UK: The Phil Ivey case – English court rules for first time on civil law offence of cheating

By Chris Elliott and Danielle Sharkey

In the first case since the coming into force of the Gambling Act 2005, the English courts have determined whether the conduct of a party to a gambling contract amounted to cheating for the purposes of civil law.

The case in question was Phillip Ivey v Genting Casinos UK Ltd (t/a Crockfords Club) [2014] EWHC 3394 (QB). The claimant in the action, Phil Ivey, is a very well-known American professional gambler. He sued the defendant casino for winnings of £7.7million. In a game of Punto Banco, Mr Ivey used the technique known as ‘edge sorting’, which enabled him to notice tiny differences on the edges of the playing cards to give him an advantage over the casino. Read the rest of this entry »

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GLOBAL: How to protect brand reputation and sales from the risks associated with a product recall

By Teresa Hitchcock

In the past decade or so, manufacturers in the developed world that would previously have created their entire product in their own country now outsource manufacture to other parts of the world. This has had significant economic advantages where the overseas partner has been able to create a high-quality product at lower cost. However, problems have also arisen. Developed countries have high safety standards to which not only manufacturers, but also the importers of goods manufactured abroad can be held. Heavy criminal or financial sanctions can be imposed if an unsafe product is placed on the market in an EU member state or another developed country in breach of product safety requirements. Market controls are being streamlined, as for example with the Product Safety and Market Surveillance package currently being further developed at EU level. Read the rest of this entry »

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DLA Piper’s Media, Sport & Entertainment Hub launches!

 We are delighted to announce the launch of our Media, Sport and Entertainment Hub – a unique, free global resource that provides our closest clients and friends with an insight into the various legal and industry issues impacting on their business throughout the world.  The Hub currently covers 13 territories, with more soon to follow.

 Nick Fitzpatrick, Co-Chair of our Global Media, Sport and Entertainment group said:

 ”We are really proud of the Hub - something that we think is truly unique and a real example of what global teamwork can deliver. We look forward to welcoming you to our new service, and working with you to make the Hub, and our team, more relevant to you and your business“.

 When you register for the Hub, all content including local industry information, analysis, case updates, an archive of our alerts and updates, and recordings of all of our past events will be made available to you free of charge.

 To register for the Hub, please click here.

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Doing business with Russia? The latest EU (and Norwegian) Sanctions

We hosted an event in Oslo, Norway on Friday 14 November 2014 which focussed on EU, and Norwegian sanctions adopted against Russia and also considered the Russian countermeasures.

In addition to speakers from our firm, we heard from representatives from the Norwegian Ministry of Foreign Affairs, the Norwegian Ministry of Trade, Industry & Fisheries and former Norwegian public broadcaster correspondent to Russia, Mr. Hans Wilhelm Steinfeld. The presentation from the event is downloadable here.

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USA: Connected Cars & Privacy: Automotive industry adopts consumer privacy principles

by Patrick Van Eecke and Julie De Bruyn

Last week proved to be an important week for privacy and data protection in the US: while representatives of the European Commission were negotiating with US representatives on government surveillance and the extension of the US Privacy Act to EU citizens, the US Alliance of Automobile Manufacturers (‘Alliance’) together with the US Association of Global Automakers (‘Association’) published their ‘Consumer Privacy Protection Principles’ (‘Principles’) on 12 November 2014.

Read the rest of this entry »

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AUSTRALIA: Hitting Corruption for Six

By Judith Miller and Julian Conti

The cricket world is in a fierce battle against the increasing use of technology in illegal bookmaking. In order to protect their interests ahead of the World Cup starting in February 2015, the International Cricket Council (ICC) is entering into agreements with the Federal Police in Australia and across the ditch in New Zealand. One such agreement is a memorandum of understanding between the ICC and Australian Federal Police which allows for the sharing of information between the two entities.

