Equality Act – one month to go for service providers and employers

Published September 2, 2010 Disability discrimination , web law Leave a Comment

For me, 1 October 2010 is my last day as an unmarried man. For service providers, employers and educational institutions in the UK, however, 1 October is the day on which the Equality Act 2010 largely comes into force.

What is it about?
The Equality Act attempts to consolidate into a single piece of legislation, the laws relating to race, disability, sex, age and other forms of discrimination. This is an ambitious project, and has led to some slightly odd drafting with the drafter attempting to shoehorn the anti-discrimination principles into single sections covering all forms of discrimination – using the obtuse term of “a protected characteristic”.

It is ironic that an act of parliament aimed at improving accessibility is in itself less accessible than its predecessor, the DDA. Whilst some have criticised the DDA for not expressly saying “websites must be accessible”, I think the DDA’s principles approach to drafting was actually one of its strengths. The Equality Act has, however, taken this a step too far.

What is the impact on web and IT accessibility?
In general, the duties remain. Whilst the new Act essentially replicates the previous law, there are some changes to be aware of in respect of the laws applying to the accessibility of IT and web-based services. Here are some of the key changes:

  • there is a new concept of indirect discrimination. Indirect discrimination does not require knowledge. This means that an inaccessible website will likely breach the Equality Act, even if the operator of that website did not know that the design feature in question caused it to be inaccessible to a person with a disability. The obligation is, however, subject to the justification defence (see below)
  • There is now a single justification test, for those limited situations where discrimination can be justified. Discrimination can now be justified where it is considered a “proportionate means of achieving a legitimate aim.” In my example above, this might give a service provider a defence if, for example, it introduced a new security measure for the website that was aimed at reducing fraud, but had the effect of making the website inaccessible to disabled users. This could apply even if the service provider knew about that consequence.
  • the threshold for the obligation to make “reasonable adjustments” is lower. Previously, reasonable adjustments were required only where the service provider had a practice, policy or procedure “which makes it impossible or unreasonably difficult for disabled persons to make use of a service”. Now the test is simply that the provision, criterion or practice placed the disabled person at “a substantial [more than minor or trivial] disadvantage”. This means that service providers, employers, and educational institutions are more likely to be obliged to make reasonable adjustments. There is also no justification defence to this obligation (on the grounds that this should already be covered by the “reasonableness” test).

Specific obligation to provide information in accessible formats
The new Act also includes a specific section dealing with the obligation to make reasonable adjustments to the manner in which information is provided. Whilst undoubtedly aimed at those with “print disability”, it also ensures that service providers and employers have a duty to take reasonable steps to provide information in accessible electronic formats. This covers not just websites, but also information on intranets or that is issued by email:

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

See what I mean about the inaccessible drafting?!

New guidance
To accompany the new Act, the EHRC will be publishing new codes of practice. These codes will replace the current codes issued by the EHRC’s predecessor, the DRC, under the DDA.

In the meantime, you can access the draft code of practices from the EHRC’s website.

Third Party Rights – Scots Law Stuck in the 17th Century

Published August 26, 2010 Contract Law Leave a Comment

The Problem

Imagine you are a bank with a complex group structure, i.e. multiple companies in your group. A core computer system has gone wrong and most of the group companies have suffered loss as a result. So you sue the supplier.

The supplier’s defence is that it only has a contract with one member of the group, and while that group member can recover its loss, the supplier isn’t liable for loss suffered by the other group companies.

This is a fairly valid legal argument.

Third Party Rights as a Solution

There are various ways to reduce this “group loss v. single group contracting entity” problem. One way is to give all the group companies the right to enforce the contract against the supplier, so each of them can “kick” the supplier. These are called third party rights, because they give legal rights to a person who didn’t “sign” the contract (in legal terms a third party).

Since 1999 this has been fairly easy to do in English Law Agreements as a result of the Contacts (Rights of Third Parties) Act 1998 . (I say “easy”, but with my CYA head on I should note that there are some drafting traps for the unwary).

