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The UK’s Data (Use and Access) Bill passes as Lords’ concede on a push for AI transparency to protect creative industries

Posted on by Dea Dragashi

On 11 June, the House of Lords debated amendments to the Data (Use and Access) Bill (the Bill) and marked the culmination of an extensive “ping-pong” process between the House of Lords and the House of Commons regarding the protections for copyright holders in the context of artificial intelligence (AI).

What was the debate about?

  • The Government’s commitment to protecting copyright holders remains but it argues it cannot act prematurely without completing consultations on the issue. Emphasising the importance of transparency, enforcement and remuneration, it insisted on following due process, which includes analysing over 11,500 consultation responses and establishing technical and parliamentary working groups.
  • Several Lords, including Baroness Kidron and Lord Berkeley of Knighton, expressed frustration at the Government’s inaction. They argued that immediate transparency measures are needed to protect copyright holders from exploitation by AI companies. The creative sector fears that AI systems are using copyrighted works without consent or compensation, which could undermine the livelihoods of artists, writers, musicians and others.

What happened?

In efforts to ensure transparency and incentivise AI developers to comply with copyright law Lord Berkeley of Knighton introduced a new amendment to the Bill requiring AI developers to disclose which copyrighted works they use for training and how they access them, unless a licence has been agreed with rights holders.

Lord Berkeley ultimately withdrew his amendment, citing a desire to maintain the dignity of the House and avoid further unnecessary divisions. However, he and others urged the Government to take the concerns of the creative industries seriously and act swiftly to address them.

What will happen next?

The Bill now awaits Royal Assent and once in force, it will reform elements of the UK GDPR and Privacy Electronic Communications Regulations – from introducing a list of recognised legitimate interests to adding new exceptions to the consent requirements for cookies and similar technologies.

It should be noted that while the UK’s adequacy decision from the EU to allow a free flow of personal data transfers has been extended to 27 December 2025, the Bill does introduce changes to the UK GDPR which ultimately leads to a departure from the EU GDPR. As such, we wait eagerly to see if it decided whether or not the UK’s data protection regime will continue to offer materially equivalent protections in order to maintain the free flow of transfers between the UK and EU.

If you would like more information, please feel free to reach out to one of our dedicated data protection lawyers, or if you would like keep up to date on the latest in data protection, please subscribe to our quarterly newsletter, The Data Download.

Protecting business assets on divorce: article published in Tatler Address Book

Posted on by Dea Dragashi

An article authored by managing associate Emily Miles and senior associate Emma Williams on how to protect business assets during a divorce has been published in Tatler Address Book’s Experts’ Corner.

A divorce can pose a significant risk to the stability of even the most robust owner-managed business, especially if critical safeguarding measures have not been taken. The article explores common business scenarios that may be impacted by a divorce, including where there are joint business owners, family businesses and early-stage startups, and sets out some practical suggestions of steps that can be taken to protect business assets in these circumstances.

You can read the full article here.

A new statutory tort of invasion of privacy is born in Australia

Posted on by Alex Molyneux

Today, Australia welcomed into the world a new statutory tort of serious invasion of privacy.

It arrived with little fanfare from the media or social media platforms but like any new arrival it deserves to be celebrated. The right to privacy is enshrined in the Universal Declaration of Human Rights adopted by the United Nations on 10 December 1948, and the Australian Law Reform Commission recommended the introduction of the statutory tort back in 2008 and again in 2014. It adopts a number of principles established in the UK and European privacy laws, as well as the right to seek injunctive relief and the right to sue over false and true privacy intrusions.

More controversially, it includes a journalist exemption. The journalist exemption was not recommended by the Australian Law Reform Commission in 2014 and appears to have been introduced due to last minute lobbying by the media. This is a key provision of the act and will be an important provision in the development of the statutory tort of invasion of privacy in Australia.

Importantly, the newspaper exemption only applies to established media and accredited journalists, so citizen bloggers and social media platforms beware. It also only applies to news, current affairs or opinion on news and current affairs.

What constitutes news for the purpose of a claim will need to be determined by the judge tasked with applying the new law. An article about matters of local and world news, or an exposé of wrongdoing, will clearly qualify as a news item, but magazines and online media which trade in tittle-tattle of the rich and famous, or of those associated with them, should watch out. The days of publishing gossip about who is dating who, where they live, their emotional state, medical information or where the children go to school are in my opinion going to be off limits.

Who will be right will be a matter for the courts to decide. Watch this space.

Supreme Court ruling on ‘sex’ in Equality Act: workplace implications for Film & TV

Posted on by Julia Krol

In April 2025, the Supreme Court gave a judgment on the meaning of “sex” in the Equality Act 2010. Widely reported in the mainstream press, and generating considerable debate, we explain the judgment and how it relates to practices in the workplace.

The case of For Women Scotland v The Scottish Ministers concerned the meaning of the terms “man”, “woman” and “sex” in the Equality Act 2010 (EqA) in light of the Gender Recognition Act 2004. It decided that these terms refer to biological sex. This means that if someone identifies as trans, they do not change sex for the purposes of the EqA, even if they have a Gender Recognition Certificate.

