IMPACT®

Christmas day e-commerce bonanza

25 December 2007 was the day when the British collectively said thanks for the presents, and promptly went online to buy more stuff. The Telegraph reports than 1 person in 13 in the UK bought something online on Christmas day. The total Christmas Day online spend in the UK was a whopping £84 million, by 4.4 million consumers.

In terms of general internet usage, the Independent carried a prediction that two-thirds of Brits would log on during the day.

Readers will be delighted to learn that IMPACT was not left out of all this Christmas Day activity. Our trust stats report that a glorious 58 people viewed the site. Whilst this figure falls slightly short of the number watching the Queen's Speech on Youtube (how web 2.0 of them), we don't think it's too bad considering that the blog was closed for the season.

Compo for HMRC Data Breach - no sure thing

I was interested to read an item published by the Newcastle Sunday Sun on 23 December 2007, which announced the startling news that "The Government is facing a multi-million pound compensation payout to families over the lost child benefit discs blunder".

Not having spotted this in the national press, I read on to learn that "a legal expert is advising victims of the astonishing foul-up… to claim compensation".  A Mr Chris Shaw, "manager of Newcastle-based legal services company ADRS", was reported to have estimated "that individual payouts could range from £50 to £300 with “significantly higher” amounts for people who have suffered damage and distress".  Mr Shaw is reported to have added: “This could prove very costly for the Government if families affected by the postal error take up their right to pursue a compensation claim"..

The article includes a link which takes readers to a website where they can buy a "claims pack" for £5.99, containing pdf document templates for claiming compensation.

At the risk of putting a damper on the public's windfall celebration, I don't see any compensation on the horizon, and doubt very much that Government bean counters are losing any sleep.  For the full picture, we need to go to s13 of the Data Protection Act 1998, which governs data subjects' entitlement to compensation.  Section 13 reads:

"13    Compensation for failure to comply with certain requirements
(1)    An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2)    An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
(a)    the individual also suffers damage by reason of the contravention, or
(b)    the contravention relates to the processing of personal data for the special purposes.
(3)    In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned."

There's the rub: to be entitled to compensation, you have to have actually sustained some "damage".  Yes, you can claim for "distress", but only if there has been damage too.  People need to understand that damage / damage and distress are not just aggravating features for compensation purposes – they are pre-requisites.  Now, the one thing we all know about the HMRC fiasco is that (fortunately) there has been no sign so far that the discs have fallen into criminal hands; certainly there is no evidence that anyone whose data was lost has yet suffered any detriment.  Before parting with their hard-earned £5.99, readers need to consider their "right to pursue a compensation claim" in that light.  Another thing - as the article states, everyone affected by the HMRC disaster is getting a letter from the Government, so they already know who you are without you writing to them to claim: you may want to keep your money in your pocket for now.  If HMG ever decides compo is called for, maybe they'll get in touch with you, and you can save the £6-odd quid (including stamp).

The webpage where you can buy the claims pack does tell you that damage is required for any entitlement to compensation, but it also stresses that a Bank recently "volunteered" compensation to some of its customers for a data breach, and a man recovered £300 for unsolicited marketing emails sent to him in breach of the 1998 Act.  Whether the Government is in fact likely to volunteer any payment in the HMRC case – especially given that no data subject is yet known to have been even canvassed - let alone spammed or phished – is obviously another matter.

Six to get you fifty. Fancy a punt ?

Sir Nicholas Pumfrey 1951-2007

It is with real sadness that we note the sudden and un-expected death of Lord Justice Nicholas Pumfrey following a stroke on Christmas Eve. Not only did Nicholas have one of the finest legal minds of his generation, he was also a wonderful human being. I count myself extremely fortunate to have known Nicolas and will always be grateful for his encouragement and kindness. He was an interested and interesting companion and that in itself is a rare combination. The world is definitely a less colourful place with his passing. We send our heartfelt condolences to Nicholas' family at this very sad time.

Ann Critchell-Ward

Merry Christmas & a Happy New Year!

There are just under 2 working days left until the Christmas break. With the usual mad rush underway, as clients try to get deals completed with time to spare for last minute shopping, it's time to close the blog until the New Year.

Thanks to all who have read and commented on the blog during 2007.

2008 will see IMPACT revamped with a new design, some new legal guides, existing legal guides updated and revamped, plus the usual regular updates on developments in IP & IT law.

Merry Christmas!

Freedom of Information requests drop during July - September 2007

The Ministry of Justice has recently published statistics on the number of Freedom of Information requests received by central government during the quarter July to September 2007. The statistics indicate a reduction in requests of 8 percent compared with the same period of 2006; 7,580 compared with 8,209. Thanks to the UK Freedom of Information Blog for spotting this.

Changing the subject: Canadian ISP alters web pages

David Harris's Briefblog brings news of Rogers, a Canadian ISP, adding content to the pages of its customers. According to David, at the moment Rogers is only doing this to the pages of customers who it wants to notify about issues with account status such as exceeding usage limit.

David goes on to discuss the copyright/licensing implications of Rogers' actions. David's view - which is difficult to fault - web pages are normally protected by copyright, and the copyright owners are unlikely to have given Rogers permission (express or implied) to alter their pages. This means that, in altering web pages, Rogers is likely to be infringing the copyright in those pages. David comments:

"In the current case of adding subscriber information to the page the subscriber himself requested it is unlikely to damage the interests of the copyright owner. However if Rogers removes or downgrades video files it certainly will damage the interests of the copyright owner. Not only that, but it is likely that the addition of this content will puzzle and annoy the end user who may well assume the copyright owner has done something weird. That will damage the reputation and goodwill of the site owner and lead to the risk of a claim against the ISP for damages for passing off."

