials interest in regulating advertising for goods or services that compete with those offered by the school would be much less substantial. According to a 1996 survey. For example. If an advertisements primary purpose is to "sell" an idea or belief t as opposed to a product or service t it will be accorded the higher standard of First Amendment protection. It does not shield private school student media from censorship or regulation of advertising by their private high school or college administrators.[9] the Supreme Court developed the following four-part test for determining when a state or someone acting on the governments behalf could constitutionally restrict commercial advertising: Is the speech protected by the First Amendment? To be protected. Other examples of noncommercial advertisements of interest to many student publications are advertisements whose primary message is the promotion of responsible drinking or safe sex. more than one-half of college student newspapers obtained 50 percent or more of their funding from advertising revenue. an offer to take an exam or write a term paper for another student).Student Media Guide to Advertising Law (source: http://www. a survey showed that almost nine out of 10 student newspapers depend on ad revenue to at least some degree.asp?id=45 ) © 2001 Student Press Law Center View Foot Notes Advertising is a vital part of most student media. as discussed in detail below.[7] When Can Commercial Speech Be Prohibited or Regulated? As with most types of expression. that protection is less than that afforded noncommercial speech. For more information about the rights of private school student media.

Turning to the final 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 107 van 114 . Would publishing a prominent disclaimer in the student newspaper stating that the views it expresses are those of students and not school officials solve the problem without having to engage in censorship? In the example of the shoe store ad ban mentioned above. Court of Appeals upheld a school districts right to ban pregnancy-related advertisements submitted to various high school publications. There are instances where public high school administrators can restrict advertisements in school-sponsored publications even if such ads are protected by the First Amendment.[13] Despite the fact that this decision upheld school censorship of advertising. a U. Both the advertiser and the school district agreed that the ad was protected speech under the First Amendment. public school officials want to censor an advertisement in a student newspaper simply because they are concerned it will appear that the school itself condones or approves of the ads message.[11] The case arose after school district officials in Nevada rejected an advertisement submitted by Planned Parenthood. parts three and four are basically a test for the "fit" between why the government says it needs to regulate and its "end" or goal and the means government officials have chosen to achieve that end.[10] public high school students working on school-sponsored. For even where an advertisement is protected by the First Amendment under the traditional commercial speech test.) The school claimed that it banned the ad because it was degrading to women.where it applies (not all high school student publications are covered by it) -. Second. a family planning organization. it is clear that the regulation goes far beyond the schools goal of discouraging the wearing of gang attire and could be better achieved by less drastic measures. it found that the ad concerned lawful activity (as long as it took place in Canada. Supreme Courts 1988 decision in Hazelwood School District v. in one of the first post-Hazelwood cases. (Michigan's drinking age was 21. the administrations power to control advertisements is significantly limited. it does not stand for the principle that school officials have the ability to censor any advertisement that they happen to disagree with or dislike.S. courts might ask whether there is a less drastic alternative available. the court did not dispute the schools claim that it had a substantial interest in protecting women from degradation and students from underage drinking. The Hazelwood decision -. For example.[14] It also requires that the censorship be viewpoint-neutral. she would not be permitted to censor the ad simply because she disagreed with the viewpoint it presented. The court applied the Central Hudson test. suppose that a school boards goal is to reduce gang activity in its high schools. Still. the case may provide some useful guidance.[16] The ad noted that the Canadian drinking age was 19. Conversely. for college and underground publications (including high school underground publications).[15] For example.[12] Nevertheless. promoted underage drinking and conflicted with the schools educational mission and values. those decisions suggest that the First Amendment still provides important protection for commercial speech. and law prohibited totally nude dancing. A federal district court judge ruled that a state college official acted illegally when he told the schools student newspaper editor she could no longer publish an advertisement for a Canadian nude dancing club. Planned Parenthood sued. A Michigan college case is a good illustration. First. the court ruled that the school districts justification for refusing to publish the ad was reasonable to: (1) avoid the perception of school sponsorship and endorsement of an ad that some might find controversial. would a ban on all advertisements for shoe stores that sell the type of shoes worn by gang members actually help to achieve their goal? Probably not. Kuhlmeier. if a principal allows an editorial advertisement urging the passage of a school levy.Does the regulation directly advance that governmental interest? Taken together.still requires that school administrators provide a reasonable educational justification for their censorship. non-public