The decision is an important development in the entrenched conflict between those on either side of the trans rights and gender critical debate. Unless future legislation changes the position, the judgment puts the meaning of sex in the EqA in unequivocal terms. Sex = biological sex.

So what does this mean for UK film and TV companies, who are employers or engage freelance cast and crew on productions? We’ve identified some key areas where this judgment will have an on-the-ground impact for clients:

Facilities

Employers need to consider their provision of workplace facilities, in particular toilets and changing areas. Under health and safety law, employers have to provide separate toilet facilities for men and women. Unless toilets are individual lockable rooms with wash basins (not just cubicles) then they ought to be single sex and reserved for those of biological sex. This could be a change of policy for production companies, as the prevailing approach has been to allow staff to use facilities in line with the sex they identify as. To continue permitting this could give grounds for claims of discrimination or harassment based on sex.

Companies will need to consider how to communicate or even enforce any policy changes around facilities with sensitivity towards all those impacted, and where possible identify solutions to provide compliant gender neutral ‘third’ spaces. This is not an easy task for those in the film and TV sectors, where the physical workplace is subject to change. Options for practical solutions may have to be assessed for each production or shooting location on a case by case basis.

Support for staff

The Supreme Court decision could have a real impact on some members of the workplace. Companies should consider steps which could be taken to support staff, through people team and wellbeing services. They might also consider reiterating a commitment to EDI, or even introducing improved provision in this area. Employers need to be alive to the possibility of complaints or even claims when contemplating policy changes and approach the issue with care, appreciating the differing views which may exist whilst ensuring inclusion is not compromised.

Protection under the EqA against discrimination or harassment because of or related to the protected characteristic of gender reassignment, or a person’s perceived sex, has not changed. In this context gender reassignment means proposing to undergo, undergoing or having undergone a process to reassign sex; it does not require a Gender Recognition Certificate or gender affirming medical treatment. Companies must consider how to balance the requirement to provide single sex facilities (bearing in mind the risk of sex discrimination claims if they are not compliant) with the rights of trans people not to experience gender reassignment discrimination at work.

Communications and respect at work

The decision undoubtedly leaves employers and companies navigating a tricky emotive issue with no perfect answers on best approach. Establishing a culture of respect in the workplace and ‘disagreeing well’ will be important, with acknowledgment that conflicting opinions will exist in diverse workplaces. This can be done through relevant policies, defined values or codes of conduct, with training and role modelling behaviours also being key. Those in management or people teams will need to ensure an even handed approach when dealing with clash of opinions between staff or the enforcement of any changes.

Looking ahead

The Supreme Court decision did not provide all the answers for employers managing challenging situations where they encounter a clash of rights based on different protected characteristics. The Equality and Human Rights Commission is consulting to produce detailed advice through an updated Code of Practice, expected after June this year. In the meantime, concerned employers should consider seeking legal advice on any significant changes to policy or approach. It is important to be mindful of the complexity and emotion in this debate, and to listen to employee representations and lobby groups. However ultimately employers must take workplace and policy decisions with the clear legal judgment from the Supreme Court in mind.

Reel trouble: the ICO reprimands Greater Manchester Police for CCTV failings

Posted on by Dea Dragashi

On 29 May 2025 the ICO reprimanded Greater Manchester Police (GMP) for failures in handling sensitive CCTV footage of a custody detainee, exposing gaps in data protection practices. The case highlights outdated policies, inadequate training, and procedural failings that led to missing footage.

Background

The data subject was held in custody at Pendleton Police Station for 48 hours in February 2021 during which CCTV was in operation. GMP became aware of serious allegation made against officers via local media and requested that Pendleton Police Station retain the personal data of the data subject. This was beyond the documented period of 90 days and the procedures in place at the time allowed for retention of a period of up to six years.

During the process of retaining the personal data, the personal data was quality checked to ensure its security. GMP had received multiple Data Subject Access Requests (DSARs) from the individual concerned. When GMP was able to comply with the request to release the footage captured, it was then quality checked.

Following a resolved technical issue, where one of the discs containing some of the data would not initially play and it was established on 19 May 2022 that two hours of footage was missing from the personal data set originally retained in 2021.

On 23 August 2023, GMP stated that, despite all attempts, it was unable to recover the missing two hours of footage. This led GMP to self-report a personal data breach to the ICO on 5 September 2023.

