Archive for November, 2011
Wednesday, November 30th, 2011
In yet another development in the debate on Facebook privacy settings, the US Federal Trade Commission (FTC) has announced the imposition of various privacy requirements upon the company over the next 20 years.
The initial complaint to the FTC mainly related to changes Facebook made in 2009 that allowed public access to content on pages that users believed were private or inaccessible. The new imposed measures require the company to inform users as to how their data is shared, to obtain express consent to override their privacy settings, and to conduct an independent privacy audit every two years
Mark Zuckerburg, the founder of Facebook, yesterday acknowledged that the company had made a ‘bunch of mistakes’ that had ‘overshadowed much of the good work we’ve done’, whilst pointing to various privacy improvements they had since made.
This is the latest development in the ongoing battle over internet privacy between the FTC and internet companies.
It will be interesting to see how Facebook balance the new privacy requirements with their aim to provide automatic ‘frictionless’ sharing by users.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Rating: 8.0/10 (1 vote cast)
Tags: data, Facebook, mark zuckerburg, privency settings, us federal trade commission
Posted in Intellectual Property | No Comments »
Wednesday, November 30th, 2011
The ECJ has ruled that courts of member states cannot force ISPs into broad filtering and monitoring of their user’s access to copyright-infringing file-sharing websites.
It follows an order by a Belgian court that an ISP (Scarlet) must implement a filtering system to block their user’s ability to send and receive files containing musical works using file-sharing software without the copyright-holders permission.
The ruling does not prevent the blocking of specific illegal file-sharing sites by ISPs as in BT and Newzbin’s case; however the ECJ ruled the filter system ordered in this case, in which the ISP was expected to install the system at its own expense and use it for an unlimited period to indiscriminately monitor all customer’s electronic communications, was contrary to EU law and fundamental rights, including the E-Commerce Directive.
This ruling will be welcomed by both ISPs and campaigners for internet freedom, particularly those following the relationship between the E-Commerce Directive and the Digital Economy Act.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Rating: 6.0/10 (1 vote cast)
Tags: copyright, digital ecomomy act, e-commerce directive, ECJ, file sharing websites, illegal file sharing, ISP's, newzbin's case
Posted in Intellectual Property | No Comments »
Wednesday, November 30th, 2011
The case of Essex CC v Williams [2011] examined whether or not those over the age of 19 met the criteria under the Education Act 1996 to receive a Statement of SEN.
The Court of appeal has now released its judgement setting out that those over the age of 19 could not be considered a “child” under the Education Act 1996. This will mean that authorities do not have to maintain Statements of SEN past that age.
The court said that for most people it would be absurd to refer to a young adult of 20 years or more as a ‘child’ and that they would not extend the specific definition of child as set out in the Act.
Extending this provision would have far reaching budgetary implications, as well as raising safeguarding concerns around teaching adults alongside children. It looks like there will be a further appeal, which we will again follow with interest.
Laura Richards
0115 976 6249
lrichards@brownejacobson.com
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Tags: Education, education act, local authorities, safeguarding, SEN statements
Posted in Education, Local Authorities, Public Sector | No Comments »
Tuesday, November 29th, 2011
Chancellor George Osborne has announced a new funding package for education, which includes an extra £600 million to create 40,000 school places over the next three years in local authorities with the greatest demographic pressures. The package also includes £600 million for 100 new free schools, which will be opened as academies by groups of parents, teachers, charities, businesses, universities, trusts, religious or voluntary groups.
The government hopes that the free schools (which will include specialist maths schools for 16-18 year olds) will help produce the next generation of engineering and science graduates needed for long term economic prosperity.
The academy programme continues to storm ahead with 1,419 academies open in England to date and hundreds more in the pipeline. With the extra funding announced and the Chancellor’s undiluted praise for Mr Gove it is safe to say that the academy programme will not be slowing any time soon.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Tags: academies, Education, free schools, funding for education, George Osborne, local authorities
Posted in Education, Local Authorities | No Comments »
Tuesday, November 29th, 2011
Whilst the final judgement is not anticipated until early 2012, Advocate General Kokott has now delivered her opinion.