forum publications may face an additional censorship hurdle. high school officials may still try to argue that they have a valid educational reason for censoring it. for example. Who Regulates Advertising in College and Underground Publications With only a handful of cases dealing specifically with advertising in the public college or independent student press. citing Hazelwood. Does the regulation reach no farther than necessary to advance that governmental interest? If.S. For example. her subsequent censorship of an advertisement opposing the levy would likely be unconstitutional. How has the Hazelwood Decision Affected Advertising in High School Publications? Because of the U. No students were involved in the case and the issue of student First Amendment rights was not raised. (2) avoid being forced to open up school publications to organizations having competing views and (3) avoid any conflict with a state-prescribed sex education curriculum. While the board clearly has a substantial interest in reducing such behavior. as the ad suggested) and was not misleading.

violated the newspaper editor's free press rights." and made no effort to distinguish harmful speech from harmless speech. to simply remain silent. flyers and the like throughout campus would create a circus atmosphere. a small.[18] This. The court found that the schools attempt to regulate advertising was "anything but carefully designed."[25] It also found that the burden imposed on speech by the ban far outweighed the schools asserted interests. at least one court has explicitly ruled that administrators cannot prohibit the publishers of a non-school-sponsored publication from canvassing the community to sell ads." because "unlimited distribution of newspapers. not merely to those who can pay their own way. In that case. coupons. Such reasoning was evident in a Texas decision. they also protect the right to refuse to express oneself. place and manner of distribution has been allowed.[20] courts have typically rejected absolute bans. Supreme Court has said. calling them "speculative. facts and ideas."[24] The Court flatly rejected the school's arguments. While potential advertisers do have the First Amendment right to engage in commercial speech. "Freedom of speech [and] freedom of the press are available to all. the answer can sometimes be a bit more complicated. they were not considered state actors and their denial of Yeo's advertisement did not constitute a state action."[29] A federal appeals court case involving a Massachusetts high school provides a good example. publications from school grounds because they contain ads or because they are sold rather than given away free. Is There A Right to Distribute Commercial Speech? In addition to banning specific advertisements. the courts reasoned that unlike other types of goods. Town of Lexington. That is probably why it comes as a surprise to some that the free speech guarantees of the First Amendment are actually a two-way street. the court concluded. however."[26] Mention the First Amendment and most people think of the freedom to say. a federal court of appeals ruled that Southwest Texas State University officials could not prohibit the Hays County Guardian.make the advertising decisions for a student publication. Because the First Amendment only prohibits government-sanctioned censorship.[19] While some regulation of the time. The court held. This is true of both editorial advertising and commercial advertising. the law is clear: the right to reject advertising is virtually absolute. the court ruled that the school's regulation of advertising was "not narrowly tailored" to serve those interests. off-campus publication that concentrated on environmental and social justice issues. the right of students to reject advertising in the publications they produce is protected. Importantly. neither the advertiser or the government has the right to require the community newspaper to carry their ads. As the U. For the student press at a public school. or underground. pots and pans or concert tickets). They not only protect the right to express oneself.[21] And while it would seem to be obvious. courts have said that the student media have the same right to reject advertising as their commercial counterparts because there is no "state action.[22] In all of these cases. permitting both high school and college students to either sell or freely distribute independently produced publications containing advertisements on school grounds.S. that teachers were acting as 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 108 van 114 . In Yeo v. print or do something (such as establish a religion or petition the government). As long as students -. and thus enjoys First Amendment protection.[27] Is there a Right to Reject Advertising? For the commercial. "It is not enough to create a state action that the decisions took place in a public school setting. from distributing on school grounds just because the newspaper contained advertising. that there was some governmental funding of the publication. (Generally. Douglas Yeo sued the Lexington School District after the student editors of both the high school newspaper and yearbook rejected his ad encouraging sexual abstinence."[17] With no advertising guidelines in place. congestion and invasions of privacy resulting from individuals being offered the newspaper as they walked across campus. private school and "underground" media." and deserve no special treatment. literature contains opinions.and not public school officials (including a faculty adviser) -. school officials subjected the student newspaper to "virtual unbridled regulatory authority.[23] The school claimed that banning the Guardian would prevent litter. destroying the unique quality of the University campus. First Amendment problems can also arise when public school officials seek to ban non-school sponsored. schools do have the power to prohibit or strictly limit purely commercial activity such as the on-campus sale of candy.[28] The First Amendment does not require the commercial print media to carry any advertisement they do not wish to publish. The appellant court ruled that since the student editors made all the advertising decisions. the court refused to accept the schools argument that the Guardians acceptance of advertising automatically subjected the newspaper to less First Amendment protection than commercial-free publications. The school also claimed that its regulations were necessary to maintain the "academic environment.two prongs of Central Hudson. Officials claim that such publications are nothing more than "commercial activity.