Findings

Following the assessment of information provided by both the Independent Office for Police Conduct and GMP who were conducting separate investigations with a different scope, the ICO has identified two main failures leading to this lack of quality check:

  • A misunderstanding at the time between staff, each believing that the other had conducted a quality check
  • A lack of any policies or guidelines at the time within GMP, identifying that quality checks were required, coupled with a lack of appointed responsibility for this task

Therefore, the ICO considers that the GMP failed to take the following actions:

  1. Provide the data subject with their personal data without undue delay and by the end of the applicable period of one month. This is because following the expiry of any exemptions in place to the right of access, GMP was not able to release all applicable personal data to the individual within the timeframe or to date. GMP did not provide the ICO with any evidence that it notified the data subject of any such extension.
  2. Ensure that the appropriate technical or organisational measures were in place to protect the accidental loss of the CCTV data it was processing in 2021. The ICO considers that had GMP had an appropriate standard operating procedure (SOP) in place, with clearly defined and delegated responsibilities for quality checking any backed-up personal data. This would have mitigated the risk of this breach. GMP failed to deploy an adequate SOP, designed to encompass the processing and retention of personal data beyond 90 days. The operating procedure that was in place had been developed in 2017 and had not been reviewed or amended since that time. In line with good practice, SOPs should be reviewed and updated, if necessary, once every 12 months.
  3. Conduct a data protection impact assessment (DPIA) in relation to their CCTV systems. A DPIA should have been conducted in compliance with section 64 of DPA 2018. A DPIA would have crucially assisted GMP in identifying shortfalls in their technical and organisational measures at the time.
  4. Provide the GMP’s custody officer with data protection training despite having a data protection training regime in place, which was supposed to have provided all staff members with data protection training during induction periods.

There were issues with the CCTV system itself such as:

  • The CCTV system, in operation at the time, was only able to download captured footage for retention in half-hour or one-hour segments. This placed GMP staff at substantial risk of human error.
  • The CCTV system did not save the half-hour/one-hour segments in chronological order, resulting in it being difficult to identify if all required footage had been captured.
  • The CCTV system did not have any inbuilt alerts, identifying any errors that may have occurred during the back-up process.

Mitigating and remedial steps taken by GMP

The ICO took into account the following:

  • GMP, at the time of the breach, had a requirement for a form of authorisation in place. This required the signed authorisation of an officer, ranked inspector or above, to allow the appropriate team access to the footage recorded on the server (held for 90-days before automatic overwrite).
  • Any footage retained was stored by GMP in sealed evidence bags at the time. This ensured there was no break in the evidence chain, during the period the footage was held by GMP and Pendleton Police Station.
  • GMP has undergone a proactive investment in their surveillance and security system infrastructure in 2023. This resulted in a significant upgrade to their system capabilities.
  • GMP has introduced a strictly regulated process to ensure that only authorised force personnel had access to the footage held within the CCTV server. Access was restricted to qualified officers within the criminal justice and custody branch of GMP.
  • GMP has informed the ICO of improvements to their security when managing DSARs from individuals. GMP advised that these requests are now administered centrally within their Information Access team. Where a DSAR is submitted, custody officers contact the relevant custody unit as soon as possible with urgent instructions as to how the footage is to be retained, so this is not overwritten. The footage is automatically uploaded to a dedicated local folder for DSARs. This location can only be accessed by authorised officers within the custody branch.
  • Auditing of footage has been vastly improved. This provides a comprehensive account of which officers have accessed the footage, copied it to disc or the location of the server, with date stamps.
  • GMP have already improved their SOP. The operating procedure has undergone a complete rewrite. GMP will ensure that this new procedure will be circulated moving forward across the force. GMP will ensure this procedure is now reviewed on an annual basis.

Action

Taking into account all the circumstances of this case, including the mitigating factors and remedial steps, the ICO decided to issue a reprimand to GMP. The ICO set out certain recommendations which do not form part of the reprimand and as such are not legally binding. Such recommendations include:

  • When formulating a replacement for the current processes, GMP should create an appropriate SOP, detailing how any retained personal data should be quality checked.
  • When developing the SOP, the roles and responsibilities for such checks should be clearly defined.
  • Under section 64 of the DPA 2018, GMP is required to have a DPIA in place for this processing. GMP should develop a DPIA for this processing without delay if they haven’t done so already.
  • GMP should deploy appropriate technical and administrative processes to monitor that all staff receive appropriate data protection training, which is refreshed at least every two years (recommended every year), in line with good practice. Staff should be trained and regularly refreshed on how to identify a personal data breach.
  • All breaches should be reported to GMP’s Information Access team/Data Protection Officer for assessment and documentation.
  • GMP should always keep a written record/assessment regarding their rationale not to inform the ICO of a breach.

Comment

While the ICO’s decision to reprimand, rather than fine, GMP reflects its Public Sector Approach – which avoids penalising taxpayer-funded organisations to prevent a “double hit” on victims and the public – this enforcement underscores the critical importance of protecting highly sensitive data, such as CCTV footage, where mishandling can lead not only to a data breach but a failure to respond to a data subject’s request. The key takeaway is to ensure measures are in place to comply with data protection laws in relation to CCTV such as access procedures, retention policies, security measures, staff training and data protection impact assessments.

If you would like more information, please feel free to reach out to one of our dedicated data protection lawyers, or if you would like keep up to date on the latest in data protection, please subscribe to our quarterly newsletter, The Data Download.

Court of Appeal decision in digital transformation case

Posted on by Julia Krol

The Court of Appeal recently held that a customer who instructed a supplier to provide digital transformation services was not entitled to delay payments (liquidated damages) of c. £1.6m.

