Archive for March, 2010

First blog censured by the PCC – will you keep reading?

Wednesday, March 31st, 2010

On Tuesday it was reported that the Press Complaints Commission had made its first ever adjudication against a blog.  The blog in question was Rod Liddle’s piece which stated that “the overwhelming majority of street crime, knife crime, gun crime, robbery and crimes of sexual violence in London is carried out by young men from the African-Caribbean community.” A complaint was made about this particular comment to the PCC.

The Spectator was unable to provide evidence to substantiate this factual statement, and so the PCC upheld the complaint.

What was interesting about the decision was that the Spectator argued that blogging is a conversational medium, often provocative, in which readers were able to disagree with the writer by responding on the same page. The Commission recognised this argument, but stated that a publisher still had to be able to substantiate the factual statements it published, and could not rely merely on publication of critical reaction to the piece by members of the public.

Even online, the PCC requires the orthodox press to check their facts before publishing. But we live in a world of social media, internet rumours and the 24-hour news cycle. Is regulation a “gold standard” which ensures that consumers will continue to come to orthodox publishers for their news and comment?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Budget cuts for schools – is collaborative procurement the simple solution?

Tuesday, March 30th, 2010

Last week’s Budget confirmed fears of spending cuts to education. It has been reported that the Treasury will reduce public spending by £39 billion in a bid to try to reduce the level of national debt. Despite the Government promising to protect spending on education, the DCSF has announced that it will be taking a hit on funding. The Department will have to find £1.1 billion of savings and £950 million will come from schools.

The DCSF has said that schools should try to save money through “collaborative procurement” of services such as human resources support, cleaning and catering. The DCSF also wants schools to employ School Business Managers to help reduce operational costs.

Yet costs efficiencies which can be made by streamlining back office functions are limited and savings can take a long time to kick in, meaning it is doubtful whether schools can make the required savings through shared services alone. It seems that even if schools work collaboratively, in order to reduce costs to the extent indicated by the Budget, they may still be forced to make staff cuts and reduce frontline services.

Mark Blois

Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com

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Toryfail – why moderation might be a good idea

Friday, March 26th, 2010

This week the Conservative Party launched the cash-gordon.com website, aimed at highlighting the Labour Party’s funding links to Charlie Whelan’s Unite union.

Unfortunately, basic technical errors and the inclusion of a live Twitter feed, led to the site being bombarded with abusive messages and colourful language.

Publishers, including webhosts and hosts of forum boards, can be held liable for the statements they publish, including liability in defamation.

In practice, once webhosts are notified by an aggrieved party that they are, unbeknownst to them, hosting alleged defamatory content, the content is removed.

However, for a high profile website with a live feed such as this one, it would be all too easy to have material widely disseminated before the publisher is even aware of it. By blindly republishing tweets, the Conservative Party has left itself open to such complaints.

Another new media tactic used by the website encourages site users to bombard Charlie Whelan with tweets. This could constitute harassment, for which the Conservative Party could potentially end up liable.

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Is the internet really not ready for XXX

Friday, March 26th, 2010

ICANN (Internet Corporation for Assigned Names and Numbers) have decided to delay yet again the decision on whether or not to establish the controversial .XXX domain name suffix for adult sites. This issue has now been debated for nearly a decade and it is time that ICANN makes the right decision and establishes the right to sell XXX domain names.

ICANN had previously accepted a request from a domain name registry to be permitted to sell .XXX domain names but subsequently changed its mind after very considerable pressure from a number of conservative groups. Given the very nature of the internet and the fact that it is the most prolific “provider” of adult material surely it is some what bizarre that ICANN should continue to get embroiled in any moral argument or judgement. 

In fact to establish the .XXX domain name may well help those so inclined easily navigate their way to these sites, and equally help parents easily identify adult sites so that they can keep their children away.  However, others argue that it will be seen as legitimising porn sites. The debate will continue but we can expect a decision in June.

Declan Cushley

Posted by Declan Cushley
0121 237 3991
dcushley@brownejacobson.com

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Is charitable competition possible?

Friday, March 19th, 2010

This week saw the announcement of several changes to the Committee of Advertising Practice (CAP) codes for broadcast and non-broadcast media after a lengthy consultation with industry bodies, Government and advertising agencies.

One of the changes is proving rather controversial. This is the new Code that allows the charity sector to air comparative advertisements on television and radio that compare one charity with another.

Under the Code, charities will be able to compare the work they do with other charities as well compare the way donations are spent.

The change comes at a time when donations are in a major decline as consumers continue to cut back following the recession.

The Governments view is that the charities sector should not been be seen as a “special category” and should be able to launch comparative advertisements as long as they do not break the rules on comparative advertising.

The change brings charities evermore into the commercial arena as they fight to get consumers’ pounds from their pockets. It will be interesting to see whether charities pay careful regard to the Code and do not for example denigrate their competitors. Or, whether there will be an influx of complaints made that comparisons are being made that are misleading consumers.