It has been possible to create such third party rights under Scots Law for quite a bit longer than that using the legal right “ius quaesitum tertio”, or “IQT”.  You can tell its really old because it has a Latin name! 

Moving Contracts between Scotland and England

As a lawyer working in England in the mid nineties I sometimes “moved” contracts to Scots Law in order to create third party rights using IQT.

However, since the English Act came into force I find myself doing the opposite, i.e. moving contracts to English Law in order to use the English third party rights legislation. 

Why?

Well because the IQT is massively inflexible when compared to the position under the English Act. For example, once you create a third party right under an IQT it can be very difficult to amend it or kill it. In contrast that is possible under the English Act (if you draft the clause correctly).

Recently I had a contract that had to be Scots law, but also needed to create flexible third party rights. The solution was to expressly apply the English Act to the third party rights clause, but have the rest of the Agreement subject to Scots law.  Very ugly – So ugly in fact that it prompted me to blog about it.

Let’s Update Scots Law

So I think the Scottish Law Commission  should look into updating the law in Scotland in order to mirror (or better) the English Act.

The Stig, confidentiality and trade marks

Published August 24, 2010 Confidentiality , In the Media , Intellectual Property Leave a Comment

I’ve been following the recent story about a battle between the BBC and HarperCollins over whether or not The Stig’s real identity can be revealed in his planned autobiography. For the purposes of this blog, I’ll refer to him as “Mr X”.

For those that are not a fan of the BBC’s Top Gear programme, The Stig is the show’s “tamed racing driver” – known only by his white overalls and white helmet (which he never removes). The BBC maintains that revealing his identity would “spoil viewers’ enjoyment of the show.”

What’s the issue?
At play here is a conflict between the contractual obligation of confidence given by the Mr X in his contract with the BBC and Mr X’s attempt to cash in on the fame of the character that he plays. Top Gear and The Stig are very lucrative for the BBC, but newspaper reports suggest that Mr X does not do as well out of this as his fellow presenters.

However, an autobiography about being The Stig is likely to be hugely successful.

Psuedonyms and trade marks
Interestingly, there is no (legal) reason why The Stig could not publish his autobiography under a pseudonym. Section 77 of the Copyright, Designs and Patents Act 1998 specifically provides that moral rights (the right of an author to be named every time a work is published) can be asserted using a pseudonym. However, “The Stig” is a registered trade mark of the BBC, and therefore any attempt to publish an unauthorised book under that pseudonym would infringe that trade mark.

So Mr X is rather stuck. Contractually, he cannot publish his autobiography under his real name, and trade mark law is likely to prevent him from publishing his autobiography under his on-screen alter ego.

This may seem unfair, but The Stig brand is owned by the BBC, and Mr X is contracted to the BBC to play that role under a condition of anonymity. The BBC is therefore simply doing what any brand owner would do to prevent third parties from cashing in on, or damaging, its brand.

So what next?
It will be interesting to see how the battle between the BBC and HarperCollins pans out. A Google News search shows plenty of newspapers revealing Mr X’s suspected identity, and HarperCollins’ argument is that his identity is now no longer confidential. Whilst this might make a common law obligation of confidence no longer enforceable, it may not be as simple as that for a contractual obligation.

I see that the case has been adjourned for a week. I expect that those discussions will lead to the autobiography being published under the pseudonym of “The Stig” (with the BBC getting a cut of the royalties) or Mr X being allowed to publish his autobiography under his own name, but on the condition that (as with Mr X’s predecessor, The Black Stig) he leaves the show and is replaced by a new Stig.

Anyone want to have a guess at what colour he will be?

DPA – have your say!

Published August 19, 2010 Data Protection Leave a Comment

Looking for things to do on those long, hot(ish) summer nights (or at least the few we have left)?

Why not take the time to read the Ministry of Justice’s recent call for evidence on the Data Protection Act – see http://www.justice.gov.uk/call-for-evidence-060710.htm.

Sounds too dull? Maybe – but for those of us who work with the DPA, it looks as if this is the long awaited opportunity to get some of that frustration off our collective chests by looking to contribute ideas as to how the legislation can be improved.