This is because the prompt issuing of a “non-conformance report” by the customer was said to be a condition precedent to the customer receiving delay payments, and no such report was promptly issued. The Court reached this result notwithstanding the term “condition precedent” not being used in the contract.

The relevant provision provided that:

“6.1. If a Deliverable does not satisfy the Acceptance Test Success Criteria and/or a Milestone is not Achieved due to the CONTRACTOR’s Default, the AUTHORITY shall promptly issue a Non-conformance Report to the CONTRACTOR … The AUTHORITY will then have the options set out in clause 6.2.”

“6.2 the AUTHORITY may at its discretion … choose to … require the payment of Delay Payments…”

The Court of Appeal reached this decision because:

  1. It is not necessary for the term “condition precedent” to be used if the contract clearly provides that the relief is conditional on a requirement.
  2. The “if .., then ..” structure in the clauses was clearly conditional and without the non-conformance report, the clauses would not operate properly.
  3. It is not necessary for the deadline for the condition precedent to be expressed as a precise time period – “promptly” is sufficient.

The case shows that both contract drafters and litigators must pay close attention to remedies provisions to ensure that conditions precedent are not inadvertently included and are fully complied with.

The case can be found here: Disclosure and Barring Service v Tata Consultancy Services Ltd [2025] EWCA Civ 380.

Joint Controllers, TC Strings, and OpenRTB: Unpacking the Belgian Market Court’s Appeal Decision on IAB Europe’s TCF

Posted on by Anna Weeden

On 14 May 2025, the Belgian Market Court (part of the Brussels Court of Appeal) delivered a landmark judgment in the case concerning IAB Europe’s Transparency and Consent Framework (TCF).

The case centred on allegations that IAB Europe violated the General Data Protection Regulation (GDPR, or AVG in Dutch) through its data processing practices within the TCF. This judgment follows an earlier decision by the Belgian Data Protection Authority (APD), which found several breaches of the GDPR and imposed a €250,000 fine on IAB Europe.

CASE BACKGROUND

IAB Europe is an international non-profit association aiming to bring compliance to the digital advertising and marketing sector. They developed the TCF to promote adherence to the GDPR when internet sites or applications use the OpenRTB protocol.

On 2 February 2022, the APD found that IAB Europe’s TCF violated GDPR and fined IAB €250,000. Key findings included:

  • The TC String (user preferences signal) is personal data.
  • IAB Europe is a joint controller for both the creation and subsequent processing of the TC String.
  • Lack of a valid legal basis for processing TC Strings as the TCF did not obtain explicit and informed consent from users, nor could it rely on legitimate interests due to the large-scale and intrusive nature of the data processing involved.
  • Failure to fulfil transparency obligations and not adequately informing users about its role as a data controller, the purposes of data processing, or the recipients of their data.
  • Inadequate security measures and lack of mechanisms to prevent manipulation of consent signals.
  • Failure to conduct data protection impact assessments.
  • Failure to appoint a data protection officer. 
  • Incomplete register of processing activities.

On 4 March 2022, IAB Europe challenged the APD’s decision before the Belgian Market Court, disputing its role as a joint controller and the APD’s legal analysis on the TC String being personal data.

On 7 September 2022, the Belgian Market Court made an interim ruling, confirming the procedural irregularities in the APD’s investigation. It referred two preliminary questions to the CJEU:

  • Does the TC String constitute personal data under GDPR?
  • Is IAB Europe a joint controller for processing TC Strings and subsequent data uses?

On 7 March 2024, the CJEU judgement confirmed that:

  • the TC String may constitute personal data if:
    1. It is associated with other data points (e.g., IP address) that can identify a user.
    2. IAB Europe has reasonable means to access such data.
  • IAB Europe may be a joint controller for the creation and use of TC Strings if it influences the processing’s purposes and means.
  • IAB Europe is not a joint controller for subsequent processing (e.g. personalised advertising) by third parties.

The case was sent back to the Belgian Market Court for factual verification and further examination which this article explains.

FINDINGS OF THE MARKET COURT

Are TC Strings Personal Data?

TC Strings are unique codes containing users’ consent preferences.

The Market Court referenced the preliminary ruling of the CJEU in March 2024, which clarified that TC Strings, when linked to identifiers such as IP addresses, allow for user identification.

In paragraph 48 of the judgment, the Market Court stated that “the fact that IAB Europe itself would not have the reasonable means to proceed with Identification because it cannot make the link between a TC String and the IP address and would not have direct access to the personal data, is in itself irrelevant”.

As such, the Market Court confirmed that a TC String is personal data within the meaning of Article 4(1) of the GDPR.

Is there any processing of personal data?

IAB Europe, as the managing organisation and central figure in the digital ecosystem, determines the storage and dissemination of the TC String.

Under the TCF Technical Specifications, the TC String is shared with Consent Management Platforms (CMPs) in two ways:

  • By storing it in a shared global consent cookie on IAB Europe’s consensu.org domain; or
  • By storing it in a CMP-chosen system for service-specific consent signals.

The Market Court found that storing the TC String in a shared cookie and making it available via the consensu.org domain clearly constitutes processing of personal data under GDPR.