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Labour joins the fray on pupil premium

Friday, March 19th, 2010

Ed Balls, the Schools Secretary, threw Labour’s hat into the ring this week by proposing a pupil premium for poorer students. The Conservative Party and the Liberal Democrats have already set out their plans to introduce a pupil premium.  

Politicians say that the extra money for students from disadvantaged backgrounds would be used to help improve their attainment.  However, there is scepticism over whether the additional funding would help to achieve better results. The Institute of Fiscal Studies has said that a pupil premium would lead to only a “modest” closing of the gap in attainment between rich and poor children. 

But the real issue is funding.  The government has already warned that school budgets will be getting tighter in the next couple of years. Therefore, whichever party wins power at the General Election, limited funding means that, at this stage, it seems unlikely that the pupil premium will ever make it on to the statute book.

Mark Blois

Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com

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Tory Technology Treaty

Friday, March 19th, 2010

The campaigning has started by all the major parties, and anything said at this stage before an election is to be taken with a pinch of salt, but there are likely to be a fair few people whose attention might have been caught by the Conservative Technology Manifesto not least, anyone involved in public sector IT projects (as supplier or customer) any vendors of open source software, makers of smart meters and/or with an interest in data protection.

The document is a short one and, as with any pre-election material, has some positive suggestions in generic terms – an end to wasteful IT projects, a “right to data” policy and greater openness in most areas of public sector life, including publishing online all spending over £500 by local governments.

What might surprise some IT companies that contract with the public sector at the moment however, whatever their political persuasion, is the suggestion that contracts with local authorities that exceed certain thresholds (£500 for local authorities, £25,000 for central government and Quangos) will also be published “in full” – including in particular all performance indicators, break clauses and penalty measures. It’s a brave step and one that might highlight contracts that are overly favourable to suppliers and where the public sector is being unfairly penalised.

On the other hand – from the supplier’s perspective this raises issues of its own – “if you (large IT supplier) can provide those services and meet those service levels for that cost for the public sector, then why not for me, your prospective private sector customer?” There is a risk that too much transparency could mean public sector customers no longer get a better deal than the market.

And what about contracts provided by named “Key personnel” – will these individuals earn a celebrity of their own through contracts published online, or will data protection concerns override requirements in future legislation? Certainly the 35,000 most senior civil servants whose salaries are also required to be published online may have something to say if they can be identified from this information.

However this manifesto plays out, if, as currently predicted the conservatives are likely to be the next government, there are likely to be a few lively debates with the Office of the Information Commissioner before this manifesto becomes law.

Richard Nicholas

Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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No ban for BNP teachers

Friday, March 12th, 2010

The government has decided not to ban teachers from being members of the BNP following a report which said there is “insufficient evidence of risk” and that a ban would be a “profoundly political act” on which there is no consensus.

But the General Secretary of NASUWT, Chris Keates, said the idea that teachers who are members of the BNP can leave their beliefs at the school gates is “risible”.

Whilst the government has agreed not to impose a ban for now, it does not appear entirely comfortable with its decision. The issue will be reviewed annually and Ed Balls has ordered a review of whether there are sufficient measures in place to prevent racism in independent schools.

Is this decision a case of pre-General Election nerves? The Conservative Party has said that head teachers need more powers to prevent extremism in schools. Perhaps whichever party is safely in power next year will take the bold step of banning teachers who have a formal alliance to the BNP.

Mark Blois

Posted by Mark Blois
0115 976 6087
mblois@brownejacobson.com

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Cheaper Cigarettes?

Friday, March 12th, 2010

The European Court of Justice has just handed down three rulings holding that Irish, French and Austrian laws that fixed minimum retail prices for cigarettes infringed EU law. 

Arguments by all three countries that the laws were necessary to protect public health were unsuccessful. 

The cases concerned the interpretation of a specific European Directive that harmonises national excise duties on tobacco products rather than the application of EU competition rules.  However, the Court considered that a minimum retail price for cigarettes could undermine competition between manufacturers and importers of cigarettes. 

The cases serve as a useful reminder that the EU legal system will strive to protect price competition and that other legitimate public policy concerns are unlikely to succeed in overriding this principle.  No doubt followers of the debate on minimum alcohol prices will be taking note. 

Of course the question that all smokers in Ireland, France and Austria will want to know is whether this means that their cigarettes will be cheaper.  We’ll have to wait and see but the Court made it clear that the Directive in question does not prevent the countries from protecting public health by increasing taxation on cigarettes.   It simply prevents the imposition of a minimum retail price. 

I suspect that this means that the tax man rather than the smoker will be the winner!

Matthew Woodford

Posted by Matthew Woodford
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mwoodford@brownejacobson.com

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This software's faulty – what can I get from the seller?

Thursday, March 11th, 2010

It’s a query often raised by clients. A recent case has highlighted that it might well be more than previously thought.

