Archive for April, 2010

Send them back… but please pay the postage!

Wednesday, April 28th, 2010

Consumers who return goods purchased online or over the telephone must be able to recover any initial delivery costs as well as the price paid for the goods following a recent case before the ECJ. However the cost of returning the goods can still be passed on to the consumer.

The case concerned the interpretation of the Distance Selling Directive Articles 6 (1) & (2) which allows a consumer to cancel a contract within 7 days, without incurring any charges.

Currently many sales terms require consumers to forfeit any delivery costs they might have paid when they bought the goods. It now seems likely that companies will need to change their terms – and some who might have relied on a customer’s reluctance to pay postage to avoid the full cost of returns may finally have to take the legislation seriously.  For companies that supply large items to customers such as sofas, fridges and household furniture this is likely to increase the cost of doing business online.

Ryan Harrison

Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com

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Politically Correct

Monday, April 26th, 2010

As some politicians are “firing up their Quattros” for one of the most finely balanced of recent election campaigns every stray vote will count.

We are all likely to find ourselves receiving more and more promotional material. So much so that the Advertising Standards Authority (ASA) has felt it necessary to remind voters that although it regulates nearly all forms of advertising – it does not regulate election advertising.

Adverts that are designed to persuade voters in a local, national or international election referendum are not covered by the Advertising Code.

Does this represent a true example of protecting our human rights to free speech or does it give politicians a right to free unregulated publicity to say whatever they want – at whatever price to win votes and power?

Fiona Carter

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

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Possible challenge to legality of SATs boycott

Monday, April 26th, 2010

Head teachers look set to boycott KS2 SATs for 10- and 11-year olds following a ballot by the NUT and NAHT.

Last week, the two unions confirmed that they would take industrial action against the tests, which pupils are due to sit in early May. Mick Brookes, general secretary of the NAHT, has said that KS2 SATs are “misused to compile meaningless league tables which only serve to humiliate and demean children, their teachers and communities.” However, the National Governors’ Association (NGA), has questioned the legality of any boycott. Clare Collins, Chair of the NGA, has said that industrial action “must be related to teachers’ terms and conditions”, but that SATs are “a performance measure, not a matter of their terms and conditions”.

 With head teachers and governors seemingly at loggerheads, it seems highly likely that there will be a legal challenge to a SATs boycott, meaning that the courts will have the final say on this issue.

Mark Blois

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

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Election halts defamation success fee reforms

Thursday, April 22nd, 2010

In March this year, Justice Secretary Jack Straw announced that there would be a 90% reduction in the recoverability of success fees in relation to defamation claims. The plans were also in line with the recommendations laid out by Lord Justice Jackson in his report published back in January. 

Publishers welcomed the move but the oncoming election has led to the reforms being derailed. A number of MPs have also openly opposed the reforms because the proposals would not adequately protect the “little guy” who sues the publisher. Does this mean these same MPs disagree with the conclusions and recommendations of the Jackson report? It is only a matter of time before defendants are given greater protection against liability to pay success fees and after-the-event insurance premiums in defamation cases, and publishers will feel that not passing this legislation is an opportunity missed.

Mark Daniels

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

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Schools lose auxiliary aids and services exemption

Monday, April 19th, 2010

Last week, the Equality Act passed into law, removing the exemption for schools in relation to the provision of auxiliary aids and services for pupils with a disability.  Since 2001, schools have been under a duty to provide reasonable adjustments for pupils with a disability.  However, until now schools were not obliged to take reasonable steps to provide extra resources, such as equipment or teaching assistants, which were expected to be provided by local authorities through the statementing regime.  

The new duty on schools is certain to impact on their budgets.  However, it is unclear what rights of redress schools will have, if any, against local authorities that unreasonably fail to specify auxiliary aids and services in Statements, leaving schools potentially to pick up the tab from what might arguably be inadequate delegated funds.  The removal of the exemption for schools means there are interesting times ahead for lawyers and education professionals alike.