The Market Court further explained that, regardless of the consent cookie or domain, processing of personal data occurs in the TCF, including:

  • User preferences being collected by CMPs (along with the user’s IP address);
  • User preferences being structured and ordered in a TC String; and
  • The TC String being stored, distributed, and shared with TCF participants.

Should IAB Europe’s Role in the TCF be considered as a Data Controller?

Paragraphs 62-75 of the judgment confirms that it is clear that IAB Europe has real decision-making power, both over the purposes and means of processing and this given its overriding control over the operation of the TCF:

  • IAB Europe acknowledges its responsibility for the TCF in its own documentation – such as “Frequently Asked Questions” on the TCF (version 2.0) – noting that this judgment only focusses on v2.0 as IAB Europe’s TCF v2.2 already includes updates to address compliance concerns raised.
  • On determining the purpose and means of these processing operations, IAB Europe indeed exercises a decisive influence. IAB Europe has a shared purpose with the other participants for the processing of personal data, which incidentally all have the same, which is to ensure that user preferences are captured in a structured way and then shared with all other participants. Even though many TCF participants may be competitors, when it comes to the processing of user preferences under the TCF, they all have similar interests, which are also similar to those of IAB.

The Market Court states that “the concept of a data controller in this case just does have to interpreted broadly, since IAB Europe is the only one who, as it itself states, manages and administers the TCF and can therefore resolve the issues identified by the Dispute Resolution Chamber, after consultation with all other EU regulators.”

The Market Court confirmed that IAB Europe is a joint data controller with TCF participants for storing the consent preferences of the affected users in the TC String.

If yes, is IAB Europe a Joint Controller for the processing of personal data in the context of OpenRTB?

The Market Court assessed whether IAB Europe with the TCF “influences” the further processing of personal data under OpenRTB.

The APD argued that IAB Europe’s TCF and OpenRTB are inherently interconnected. It claimed that IAB Europe facilitates an ecosystem where consent preferences are collected and shared for further processing by third parties (e.g. publishers and adtech vendors). As such, the ADP considered IAB Europe and participating organisations to be joint controllers for both the collection and dissemination of consent data.

The Market Court identified inconsistencies in the ADP’s reasoning. Although the ADP acknowledged that IAB Europe does not act as a data controller for processing under OpenRTB, it nevertheless implied such responsibility in its decision. The Market Court found that the Appellants had limited the scope of their arguments to the TCF, no evidence was provided to establish IAB Europe as a joint controller for OpenRTB processing and it lacked influence over this stage of data use..

It concluded that the APD failed to demonstrate that IAB Europe acts as a joint data controller for processing operations under OpenRTB as not all processing stages fall under their control.

OUTCOME

The Market Court upheld the €250,000 fine imposed by the APD, deeming it proportionate and justified under Article 83 of the GDPR. It also confirmed the corrective measures requiring IAB Europe to bring its processing activities into compliance.

The Market Court dismissed most of IAB Europe’s grievances but acknowledged procedural flaws in the initial decision. It upheld the APD’s sanctions regarding TCF operations but clarified that IAB Europe is not responsible for OpenRTB operations – annulling the APD’s decision in part.

IAB Europe is ordered to pay the costs of proceedings, estimated at €7,848.84, and other contributions totalling €424.

IMPLICATIONS

This Judgment clarifies that even entities without direct access to personal data can be held accountable as data controllers if they influence the purposes and means of processing.

For the adtech industry, this ruling reinforces the GDPR principles and in particular supports the requirements to:

  • carefully examine consent mechanisms to ensure they are transparent, freely given, specific, informed and unambiguous;
  • ensure the use of consent frameworks like the TCF does not create ambiguity about their own roles and accountability in data processing operations;
  • provide users with clear, accessible, and understandable information about how their data is processed; and
  • minimise the processing of personal data by leveraging contextual advertising, privacy-enhancing technologies, and aggregated or pseudonymised datasets instead of third party cookies.

Less healthy food advertising restrictions pushed to early 2026

Posted on by Anna Weeden

Today, the Government has announced that it intends to delay the effective date of the less healthy food regulations. The regulations, which ban TV ads for less healthy food or drink being shown before 9pm and online ads for these products, were due to come into force on 1 October this year.

Following heavy lobbying from the industry around the implications of ‘brand advertising’ (i.e. advertising a brand/company name even if unhealthy products were not shown), the Government has announced that it intends to make and lay a Statutory Instrument (SI) to explicitly exempt ‘brand advertising’ from the restrictions. To allow time to consult on the draft SI, the formal date that these new restrictions come into force has been extended from 1 October 2025 to 5 January 2026.