The MoJ have highlighted what they see as being the key themes and these are:

  • The definitions used in the DPA
  • Data subject rights
  • Data controller obligations
  • Powers and penalties of the Information Commissioner
  • The principles based approach
  • Exemptions under the DPA
  • International transfers

All pretty fundamental stuff.

One major inhibitor to any outcome will be the fact that the UK government can’t just do what it wants. The DPA implements a European Directive and it will be the shape of that Directive that ultimately drives the DPA. This exercise is being conducted as a precursor to a wider EU debate on the Directive and the UK’s views will simply be thrown into the melting pot along with the views of other member countries.

That said, there does seem to be a recognition that the Directive does need overhauled. The world has moved on massively since the current Directive was put on the statute book in the mid 1990′s and, as with all laws that regulate activity that is supported by technology, there is the constant challenge of making sure that the law keeps up with the pace of change and is relevant (and workable). For instance, how does data protection handle concepts like cloud computing where data is being hosted in a virtual environment where the physical location of the data (and, in many cases, who it is being hosted by) is very difficult to ascertain.

Coming back to the UK level, and leaving aside the bigger picture issues, from a personal perspective, I really do hope that the legislators take the opportunity to rework the DPA into piece of legislation that is easier to understand for everyone – not just specialist DPA practitioners. In my view –and for what it is worth – the legislation is overly technical in its drafting – being too focussed on the detail rather than the desired outcomes – and this means it is inaccessible to far too many. This leaves the DPA prone to misunderstanding, meaning that it is often misapplied in practice and that leads, in turn, to controversy which brings the legislation as a whole into disrepute with some even calling for wholesale repeal on the grounds that it is just unnecessary red tape. I don’t subscribe to that view. I think the DPA is a hugely important piece of legislation and the concepts that is seeks to underpin in terms of how our information is dealt with – fairness, transparency, respect to legitimate privacy interests, taking data security seriously etc – are even more relevant today than they were back in the 1990′s. In short, the legislation is worth saving; it just needs improving.

Which brings me back full circle. If you want to see change then don’t just grumble, take the time to read the Call for Evidence and send your views to the MoJ. The closing date for responses is 6 October 2010.

Goodwill payments to customers can be a direct loss

Published August 10, 2010 Contract Law , IT Law Leave a Comment

IT suppliers should be concerned at a recent court case involving Accenture and Centrica. Accenture supplied a faulty billing system to Centrica.  This disrupted Centrica’s business and caused hassle to its customers. In order to keep its customers sweet, and although it had no contractual obligation to do so, Centrica gave its customers payments to compensate them for their hassle. Those payments added up to 8m!

Centrica tried to recover those customer goodwill payments from Accenture. Accenture resisted because it thought those losses were covered by a clause in the IT supply contract that said that Accenture would not be liable for indirect or consequential losses. 

Lawyers love a good bun fight over whether a loss is direct or indirect.   Believe it or not (and you probably will), the landmark case on the subject was decided back in 1854.   

There is a lot of complex law behind the judgement – but the headline is that the Court found that the goodwill payments were not “indirect or consequential losses”, and thus were not excluded by the clause. 

It’s not the end of the line for Accenture as the court was only looking at points of principle. It is still to decide whether Centrica can actually recover these payments on the facts of the case.

So if you are an IT supplier working in the utility or banking (or similar) sectors you may want to specifically exclude or cap liability for goodwill payments (also known as “ex gratia” payments) made by your client to its customers. 

Although the article was mostly written by Fiona Murdoch – one of our professional support lawyers.

Vodkat Case Update – Is Vodka a premium product or just an alcohol delivery device?

Published August 9, 2010 Intellectual Property , Trade Marks Leave a Comment

 Eleanor previously wrote about the Vodkat/Vodka passing off case.

The result of an appeal in that case has just been published.

The makers of Vodkat argued that the right to prevent an imitation of a product category (such as Vodka or Champagne, as opposed to a particular brand such as “Smirnoff”) only exists for “premium” products. Its case was that Vodka is not a premium product but rather just an “alcohol delivery device”. Nice!