Part of the ICC crackdown on illegal bookmaking and match fixing involves placing a “gag” order on groundsmen from Australia’s premier cricketing venues such as the SCG and the Adelaide Oval. Recently, groundsmen from all around the world were flown to New Zealand to attend a meeting where they were warned to stop giving out detailed information about the pitches before matches. Traditionally, groundsmen openly spoke about the pitches that they produced in the lead up to a match. They would supply information about everything from whether they would prefer to bat or bowl first or whether they thought the pitch might favour a particular side. No longer can groundsmen do such things, the ICC is well aware that the information ultimately ends up in the hands of the gambling community prematurely.

The strategy also includes focusing on ejecting “pitchsiders” who attempt to take advantage of live overseas betting markets as a result of slight delays that occur when broadcasting games overseas. Pitchsiders are a relatively new group within the illegal bookmaking world, that transmit play-by-play data from their seats to illegal bookmakers all over the world. This year alone police ejected two men from the second test between Australia and Pakistan in Abu Dhabi after it was suspected they were feeding information over mobile phones to illegal bookmakers. Victoria Police have also investigated a British man who was using a laptop from his seat during a Big Bash League game.

The recent measures taken by the ICC open up an interesting discussion on who owns the rights to the opinions of those involved with organising matches as well as the game data itself. What is certain is that the cricketing world is taking corruption seriously as a result of match fixing scandals that have brought the game into disrepute. The success of these measures will be interesting to monitor.

UPDATE: IRB Sidelines Mobile Phone Usage

Following our last update, the International Rugby Board (IRB) has announced that it is also considering its own measures to maintain the integrity of the game. One of the more controversial measures relates to banning players from using mobile phones before games at next year’s World Cup in London. The use of mobile phones in change rooms is currently being investigated as part of the IRB’s anti-corruption crackdown. Under the proposed plan, players would be forced to hand over their phones when entering the change room, or their use would be monitored to ensure no inside information was leaked to betting agencies. Such a step has already been utilised by the AFL, where players were warned this year not to use mobile phones from the moment they stepped into the change room, until after the final siren sounded.  

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FRANCE: Broadcasting rights relating to Top 14 rugby games are premium rights that must be allocated to Pay TV channels according to a transparent and competitive procedure

By Florence Guthfreund-Roland & Mathilde Hallé

On January 14, 2014, the Ligue Nationale de Rugby (the French Rugby League or “LNR”) and French premium cable television channel Canal+ entered into an agreement whereby the latter was granted exclusive rights to broadcast Top 14 games (i.e. first division rugby games) for five seasons.

On July 30, 2014, following a complaint filed by beIN Sports France (“beIN Sports”), a company that operates paid premium sports television channels in France, the French Competition Authority (the “FCA”) suspended the agreement concluded between the LNR and Canal +, effective as of the end of the season 2014/2015, and ordered the LNR to proceed, at the latest by January 31, 2015, with a new assignment of the Top 14 broadcasting rights for the 2015/2016 and following seasons, under transparent and non-discriminatory conditions.

Canal+ and the LNR appealed the decision of the FCA. On October 9, 2014, the Court of Appeal of Paris upheld the decision of the FCA based on the following arguments:

•           Top 14 broadcasting rights are likely to constitute premium rights. Indeed, they cover events likely to generate large audiences and therefore constitute a driving force for subscriptions;

•           Top 14 broadcasting rights, given their premium nature, must be assigned following a competitive procedure in order to prevent any discriminatory or anticompetitive practices, and for a limited duration. According to the Court of Appeal, negotiating and subsequently entering into a contract granting exclusive broadcasting rights over a period of five years, while shutting out any other operator from the broadcasting rights allocation process, constitutes an anticompetitive practice;

•           The potential anticompetitive practice in issue has caused an immediate and serious harm to the pay television sector, to consumers and to beIN Sports.

The Court of Appeal of Paris gave the LNR an additional two-month period to proceed with a new assignment of the broadcasting rights, according to a transparent and non-discriminatory procedure. Both Canal+ and the LNR can still appeal the decision of the Court of Appeals of Paris before the Cour de Cassation, the French Supreme Court.