Mark Blois

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

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Fines for Data Protection Breaches Are Coming

Monday, April 19th, 2010

The Information Commissioner has new powers to fine organisations up to £500,000 for breaches of the Data Protection Act that take place after 6 April. 

Fines can only be imposed if a breach is serious and likely to cause substantial damage or distress. Also, only deliberate breaches or breaches where reasonable steps to prevent a foreseeable breach were not taken are covered. 

The example of a ‘serious’ breach given in the Information Commissioner’s guidance is the loss of medical records during a move.

The Information Commissioner has said that he will “not hesitate to use these tough new sanctions for the most serious cases where organisations disregard the law”, and the next company or government department who hit the headlines for losing information should expect to be hit with a punitive fine as well as bad publicity.

Giles Parsons

Posted by Giles Parsons
0121 237 4557
gparsons@brownejacobson.com

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The business of running a school

Tuesday, April 13th, 2010

According to recent reports the first private companies that want to run national chains of schools have applied for accreditation.  Businesses including VT Group, Serco and Edison Learning have applied to become Accredited Schools Providers (ASPs) and given their education sector experience they are likely to receive accreditation as ASPs, allowing them to sponsor up to two academies, or support up to two National Challenge Trusts (NCTs).  Once their record is established, the companies are likely to apply to become Accredited Schools Groups to allow them to operate larger chains of schools in the future.

Many, including the current government, feel it is inappropriate for profit driven organisations to be running schools. However, profit making in the education sector already exists and if large chains of schools are to represent the future of education businesses like VT Group and SERCO will argue they need the financial incentives to help turn the vision into reality.

Mark Blois

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

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Twitterfail 2 – this time it's Labour

Monday, April 12th, 2010

Two weeks ago, we reported on the uncensored reposting of live tweets on the Conservative’s “Cash Gordon” website. Now it seems that Twitter posts have put a Labour candidate into hot water

Amongst other controversial posts, Stuart MacLennan reportedly described the elderly as “coffin dodgers”. He has now been dropped as the Labour nomination for the seat in Moray.

One interesting point is that the Labour Party have said that Mr MacLennan’s tweets were in fact posted a year ago, when Mr MacLennan was still a student. Nevertheless they are still available to be found and reported, and can still be used against him. As a side note, from a legal perspective, material posted online is “published” each time it is downloaded to view – not just when it is first posted. This means that potentially defamatory material (including material which has been “cached”) can be unearthed years after it is posted, and the maker of the statement can be sued. This rule is however currently under review, and may change soon. 

Do you think this incident will make students more careful about what they post online, in case it is used against them in the future?

Fiona Carter

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

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More .uk domain names are set to be released

Friday, April 9th, 2010

Do you own trade marks or brands comprising two letters or a single character? Frustrated that you’ve not been able to register your brand as a domain name in the UK? Well, read on.

Nominet, which runs the register for .uk domain names, which total around eight million, has announced plans to make available those domain names which comprise two letters or a single character (think AA, BA) as well as other reserved names within the second level domains it controls (including .co.uk and .org.uk). Previously these domains were not available due to technical reasons, unless they had been adopted prior to Nominet’s establishment in 1996.

Nominet estimates that around 2,000 such domains would become available and these would first be offered to relevant trade mark owners during an initial “sunrise” period. Prior to the release, Nominet has invited interested parties to offer their views on the release. A summary of responses received to date are published on Nominet’s website. The responses to date seem to be overwhelmingly in support of the release of two-letter domains, but there has been a more cautious response to the release of single character domains – largely because it is perceived that there is less scope for legitimate use of such domains.

The consultation is open until 8 June 2010, and so if you are a stakeholder – maybe your organisation is well known by a two-letter acronym – you can respond to Nominet here.

The release of these domains is certainly a positive step. However, there have to be the correct safeguards in place to protect the interests of legitimate rights owners, and to avoid abusive registrations. This means that Nominet’s dispute resolution service is likely to see an increase in use once these domains become available.

Mark Daniels

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

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