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Sony loses privacy complaint over Unfit Kids

Documentary was not unfair

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A documentary that cited video games among the reasons for childhood obesity did not treat Sony unfairly when criticising the PlayStation maker's refusal to sponsor a fitness scheme for kids. Sony also lost a claim that the company's privacy was breached.

The ruling was published by Ofcom, the regulator for the UK's communications industries, yesterday. Sony Computer Entertainment UK Ltd had complained that Ian Wright's Unfit Kids, a Channel 4 show presented by the former footballer, made Sony the target for unfair, one-sided and pejorative comment.

Sony also argued that its privacy was "unwarrantably infringed" when footage of the company's offices and logo were used and a confidential email from the company was included in the programme.

In the programme, Ian Wright explored some of the reasons behind childhood obesity. In the first show, Wright selected overweight 13-14 year olds who did little or no exercise and devised an After School Fitness Club programme for them. He tried to extend the project and the second episode of the series, broadcast on 20th September 2006, showed his attempt to secure funding.

He arranged to meet representatives of Sony to seek sponsorship from them. Sony decided not to sponsor the scheme. Sony was referred to in the programme, which also showed an email from the company in relation to sponsorship and footage of the exterior of the company's offices.

Sony complained to Ofcom.

Sony said that Wright's comments created an erroneous and unfair impression of the company, which was disproportionate in the context of the refusal of a request for sponsorship. In particular, Sony complained about Wright's remark, "Fuck Sony, man. Sony's not gonna stop this from working".

Sony also argued that the programme implied wrongdoing on Sony's part, alleging that it failed to sponsor Wright's project and unfairly contrasted this with a statement about the firm's worldwide turnover of $8.6bn from video games. Wright also said that there is a Sony PlayStation game for "every single thing that a child can go out and exercise [for]".

Sony also claimed that the programme makers did not explain the nature and purpose of the programme to them and that they did not inform Sony that its refusal to have the meeting with Wright filmed would be referred to negatively in the programme. It complained that Sony's positive views about Wright's project and the company's involvement in other sports-based initiatives were omitted.

Channel 4 countered that it was "perfectly reasonable" for Wright to express his frustration at the company's decision. It also said that Sony was made aware from the outset the nature and purpose of the programme.

Sony said its privacy was infringed when its offices and logo were filmed without permission and it pointed out that the email used in the programme was confidential correspondence intended for the addressee only. Channel 4 countered that the programme makers did not need permission to film Sony's offices "as the programme makers were filming openly from a public highway". It added, "All company emails are routinely accompanied by confidentiality wording," but said that there was express authorisation from a Sony representative to use the email.

Ofcom found that the inclusion of Wright's reaction to the news that Sony was not going to provide funding was "reasonable as a reflection of his disappointment". This did not amount to an allegation of wrongdoing to which the programme makers should have given Sony an opportunity to respond, said Ofcom.

Ofcom said it was "entirely acceptable" for the programme makers to film and broadcast footage recorded from a public place. Ofcom added: "Such material was firmly in the public domain and did not require consent from the company."

Ofcom noted that there was a clear conflict between Sony and Channel 4 as to whether the broadcaster had permission to use the email. It concluded that it was for the courts to determine the question of any misuse of confidential information.

However, Ofcom was able to consider whether there had been an infringement of Sony's privacy under Rule 8.1 of the Broadcasting Code, which states: "Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted."

Ofcom said it considered both the subject matter and content of Sony's email and ruled that the parts used did not contain any information that was inherently private to Sony, such as exposing the inner workings of the company.

The regulator also said it was foreseeable that the programme would wish to make reference to what Sony had said in the email and there was no evidence Sony had specifically asked for it not to be included. Ofcom ruled that Sony did not have a legitimate expectation of privacy.

Ofcom's ruling concluded: "The complaints of unfair treatment and infringement of privacy were not upheld. Accordingly the complaint was not upheld."

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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