Mr O’Brien, represented by Browne Jacobson LLP and Cloisters Chambers, brought a claim because, as a part-time, fee-paid judge, he was excluded from the judicial pension scheme. In July 2010 the Supreme Court sought ECJ input on:-
- Can national law determine whether or not judges are “workers who have an employment contract or employment relationship”?
- Can national law discriminate (a) between full time and part-time judges or (b) between different kinds of part-time judges in the provision of pensions?
The Advocate General considers that it is for national law to decide if a part-time judge is a worker, but there were limits to this discretion. Member States are not allowed to exclude complete categories of part-time worker.
The court does not need to follow the Advocate General’s opinion, but it unusual not to do so.
Posted by Edward Benson, specialising in: employment law; advises on contracts, policies and procedures, trade union negotiations; experienced in tribunals; contributes to seminars and training.
Edward Benson
0115 976 6211
ebenson@brownejacobson.com
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Rating: 6.8/10 (4 votes cast)
Tags: Advocate General Kokott, Browne Jacobson LLP, Cloisters Chambers, judicial pension rights, Mr O'Brien, part-time judges, Supreme Court
Posted in Employment, Pensions | No Comments »
Tuesday, November 29th, 2011
The recent changes to the construction act removed the requirement that a construction contract had to be in writing. Whilst this was a sensible change, the recent case of BVM Management Ltd v Roger Yeomans t/a The Great Hall at Mains highlights the risks surrounding oral contracts.
The Court of Appeal upheld a (non-construction) county court decision that an oral contract for a fixed two-year term contained an express term that it could be terminated on three months’ notice, so limiting BVM’s claim for damages for wrongful termination.
There is no new law here. However, it is an important reminder of the risks of relying on oral contracts / unsigned draft agreements. Being a lawyer, you won’t be surprised to hear me say that it’s best to get your agreed terms into a signed contract – especially fundamentals such as the right to terminate. But a thought for the sceptics: both parties in this case had to spend time and money litigating all the way to the Court of Appeal, far outweighing any legal fees they’d have paid had this been resolved at the start …
Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.
Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: bvm management ltd v roger yeomans t/a the great hall at mains, construction act, construction contract, Court of Appeal, oral contracts
Posted in Commercial contracts, Construction, Property | No Comments »
Tuesday, November 29th, 2011
In our post on 8 November we highlighted that some high street stores in depressed areas are being let for £1 allowing landlords to avoid business rates on vacant units. There are now reports that some landlords and listed retail groups are paying charities to occupy their vacant units and exploiting their charitable status giving discounts of up to 100% on liability for rates. Donations are seen as cheaper than paying rates. However, some charities are not even occupying the shops and are just placing posters in the windows. Hilary Benn, shadow communities secretary, has called on local authorities to investigate. His view is that placing posters in an otherwise empty shop should not qualify for rate relief.
Business rates on the high street is an increasingly contentious issue and we’ll have to see how the government reacts once Mary Portas’ report is published.
Claire Gay
0115 976 6145
cgay@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: business rates, Charities, high streets, Hilary Ben, landlords avoiding business rates, Mary Portas, retail groups
Posted in Local Authorities, Property, Retail | No Comments »
Monday, November 28th, 2011
Francis Maude has launched the UK Government’s Cyber Security Policy – £650 Million to be spent over four years for a National Cyber Security Programme (NCSP), the establishment of a Cyber Crime Unit (crime) and a Joint Cyber Unit (military defence).
So what will these new cyber-men and cyber-women be doing?
Looking at risks in cyberspace for one thing – from terrorists, hackers, spies and criminals making the 20,000 malicious emails a month sent to government networks, as well as sharing information on and combating those risks – but also developing common standards for cyber security and a voluntary code of practice.
For IT security professionals it would be worth noting the potential opportunity to build a wider acceptance of their technology and to legitimately work with competitors. For the rest of us the rewards lie in the result – better protection online. Let’s hope for a successful collaboration.
Posted by Richard Nicholas, who specialises in commercial, IT and outsourcing agreements, complex projects for private and public sector clients, collaboration, distribution & agency contracts, e-commerce and consumer law.