damages are generally limited to the return of any payment record from the advertiser. Are there editorial.not school officials -. Such guidelines will show consistency on the part of the student publication to refuse certain advertisement in the event a legal conflict arises due to an ad being rejected. although other avenues of legal protection from censorship may be available to student media. Summary Advertising. seriously disruptive. All student media. There are constitutional boundaries -sometimes substantial -. etc.) Also.[34] Absent an agreement to the contrary."[30] Case law teaches that an advertiser must show more than the university providing financial support or operating space to a student publication to create a state action. the toughest decision faced by student media is often not whether an ad can be run -. most courts have recognized the right of student media to reject advertising submitted by third parties provided that only students -. The next and sometimes more difficult t question is should the ad be accepted. Potential advertisers are more likely to understand a publications decision to refuse their ad -. obscene.) advertisement. Written guidelines also help insure consistency in the ad acceptance policy. etc. many student publications have found it useful to adopt advertising guidelines. but the authority of public high school officials to regulate or ban advertising is never unlimited. is a vital part of most student media operations in America. (Such First Amendment-based limits do not exist in the private school setting. At the public college level.. Provisions limiting the media's liability are frequently included in advertising contracts and rate cards.but not all -. student media almost always do 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 109 van 114 . it will not accept adoption ads. not just on whim. and that the state actors made an educational judgment to respect the autonomy of the students editorial judgment.[32] Given the constitutiona or statutory barriers that explicitly prohibit school officials from interfering with the content of most college student media and some high school student media. there is no single "best" policy.) it can be accepted.but whether it should be run. Guidelines are voluntary and exist primarily for the benefit of a publications staff." etc. What Are Some General Advertising Guidelines? One can hope that the most frequent question a student publication must address is not "Will school officials allow me to run this ad?" but "Should I accept the ad in the first place?" The legal answer to this question is often fairly easy. is not false or misleading and is otherwise protected by the First Amendment (the material is not libelous. however. Like editorial policies.decide whether to accept or reject the ad. The distribution of underground or independent student publications containing lawful advertising on public school grounds is likewise entitled to significant constitutional protection.to their authority to control commercial speech and those boundaries must be observed.e. Towards that end.[31] It is only where advertisers have clearly shown that school officials had a role in rejecting their ad that they have prevailed.advisers. therefore most guidelines should include a statement notifying readers that the publication retains the right to refuse any ad for any reason.). protected by copyright. As long as the ad concerns lawful activity. Once a publication agrees to run an ad. advertising policies reflect the philosophy of a publication. At a public high school. school officials will have a difficult time justifying any form of censorship of an otherwise lawful (i. The First Amendment provides strong protection for most -. Formal advertising guidelines can allow a publication staff time to consider the sometimes complex editorial or ethical issues prior to actually being handed a potentially volatile ad and having to make a hasty decision. do themselves a favor by addressing the question of advertising acceptance before a particularly difficult question catches them off-guard.or be more willing to accept specific content changes -. the law can be more complicated. this right probably only exists without penalty until a contract is formed. it must do so or risk paying contractual damages. such an argument will be difficult for most advertisers to make. obscene.[33] Even though many student publications have the right to reject any ad they choose.if the publication can show that it is basing its decision on a consitently enforced policy. Guidelines can range from a single sentence declaring that the publication prohibits only unlawful advertising to a multi-page document that spells out the publications policy on hundreds of advertising categories "The Student Times will accept responsible drinking ads.forms of advertising from censorship by public government officials. Because the law does protect most forms of commercial speech. not libelous. personal ads will be run only in the classified section and will be limited to 50 words. Student journalists are encouraged to establish general advertising guidelines to determine what types of advertisements will not be accepted. ethical or other non-legal reasons for rejecting an advertisement? To answer this question. or commercial speech.

