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Parody libel defence gains traction

How Elton John's failed libel action has introduced a US-style defence of parody into UK law, and one Dutch firm's holey solution to an eco-problem08 Jan 2009

A text transcription follows.

This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.

The following is the text spoken by OUT-LAW journalist Matthew Magee.

Happy New Year from OUT-LAW Radio. As we all prepare for a year of uncertainty and doubt, when ill economic winds might blow us some interesting and contentious legal wrangles, we'll make sure to keep you up to date with all that is new, exciting or just plain weird in the world of Technology Law at OUT-LAW-Radio.
My name is Matthew Magee, and this week we examine how Elton John's failed bid to sue the Guardian has opened the door for a libel defence of parody in the UK for the first time. Plus, we talk to the Dutch inventors of a new kind of holey font.

But first, the news:-

UK firms must inform shareholders of key staff illnesses


regulator prepares to punish Telcos for extra charges.

Stock market-listed companies have a duty to inform shareholders if an executive's illness threatens to affect the firm's performance, a Company Law expert has said. that duty does not bind unlisted firms in the UK, he said.

In the wake of Apple's revelations about Chief Executive Steve Jobs's illness one expert has said that UK firms whose shares trade on the public markets should ensure that the markets are told about any illness or circumstance that might impair the performance of a crucial executive. Andrew Hornigold, a Corporate Law expert at Pinsent Masons, the law firm behind OUT-LAW, said:

"Companies have a duty to disclose anything that might have an impact on the company's financial performance or change its prospects. Directors of any company have a duty of care, skill and diligence to the company. This could extend to directors ceasing to hold office if personal issues meant that they could no longer perform their functions", said Hornigold.

Telecoms companies must be clearer about additional charges they levy and must help customers to understand them better, Telecoms regulator Ofcom has said.

From April Ofcom will take action against any that do not comply with newly-clarified rules, it said.
Last year Ofcom expressed concern about additional charges levied on customers for their telephone, internet and television services. It said that it feared that some charges for late bill payments, early contract termination and other activities were unfair, and that competition in the market for the services was not keeping charges low.

It has now produced guidance on these areas on what kinds of terms are fair and what are unfair and said that companies have until April to review and change their contracts. From then it will begin to take action. Ofcom has the power to seek enforcement orders against companies that do not comply with telecoms law.

That was this week's OUT-LAW News.

The UK is famous as a destination for libel tourism. The strict libel laws here mean that people who feel wronged by journalists try desperately hard to take their case here because they think it gives them the best chance of victory.

But that unwelcome reputation was eroded just a little before Christmas by a High Court Judge who said that it is ok to say hurtful and untrue things about somebody as long as it is clearly a satirical joke.
Ivory-tinkling troubadour Elton John is no stranger to the libel courts, and has battled newspapers time and again over stories about his alleged behaviour. He usually wins, but this time the High Court ruled against him over a glamorous party he holds every year.

The judgment offers the news industry something close to the right of parody that protects journalists in the U.S. This won't change the whole libel culture in Britain, said Damian Crosse, a libel and defamation expert at Pinsent Masons, the law firm behind OUT-LAW, but it would at least, he said, give a little more breathing space to newspaper publishers than they are used to.

Crosse: This case, I think it is ground breaking and it will offer editors of newspapers a considerable amount of comfort when, you know, when they considering publishing this type of material. It has been said, and I think this must be right, that the judge probably takes us close towards the US style of libel law where effectively humour and satire are more frequently and commonly used in newspapers and it is very, very difficult and only in exceptional circumstances can libel complaints be substantiated. So only from that perspective it is groundbreaking.

John had sued the Guardian over a spoof diary which appeared in its weekend magazine. The diary was written by Guardian journalist Marina Hyde and carried the byline 'as seen by Marina Hyde'.
The diary describes John's annual White Tie and Tiara Ball, at which some money is raised for John's AIDS Charity.

The diary said: "Naturally, everyone could afford just to hand over the money if they gave that much of a toss about AIDS research – as could the sponsors. But we like to give guests a preposterously lavish evening, because they're the kind of people who wouldn't turn up for anything less. … Once we've subtracted all these costs, the leftovers go to my foundation. I call this Care O Nomics."

