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New draft of BS8878 on web accessibility published for consultation

Published May 26, 2010 eCommerce Leave a Comment

The British Standards Institute has just released a new draft of the proposed new British Standard, BS 8878:2010: Web Accessibility – A Code of Practice.

The proposed standard will replace the existing Publicly Available Specification on commissioning accessible websites (PAS78: 2006 Guide to good practice in commissioning accessible websites), and will provide a code of practice for those designing websites. It is not intended as technical guidance, or to replace existing technical standards or guidelines (such as the W3C‘s WCAG, but rather provide guidance (or a “process map”) to those involved in the commissioning process.

This second draft follows a previous consultation in December 2008. The intention is that the new standard will be finalised in November this year. Going forward, it is likely that organisations looking to commission new websites and online services will increasingly refer to compliance with BS 8878.

You can take part in the consultation at by visting the BSI online consultation page.

New Arrival at Brodies – Will McIntosh

Published May 26, 2010 Uncategorized Leave a Comment

Will McIntosh joined Brodies last month.

Will is a corporate lawyer : dealing with murders and acquisitions etc. However, he has a background in technology. In paticular in relation to funding technology companies, setting up technology parks/institutes and university spin-out work.

He was also named as ”Corporate Lawyer of the Year” at the Law Awards of Scotland 2009/2010

You can read more about Will, and see his photo, here.

I have persuaded Will to become one of our bloggers – so hopefully you can read some of his stuff fairly soon.

p.s. – I know it should be “Mergers and Acquisitions.” My typo is a homage to American Psycho

p.p.s – Will is not a Psycho.

New UCTA and IT Contract Case – Red Sky

Published May 24, 2010 Contract Law , IT Law Leave a Comment

This is an entry for the law geeks out there.

I just read Kingsway Hall Hotel Ltd v. Red Sky IT. What a terrible decision! For those who want to read it the key paragraphs are from paragraph 230 onwards.

The Judge decided that an exclusion of implied warranties in an IT contract was “unreasonable” and therefore could be struck out under the Unfair Contract Terms Act 1977 (commonly known as “UCTA”). The rationale was that the express warranty given in place of the implied warranties was a “compliance with spec” warranty, but the purchaser had not seen the spec pre-contract and therefore had no warranty protection!

Here is some context. Under UCTA the Court has the power to delete certain contract terms if they are “unreasonable”. For a supplier this is a worry because the Court might delete your limit of liability clause leaving you with unlimited liability! However, since 2001 (the Watford Case) the Courts have been reluctant to interfere with agreed contract terms unless there was a massive imbalance in bargaining position. This new case seems to go against that thinking.

In Red Sky case the Judge found the parties did not have equal bargaining position (a decision I find unsupported by the evidence). In fact I don’t know what Red Sky did to annoy the Judge quite so much as the decision seems to me to be without any real basis in fact or law.

Also, the Judge spent a lot of time discussing whether an exclusion of implied warranties was reasonable, but did not discuss the cap on liability or the exclusions of liability. Bizarre!

The only practical lesson I can draw from the judgement is that if you (as a supplier) warrant that your software complies with its specification / manuals then you have to deliver those materials pre-contract. (Even that strikes me as wrong.)

I really hope Red Sky appeals this one.

Brodies TIO Group shortlisted for Tech Team of the Year

Published May 13, 2010 In the Media Leave a Comment

We are thrilled to announce that Brodies’ Technology Information and Outsourcing Group has been shortlisted for the Technology, Media and Telecoms (TMT) Team of the Year award at this year’s Lawyer Awards, the awards ceremony organised by The Lawyer magazine.

The nomination recognises the team’s recent work on a ground-breaking first generation ATM and debit card outsourcing project, and follows on from the National Outsourcing Association jointly naming the head of Brodies’ outsourcing team, Andrew Rigby, as Outsourcing Professional of the Year at the 2009 National Outsourcing Association Awards.

For more details see the official press release. The awards take place in London on 22 June 2010.

New Lingo Alert – BAdword

Published May 5, 2010 Intellectual Property , Uncategorized Leave a Comment

..following on from my posts about using a competitor’s brand as a Google Adword (or indeed as a keyword in any online advertising system) Martin and I have come up with some new lingo.

“BAdword” an Adword that is a competitor’s brand or trade mark.

If you like this then you will probably like Wired’s Jargon Watch Section. Here is a link to the April 2010 Jargon Watch.

Googlemail becomes gmail again

Published May 4, 2010 In the Media , Trade Marks Leave a Comment

Google has today reported that it will now be-introducing the Gmail brand to its email service in the UK, ending a long-running trade mark dispute.

When Gmail was first launched by Google, a number of organisations in a number of countries around the world claimed that they already had rights in the “Gmail” mark, and that Google’s new service would infringe those rights. In the UK, that organisation was a company called Independent Investment Research (IIR), which claimed that it had been using the mark (albeit in an unregistered form) since 2002 in relation to an online information tool. Although Google launched the service as a beta in April 2004, it did not seek community trade mark protection (CTM) in the European Union until March 2005.

