Theatre companies and movie publicists who use selective quotes from reviews to sell their shows may find themselves in the dock when the Unfair Commercial Practices Directive bites in the form of UK legislation next year.
The law – coming into effect in April – will impose a general duty on all businesses not to trade unfairly with consumers and oblige businesses not to mislead consumers through acts or omissions; or subject them to aggressive commercial practices such as high pressure selling techniques.
Not all of the protections sought by the Directive are new and there are overlaps with existing legislation, for example the Trade Descriptions Act springs to mind, but the legislation seeks to plug the gaps and ensure that there is harmony on this subject throughout the whole of the EU.
The new law will repeal rafts of existing legislation, modernise and simplify the existing framework, and when implemented attack practices that are unfair but not currently unlawful, imposing civil or criminal penalties as appropriate.
All businesses which supply or market goods and services to consumers are affected so a promoter or theatrical producer who misleads the public by advertising his show using quotes from a newspaper critic taken out of context may face prosecution.
The new legislation hopefully cures what has been for many years a standing joke in the industry where often a theatre company or movie publicist secures revenge for a damning review by quoting from it selectively, turning a panning into what appears to be praise.
How often have we seen billboards outside theatres proclaiming something along the lines of, “intellectually stimulating”, and been influenced by this and similar accolades, not realising that the full review might have read, “This would have been an intellectually stimulating evening at the theatre had the play not been completely miscast and misdirected.”
Not every selective quote will fall foul of the law. For the unscrupulous producer or publicist to be prosecuted, it will have to be shown that his use of misleading quotes was unfair.
To qualify, two criteria will have to be satisfied: First, the prosecution will have to show that the act of using misleading quotes fell short of the standard of care which producers or publicists might reasonably be expected to exercise towards patrons “commensurate with honest market practice and the general principles of good faith”.
Second proof would have to be led that the producer or publicist materially distorted the behaviour of a patron – in other words s/he influenced the patron to buy a ticket that s/he would not have bought had s/he not read the selectively quoted review. Unless both criteria are satisfied there can be no prosecution.
No doubt the change in the law will spur on trade associations such as the Theatrical Management Association and the Federation of Scottish Theatre to proffer guidelines and /or a code of conduct to regulate the use of quotes to assist their members from the risk of prosecution. This should mark the end of the selective quote, which can be no bad thing for hack and punter alike.
Richard Findlay is a partner in the IT/IP and Media department of Tods Murray LLP
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