385 F. 405 U. 80-558 (D. 131 F. Wisconsin Association of Nursing Homes. 1976). 1980)(ban on distribution of underground newspaper on high school grounds because it carried advertisement for "head shop" upheld). Leeds v.themselves a favor by carefully considering and adopting advertising guidelines that help guide a publication staff through the sometimes complex editorial or ethical issues that can surface with the submission of a controversial ad. The federal court ruled that distribution of the paper could not be banned without proof that it would cause a "substantial disruption" of the school). The Journal Co. Cal. 241 (1974).. 447 U. 1982). 1154 (D. 557. Substitutes United for Better Schools v.2d 1257 (7th Cir. Ct. n. 14 Hazelwood School District v. 19 See Board of Trustees of State University of New York v. 1975)(in reviewing school board policy regulating non-school-sponsored student publications. Sept. 1979). Supp.S.g.2d 817 (9th Cir. consideration.D. 430 U. 622 F. 13 Id. 32 See Lee v.S. Supp.S.. San Diego Committee Against Registration and the Draft v. 1410 (E.2 percent of college and university papers reported at least some advertising revenue. 920 (1968)(upholding right of student editor of public university law review to reject articles submitted for publication). Inc. 705 F. Sullivan. Supp. pages 31-34. 933 (1972) (Court denied request for preliminary injunction brought by students challenging enforcement of school board policy that prohibited "soliciting funds from the pupils in the schools. an increase from the 96 percent reported in 1991 and 93. and adherence.2d 426. 1067 (1993). on remand.E. 829 F.2d 151 (3rd Cir. 11 Planned Parenthood v. Public Utilities Commission. 881 (1973)(application of city ordinance to forbid newspapers to run help wanted ads under gender captions held constitutional). 390 U.S. 26 Murdock v. Williams v. "School officials cannot impinge upon the First Amendment rights of the [staff members] by arbitrarily denying their activity request to solicit advertising.. 1971).3d 241. 128 (1975)(federal court of appeals struck down an outright ban on the sale of literature on the grounds of a public high school).2d at 664-665. 438 F. Supp. 8 The first of these cases was Pittsburgh Press v. 306 F. 941 F. Portland Community College. Supp. 25 Id.S. 370 F.4. Holtville Unified School District.S. C-193 (Idaho Dist. court found "no constitutional basis for distinguishing between commercial literature [which. Owens v. But see...") See also.S. Planned Parenthood. 974 F. 830 (1982). Rendell-Baker v. 24 Id. 376 U. 1973)(High school administrators stopped distribution of a "counter-culture" biweekly newspaper because it contained advertisements. denied. To be "reasonable" the Perry Court held that the restriction on speech must not be "an effort to suppress expression merely because public officials oppose the speakers view. at 148 (no "state action" because court found that "case law indicates that First Amendment prohibits the University from [controlling content of college student newspaper]. 1977)(federal court struck down a high school rule banning the distribution of any "commercial literature" on school grounds.2d 1091 (4th Cir.S. See also.). 1992)(en banc). 254 (1997). 496 F.2d 169 (5th Cir. 1981)(federal district court ruled that public college student newspaper could not reject abortion-related advertisement where content decisions were made by publications faculty adviser). 1 (1986). 982 (1977)(student newspapers refusal to print a homosexual organizations ad did not violate the First Amendment even though newspaper partially funded by student fees). 1969)(high school journalists ruled to have First Amendment right to publish ad opposing Vietnam war). at 829.. Parks. Zucker v. e. 969 F. Peterson v. 33 See Sinn. The Court required censorship to be "reasonable. 