The Court agreed that Vodka is not a premium product, but said that didn’t matter, i.e. Vodka producers could prevent the sale of Vodkat because a punter might buy it thinking he/she was buying a “proper” Vodka.

During the case various examples were given such as whether a manufacturer of butter could prevent a margarine producer using the word “butter” in its product name. According to the Vodkat appeal the answer is “probably yes”.  This interested me.

What about the product “Utterly Butterly”. It’s not butter, but is that clear to all the punters who buy it? If not then a butter manufacturer could probably attack it.

Contrast that with “I Can’t Believe it’s not Butter”. That brand name makes it clear the product isn’t butter (thus removing any risk of passing off) while still making the average punter think of butter (at least by association). Genius.

So what the Vodkat people need to do is rebrand their product as “I can’t believe its not Vodka” and then make sure its retailers don’t put it too close to “real” Vodka on its shelves.

Douglas “I can’t believe he is not a High Court Judge” Mathie

Smartphone recipes: BlackBerry and Apple jam

Published July 29, 2010 Geek Stuff , IT Security , In the Media 1 Comment

There has been a fair amount of heated discussion currently around the use of the iPhone as a business Smartphone – or at least there has been in my circles (note to self: must get out more).  RIM (Research In Motion, makers of the BlackBerry) have had the business Smartphone market sewn up for years now, so some healthy competition is a good thing.  I’m certainly keen on iPhone’s ease of use and Apple design some very attractive looking devices, but is it ready for the business world?  Well, I would say that depends on your attitude to risk.  Leaving aside more subjective or prosaic considerations, such as physical vs. virtual keyboard, ease of email, speed of web browsing, battery life etc., the debate for the Enterprise usually boils down to security. 

The BlackBerry began as a business device, so it has security ‘baked in’, with end-to-end message encryption, and the ability to encrypt the actual hard drive of the device (which we do).  Having said that, the data travels through RIM’s infrastructure (albeit in encrypted form), which caused the United Arab Emirates to moot the restriction of the device because the data goes offshore as a result, and the Indian government to threaten a ban unless their security forces can access encrypted content.  However, RIM point to their security chops with a long list of certifications and the fact that it has “been approved for the wireless transmission of sensitive data, up to ‘restricted’ classification, by both NATO and the UK government.”.  Perhaps the ultimate accolade though, is that apparently the BlackBerry is the device of choice for criminals as it is so difficult for the police to intercept or recover any data from it

So how does the iPhone stack up on security by comparison?  Well, we recently saw that government ministers and civil servants have been denied iPhones, with CESG deeming them not secure enough.  It is possible to secure the iPhone using third party products (there’s an app for that), but it’s fair to say Apple are playing catch-up in this area, which is unsurprising given their initial consumer focus.  While the usability, design and sheer fun of an iPhone will appeal to many business users, there’s also the thorny question of the Apps.  Most Enterprise Smartphones will be locked down to prevent users downloading applications since they may contain malware or viruses, yet it’s arguable that the whole point of the iPhone is the Apps ecosystem around it.  So if you offer the iPhone to staff and allow them to download apps you’re letting your security guard down, but if you deny them the apps then you’re taking away its USP.  Additionally, many organisations block iTunes due to concerns over piracy, illegal downloads, storage overhead etc., but you need it to download iPhone updates.  So if you allow iTunes, do you then allow staff to hold their music collection on their PC?  What happens when the iPhone dies or they leave the organisation (or vice versa), are you responsible for backing up and restoring their music collection?  Echoes of Martin’s post on the importance of back-ups here. 

So, who’s winning the war?  Well RIM aren’t giving up without a fight and are pushing new touchscreen devices and their own app store, while Apple are working on security to lure the business user.  Give it a couple of years and there may not be much to choose between them.  In the meantime though, the BlackBerry would appear to be the weapon of choice for the more paranoid email junkie, while the iPhone reigns supreme in terms of usability and multimedia.  Though whether you agree with that will probably depend on which device you pray to every 5 minutes…

Damien Behan

A metaphor for the importance of data back-ups

Published July 29, 2010 Geek Stuff 1 Comment

I usually leave the “geek” posts for Douglas, but a comment on this article about people incurring problems upgrading their iPhone 3G to iOS 4 caught my eye.