Traditionally a party suing for breach of contract can expect to recover losses that result directly from a breach, but not losses that are “indirect” – as these are considered too remote or unforseeable. Typically a supplier will exclude indirect losses and will also exclude losses such as loss of profits, loss of revenue and similar losses. In a recent case however there was an interesting decision as to what a supplier could claim, even where indirect losses and loss of revenue is excluded. This included:

  • Increased payments to suppliers, as a result of using the faulty software
  • Additional costs of borrowing, made necessary by the increased payments to suppliers;
  • The cost of chasing debts that were not due (but which the faulty software suggested were due);
  • The cost of ex-gratia payments made to customers to compensate for poor service – (i.e. payments that the customer was not obliged to, but chose to pay to protect its reputation); and
  • Even the cost of stationery used to write to its customers to explain the problems caused by the faulty software

None were excluded by the typical “loss of profits” exclusion, nor by excluding indirect losses. For software suppliers it’s a potential wake up call that errors and delays in projects can lead to eye-watering amounts of damages – something that it is worth taking the time to protect against when working through the small print of their agreements.

Richard Nicholas

Posted by Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com

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The ASA extends its reach online

Thursday, March 11th, 2010

The Advertising Standards Authority can require that adverts deemed to be misleading, unfair or offensive, are not to be repeated. But with the expansion of digital media, a noticeable gap in the ASA’s jurisdiction has emerged – the ASA only adjudicates on complaints relating to paid-for advertising.  

Now this gap is to be plugged. The Advertising Association has recommended that the ASA’s remit be extended to cover marketing communications on companies’ own websites. It means that website owners will now need to review their own websites’ content to ensure that they can prove that they comply with the CAP codes.

Key provisions from the Code include that:

  1. marketers must hold evidence to substantiate their claims
  2. marketers should ensure that prices are clear and match the products illustrated
  3. special care should be taken when products intended for adults may fall into the hands of children
  4. claims comparing your products to your competitor’s products are subject to strict conditions.

If the recommendation is adopted, these changes could come into effect from September 2010.

With advertising in digital media becoming increasingly dominant in the marketplace, this was an obvious decision to make. Our immediate thoughts are: will businesses seek to use this to their advantage by complaining about their competitor’s websites? And what implications will this have on the use of user-generated content in marketing?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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New sentencing guidelines for corporate killing offences

Friday, March 5th, 2010

Following on from the news that the first corporate manslaughter trial is to be adjourned until October 2010 at least, it is worth discussing the new sentencing guidelines which have recently been published for sentencing of Corporate Manslaughter and Health & Safety Offences Causing Death. The guidelines can be found at www.sentencing-guidelines.gov.uk, some interesting points to note from the guidelines:

  • The guidelines do not just apply to Corporate Manslaughter – they also apply to health and safety offences, where the offence was a “significant cause” of death. It is not necessary to prove that death was a result of a health and safety breach to prosecute such offences. However if the prosecution can prove this anyway, it will result in a much larger fine.
  • The guidelines state that the starting point for a fine where a health and safety offence has caused death would be £100,000. For corporate manslaughter, the starting point should be £500,000, increasing to millions of pounds for larger companies. However, it could have been worse – the Sentencing Advisory Panel had initially recommended that fines be linked to a company’s turnover, with the starting point for a fine being 5% of the relevant figure.
  • The guidelines set out a list of factors which will contribute to whether the fine is reduced or increased from this starting point, including whether there has been cooperation with the prosecution, whether there have been any failures to follow previous advice, and whether  the company had a good health and safety record before. Added to this list are the questions of whether or not the injured person was from a vulnerable class (e.g. foreign workers), and the degree of participation of senior management in the breach.
  • The fine should be set at a level which is appropriate to a company’s means to pay – the sum which is fined is in no way intended to reflect the value of a human life.
  • Publicity orders, ordering that the fact that a company has been convicted of corporate manslaughter be publicised, should ordinarily be made when a company is convicted of that offence.

Ultimately, the real question is – will the continuing focus on increasing sentences for health and safety offences actually result in companies taking better precautions?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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Why you should ensure your brands are held by a single, continuing entity

Friday, March 5th, 2010

The Sugababes show us how ownership could go round round

Heated rows between pop artists are often as frequent and as transient as their hits. The ownership of the groups’ names and the right to perform under a particular trade mark often provide the backdrop to disharmony. Just ask Liberty X, The Nolan Sisters or The Rubettes among others.

And so the ever changing face of the pop group Sugababes has perhaps unsurprisingly led to potential disputes about the right to use the brand SUGABABES. The word on the street is that former band member Keisha Buchanan, who was a founder member of the group, appears to be on the verge of suing the current line up of the ‘babes to prevent their use of the brand going forwards. Meanwhile another founder (and former) member Mutya Buena has filed a Community Trade Mark application for the SUGABABES trade mark.

Does this mean we are about to see a reunion of the founder members of one of the UK’s most successful girl bands?

The potential disputes which may follow between the current line up and the original group members demonstrate the clear advantages of having a single consistent entity owning the registered and unregistered rights to a brand, particularly where, as in the case of a pop group, the nature and personnel of the external face of the entity changes frequently. Question is though, which girl will be first to push the button?

Mark Daniels

Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com

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