2008 predictions: mobile phones replace laptops

Along with various legal and technology experts, Computers & Law magazine asked the lawyers at IMPACT to give their predictions for developments in 2008. Here's my contribution...

I believe that the most important new technology trend in 2008 will be the mainstream use of mobile phones for activities that would previously have been done on computers. Smartphones, able to edit office documents, run software, send and receive e-mails and surf the Internet, and even manage bank accounts, are featured in the phone ranges of all the major operators; this is no longer a Blackberry-only zone. The falling price of smartphones combined with sensible data rates will see these phones become increasingly mainstream in 2008. Whilst small screen sizes will mean that most people will not use phones for serious document editing or research, they will replace laptops for quick tasks such as checking e-mails, looking up information on Web sites and (probably using a wireless keyboard) making minor tweaks to office documents.

Many will forget that phones were originally designed for making calls. For those that nostalgically remember such functionality, 2008 will see the increasing use of VOIP via mobile phones, making the most of those cheap data rates.

The mainstream use of such phones will present new opportunities and challenges. The increasing number of Web sites designed for use on phones will raise the possibility of the mobile Web effectively becoming a separate entity. Software and Web site developers supplying the mobile software market – or more accurately, their advisors – will have to get creative in ensuring that terms & conditions and privacy policies are incorporated into end-user contracts whilst only working with screens smaller than business cards. Businesses will have to confront the security, confidentiality and compliance issues raised by their employees carrying (whether or not with permission) sensitive information on such devices.

2008 will also see the snowballing (no festive pun intended) of existing key trends such as:

• A recent survey by the Information Commissioner’s Office suggests that the majority in the UK are concerned about how others use their personal data. This general concern, plus the following likely developments, will see data protection and privacy issues remaining high on the agenda in 2008:
  • the UK government announcing the outcome of its review on data sharing;
    o more scandals involving theft and accidental disclosure of personal data by the private and public sectors;
  • the Information Commission getting new investigatory powers in the wake of the HM Revenue & Customs fiasco involving the loss of 25 million child benefit records - in anticipation of these new powers, 2008 will be a good time for organisations holding large amounts of personal data to review and tighten their security and data protection policies and procedures.
• Free and open source software will be increasingly recognised as a credible alternative to ‘proprietary’ software, both in businesses and at home.
• Online office applications will emerge that are serious competitors to their software equivalents, with the developers of such applications releasing ‘enterprise’ editions. At a cost, these will deal with the concerns that businesses have with using such applications, such as service levels and document security.

Finally, in a prediction that will delight many (if it were to come true), FaceBook will cease to be mentioned in every sentence used in technology circles.

Notes

Thanks to Computers & Law magazine for allowing us to reproduce the above content. Picture of a Nokia N95 running QuickOffice taken from the PMP Today blog.

The European Patent Convention 2000

The European Patent Convention 2000 (EPC) came into force today. It revises the European Patent Convention 1973 as agreed at the Conference of the Contracting States in Munich from 20 to 29 November 2000.

Substantive patent law is predominantly unchanged with the main amendments in Article 54(3) and 54(5). All amendments to Articles are set out in the Act Revising the Convention on the Grant of European Patents The texts of the EPC 2000 and the Implementing Regulations are available on the European Patent Office website.

International design system opens its doors to UK designers in 2008

A change in the law means that from 1 January 2008, UK businesses will be able to obtain international design registrations. The change also means that people will be able to obtain Community Registered Designs (giving EU-wide protection) through the international design system. The UK Intellectual Property Office has issued an explanatory note.

The changes in the law themselves are very technical (non law geeks, look away now!), and have involved:

• The European Community adopting regulations to enable it to join the Hague Agreement on the International Registration of Industrial Designs in July 2007. The Hague Agreement is an agreement between certain countries and organisations that put into place the international design system.
• The European Community acceding to the Geneva Act of the Hague Agreement on the International Registration of Industrial Designs in September 2007 (see EC press release);
• A rather fiddly Regulation being laid before the UK Parliament.

If you would like assistance with filing an international design registration, please contact us. We'd be delighted to help!

Bluetooth marketing law update

In October, I reported on a change in position on Bluetooth marketing by the Information Commissioner's Office (ICO). The ICO went from regarding Bluetooth marketing as being covered by the Privacy & Electronic Communications Regulations to considering that such marketing was in fact not covered.

Now, according to Out-law.com, there may be moves by DBERR (the Department for Business, Enterprise and Regulatory Reform - the new, long-winded, name for the Department of Trade and Industry) to change the legal position on Bluetooth marketing. On the matter, Out-law.com says that the "window of opportunity for marketing by Bluetooth technology that opened in October could be closed once more". This appears to be based on a statement made by DBERR that it is considering and consulting on the issue.

"The Department wishes to work with the European Commission during the review of the Privacy and Electronic Communications Directive to find the best way to evolve the current rules."

"We will be looking to ensure that definitions are suitable for new technological developments in communications technology. We will speak to stakeholders to gauge the size of the problem in relation to Bluetooth and will discuss, in the context of the review, any changes with them"

From the DBERR statement, it doesn't seem likely that the "window of opportunity" will be closed any time soon. The story also quotes a representative from the European Commission who appears to regard Bluetooth marketing as not being a current issue, and not worth legislating on at this time.

Whilst making predictions is hazardous, it appears that there are unlikely to be any moves to legislate on Bluetooth marketing at any time soon.

On a related note, Mobile Marketing Magazine reports that the Direct Marketing Association is advising its members to apply the same principles to Bluetooth marketing as marketers must by law apply when marketing using other electronic communications methods such as email and text message (see our guide to marketing by email).