However, as per a voluntary agreement with the Government, advertisers and broadcasters have made a public commitment to comply with the restrictions as though they would still come into force from 1 October 2025. This means that, from 1 October 2025, the Government has said that it would expect adverts for specific identifiable less healthy products not to be shown on TV between 5:30am and 9pm or at any time online. This is a positive development for advertisers, particularly those that largely or wholly advertise products that fall within the ‘less healthy product’ category, who (it is expected) will be able to continue to advertise their branding without showing such less healthy products, at any time. This is of course subject to how the Government will define ‘brand advertising’, which we expect clarification on before the restrictions come into force on 5 January 2026 (subject to Parliamentary approval). However, advertisers will still be expected to comply with the general restriction and no longer advertise identifiable less healthy products on TV between 5:30am and 9pm or at any time online, as of 1 October 2025.

Understanding day one dismissal rights in theatre

Posted on by Alex Molyneux

The new ‘day one’ dismissal rights in the Employment Rights Bill will allow actors to claim unfair dismissal from the first day of employment, rather than the current two-year period. Partner Howard Hymanson and senior associate Mark Primrose unpack what this might mean in practice.

The new law is expected to come into effect in autumn 2026, at the earliest, and means even new hires can challenge dismissal. Traditionally in theatre, the approach to ending performers’ contracts has been based largely on convention.

Formal performance improvement procedures tend not to be followed between producers and performers and it is extremely rare for unfair dismissal claims to be pursued. This is driven by several factors, not least a feeling that bringing a claim for unfair dismissal is likely to be a career limiting move. There is also an understanding that sometimes things don’t work out and ‘the show must go on’ regardless.

The Employment Rights Bill, currently progressing through parliament, will introduce significant reforms. And while it will bring about change across all industries, in the theatre sector – particularly in respect of decisions by producers not to renew artists’ contracts – the impact will be very significant.

Artists, agents and unions have, in our experience, become more litigious and assertive of employment law rights in recent years; the new law will inevitably bring about more of the same.

Current practice and the current law

Engagements for long-running West End productions are usually subject to the collective agreements between the Society of London Theatre (SOLT)and Equity, BECTU and the Musicians’ Union respectively. Typically, West End theatre artists are engaged for a fixed term of 52 weeks or the closure of the show, if sooner.

If all is going well after a year, contracts are renewed for a further 52-week fixed term. When a producer chooses to go in a ‘different direction’ – using a different actor – the contract is simply not renewed, leaving the actor to move on.

Most actors are self-employed, but those engaged on long-running shows acquire employee status for unfair dismissal purposes. Once they have clocked up two years’ continuous service, they have the right to not be unfairly dismissed. Expiry of a fixed-term contract counts as dismissal under the legislation, giving rise to a potential claim. Artists engaged on short and single-run shows are often self-employed and  therefore ineligible to bring any claim for unfair dismissal.

For a dismissal to be fair, it must be for a fair reason: capability, conduct, illegality, redundancy or some other substantial reason. Any dismissal usually necessitates a formal procedure. The most likely reason for non-renewal is capability – ie a performance is not up to standard. But it’s rare for performance/capability procedures to be followed. For one thing, the decision is often based on the subjective view of a director/producer rather than any objective assessment of their capabilities.  

But there has been a sea change in recent years, with a much greater willingness on the part of unions, agents and actors to dispute termination of contracts and to invoke statutory employment rights.

How the Employment Rights Bill will change things

The forthcoming change to the law will mean anyone with employee status will acquire the right to not be unfairly dismissed from the first day of employment. The removal of the two-year qualifying period will mean any decision not to renew a contract will give rise to the potential for an unfair dismissal claim. A successful claim currently pays a maximum compensation amount of either 52 weeks’ gross pay or a statutory cap, (currently c. £118k), whichever is lower.

The new law also provides for a statutory probation period during which an employee can be dismissed following a lighter-touch procedure, provided the termination is for a fair reason. The statutory probationary period is likely to be nine months.

This radical expansion to protection from unfair dismissal presents challenges to employers and their approach to handling the lapse of artists’ contracts will need to be reassessed. For example, where the reasons for recasting a show are subjective, the potentially fair reason ‘some other substantial reason’ will come into play. Employment tribunal judges scrutinising ‘some other substantial reason’ dismissals often deem them unfair.

Will greater leeway be afforded to theatre producers in consideration of artistic expression? Interestingly, artistic expression falls within the ambit of freedom of expression, which is provided for in Article 10 of the European Convention on Human Rights. This is significant because courts and employment tribunals do have latitude to apply human rights principles in employment claims.

A notable example was when, in 2014, the High Court accepted that the National Theatre’s staging of War Horse without live musicians was covered by Article 10. This may deter employment judges from interfering with producers’ right of artistic freedom.

The outcome however is far from certain and producers will undoubtedly want to avoid being that test case. So, to secure mutually-agreed exits and confidentiality, it’s likely that settlement agreements and severance payments will become more commonplace when contracts come to an end.  

Steps to be taken

In future, when a decision is made not to renew an artist’s contract, more process and formality will be required. Producers will need to consider greater use of performance management procedures, with rigorous documentation of and discussion with artists concerned. While performance improvement procedures used in other sectors will be inappropriate, the law will call for something akin to be applied.

Probationary periods will also become more important. At present, the collective agreement between SOLT and Equity has no provision for probation and does not adequately address performance management. SOLT members will need to address this in the next iteration of the collective agreement, just as Equity will need to recognise the need for agreed practices and procedures. And finally, producers may include a severance fund into production budgets to cover the likely costs of exiting artists.

