Libel Law Reform

Published March 5, 2010 In the Media , On Line Defamation Leave a Comment
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The Culture, Media and Sport Select Committee has published a Report on “Press standards, privacy and libel”.

The Report was prompted by concerns about the balance between personal privacy, libel law and press freedom, and also by the failure of the Press Complaints Commission to address persistent libelling by the UK press of the family of Madeline McCann.

It is 167 pages long and extremely wide-ranging. Besides containing a curiously under-reported allegation that the News of the World obscured the truth about the extent of illegal phone hacking by its journalists, the Report also considers the hot topic of libel tourism. 

“Libel tourism” describes the practice of claimants (in Scotland “pursuers”) choosing to bring libel suits in jurisdictions more likely to give a favourable result, even if hardly anybody in that particular jurisdiction has read the alleged libel.  Avid readers of Brodies Tech Blog will recall that back in August I discussed how a defmation action against a Dubai newspaper brought by a Dubai property developer regarding business events in Dubai came to be heard in the English High Court.  Libel tourism has become so prevalent that the US Congress is considering legislation to protect their citizens from the enforcement of libel settlements made in foreign jurisdictions. The Report concludes that: “it is a humiliation for our system that the US legislators should feel the need to take steps to protect freedom of speech from what are seen as unreasonable incursions by our courts.”

Secretary of State for Justice Jack Straw’s position a few months ago was that he didn’t see libel tourism as being a problem. However he has had a rethink, and it will now be specifically examined by the Ministry of Justice’s working group on libel. The terms of reference of the group are “to consider whether the law of libel, including the law relating to libel tourism, in England and Wales needs reform, and if so to make recommendations as to solutions.” A full list of members of the working group can be found here.

In stark contract to the Select Committee of MPs which produced the report, the working group is composed largely of newspaper editors and lawyers. Media law consultant David Banks is involved in the working group and reported on his blog at the start of the year that it was scheduled to meet 3 times in January, February and March, before reporting its recommendations to Jack Straw by mid-March.

It will be interesting to see how the recommendations of the working group compare to the recommendations of the Report.

Sony and the phantom 29th of February 2010 – why date compliance clauses are still relevant

Published March 2, 2010 Contract Law , In the Media , Outsourcing Leave a Comment

It appears that Sony has been hit by a Y2K bug style programming error, which brought down its PlayStation Network online gaming platform. According to reports, the PSN thought that 2010 was a leap year, causing millions of PS3 consoles to crash and reset their internal clocks to 1 January 2000, and no doubt some red faces at Sony HQ. Oops!

As Douglas has previously mentioned, it’s still worth including a date compliance clause in your contract.

When suppliers see a Y2K style date compliance clause, they tend to act surprised, make a joke about 1999, and then tell you that it is unnnecessary and over the top. But, as this story goes to show, new software date processing errors do continue to happen from time to time, and when they do they can cause havoc.

Amusingly, there was no excuse for this error, as the PSN didn’t even come into being until 2006. Have we now reached a point where the programmers working on cutting edge projects are too young to remember Y2K?

ASA ruling in relation to printed adverts issued by online businesses

Published February 26, 2010 eCommerce Leave a Comment

The Advertising Standards Agency (ASA) has just issued an interesting ruling against online electronics retailer dabs.com.

Like many online retailers, Dabs uses dynamic pricing – in other words, the price of a particular item can vary from day to day (for example, to reflect the price charged by competitors). However, Dabs also issues a traditional promotional printed brochure. Dabs thought that it had addressed the issue of price discrepancies by telling readers of its brochure to check the website for the latest price.

The ASA rejected this wording, holding that the brochure was misleading and a breach of the ASA code. It ruled that any prices quoted in an advert must be correct for the length of time that the advert is in circulation. In the case of a printed brochure, this means that the prices quoted in it would have to be valid on the website for so long as the brochure is being circulated. This would presumably not stop the retailer from offering a lower price, but would prevent the retailer from raising its prices above those advertised in the brochure for so long as that brochure is valid.