In October 2005, following a failure to reach a settlement, Google announced that it was rebranding its UK service as “Google Mail”, and that new users would receive an “@googlemail.com” email address, rather than an “@gmail.com” address.

It appears that Google and IIR have now resolved their differences (or IIR has agreed an acceptable settlement fee with Google), and that Google Mail will now be rebranded once again as Gmail. Perhaps uncoincidentally, I see from the IPO‘s website that four and half years after the initial application “Gmail” was finally registered as a CTM on 22 December 2009.

Interestingly, although Google publicly rebranded Gmail in the UK in 2005, behind the scenes nothing really changed. This is because Google still owned the core gmail.com domain name (the ownership of which was not being challenged), and its systems are built around email addresses being allocated to @gmail.com – it does not allow separate users to have john.smith@gmail.com and john.smith@googlemail.com. I have had my Gmail address since 2004, and throughout the dispute continued sending and receiving email to my “@gmail.com” email address. Similarly, whilst when signing up in 2006 Joe Bloggs may have been given the email address joe.bloggs@googlemail.com address, and the webpage he used to access his account was branded “Google Mail”, he could still receive email sent to joe.bloggs@gmail.com – it just wasn’t promoted. From a passing off perspective, would probably have struggled to make a claim stick, as Google had ceased actively offering a service in the UK under the “Gmail” mark.

In the end, both parties have probably got what they want, but it is unlikely to have come cheap. Whilst Google may have decided from the outset to play the long game in its dispute with IIR, what the case does do is show the importance of carrying out diligence on your proposed brand name before you launch, and in each country where you intend to trade. The fact that you have secured the .com domain name does not mean that you are automatically entitled to use that mark in every country around the world. Local diligence is crucial.

Digital Economy Act – Part 2 – the death knell to free wifi?

Published April 27, 2010 In the Media , eCommerce Leave a Comment

As I blogged a couple of weeks ago, one of the major problems with the Digital Economy Act is that as it was rushed through parliament, it is drafted in very vague terms, with much of the (important) detail left to yet to be drafted regulations.

This impression of legislation being drafted on the back of a cigarette packet as the doors of Parliament are locked can also be found in Section 10. This Section allows for “technical obligations” to be placed on ISPs to take “technical measures” on the Internet connections of those deemed to have carried out multiple copyright infringements. “Technical measures” essentially means: 1. a limitation on the speed of the connection; 2. prevention of access to particular material; or 3. outright suspension of the connection.

This has been glibly referred to in the media over the last few months as a “3 strikes” test – implying that the third “technical measure” – disconnection – would occur only upon the third occasion of copyright infringement. Inevitably the reality is nowhere near as straightforward. (Things might be clearer if we had access to the “Code of Initial Obligations” – between rights holders and ISPs – that the Act refers to, but unsurprisingly it hasn’t been written yet.)

The process envisaged by the Act is that rights holders notify ISPs of copyright breaches, and ISPs pass on these notifications to subscribers. The ISPs can also be compelled to provide rights holders with a “copyright infringement list” which matches specific subscribers to specific copyright breaches (without actually identifying the subscribers). The rights holder then presumably picks out the biggest infringers and applies for court orders to compel the ISP to identify them. Once identified the subscriber can be sued for copyright infringement.

Simultaneously Ofcom is to prepare regular reports for the Secretary of State, describing the number of copyright infringement reports received by ISPs, the relative ease of obtaining the relevant copyright works legally, an assessment of the extent to which legal proceedings have already been brought against infringers, and so on. Based on these reports the Secretary of State can then order Ofcom to impose “technical obligations” on the ISP (and, therefore, “technical measures” on subscribers).

Why the concern? The subscriber will be the person who has a contract with the ISP for the Internet connection. But in many instances, the person carrying out the alleged infringement may not be the subscriber. Understandably, in light of these provisions, businesses that offer free (or paid-for) Wi-Fi (such as coffee shops, bars and libraries) have expressed serious concerns about being held liable for copyright infringement carried out by visitors to their premises, as they won’t be able to identify those users. The same issue applies for residential customers with insecure Wi-Fi networks. Internet subscribers in general are going to have to cease providing open access or implement complex and expensive security measures on their connections to make it more difficult for their neighbours and others to use their connection for copyright infringement.

ISP Talk Talk has severely criticised the Act, and has pledged to its customers that if it is instructed to disconnect an subscriber from the internet due to alleged copyright infringement, then it will refuse to do so and will “see the rights holders in court”.

Once again, it appears that the Act has been drafted without considering how Internet access actually works – with the “pain” falling on ISPs. It remains to be seen whether it achieves its aims, or simply leads to more people being pursued for infringements that they did not commit.