Richard Nicholas
0121 237 3992
rnicholas@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: cyber crime unit, cyber security policy, Francais Maude, IT security professionals, national cyber security programme
Posted in IT Contracts | No Comments »
Friday, November 25th, 2011
The NHS Operating Framework for 2012/2013, has announced new rules on the size and shape of Clinical Commissioning Groups. It states that:
- CCG’s should be co-terminus with a single Health and Wellbeing Board
These announcements differ to the original policy set out in the NHS White Paper which gave CCGs the freedom to develop as they deemed appropriate. Whilst the DH has since sought to limit this by introducing requirements for CCGs to assess any risks associated with their size and shape and consider whether merging is appropriate, the boundaries have been moved yet again meaning that around 60 CCGs should explore alternative options.
CCGs are expected to review their arrangements, with the support of their SHA cluster, to ensure that any “remaining configuration issues” are resolved before March 2012. CCGs which cannot provide this assurance will be expected to start exploring alternatives to full authorisation.
Posted by Emily Birkett, who specialises in advice to NHS bodies ; their local authority partners and related organisations in commercial law, contracting, procurement , competition governance and all aspects of primary care.
Emily Birkett
0121 237 3934
ebirkett@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: clinical commissioning groups, health, NHS, nhs operating framework for 2012/2013, risk management
Posted in Health | No Comments »
Friday, November 25th, 2011
The case of Fortune v Roe has re-visited the question of success fees and what the correct success fee ought to be if certain risks are removed from the litigation.
In this case the Claimant had been involved in a very serious car accident but by the time she entered into a CFA liability had been admitted and judgment entered for damages to be assessed. The CFA provided for a success fee of 100%. Sir Robert Nelson found that there was no risk to the recovery of charges to the solicitor and there could not be said to be a litigation risk. Therefore the only risk was of receiving no costs after beating a Part 36 offer and the success fee would represent compensation for that. As a result the court found that a success fee of 100% could not be justified and the figure of 20%, awarded by the first instance judge was upheld.
This shows the importance of getting the risk assessment on the CFA right. If it’s not an accurate assessment then we can expect the courts to get involved – with cost consequences!
Posted by Nichola Evans, who specialises in professional indemnity work, directors and officers, legal expenses insurance, conditional fee agreements and after the event insurance and commercial litigation.
Nichola Evans
020 7337 1019
nevans@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: cfa, insurance, litigation, litigation costs, Part 36, professional indemnity, risk assessments, success fees
Posted in Insurance, Litigation, Professional Indemnity | No Comments »
Friday, November 25th, 2011
The Supreme Court has recently commented on how it decides between two reasonable interpretations of a clause (Rainy Sky SA v Kookmin Bank).
The Court confirmed that “if there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other”. In keeping with this, the Court found against the party that was unable to advance any commercial reason why its interpretation should be adopted.
The case continues the move by the Supreme Court away from a strict (and some might say, overly literal) approach to the interpretation of contracts to a position where commercial purpose is generally more important than the niceties of language. This is welcome, but does it really amount to much more than the members of the Court confirming that they want to sleep well at night?
Posted by Tim Claremont, who specialises in domestic and international engineering and construction, including contractual and delay claims across all forms of dispute resolution; also contract drafting and negotiation.
Tim Claremont
0115 976 6520
tclaremont@brownejacobson.com
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Rating: 7.3/10 (3 votes cast)
Tags: Commercial contracts, dispute resolution, Supreme Court
Posted in Commercial contracts, Commercial dispute resolution | No Comments »
Friday, November 25th, 2011
The Area of Outstanding Natural Beauty (AONB) that is situated in north Wales has been extended, increasing the Clwydian Range AONB by 230 square kilometres. The new land added to the existing area is the first new designation of an AONB in Wales in 26 years, and is one of just four AONB across the country.
The Welsh Environment Minister, John Griffiths said that, “AONB status for this area will help safeguard its natural beauty and promote sustainable development”. Contrary to some local opinion, he said that the designation was not designed to impose restrictions on agricultural activities in the two areas included in the extended designation – the Dee valley and Llangollen.
The extension, granted under section 82 of the Countryside and Rights of Way Act 2000, means that the land will form part of the Clwydian Range AONB and will be afforded the same protection regarding the conservation and enhancement of the natural beauty of the area.
Posted by Westley Laird, who specialises in environmental law, specifically advising nature conservation, local authority and corporate clients and administrative law, with a focus on judicial review.