This ruling is relevant to all businesses that operate dynamic pricing (not just online retailers), and will require them to consider how they advertise or promote their business and prices – whether that is through printed brochures, or otherwise.

Erase and rewind – some tips on the safe destruction of data

Published February 25, 2010 Confidentiality , Data Protection Leave a Comment

How do you ensure that redundant hardware is scrubbed of sensitive or personal data?

As the data controller, it will be your responsibility (under the Data Protection Act) to ensure that the data is securely destroyed – even if the kit on which it is stored belongs to a contractor. If data is not properly destroyed, then there is a risk that it could be used to help perpetrate fraud or identity theft, or allow competitors to access your confidential information.

We’ve all read stories about hard drives full of confidential information ending up on eBay. As the volume of data held on servers increases, the more important it is to ensure that the data in question is destroyed when the kit or media upon which it is stored is no longer required.

However, there are two competing industries. On the one hand, plenty of legitimate businesses specialise in recovering apparently lost, corrupt or deleted data – whether it is for the purpose of forensic investigations or for disaster recovery purposes. On the other hand, another sector is trying to help people permanently destroy that data. The techniques used by the data recovery experts show that erasing (or even erasing and re-writing) is not sufficient to stop that data being recovered.

Here are some things to consider:

  • Firstly, develop and adopt (and follow) a policy setting out your organisation’s requirements in respect of the destruction of data. This is likely to involve adopting relevant British and international standards and certifications.
  • The safest thing (in terms of data security, if not avoiding trips to A&E) to do is to remove all drives from your hardware before you dispose of that hardware (replacement drives are cheap). But then what do you do? You could shred the drive (making sure that it is destroyed such that it cannot be reconstituted) or have it degaussed. For CDs and DVDs, as any student will tell you, it is fairly easy to melt them into oblivion.
  • If you do not wish to remove a drive from the hardware before disposal or do not wish to destroy it (or any other magnetic media), you could adopt a recognised erase/re-write standard – for example, the US Department of Defense standard.
  • If you are dealing with a contractor, you should ensure that your contract specifies what the contractor should (and should not!) do. Consider whether the contractor should be responsible for disposal or destruction of media and drives, or whether these should be done under your control.
  • Finally, ensure that your contract with your contractor includes appropriate provisions dealing with liability for a failure to follow those procedures, and rights to terminate the contract.

New Brodies’ Planning Blog

Published February 18, 2010 Uncategorized Leave a Comment

In a shameless attempt to copy us the Brodies’ Planning Team has launched its own blog.

If planning law is your thing you can find it here http://planningblog.brodies.com/.

As with our blog you can subscribe for RSS Feeds, Email updates and all that clever web2.0 stuff.

The content should be good – Brodies’ planning team is top ranked in Scotland. To quote the Chambers’ guide to law firms “This planning practice is indisputably one of the best in the country, with a dedicated core of six planning partners.”

Data security – what you need to know

Published February 16, 2010 Data Protection , Uncategorized Leave a Comment

Upcoming changes to the law mean that keeping information secure is a subject that has to be taken more seriously than ever before.

From 6 April 2010, the Information Commissioner’s Office (“ICO”) will have a statutory power to impose a financial penalty of up to £500,000 on any organisation which has committed a deliberate or reckless breach of any of the principles in the Data Protection Act 1998 (“DPA”), which would cover failing to take appropriate data security measures, where that breach is of a kind likely to cause substantial damage and/or substantial distress.

The Government is also consulting on whether to make an order under the Criminal Justice and Immigration Act 2008 which would introduce custodial sentences of up to two years for those guilty of offences under Section 55 of the DPA. Section 55 offences are committed through the deliberate or reckless misuse of personal information, such as that where a member of staff accesses customer information and sells it or discloses it for unauthorised purposes.

