What links the latest T-Mobile dance ad to west country choirs? The Licensing Act 2003 of course. Very different events expose the Licensing Act's incoherent rationale, and wide disparities in its application:

At 11am on Thursday 15 January 2009, commuters at Liverpool Street Station witnessed a spectacular 'flash mob' performance of dance. To the opening bars of Lulu's 'Shout', commuters on the station concourse broke into an apparently spontaneous two and a half minute dance routine. By the end, hundreds were dancing:

http://www.youtube.com/user/lifesforsharing

This was in fact a choreographed performance for T-Mobile's latest 'Life's for sharing' ad, filmed on the station by Saatchi & Saatchi, and planned meticulously over three months with the full collaboration of Network Rail. This included two overnight rehearsals at the station itself. Many of the dancers were professionals, augmented by about 300 amateurs recruited through Facebook and from T-Mobile staff.

Public reaction was crucial to the ad's success. In one of T-Mobile's own publicity videos, 'Making of the T-Mobile dance', director Michael Gracey tells the rehearsing dancers: 'The real magic exists in you being able to convince members of the general public to join in and do what you are doing.' http://www.youtube.com/watch?v=uVFNM8f9WnI&NR=1 (at approx 1min 11secs)

So, was this entertainment licensable under the Licensing Act 2003? According to ministers, the legislation is essential to regulate public safety, nuisance, crime and disorder, where there are public performances of dance (except morris and similiar dancing) even if entertaining the public is not the main intention.

Licensing lawyer Dale Collins looked at the T-Mobile videos:

'It is clear to me that the dancing is "entertainment" by virtue of the definition in [Schedule 1] para 2(1)(g) as it was in the presence of an audience which, by virtue of para 2(2) includes spectators. The next question is, does it fall within the "provision of regulated entertainment" under para 1. The first condition is whether it was provided "to any extent for members of the public or a section of the public". I would say yes. The second condition is whether the train station was made available "for the purpose, or for purposes which include the purpose, of enabling the entertainment" to take place. Again I would say yes. Thus, in my view, the entertainment ws regulated entertainment and required a licence.'

As it turns out, the event was not licensed. The City of London Corporation, licensing authority for the area, confirmed on 13 February: '... the parts of Liverpool Street Station used in the filming of the T Mobile advertisement were not the subject of a licence issued by the City of London Corporation under the Licensing Act 2003.'

A spokesperson for Network Rail said: 'This was a commercial shoot on private property. Appropriate authorities were consulted and all relevant licensing requirements were met.' Sources within the City of London licensing department, however, were adamant that no-one had approached them.

Organising regulated entertainment without the appropriate licence, where a licence is required, is a potential criminal offence, maximum penalty: £20,000 fine and six months inside. The City of London's legal department considered this for a few days and came up with an interesting solution. The T-Mobile dance performance was not licensable in their view because...

'We do not believe that the filming of the advertisement constituted "entertainment" within the meaning of the Act as what took place was the filming of an advertisement and that there was no intention to entertain.'

David Chambers, licensing consultant and former Head of Licensing at Westminster City Council, commented:

'I have every respect for officers of the City of London Corporation but on this occasion I cannot agree with them. I believe this was a licensable event. ... to be licensable the entertainment of the public does not have to be the main purpose of the event. According to the Licensing Act 2003 it simply has to be provided to ANY EXTENT to members of the public. Listening to the video it seems clear that a large part of the purpose of the event was to entertain the public. True that was intended to be part of the advert. However, nowhere in the Act does it say that entertainment provided to the public is exempt if designed to be part of an advert. On the other hand I can quite understand why the City of London would not want to licence it. I cannot see any public interest benefit in doing so. The event was clearly extremely well organised, well rehearsed and as the video showed, much appreciated by the public who clearly enjoyed the entertainment. What would have been achieved by licensing?'

This is not the first time that the City of London Corporation has found a way around the Licensing Act. In 2006, Barts Hospital put on a series of widely advertised concerts on wards. The City of London took the view that these qualified for the Act's exemption for 'incidental music'.

Feargal Sharkey, now CEO of UK Music, praised this example of 'pragmatic and insightful' interpretation at the Culture Committee hearing of 11 November 2008, but reminded the Committee that other councils are less accommodating:

'At the other extreme, we are aware of a choir - and I hope they do not mind me saying this - of men seasonally approaching the end of the autumn of their lives down in the south-west who during the summer months go to the local fishing harbour and stand and sing a few songs and raise some money for the local charities. They were told by the local authority that they were not in a position to do that any longer as they would require a licence. I did speak to the chairman of that choir at great length and the rules that they had found to circumnavigate the interpretation of the local authority is that this summer on a Sunday afternoon they would take the local vicar with them to the harbour side and the local vicar would then bless the harbour, instantly transforming it into a place of religious worship, which, of course, is exempt from the legislation, and they could then sing a few songs and collect some money.'
http://www.publications.parliament.uk/pa/cm200708/cmselect/cmcumeds/uc1093-iii/uc109302.htm

Meanwhile, the police have a new public order problem on their hands. The T-Mobile dance inspired a Facebook dance group who organised a so-called 'silent dance' at Liverpool Street Station on Friday 6th February (silent because everyone brings their own iPod music). Several thousand dancers descended onto the concourse that evening, leading the police to close the station for 90 minutes. This from the Daily Telegraph online of 7th Feb:
http://www.telegraph.co.uk/scienceandtechnology/technology/facebook/4542840/Flash-mob-mimicks-T-Mobile-advert---and-closes-train-station.html

Deputy Chief Constable Andy Trotter said: 'When you get thousands of commuters trying to go home at a very busy station in the middle of rush-hour then joined by thousands of people who want to dance that can then be a problem.

'We don?t want to spoil people?s fun but we do want to make sure the rail and tube network can continue to operate. A large number of people in a confined space can cause concerns about safety and I would encourage those who organize these parties to do so away from the transport network.'

A British Transport Police spokesperson confirmed that 'the police can prevent entry to stations using bylaws 6 & 13 if they do not believe people are travelling but are there to take part in a flash mob party'.

ENDS

Hamish Birchall