Westley Laird
0115 976 6273
wlaird@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: Area of outstanding natural beauty, conservation sites, environmental, sustainable
Posted in Waste & Environmental | No Comments »
Thursday, November 24th, 2011
Following on from the recent decision on Cadbury’s trade marking of the colour purple, the US fashion industry has also recently considered colours as trade marks. The American retailer Tiffany’s, (who already hold a number of trade marks for a blue colour) is supporting Christian Louboutin’s appeal against a court decision which stated that a single colour for fashion items is never subject to protection.
Many companies will be closely following the development of colours as trade marks; the often strong association of a colour with a brand or type of product by consumers is something many will want to closely protect, whilst others will be concerned about being increasingly restricted in their use of colours on packaging.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: branding, cadbury, christian louboutin, colour trade marks, tiffanys, us fashion industry
Posted in Advertising & Marketing, Brands, Intellectual Property, Retail | No Comments »
Thursday, November 24th, 2011
Later today the Government is expected to publish its Child Sexual Exploitation Action Plan. The Government’s aim is to bring together the police, CPS, local safeguarding children boards, agencies, independent bodies and the voluntary sector in order to tackle this problem.
Emphasis is to be put on protecting children in care who are four times more likely to be victims of abuse. In order to do this councils will be asked to work together to prevent the trafficking of children within the UK.
These proposals will involve greater information sharing between different organisations and between different Councils. With current concerns regarding data security organisations will need to develop robust policies on what information to share and under what circumstances. These policies will need to strike a careful balance between ensuring that information is kept safe and secure but also that all relevant organisations have the information required to fully address potential exploitation and trafficking.
Kate Bear
0115 976 6104
kbear@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: child abuse, child protection, childrens social care, CPS, Education, local safeguarding childrens' boards, sex offences on children, sexual exploitation, sexualisation of children, Social Care
Posted in Education, Social Care | No Comments »
Wednesday, November 23rd, 2011
After much debate the Government have today announced proposals and further consultations affecting many areas of employment law. The key areas are:
- Unfair dismissal qualifying period will increase to two years.
- It will be compulsory for all claims to be lodged with ACAS prior to the Tribunal so that a conciliated resolution can be attempted.
- Employment judges will have discretion to impose financial penalties on employers who breach employee’s rights.
There will also be a fundamental review of the employment tribunal rules of procedure led by the President of the Employment Appeal Tribunal.
In his speech announcing these plans, Vince Cable was clear that the reforms were intended to stop employment law being a barrier to employers growing their business. Tribunals should be a last resort for resolving workplace problems. Whether the proposals will have the desired effect remains to be seen.
Posted by Heather Bragg, who specialises in contentious and non-contentious employment matters including; contractual issues, unfair dismissal, redundancy and all areas of discrimination.
Heather Bragg
0115 976 6553
hbragg@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: ACAS, Education, employment, employment appeal tribunal, employment law, employment tribunals, further education, Retail
Posted in Education, Employment, Further Education, Retail | No Comments »
Wednesday, November 23rd, 2011
The UK’s Trade Mark registry has ruled that chocolate manufacturers Cadbury can continue to trade mark a particular shade of purple used on its packaging, following a challenge by rival brand Nestle on the basis that Cadbury’s use of the purple colour was not distinctive enough to warrant protection.
Cadbury are likely to claim as a victory the ruling that they have built up enough distinctive character in their purple shade through their use of it on chocolate in bar and tablet form and eating and drinking chocolate products.
However, it is worth noting that the registry agreed with Nestle that this distinctive association did not extend to their chocolate cakes, chocolate assortments, and some confectionery chocolate, and therefore Cadbury’s attempt to register trade marks in these areas was refused. Nevertheless, many will regard this as a victory for Cadbury in its long-running battle with Nestle.
Laura Mackenzie
0121 237 3959
lmackenzie@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: cadbury, colour trade marks, distinctive character, Intellectual Property, nestle, trade marks
Posted in Advertising & Marketing, Brands, Intellectual Property | No Comments »
Wednesday, November 23rd, 2011
The Advertising Standards Authority (ASA) has banned a series of internet and poster ads for Lynx shower gel and deodorant featuring Lucy Pinder.