It is in response to another comment complaining that when the person had upgraded their iphone 3G to iOS 4 they lost five months of photos taken on their iPhone. The response:

A phone is the same as a computer. If you do not make backups of your important files, you don’t own those files–you’re only leasing them from Fate.

Aside from the philosphical question of whether you can “own” data or information, I think that the idea of “leasing data from Fate” sums things up brilliantly. It emphasises the fragile nature of data and IT systems, and why making regular back-ups to multiple sources is so important. IT can and does fail from time to time; software updates can and do go wrong; and viruses can and do cause mayhem. This is why we have business continuity and disaster recovery plans (which have hopefully been tested and shown to work).

Which reminds me, I must back-up my laptop at home again…

Photoshopping – the perils of using other people’s photos

Published July 22, 2010 In the Media , Intellectual Property Leave a Comment

Who owns a photograph? That’s the question that might be put before the courts in the US, after a model claimed that record label XL Recordings did not have permission to use a photo of her on the cover of Vampire Weekend’s most recent album Contra. You can see the photo here.

Ann Kirsten Kennis has brought an action for US$2m against the band, XL and the photographer who licensed the photo to XL, claiming that the photo is a polaroid taken by her mother, which must subsequently have made its way into the photographer’s hands after being in a batch of old polaroids donated to a charity shop. Ms Kennis claims that a signature purporting to be hers and consenting to the use of the photo must have been forged. XL Recordings has refused to comment pending sight of the court papers, but has said that “as is standard practice” it had licensed the photo under a licence agreement that contains “representations and warranties authorizing this use of the photo.”

No doubt this case will be settled before it gets to court, and we’ll never find out exactly what happened. However, the story does highlight the importance of ensuring that any use of photos taken by third parties is properly licensed.

Copyright in a photo
The copyright in a photo is usually owned by the photographer, as the creator of that work, and will remain so unless that copyright is transferred. Each print or digital image produced from the original negative (or digital file) is simply a derivative of that original, and will not in itself attract copyright.

Polaroids are interesting. There is only ever one print; the negative and the print are one and the same thing. This means that you can acquire physical ownership of the only manifestation of that photo (the Polaroid photo), but the copyright may still remain with the photographer (albeit he can do little to exploit that copyright unless he reserves a right of access to that print). The recent break-up of the world-famous Polaroid collection is a case in point.

Image rights
In addition to the copyright in the photo, the subject of the photo may also have rights. These are separate to copyright, but may take the form of a right of privacy or image right, and may impact on any proposed commercial use of a photograph of that person. The leading case on this involved Eddie Irvine and Talksport.

Some tips
Here are some things to consider when using photos taken by other people:

  • Make sure that you have a written licence agreement that covers your proposed use.
  • Ensure that the licence agreement contains representations and warranties from the licensor as to its right to grant the licence, together with an indemnity for third party infringement.
  • Just because a photo is on the Internet, does not mean that there is no copyright, or that it is free to use. It isn’t.
  • Photos on sites like Flickr may be offered for sharing on a creative commons licence. If so, then check the relevant licence terms for what you can do. They often prevent use for commercial purposes.
  • Acquiring physical ownership of a print of a photo (even the “original”) does not mean that you automatically own the copyright, or can reproduce it.
  • If the photograph is of a person, consider whether you need the consent of the individual to use that person’s image. This could take the form of a written release signed by the subject, or a representation from the licensor that the licensor has the subject’s permission.

New Technology Associate – Victoria Moore

Published July 21, 2010 Uncategorized Leave a Comment

Victoria Moore joined the Tecnology Information and Outsourcing Group (TIOG) at Brodies last month from Bird and Bird in London.

Victoria is a returning Scot.

You can read more about her, and see her photo, here.

Once she gets over the culture shock of the move back Victoria will start blogging here.

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