Earlier today The Drum reported that ITV is threatening legal action against Channel 4 over defamatory claims in a Dispatches investigation which caught Coronation Street stars in a row over promotions that may breach strict ASA guidelines. Intellectual property specialist Steve Kuncewicz unpicks the legal minefield that lies ahead.
It's interesting to note that all of the coverage around the supposed "sting" has focused on ITV threatening to sue Channel 4 for libel. As much as a business can sue to protect its reputation, it seems here that the reputations which need protecting are those of the Coronation St. cast involved in the programme which ITV is trying to keep from the air. What's more likely is that ITV have taken up cudgels to protect their cast, most of whom can probably afford to defend themselves in any event.ITV are claiming that the allegations in the C4 show, specifically around the behaviour of the cast demanding handouts in exchange for plugging products on Twitter, are serious enough to warrant taking action against C4. The meaning of what's being alleged is key in any defamation case - it has to have an effect on the claimant's reputation in the eyes of the general public, and without specifics on what the programme will say, convincing a court that the meaning of what C4 will say in the programme is defamatory in a manner which precludes any defence to a claim may be a tall order.One option would be to threaten an injunction to stop the programme from being broadcast - to get one, the case would need to be sufficiently serious and in most cases so much so that the defendant couldn't possibly be successful at trial. The problem in trying to obtain a prior restraint injunction is that often you won't know exactly what the allegation will be as the programme maker will almost certainly refuse access to the edit. This means that there won't be any chance for a claimant to have a right to reply, and this can be risky for the media as that is one of the central elements involved in pleading a "responsible journalism" defence. A parallel process would need to be undertaken in Scotland in respect of the programme’s broadcast there.There's also a general rule against granting prior restraint injunctions in defamation disputes - they're only usually granted where there is a "real prospect of (the Claimant's) success at trial" and I'm not sure that this case is that straightforward. We simply haven't heard enough detail on what the programme will actually show to be able to say that there isn't a potential defence available to Channel 4- in plugging products, specifically via social media, the allegation which C4 may be making is that there may have been some contravention of the Consumer Protection Against Unfair Trading Regulations 2008, which prohibit a "trader" (i.e. a natural person or business acting in the course of their trade or profession ) from falsely posing as a consumer in order to promote goods or services.This kind of activity is a criminal offence, and any suggestion of criminal behaviour is a serious libel. However, as we haven't yet seen a prosecution under these regulations, the issue of whether or not the cast members were acting as "Traders" isn't cut and dried, nor is that of whether or not they have behaved in a manner which breaches them - if there were a prosecution, the Court would need to be satisfied that the "trader" has knowingly or recklessly breached the requirement of professional diligence and that the behaviour in question was likely to distort the economic behaviour of consumers (i.e. buying as a result of celebrity endorsement believing that the celebrity in question likes and uses a product rather than being paid to promote it).The 2008 regulations underpin the ASA CAP Code, which also contains a number of prohibitions against potentially misleading advertising via social media, if behaviour which could constitute that is what ITV is so keen to avoid being made public. Recently, the ASA investigated a number of twitter campaigns involving celebrities endorsing products, and although they didn't take action in the first case involving a Twitter campaign against Snickers over the "You're Not You If You're Hungry" campaign, involving (amongst others) Katie Price, due to the fact that the final in a series of promotional tweets was marked with the #SPON hashtag and Snickers brand name because it was, in their view, clear to the public that the Tweets were part of a promotional campaign, the ASA did take action against a Nike twitter campaign involving Wayne Rooney and Jack Wilshere as the tweets in question didn't make it clear enough that they were part of an advertising campaign. In that case, Rooney and Wilshere's tweets were vetted by Nike's marketing team and didn't contain either Nike's brand name or any hashtag such as #spon or #ad, meaning that in the eyes of the ASA, consumers would not be able to obviously identify them as marketing materials.Based on what we know so far, there's nothing to say that C4 won't be able to run a perfectly serviceable defence on the basis of, for example, justification (that the allegations are true), public interest, honest comment or qualified privilege - that'll depend on the content. It'll be fascinating to see what the final broadcast shows, assuming it makes it to air, as the whole issue of celebrity endorsement and the blurring of the line between a genuine contemporaneous tweet about what someone is up to on any given day and a sponsored message for which the person in question is paid is already a major issue for those trying to regulate the content of social media - we can only hope that we get to make up our own minds and have that debate in public.