870 (1979). affd.D." College Media Review (Spring/Summer 1996). Only in the context of violations of antitrust laws. 7 Copies of the SPLCs Private Schools and Press Freedom guide can be obtained from the SPLC." 34 See Herald-Telephone v. App.S. 85 F. 10 Hazelwood School District v. 1969).2d 1471 (9th Cir.S. was subject to prior review] and 'free' literature" [which was not subject to prior review]) Id. Captive Voices: High School Journalism in America (1973). Tornillo. 638 F. 441 F. 492 U.2d 777 (Tenn. Ct. Pennsylvania. Nelson. v. vacated as moot. 1979). 490 F.g. Meltz. 1991)(en banc). 1986)(school board violated First Amendment by prohibiting a student newspaper from running an advertisement from a committee against draft registration in high school newspaper). e. 1097 (W. rehg denied. 1967). Wis." Students had sought to distribute leaflets requesting money for legal defense fund). Ct. of Educ. 20 Sword v. 484 U. No. at 119. Non-students published the paper. 31 Sinn. 4. v.2d 1058 (2nd Cir. denied.S. denied.2d 171 (Ind. 1983). Governing Board of Grossmont Union High School District. The court ordered the school officials to permit such solicitation stating. v. cert. 512 U. N. Board of School Commissioners. Nitzberg v. 1017 (N. 433 N. which would seldom be relevant to the student media. Panitz.Y.S. Avins v. 1992).S. on remand. Perry Local Educators Association.S. 457 U. McAulay. rehg denied. denied. Newspaper Printing v. See also. under the policy. at 270.S. 12 Id. 5 New York Times Co. cert. Miami Herald Publishing Co. 4 Central Hudson Gas & Electric Corp. at 1416. page 4. 622 (1994) ("At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression.S. Idaho Argonaut. Public Service Commission. denied 113 S. 1133 (1986). 319 U. Hernandez v. Kuhlmeier. 1973).S. 273 (1988). denied. Board of Education. Fox. 376 (1973). Supp. 525 F. 447 U. J. v. 23 Hays County Guardian v.g. 430 F. Kohn. at 1416. school officials would have to prove that the publication would cause a "substantial disruption" of school activities). at 383. 433 N. Pittsburgh Commission on Human Relations. The 1993 survey indicated that 89. 425 U. Virginia Citizens Consumer Council. Neb. Board of Regents. and some of those distributing it were non-students. 29 Mississippi Gay Alliance v. Barnette.2d 426. Judge noted that Massachusetts state law protecting free expression rights of high school student journalists precluded ability of school officials to play a role in ads rejection. 46 (1983). Rohter. 299 F. 1208 (D. 760 (1976).W.) 3 Virginia State Board of Pharmacy v. FCC. Fatouros. rehg denied. No. 414 U. Katz v. 557 (1980). and contributions were sought from those receiving copies. 748. Spencer. 418 U.E. 842 (S. cert. 460 U.2d 1200 (4th Cir. at 821. 1987)(student newspaper at the University of Idaho had right to reject ad its editor believed was unsuitable for publication after judge determined no contract existed). 21 See e. 411 F. 420 U. 6 See. 790 F. v.) See also. Supp. Jacobs v. Fox. 561 (1980). 131 F. 27 Turner Broadcasting System v. Supp. West Virginia State Bd. cert. Town of Lexington. Goudelock.. 536 F. 105. 28 See.8 percent of high school student newspapers carried advertisements. 446 F. 431 N." citing its prior decision in Perry Education Association v. 1996) (holding student editors are not state actors and do have the right to reject advertisements. 2 Freedom Forum. See also. Pacific Gas & Electric v.2d 111 (5th Cir. Clair County Community College. on remand. 1971)(student newspapers rejection of various editorial advertisements violated First Amendment right of advertiser where court believed that the president of the university had the power to enforce the newspapers advertising policies). App. Ill. 444 U.2d 365 (1980).") 16 Lueth v. Kuhlmeier.S. In addition. 260. 1990). 254 (1964). 22 Pliscou v.S. 111 (1943). Clark County School District. 18 Id. 413 U. Public Service Commission. 102 (S. cert. 15 Id. Yeo v.2d 891 (Ct. 1976)(editor of a California high school underground paper sued school officials after they denied permission for her to sell ads to finance the publication.Y. 941 F.S. 1 "Making Progress: Survey Looks at College Media Programs. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 110 van 114 . the survey reported that 99. Mich. 285 N.S. 469 (1989). Hanson.2d 1073 (5th Cir.D." Id.E. 475 U. v. page 217 (survey published in 1973 found that 83 percent of high school student newspapers carried advertisements. Galbreath. 17 Id. 260 (1988). 484 U. Neb. 475 U. 580 S. 1980) (upholding right of teachers to sell newspapers on campus).S.5 percent in 1987.2d 601(7th Cir. 413 N.S. 624 (1943)." See also. Portland Womens Health Center v. the court stated that before any such literature could be banned. Supple.) 30 Yeo v. 732 F. Town of Lexington. 994 (1971). 37.D. at 120.S. Death By Cheeseburger: High School Journalism in the 1990s and Beyond (1994).Y. 319 U..2d 462 (7th Cir. 404 U.2d at 829 (court found schools refusal to publish family planning organizations ads was "viewpoint neutral" and part of school districts intent to "maintain position of neutrality on the sensitive and controversial issue of family planning.W. 413 N.2d 378 (4th Cir.D. can the rejection of ads be legally limited. Or. cert.3d 241 (1997) (order denying preliminary injunction)(Editors of high school student newspaper not required to run advertisement submitted by community group urging sexual abstinence where judge found no state action involved in editors rejection of ad.2d 365 (1980).S.3d 51 (2d Cir. at 848-49). Rutgers. 9 Central Hudson Gas & Electric Corp. St.

is a source of important information to consumers and assists them in making rational purchase decisions. disclosure to avoid deception of the consumer. Intermediate scrutiny is used in equal protection challenges to gender classifications." Positive policies about comparative advertising are contrasted by trademark owners concerns that competitors are using their names and logos to promote the competitor's goods or services. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 111 van 114 . 2010 • JEFF JACOBSON.cornell.edu/wex/intermediate_scrutiny Intermediate scrutiny is a test used in some contexts to determine a law's constitutionality. Visible use of another company's trademark is when a competitor. As the name implies. 'Visible' Versus 'Invisible' Courts have been mixed on how they treat these cases because of the treatment of "invisible" verses "visible" trademark use on the Internet.law. The FTC's Policy The FTC's policy states. These uses are typically high-risk and the determination of whether the use rises to the level of trademark infringement depends wholly on the particular context in which the trademark is used. or (2) an internal web page on Competitor A's website that displays another company's trademark.com/articles/2387-Legal-Comparative-AdvertisingCompetitors-Trademarks-and-InfringementNOVEMBER 17. It tells consumers the differences in products and allows competitors to highlight why the consumer should select its product over another product. "Comparative advertising. when truthful and non-deceptive. Comparative advertising encourages product improvement and innovation. intermediate scrutiny is less rigorous than strict scrutiny. or reference to. Competitors' Trademarks.Intermediate Scrutiny Source: http://www. LLM Comparative advertising can be beneficial to the marketplace. PracticalEcommerce Legal: Comparative Advertising. but more rigorous than rational basis review. For these reasons. and can lead to lower prices in the marketplace. the Commission will continue to scrutinize carefully restraints upon its use.practicalecommerce. say Competitor A. and Infringement Source: http://www. competitors. JD. if necessary. the challenged law must further an important government interest by means that are substantially related to that interest. To pass intermediate scrutiny. But it requires clarity and. The Federal Trade Commission's policy in the area of comparative advertising encourages the naming of. as well as in some First Amendment cases. uses (1) a direct link to Competitor A's website using another company's trademark that is visible to the consumer.