The ASA censored Unilever’s ads for being sexually provocative and possibly demeaning to women. The ASA also ruled that the appearance of the ads on sites such as Yahoo, Spotify and Anorak was irresponsible as they could be seen by children.
The ruling is yet another sign that the ASA intends to get tough with advertisers when it comes to protecting children from sexualised imagery and has made it very clear that what may be seen as acceptable in a magazine may not be appropriate on a billboard. Much of this concern is driven by parents who are increasingly worried about the images available to their children on the internet and social networking sites.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 9.0/10 (1 vote cast)
Tags: advertising standards authority, ASA, lucy pinder, Lynx advertisement banned, marketing campaigns, sexualised imagery, social networking sites, Unilever
Posted in Advertising & Marketing, Brands, Retail | No Comments »
Wednesday, November 23rd, 2011
The European Heart Network (EHN) is today calling on the UK to introduce a tax on fatty and sugary foods, as well as greater controls on the advertising of unhealthy foods aimed at children.
The ECN believes the UK needs to introduce decisive policies in light of growing evidence of the impact of diet and physical activity on coronary heart disease.
The introduction of a fat tax in the UK would be very difficult for the Government to suggest right now and for the industry to stomach. The impending Food Information Regulations are already making waves and the force of the Nutrition and Health Regulations is only just being felt.
Introducing a tax on foods which would be sure to cripple certain producers would not be a sensible move. The Nutrition and Health Regulations should have a significant impact on the way certain foods are marketed so it would be wise for Government to let regulators try this weapon first before introducing a new one.
Posted by Nina Best, who specialises in regulatory matters; entertainment licensing; advertising and marketing law; advice and representation on infringement of Food Safety Manufacturing Product Regulations.
Nina Best
0115 976 6529
nbest@brownejacobson.com
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Rating: 0.0/10 (0 votes cast)
Tags: european bureaucrats, european foods standards agency, european heart network, food, food information regulations, Tax, the nutrition and health regulations
Posted in Advertising & Marketing, Brands, Food & drink | No Comments »
Monday, November 21st, 2011
The Chinese phone manufacturer ZTE plans to focus on manufacturing smartphone in a bid to crack the US telecommunications market. ZTE will move from producing lower-end ‘feature phones’ – a hugely successful export to emerging economies like India – and concentrate on fourth generation smartphones.
This latest phase of ZTE’s phenomenal rise from its origins as a trader of accordions and low grade telephones, coincides with growing political tensions between the US and China. The US House intelligence committee recently launched an investigation into the security threat posed by the Chinese technology firms operating in the US market. ZTE and Huawei, another multi-national telecommunications firm, are both under scrutiny.
These developments highlight the sheer structural breadth of the Chinese economy, simultaneously industrialising from subsistence agriculture at one end to manufacturing cutting edge smart phones at the other. It also reveals US concern about losing its primacy in hi-tech innovation. For all the rhetoric about ‘threats to national security’, it is the threat to US business interests that really concern American lawmakers.
Dave Drew
0115 976 6226
ddrew@brownejacobson.com
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Rating: 10.0/10 (2 votes cast)
Tags: fourth generation smartphone, Intellectual Property, ip, smartphones
Posted in Manufacturing | No Comments »
Monday, November 21st, 2011
A report from the Institute of Fiscal Studies (IFS) says that though plans to implement a single national funding formula for schools will create winners and losers, the system needs to be more consistent, transparent and responsive. The IFS acknowledges that at present “formulae can be myriad and complex: different local authorities take into account different factors and fund particular types of schools differently”.
The formula must be carefully thought out, with a fair adjustment of secondary to primary school funding, recognition that current deprivation funding (i.e. the pupil premium) is geared strongly towards secondary schools and recognise that some of the most deprived parts of the country ought to receive extra funds.
IFS asserts that any transitional period of less than a decade will involve significant, sustained losses for some schools. With the coalition’s reputation for rapid change in the education system it will be interesting to see whether they follow the IFS’s recommendations on the transitional period.
Hayley Roberts
0115 908 4862
hroberts@brownejacobson.com
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Rating: 10.0/10 (1 vote cast)
Tags: coalition government, coalition reform of education funding, Education, government, ifs, institute of fiscal studies, school funding, schools
Posted in Education, Government bodies | No Comments »