These changes are a response to the ways in which technology has transformed the use of data to deliver goods and services. The data held by companies is rapidly increasing, in volume and value. The risks attached to data security breaches are becoming ever greater, with the bar set to rise dramatically in April. Vigilant implementation of an effective data security policy is therefore vital for any organisation and management who fail to act accordingly are leaving themselves potentially exposed.

We are co-hosting a free seminar on information security along with  Trustmarque Solutions at the Radisson Blu Hotel in Edinburgh on 24th February.  Trustmarque Solutions is one of the largest software licensing companies in the UK and an acknowledged specialist in all facets of software management. Trustmarque and Brodies have organised this seminar to raise awareness of data security issues, from both a legal and a practical perspective.

At the seminar Brodies will discuss the essential elements of an effective data security policy and Trustmarque will make you aware of technology and management processes which will help you to implement your policy successfully.

There are still some places left for the event. If you are interested in attending, please contact me at john.mcgonagle@brodies.com or my colleague Emma Lawson on emma.lawson@brodies.com.

Audi you like that?

Published February 12, 2010 Contract Law Leave a Comment

And so to a recent case where a new car appeared be showing more “kaputt durch technik”, rather than the advertised Vorchsprung durch Technik.

The case considers the period of time within which a buyer will be deemed to have accepted goods for the purposes of the the Sale of Goods Act 1979 (SGA). Whilst the case considered the point for the purposes of a buyer’s right to reject goods under section 15B (which applies only in Scotland), the case is of general relevance to the effect of acceptance under the SGA – in particular, the rights and remedies of a buyer in respect of the supply of defective goods.

The pursuer had purchased, as a “third car”, a £41,000 Audi A4 from Edinburgh Audi. Following a year of occasional use, a number of minor and then major problems occurred, the latter of which caused the car to suddenly run in “safety” mode (restricted to no more than 30 mph). When this happened for a second time, the pursuer took the car back to the dealer (now 15 months after delivery), where it remained for several months whilst the dealer tried to repair it. After a number of failed attempts to repair it, the pursuer sought to reject the car and seek repayment of the purchase price, failing which payment of damages.

The court held that the car was not of satisfactory quality (and therefore in breach of the SGA) as it had been fitted with a defective electronics component. However, the court also held that the pursuer had lost his right to reject the car. Under the SGA, if the buyer retains the goods for “a reasonable period of time” without intimating to the seller that he has rejected them then they wil be deemed to have been accepted.

There are a number of points to take from this case, which are relevant when considering whether a buyer still has a right to reject defective goods:

  • the right to reject is a short term remedy only, and the “reasonable period” for the purposes of deemed acceptance will be construed accordingly
  • this applies even where there is a defect that does not emerge until some time after delivery, as the the buyer still has a remedy in damages
  • however, any period during which the seller attempts to repair the goods is discounted for the purposes of calculating the “reasonable period”
  • in this case, after 15 months it was too late for the pursuer to reject the car
  • buyers wishing to preserve their right to reject goods should therefore not notify the seller as soon as they become aware of any defects or problems
  • notwithstanding this case, consumers may still have remedies (to rescind contracts or require replacement of goods) under the European law derived rights contained in later sections of the SGA

PIZZA PROTECTION!

Published February 10, 2010 Uncategorized Leave a Comment
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I thought I’d cook up a little blog post about the EC’s recent decision to grant special legal protection to Neopalitan pizzas. Pursuant to Council Regulation (EC) No 509/2006 on “agricultural products and foodstuffs as traditional specialities guaranteed”, the EU’s quality food board has granted the Neopalitan pizza coveted Traditional Specialty Guaranteed (TSG) status.

A TSG is a trade mark granted by the EU to protect agricultural products or foodstuffs which have certain features setting them clearly apart from other similar products belonging to the same category. TSG foodstuffs must be manufactured using traditional ingredients or production processes. 