John claimed that the article libelled him because of its claim that only a small proportion of the money raised went to his charity.

The High Court disagreed. Crosse said that a crucial factor was the style of the piece, and that in the newspaper world this was often signposted by where in the paper it appeared.

Crosse: I think the fact that it was contained within a part of the Guardian's Saturday newspaper which is clearly designed, you know, more for informal reading as opposed to formal news reading, I think that is important in terms of the context in which the article was written and I think then secondly, fundamentally it was quite clearly and obviously a tease of Elton John. And it was, you know, as I said, a spoof diary. It is having fun at his expense but is it libelling him? No it is not.

The Judge said that John's fundraising efforts, which he and his charity publicise in the media, are a matter of public interest. He said that the attribution of the words to John was literally false, but that "no reasonable reader could be misled by it".

In the U.S. there is an established defence from libel actions if material is a parody or is ironic. Crosse said that this ruling allows that argument to be made here, but said that it by no means gives editors a free hand in teasing celebrities.

Crosse: People know that if you are particularly, in you are in the public eye, that there are times where you will be the subject of effectively people, you know poking fun at you and teasing you. I mean I think if you, if you poke fun and tease in such a way where effectively you are libelling an individual and you are libelling them in such a way where the comments are untrue then you would still subject yourself to a very serious libel risk. So this is not an excuse for editors to, you know, recklessly endorse journalists going out and, you know, sort of inventing satire and irony at the expense of well known celebrities.

Crosse said that the ruling might also help lawyers in dealing with writ-happy celebrities who want to use the courts to silence their critics.

Crosse: There will be a lot of libel and media lawyers around the country who are, you know, from time to time approached by complainants, dissatisfied when they, you know, see themselves being projected in this kind of way and the sort of comment and tittle tattle that is mentioned about them and I think this case will again give guidance to those advisers in actually cautioning against effectively taking complaints forward in litigation.

They say that when trying to change the world we should think global and act local. Well you can't get much more local than the printer at the end of your desk, so if you want to do something to help the planet but you can't convince the IT director to dump the computers in favour of manual typewriters or the guy in supplies only to use recycled hemp paper, the people at Dutch design agency SPRANQ have something for you.

It is called the Ecofont, and it saves ink. How? By the simplest method imaginable: It is full of holes.
Gerjon Zomer, one of SPRANQ's co-owners, said that they came up with the idea and experimented with various hole sizes so that a font would still be readable but would save ink. In the end, he said, they made the holes big enough that they were making a statement.

Zomer: We started with a restring so make very small dots and lines and etc. We wanted to make the effects visible. Because people, we think people are really eager to do something for the environment but they also want to see quick results and there are a lot of software programmes which you can save ink with but they are really technical and we wanted a feasible product.

The font is based on an existing open source font which means Zomer can use that as long as he promises to allow other people to use his. Zomer said that the free open source font was an essential part of the process. Without that free source material he said the Ecofont just wouldn't exist.

Zomer: It gives people the opportunity to further develop the Ecofont and the only thing we want is to make that a central platform instead of all loose initiatives all over the world. So we want to be the first Ecofont and then ask people to design their own fonts in Ecocfont style and put them on our website all for free to download and use again.

Zomer said that the reaction to the font has been superb, even from massive corporations. He said that the team is now working on a version of the font that is flexible enough for large corporates to use and they even want to develop software which will punch ecoholes in any font.

Zomer: But we are surprised big companies called us and wanted to ask if they could use it for as their house style font. And a step further we are trying to make, we are now developing and the tests have been really good to make Ecofonts via scripting so an algorithm is put on it and makes the font automatically and then it could be used for any font at any time. So then the font will really be useable all over the world no matter if it is private use or companies.

That's all we have time for this week, thanks very much for listening.

Why not get in touch with OUT-LAW Radio? We would love to hear your comments or your story ideas on Make sure you tune in next week; for now, goodbye.