First published at artsprofessional.co.uk on 13 May 2025.

Behind the lens of April 2025: UK Film and TV insights

Posted on by Anna Weeden

We are pleased to share that we have launched the first edition of our UK film and TV newsletter.

This debut edition includes some brief updates on important changes affecting the industry, and some spotlight articles that delve deeper into M&A activity in the industry as well as the impact of the government’s new Employment Rights Bill.

If you would like to sign up for future editions, please get in touch.

HARBOTTLE HIGHLIGHTS

Broadcast Summit 2025

Partner Ed Lane and managing associate Clare McGarry attended the Broadcast Summit on 2 April.

Their key takeaways were as follows:

  • “Fewer, bigger, better” is still a popular phrase, and there was lots of chatter about consolidation within the indies market.
  • Alternative funding models are the thing, including brand-funded content (if you can access it!)
  • Despite the difficult climate, there was positivity in the air both in terms of commissioning and M&A activity improving.

Indielab TV Accelerator 2025

We continue our partnership with Indielab in 2025 and will be hosting the Indielab TV Accelerator throughout April, May and June. This three-month programme is designed to help individuals develop the skills and networks needed to take their indie to the next level across the evolving TV and content ecosystems. It also offers the chance to collaborate with new industry partners, and gain insights from experts in the field.

Bafta Elevate 2025/6

On Friday 28 March, we had our first session with the talented new BAFTA Elevate cohort. Partner Sarah Lazarides and managing associate Clare McGarry focused on how producers and directors should look to protect their IP and secure their position, particularly when entering into co-productions. In the coming months, more of our lawyers will provide tailored sessions designed to share essential industry knowledge and expertise.

INDUSTRY UPDATES

HETV: Hot off the press

A pretty punchy report from the House of Commons CMS Committee was released on 10 April which contains recommendations which, if implemented, have the potential to transform upend the industry. The stated aim: to protect and reshape the UK indies market.

Here are some highlights:

  1. Enhanced tax incentives for HETV to match the new independent film tax credit.
  2. Terms of trade for streamers, “akin to the PSB terms of trade”.
  3. Greater support for freelancers, including a commissioner for freelancers.
  4. A distribution tax relief and a reduction in VAT on cinema tickets, to support struggling cinema numbers.
  5. A controversial 5% levy on streamers’ UK subscriber revenue to rebalance the HETV market.
  6. Increased funding for the UK Global Screen Fund.
  7. Government should abandon its proposed data mining exception for AI training, plus a stronger framework for AI which should “consider the interests of copyright holders, creatives and audiences”.

Update on PACT/Equity negotiations

Pact and Equity are continuing to meet and progress discussions. In the meantime, interim fee increases have been approved across both the Cinema Films Agreement and TV Agreement for 2025.

New UK independent film tax credit now officially available

From 1 April 2025, the new UK Independent Film Tax Credit which forms part of the AVEC became officially available – it has a net rate of 39.75% (overall equating to 29.25%) and it applies to films with budgets up to £15m and which began principal photography on or after 1 April 2024.

Equity issued open letter to the industry on AI training

In February, Equity published an open letter to the industry on AI training. This was a call to arms to industry stakeholders stressing the need for an urgent conversation to ensure that any exploitation of rights-protected content in the context of AI is carried out with recognition of performers’ property rights and applicable data protection laws.

The letter provides some background on the current issues (specifically that most AI models being used have been trained on vast quantities of (often rights-protected) materials, which have been scraped from online sources without consent from or compensation for creators and performers) before going on to summarise its interpretation of the legal position on performers’ rights under the Copyright Designs and Patents Act and data protection rights under the GDPR. Whilst the legal analysis produced by the union is open to debate in certain areas, Equity has flagged in its letter that it considers the current activities of AI companies to constitute a breach of existing IP rights. Where performers’ rights are breached, Equity has said it will robustly defend members, including via the courts if necessary. It is worth noting that the government is running a consultation on whether to update IP laws to allow for the commercial data mining of protected works by AI companies, which would circumvent some of the issues raised by Equity in this letter. The government’s request for the public to feed into its consultation has now closed and we are eagerly awaiting the outcome.

Pact is seeking feedback from its members before planning to respond to Equity.

BBC published protocol for generative AI content

In January, the BBC established a new editorial guidance policy for generative AI in its content creation. The guidelines emphasise three core principles: (i) acting in the best interests of the public; (ii) prioritising talent and creatives; and (iii) being open and transparent with audiences about the use of technology.

The BBC has emphasised that, subject to certain exceptions (such as where AI is the subject of the content and its use is illustrative), generative AI must not be used to directly generate news content or factual journalism, as a key aim is to build audience trust and to prevent dissemination of biased, false or misleading information.

The BBC has experimented with the technology through various pilots which has led
to AI being used to generate subtitles and live text pages, and for translation
purposes.