Coca Cola vs Coca Colla

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

The BBC today reports on the international expansion aspirations of a Bolivian drinks manufacturer that is marketing a new energy drink under the brand of “Coca Colla”. Apparently, the name was chosen because the drink is made from the coca leaf, and in honour of the Andean tribes called the Colla people, who cultivate the coca plants.

Oddly, the article focuses on the impact of international restrictions on trading products containing derivatives of coca leaf (the coca leaf is more commonly associated with cocaine, and is on the UN’s list of “dangerous drugs”) rather than the small matter of trade mark law. I’m not sure what trade mark laws apply in Bolivia, where the drink is apparently competing against a number of better known brands. However, I’m pretty sure that a well known Atlanta based soft drinks manufacturer would be miffed by an upstart selling a dark, sugary drink, in red and white branding under the name of “Coca Colla”, and would quickly be instructing its lawyers to raise proceedings for trade mark infringement!

This is slightly ironic as when lawyers explain to clients how trade mark law works, they often tend to give the hypothetical example of the world’s most popular soft drink and a rival sold under a confusingly similar name, using red and white packaging. It appears that it is now not so hypothetical after all.

See John’s previous blog for more on how trade mark law applies to these sorts of cases.

Volcanoes, force majeure and business continuity

Published April 20, 2010 Contract Law , In the Media , Outsourcing Leave a Comment

As a follow-up to Douglas’s post yesterday on Force majeure and Icelandic volcanoes, I thought I would add some additional comments.

I am aware of one incident involving a supplier claiming relief for a force majeure event. This followed a fire, which destroyed the supplier’s premises. Despite the supplier having an obligation to have in place a business continuity plan, the supplier claimed that the right of relief for the force majeure event (the fire) trumped its failure to have in place appropriate fire prevention systems, and therefore it was not liable to the losses incurred by the customer as a consequence of the fire. It is for this reason that it is crucial that you consider the interaction between a supplier’s obligations to have in place business continuity and disaster recovery procedures, and the relief that it is entitled to in the event of a force majeure event. This requires a careful review of the drafting of these clauses.

Following on from this, Douglas and I were discussing the potential impact of the erruption of the Eyjafjallajoekull volcano*. The prolonged closure of civil aviation space is likely to impact mainly upon the physical movement of goods, rather than people or information (data can be sent electronically, and people can video or tele-conference). For example, if your supplier has a service level obligation to replace a defective component within 48 hours, but is unable to meet that because it cannot get the replacement component flown over from the manufacturer in the USA, is that force majeure? Possibly yes.

It is for this reason that it is important that you properly scrutinise your supplier’s business continuity plans, and ensure that the supplier’s plan is sufficient and proportionate for the service you require (bearing in mind that if you don’t identify a deficiency until the plan is implemented, then there won’t be much you can do about it – at least in the short term).

For example, should you be requiring your suppliers to maintain a local (within driving distance) parts bin to guard against supply-chain problems? If your supplier otherwise proposes a just-in-time approach, and the supported system is business critical, then this may well be prudent to specify this.

*For those of you wondering how you pronounce “Eyjafjallajoekull”, the New York Times has a useful summary. My favourite tip is that is sounds like “Hey ya fergot la yoghurt”.

Force Majeure and Icelandic Volcanoes

Published April 19, 2010 Contract Law Leave a Comment

The recent no fly zone across (most of) Europe because of the Icelandic volcano has made me think about force majeure clauses (sometimes known as “Act of God” clauses).

A force majeure clause is a clause in a contract that excuses a contract breach where the “breaching party” cannot perform because of an event outside its reasonable control. So for example, if I had an obligation to you to supply 10,000 widgets by 1 May 2010, but my factory was struck by lightning and burned to the ground in the middle of April, then the force majeure clause might protect me from your claim for contract breach.

Is the no fly zone a force majeure event? It might prevent an individual or an air-freight item getting somewhere in time, which might otherwise be a contract breach. So possibly, yes.

However, you have to check the drafting of the relevant clause carefully. Also if the contract has no force majeure clause then there is no relief (the Courts do not imply them).

All that said in my 15 years of being an IT lawyer I have never seen a force majeure clause used in defence of a “you didn’t perform” claim. My colleagues in litigation echo this, i.e. it’s not something they see used very often.

One final thought on this. Force majeure clauses are often considered to be contract “boiler plate”. That is, relatively standard clauses towards the rear of the contract. Sometimes contract reviewers have “switched off” by the time they get to the force majeure clause. That can be dangerous because sneaky lawyers can hide nasty stuff in the force majeure clause. In fact when acting for suppliers I have been known to slip some stuff in there myself.

This is particularly relevant in the area of telecoms / internet services / hosted services / SaaS where I have seen some events included in the definitions of force majeure that I think the supplier should be on the hook for. Something to watch out for.

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