As the media law bandwagon hurtles on through the digital age, lawyers working in the field face the increasingly tough task of keeping on top of developments.
The launch of digital television last year, the increasing use of the Internet, new technology and the changing role of libel law all give the lawyer specialising in media and entertainments a fair bit to think about. And the increasing complexity of the area means it now attracts legal anoraks alongside the cinema fiends. According to David Zeffman, a partner at London-based specialist media firm Olswang: “Where previously the area of media and communications law was about luvvies and film producers, it is now central to the world's economy and is considered a very sexy area by graduates.”
And not just sexy, but lucrative. Just as lawyers throughout history have profited from society's latest fads, so those with a solid grounding in media law will be well-prepared to make a killing in this era of fast-developing communications and digital technology.
Harbottle & Lewis partner Mark Phillips, for example, specialises in legal advice on computer games and claims the UK has secured a reputation for creativity in this area. His work advising on deals between computer companies and computer games writers can sometimes create multi-millionaires overnight.
However, it is not all coming up roses in the media lawyers' garden. In the field of television, Simons Muirhead & Burton partner Razi Mireskandari warns that the increasing competition between channels will mean not only the “dumbing down” of programme content, but also less money in the coffers for legal advice. Mireskandari predicts that the increasing number of programmes being made will reduce the funds available to each programme, and this, he believes, will have the knock-on effect of a smaller budget for legal advice.
“Either the quality of programmes will suffer, or the amount paid for legal advice will decrease,” he says.
In the field of libel law, lawyers hope that new practices will encourage more plaintiffs to press ahead with libel actions, which are widely seen as being the sole preserve of celebrity high-fliers. These include plans to introduce “the summary procedure”, a fast-track system for libel cases worth less than £10,000, and the adoption by libel firm Peter Carter-Ruck and Partners in December last year of a policy to accept cases on a no win-no fee basis.
The policy rethink by Peter Carter-Ruck is expected to encourage other niche firms to follow suit, but some libel lawyers claim that many in their ranks already take no win-no fee cases on the sly. Mireskandari, for example, says he has frequently turned down impecunious clients only to see them being taken on by other firms.
But he cautions that some of these changes will not necessarily produce the riches some practioners are eagerly expecting.
According to Mireskandari, in reality “even the most heinous cases” often settle for less than £10,000. Therefore solicitors taking no win-no fee cases will not make huge amounts of money. He also points out that lawyers will find it difficult to define whether a settlement constitutes a win.
Worse still, Mireskandari thinks that no win-no fee libel cases could create a conflict of interest between solicitor and client if the solicitor seeks one course of action and the client demands another. “If the other side offers to settle and my client doesn't want to, why should I follow my client's wishes if I am not getting paid for it?” he asks.
Another factor occupying the minds of media lawyers is the Human Rights Act, which will enshrine the European Convention on Human Rights into UK law. According to Olswang solicitor Rose Alexander, the act, which does not yet have an implementation date, will introduce a right of privacy that is enforceable against public authorities and which courts will then develop through case law. Alexander says that since courts are public authorities themselves, they will have a duty to uphold rights of privacy in actions brought before them, or else be vulnerable to actions for breach of privacy against them. “This could create an increase in work and strengthen a course of action,” she says.
Internet regulation is another hot topic following a number of cases, such as Marks & Spencer and ors v One in a Million and ors, that tackled the thorny issue of Internet piracy and ownership of domain names, or domain name hi-jacking. Marks & Spencer, together with Virgin, British Telecom, Ladbrokes and J Sainsbury successfully brought trade mark infringement and passing off actions against a company which had registered web addresses under the name of each company and then tried to sell the site back to that company.
While Internet law remains a relatively untested legal arena, clarification is on the way. Internet specialists expect the European Commission to issue a directive shortly that will tighten up the rights and responsibilities of Internet Service Providers (ISPs) and tackle the issue of whether an ISP can be sued for libellous material that passes via its service. Clive Gringras, author of The Law of the Internet, explains: “The directive is in the very preliminary stages of its journey, but there have been leaked reports about what is in it. The European Commission is trying to view ISPs as middlemen and trying to give them some rights.”
This issue of Internet regulation underlines the very real impact that technology will have on the law as its role in the communications industry continues to increase. Stephens Innocent senior partner Mark Stephens predicts that a device known as the Platform for Internet Content Selection (PICS) will generate a lot of interest this year. The PICS system monitors the content of information transmitted through cyberspace and allows Internet users to screen out sex, nudity, foul language and violence. Stephens says several governments, including that of the UK, Japan and Australia, as well as the European Union and non-governmental bodies such as the Recreational Software Advisory Council in the US, have already donated money to further the system's development. He adds that it is “more sophisticated than existing blocking mechanisms and allows the user to make up his or her mind”.
But it is not only the technology that media lawyers must ponder over. The expansion of international communications, says Stephens, will also encourage the growth of “forum shopping”, where litigants choose the jurisdiction for their action. The UK courts are a popular choice. Stephens says that foreign media litigants have been bringing their actions in the UK because, they argue, this is where they broadcast or sell their publications. He is sceptical about this line of argument and claims the truth behind this drive for UK hearings is often simply that many foreign litigants believe they have a better chance of winning a case if it is heard in UK courts.
Stephens points out: “People are taking advantage of our courts even though the case involves, for example, a US film star suing US authorities and this is becoming more and more of a problem.”
But while the UK's growing army of media lawyers will have to keep a sharp eye on this trend, the technological boom that is driving legal developments in the sector should mean their future is assured.
As Stephens puts it: “This is one of the most rapidly expanding areas of law because of a trend towards multi-media communications and all sorts of technological developments.”
STARS IN THEIR FILES
No one could accuse Razi Mireskandari of name-dropping – despite the fact that he has just casually mentioned Liam, Noel, Paula and Jarvis.
As the Simons Muirhead & Burton partner reels off a a few of his clients, he names a showbiz celebrity A-list. A solicitor to the stars, Mireskandari probably knows a few secrets that would have the tabloid press salivating.He acted for pop star Jarvis Cocker after the infamous 1996 Brit Awards affair, when Cocker upstaged an evangelically-posed Michael Jackson, and has represented Paula Yates in her court wrangles with former lover Bob Geldof over custody of their children.
But Groucho Club member Mireskandari denies his life is glamorous and points out that while his clients are celebrity icons to most people in the UK, to him they remain simply clients. “To a shipping lawyer, the head of a shipping line is probably as glamorous as a celebrity is to anyone else,” he explains. “I do go to press launches, screenings and lunches with clients, but shipping lawyers probably go to shipping association clubs with theirs and find that exciting.”
He claims media lawyers have a “cultural awareness, an interest in the wider issues and have to be tuned in to what people are watching and thinking”.
Stephens Innocent senior partner Mark Stephens (pictured left) is renowned for his flamboyant, larger-than-life character. His clients include a number of well-known comics, including Julian Clary, Lee Evans, and Rory Bremner, as well as presenters Anthea Turner and Des Lynam.
Asked why his glamorous clients, who after all are used to the pressures of life in the public eye, bring actions, Stephens offers the classic media lawyer line: “They hurt the same as anyone else.”
And, like Mireskandari, Stephens is prosaic about his client list: “Everybody, including my taxi driver last night, thinks that a little bit of tinsel rubs off on you, but my clients are just the same as everyone else.”
Perhaps not surprising considering their high profile reputations in the media law sector, both Stephens and Mireskandari eschew the tabloid showbiz columns, and prefer to do their own research when called upon. They admit, however, that they hear of stories about their clients shortly after the hacks write them.