Relevant facts such as weight or size should be stated if they are material terms in determining the comparison. Careful use is necessary because any inaccuracies will be exposed by the competitor in a claim that use of its trademark is an attempt to cause confusion. sponsorship. Comparisons Must Be Honest and Accurate The use of visual comparative advertising is valid so long as it does not contain misrepresentations or contain missing information intended to mislead the consumer. these items should not be difficult for the viewing consumer to find. When a company is making comparisons to competitors. or endorsement by the trademark owner.Invisible trademark use is when trademarks are used in keyword metatags. then all the other factors must weigh heavily against confusion to avoid a finding of trademark infringement. the company needs to be sure that it is not assuming too much and that the comparisons are very comparable. Fifth Circuit has stated that invisible strategies cannot exceed reasonable necessity and cannot suggest affiliation. the use of another's trademark cannot suggest endorsement or some sort of affiliation with the competitor. Particularly. the relatedness of the goods or services. Ninth Circuit has declared its review of invisible trademark infringement to be "initial interest confusion. Pay-per-click advertising using comparisons needs to be carefully crafted to avoid initial. Again. Consumers do not actually see the use of the trademark. If these factors suggest a likelihood of confusion. and each party's use of simultaneous Internet marketing channels. Such additional information can be at the bottom of the page with an indicator that would guide a consumer's attention to those additional facts. and clearly show that it is comparative advertising. A company cannot have misleading advertisements that try to get a potential consumer to click advertisements. being specific and full disclosure is the key. an advertisement based on the content the potential consumer is viewing. The U.Summary If a company makes truthful factual claims in a comparison of its goods or services to itscompetitors. The U. However.S. the company can use comparative advertising and will have arguments against any claims of trademark infringement or unfair competition.interest confusion. The consumers only see the result of their searches. sponsored links. each comparative advertisement should be carefully reviewed from a competitor's point of view and should be reviewed often to make sure all facts are still relevant. and banner and pop-up advertisements. or an advertisement based on their history of keyword use.S. an advertisement that displays a competitor's trademark cannot contain misleading language that causes the consumer to think the advertisement is associated with the competitor's trademark." and applies a three part test as a prerequisite that looks at the similarity of the marks. it needs to clearly point out what the source is of the advertisement. and it could result in claims of false advertising and trademark infringement. In addition. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 112 van 114 . hidden text. However. If a company uses the trademark of a competitor in its advertisement.