TSG is not to be confused with similar-sounding EU “indications of geographical origin”. To receive TSG status a product doesn’t have to be manufactured in a specific geographically delimited area. This sets the TSG protection apart from the PDO (“Protected Designation of Origin”) and PGI (“Protected Geographical Indication”), separate protections arising where a product is traditionally and at least partly manufactured within a specific region.

You can chew over the distinctions by conjugating and deliberating the following local examples in a Masterchef style.  Orkney Beef is protected by PDO; Scotch Lamb, Arbroath Smokies and Scottish Farmed Salmon are protected by PGI; and across the border English food manufacturers have left no doubt as to the traditional nature of their fare by claiming TSG status for ”Traditional Bramley Apple Fie Filling” and “Traditional Farmfresh Turkey”.  (The applications for “Really Traditional We’ve Been Making It For Years Deep Fried Mars Bar” and “Come On Big Man, Of Course It’s Traditional Macaroni Pie” are surely imminent.)

Returning to Neopalitan pizza, the practical upshot of all of this is that only pizza made according to the Neapolitan tradition can now be called “Neapolitan Pizza”. Theoretically, pizza restaurants and pizza manufacturers across the globe will have to conform to a strict list of ingredients and a specific method of cooking if they want to label their pizza “Neopolitan”. If they don’t then they could be subject to a fine (to a maximum of 35,000 Euros), or even imprisonment.

According to the original application by the Naples pizzaiolo (pizza-maker) association, to make a pizza in the traditional Neopolitan way you must use durum wheat flour, sea salt, fresh yeast, genuine mozzarella cheese from the milk of buffaloes (rather than cows) and San Marzano tomatoes (from Mount Vesuvius). There’s also various requirements as to size and diameter.

You may find the existence of this Traditional Specialty Guaranteed protection rather surprising, and perhaps even a little ridiculous. Personally I admire how the people of Naples are proudly defending their creation, and I’m sure it had absolutely nothing to do with trying to make some cash.  I do however wonder how rigorously the legal protection can actually be enforced. 

While I hope everybody gets a slice of the pie, I wish them luck, because they’re going to knead it. 

I’m now starving – vending machine here I come!

Sky v. EDS – Follow Up – Interim Damages Award

Published February 5, 2010 Uncategorized Leave a Comment

As a follow up to the blog on Sky v. EDS a few days ago I read that the judge has given Sky interim damages of £200m. Ouch!

Typically an interim award is quite a bit less than the final award. Ouch!

EDS has 14 days to cough up. Ouch!

Of course EDS is seeking leave to appeal the judgement.

That’s a fair punt.

It will spend, say, £2m of legal fees in attempt to avoid or reduce an award that is a minimum of £200m. 

Andrew Rigby short-listed for specialist of the year

Published February 4, 2010 In the Media , Outsourcing Leave a Comment

Andrew Rigby and I attended a reception on Wednesday night to celebrate, along with all the with other nominees, Andrew’s short-listing in the specialist of the year category at this year’s Scott + Co Scottish Legal Awards.

The awards, winners of which will be announced on 19 March, promote excellence in Scotland’s legal profession, recognising leading firms and individuals across a number of categories. The judging panel is chaired by Margo MacDonald MSP and comprises independent experts from business, law and politics.

The short-listing reinforces Andrew’s status as a key player in the outsourcing field. As part of his work for Brodies’ Technology, Information and Outsourcing Group, Andrew has been instrumental in continuing to promote Scotland as an Outsourcing Hub - playing a pivotal role in trade visits to India last year to develop this initiative. Furthermore, his contribution to the outsourcing industry was formally recognised most recently in October 2009, when he was named ‘Outsourcing Professional of the Year’ at the National Outsourcing Association (NOA) Awards in London. Brodies was the only Scottish law firm short-listed at the awards.

Good luck for the 19th!

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