For further information, please contact Florence Guthfreund-Roland ( or Mathilde Hallé (


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Bestwater – CJEU considers embedded links to copyright content (again)

On 21 October 2014, the Court of Justice of the European Union (the CJEU) gave its decision in Bestwater, a case that, like the decision in Svensson earlier this year, concerns the question of whether there is an infringement of copyright when a website operator links to or embeds content available on a third party’s website.

Svensson (as we reported in February) established that linking to, or embedding, content is a “communication” and that there will be infringement if that communication is “directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public”. It also repeated the principle developed in the cases of Airfield and TVCatchup that redistribution via a different technical means to the original communication would constitute communication to a new public.

The question referred in Bestwater was as follows:

Does the embedding, within one’s own website, of another person’s work made available to the public on a third-party website, in circumstances such as those in the main proceedings, constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC, even where that other person’s work is not thereby communicated to a new public and the communication of the work does not use a specific technical means which differs from that of the original communication?

In Bestwater, the answer to the question posed seems self-evident. The question asks that – even where there is no “new public” and no different technical means – will embedding be a “communication to the public”? Svennson had already decided that, in those circumstances (i.e. where there is no “new public”), there is no communication to the public. Unsurprisingly therefore, the court agreed, holding that embedding alone is not a communication to the public, where there is no “new public” or no new technical means is used. Indeed, the court thought the answer to the question was so clear from the case law that a full judgment was not necessary.

Nevertheless, in the absence of an official English translation of the judgment, some commentators have suggested that the case is authority for the proposition that linking to any freely-available content, even if not authorised by the rightholder (for example, pirated content), will not be an infringement. However, this ignores the definition of a “new public” in Svensson, which clearly states that the authority of the rightholder is key. In any event, the CJEU does seem only to say in Bestwater that linking to freely available content will not be communication to a “new public” where the copyright owners have allowed the original communication. It follows that linking to or embedding to content that was originally posted without the authorisation of the right holder should constitute infringement.

In these types of decisions, it should always be remembered that the CJEU is called upon to answer specific questions of law asked by national courts, not adjudicate on the facts. The question in this case was specifically expressed as subject to the assumption that there was no “new public”, so it cannot be correct that it should be interpreted as re-examining the principle of what will constitute a “new public” or overturning the principle that the authorisation of the rightholder is key, as set out in Svensson. This is especially the case since in Bestwater there was no detailed judgment and no detailed re-examination of the concept of a new public, because the CJEU considered the answer to the questions asked could be derived from its own prior rulings.

The issue of providing access to unauthorised content and the application of Svensson has, however, already been considered by the English courts in two s.97A “blocking injunction” applications this year. In Paramount v Sky (No. 2), the websites in question did not host the film content to be protected, but linked to it, while in the very recent BPI v Sky the websites operated as torrent indices, assisting users locate content elsewhere. In these cases, Mr Justice Henderson and then Mr Justice Arnold both found infringement in circumstances where the service in question was facilitating access to works which are generally accessible via the internet (but where the copyright owner had not consented to them being made freely available), after considering Svensson. This, it is suggested, is the correct approach and is consistent with the “new public” concept formulated by the CJEU in recent cases and, in particular, the relevance of the authorisation (or lack thereof) of the copyright owner.

With thanks to Patrick Schwarzbart for providing a translation of the CJEU’s decision.

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Main giveaways from our “Second Screen” webinar

No doubt, Second Screen, Social TV and other enhanced broadcasting applications are increasingly popular.

Here are some giveaways from our “Second Screen” webinar. Read the rest of this entry »

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UK: New Licensing Scheme for use of Orphan Works

By Danielle Sharkey

On 29 October 2014, the Department for Business, Innovation and Skills launched a new licensing scheme which aims to give wider access to millions of culturally valuable creative ‘orphan’ works.

  Read the rest of this entry »

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