to bid on its trademarked terms as keywords. Google can thus breathe a sigh of relief and scratch a major case off the list in its favor. including LVMH competitors. Postscript: TechCrunch originally incorrectly reported the opposite outcome: Keyword advertising using the trademark of others without their permission is illegal and services providers such as Google are also liable for any infringement. Still.Google Wins Legal Battle Over AdWords Trademark Issue In Europe Source: http://searchengineland. one of the European anti-trust complainants against Google. French site ejustice. The case originally arose when marketers bid on “Louis Vuitton” and turned out to be selling counterfeit Louis Vuitton items.” which protects ISPs from trademark or copyright violations unless or until those violations are brought to the attention of the service provider According to a Google Blog post just published Google has prevailed on both questions: Today. The company won in France’s highest court. in a move that will likely shake up the search-based online industry. That’s the ruling given today by the The Grand Chamber of the European Court of Justice (ECJ). This is important because it is a fundamental principle behind the free flow of information over the internet. Meanwhile Foundem. Right now the EC is proceeding with a more informal inquiry into complaints lodged by Foundem. Update: see postscript 2 below for qualifiers. Law professor Eric Goldman lays out many of those in a blog post from yesterday. (Trademarks cannot appear in competitors’ ad copy however.com/google-wins-major-legal-battle-over-adwords-trademarkissue-in-europe-38628 European luxury goods maker LVMH (Luis Vuitton) sued Google in France over its AdWords policy allowing third parties. 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 113 van 114 . An affirmation of the French court’s ruling would have meant potentially big changes for Google (and SEM more generally) and the reinstatement of separate AdWords policies and systems for the US and Europe. Before the court were the following questions: • Whether bidding by third parties and competitors on trademarked keywords violated European trademark law • Whether Google AdWords were “covered by the European Union’s e-commerce law. It also confirmed that European law that protects internet hosting services applies to Google’s AdWords advertising system. the Court confirmed that Google has not infringed trade mark law by allowing advertisers to bid for keywords corresponding to their competitors’ trade marks. says it is “confident” that the European Commision will launch a formal investigation in the near future.fr and Microsoft-owned shopping engine Ciao. even as Google was liberalizing its AdWords policy in Europe to conform to the more permissive US policy that routinely allows such third party trademark-keyword bidding.) Google appealed to the pan-EU European Court of Justice. many legal headaches for Google remain in both the US and Europe.

” Individual advertisers. However. Postscript 2: There’s a bit more nuance here that it originally appeared. Google has dodged a bullet it appears. the luxury goods company behind such brands as Dom Perignon. however. There were also questions remanded to the lower French court for determination. VS Google. including terms like “imitation handbags. The court itself.The fact that Google et al can no longer claim safe harbour in Europe is particularly significant as it now firmly places the burden of enforcement on service providers. If it fails to comply with these requests Google could be liable. which now sets the precedent in Europe.” which brand owners say encourage the sale of counterfeit goods. There’s a fair amount of ambiguity here at a practical level that could result in new lawsuits between AdWords advertisers. I searched unsuccessfully for the court’s actual opinion and ruling but was unable to find it. said the following: “Google has not infringed trade mark law by allowing advertisers to purchase keywords corresponding to their competitors’ trade marks. is LVMH. mostly. Commenting on the ruling. Google critics have complained about one of the company’s services. The dispute had been referred to the European Court of Justice by The French Supreme Court (Cour de cassation) who asked the European court to decide on the rules governing trademark law online as well as the liability of providers of a paid referencing service – in this case Google. The case being settled. duties kick in — much like copyright claims for unauthorized use of video in the US on YouTube for example. In such cases Google removes the video at the copyright owners behest and request. For example. LVMH is obviously delighted. the court ruled. Parties using AdWords may still sue each other if there’s an alleged trademark violation. Google reported that it had won in a relatively unqualified way. The New York Times explains: Google could also be liable if its business practices were found to encourage trademark violations. may be held liable for infringement the court ruled. in its press release. Presumably Google would use this court’s decision as a shield in such cases assuming it could prove it complied with takedown notices and so on. apparently. In addition Google does have some alternative vulnerability to lawsuits if its practices are found to have “encouraged” wrongful use of trademarks. which suggests potential keywords to advertisers. who in turn might name Google as a defendant under one of the theories above. Postscript 3: Law professor Eric Goldman does a more thorough legal analysis of the decision and wonders if it’s something of a “hollow victory” for Google 20140701 HU Medialaw Reader (paul malherbe) (2013-2014) 114 van 114 . And once Google is notified of a violation.