UK introduced ESTA-style VISA

The government has introduced a new Electronic Travel Authorisation (ETA) scheme, which is a security measure for visa-exempt travel similar to the US ESTA. This may be relevant for overseas individuals travelling to the UK for a production. The ETA is aimed at strengthening border security and streamlining entry procedures for visitors.

As of 8 January 2025, citizens of 49 countries, including the United States, Canada, Australia and Japan, must obtain an ETA before travelling to the UK. European Union nationals will need an ETA starting from 2 April 2025.

Travellers can apply for an ETA through the UK ETA app or online. The application requires personal details, travel information and a valid passport. The decisions are usually made within three working days.

The ETA costs £10 and is valid for multiple entries to the UK over a two-year period or until the relevant individual’s passport expires, whichever is sooner.

It should be noted that the ETA is not a visa and does not grant the right to enter the UK; it merely authorises travel to the UK. Upon arrival, travellers will still need to meet the entry requirements set by UK Border Force officers. For the most current information and to apply for an ETA, please refer to the government’s guidance here.

High Court dismissed TV formats copyright infringement claim

In a recent case in the UK, the High Court considered the extent to which TV formats can be protected by copyright. Comedian Joshua Rinkoff created a comedy show “Shambles” which involved a live comedy night, combining short clips of stand-up comedy with behind-the-scenes narrative in the form of a sitcom. Rinkoff claimed that the Baby Cow Productions’ series “Live at the Moth Club” copied this format.

In considering whether a format can be protected as a dramatic work, the judge cited the fact that there were at least two conditions which must be met. First, there must be a number of clearly identified features which, taken together, distinguish the show from others of a similar type. Secondly, those distinguishing features must be connected with each other in a coherent framework which can be repeatedly applied so as to enable the show to be reproduced in recognisable form.

The High Court dismissed the claim for copyright infringement finding that: (a) there was no copyright in the series; and (b) even if there were, there was no infringement. The case highlights the challenges of claiming copyright protection for a format, which to date, has not been found to subsist in a TV format in this jurisdiction. It is a reminder of one of the fundamental principles of copyright law in England and Wales, in that it protects the expression of an idea, but not the idea itself, and the importance of clearly defining and documenting unique elements to establish protectable works.

UK Film and TV production bounces back (for some)

Film and high-end TV production in the UK is officially bouncing back from its slowdown in 2023, felt during and immediately following the Hollywood writers’ and actors’ strikes. According to the British Film Institute, which compiles the official data, the total spend on film and TV production last year (based on the year in which principal photography started) reached £5.6 billion ($6.9 billion), which represents a 31% increase from 2023 when £4.23 billion ($5.37 billion) was spent.

Wicked was the highest-grossing release in the UK in 2024, with box office sales of £59.6 million. 65% of total UK production spend on film was accounted for by productions from the five major U.S. studios and the three major US streaming platforms (Netflix, Apple and Amazon), also representing a 49% increase in spend in 2024 versus 2023. A few of the films which were shot by these studios and streamers in the UK last year include The Running Man, Wake Up Dead Man: A Knives Out Mystery, How to Train Your Dragon, Project Hail Mary, and Jurassic World Rebirth.

But whilst the studio landscape is coming back strong, the picture is mixed for Indies. Pact released a major report into the state and future of the indies TV sector, outlining shrinking production company numbers, a loss of talent and threats to “niche” genres such as specialist factual – times are tough and much of the industry is still feeling it.

IN THE SPOTLIGHT

M&A: here to stay?

Written by partner Ed Lane.

M&A activity had, in the past 12 months or so, been confined to the bulge bracket – witness the mega merger between Skydance Media and Paramount and the sale by Warner Bros. Discovery and Liberty Global of All3Media to Redbird IMI. Deals at the lower end of the market have been harder to come by – until recently, that is. In the past few months, we’ve seen Mediawan take a majority stake in Slow Horses and indie See-Saw and ITV Studios pick up majority stakes in indies Eagle Eye and Moonage Pictures.

We have also seen a raft of so-called ‘start-up deals’, where investors back talent in a new venture, including BBC Studios’ backing of Samphire Films.

At a more macro level, further consolidation amongst the larger media players and streamers is expected as consumers tire of a deluge of content – Disney recently announced it was merging Hulu + Live TV with competitor Fubo TV. Heavyweights such as Comcast/NBCUniversal and Warner Bros. Discovery are expected to separate out and look for options in relation to their cable network division.

That being said, the macro-economic conditions – primarily interest rates – are not looking as auspicious as they were at the start of the year. Interest rates had been expected to come down reasonably quickly as the global economy got back to business after the Covid-19 pandemic and related supply shock, and prior to this, they had been on a steady downward trend. However, President Trump’s economic policies, in particular the imposition of wide-ranging tariffs, may halt that return to normality.

Employment rights: A once in a generation shift

The Employment Rights Bill, described by the government as “the biggest upgrade to workers’ rights in a generation”, has been making progress through parliament over the last few months. Senior associate Lucy Burrows delves into the latest round of amendments to the Bill and how they provided further insight into what lies ahead for the film and TV industry.

Read the full article here.