Like many students and practitioners of intellectual property law, I am deeply saddened to learn of the death of Sir Hugh Laddie, formerly Mr Justice Laddie and one of the most influential IP judges of the last few decades. I was tempted to write a more lengthy review of his life, but I see that William Patry has temporarily returned from his blog exile to post a more fulsome and heartfelt tribute than I could ever manage.
I will, however, add a personal note. I became interested in law through supporting my wife in a court case over a very messy inheritance dispute. Such cases, especially where the estate is substantial, are tried by Chancery Division judges of the High Court, the branch of the judiciary that includes the Patent Court and its judges. So, as it happened, the judge who heard our case was none other than Mr Justice Laddie. I was later to read that one of the reasons he resigned from the bench was his discomfort at hearing cases outside what he felt to be his area of specialist expertise. If that was the case here then he showed no sign of it; indeed, as the central legal issue (undue influence) was one where the law is simple but weighing of the evidence is paramount, his incisive mind and firm grip upon proceedings served him well. As, for that matter, did his sense of humour during what was at times a distressing and unpleasant case for all concerned. (I fondly recall his anecdote to counsel regarding the difference between dementia and that common condition, 'male middle-aged inattention'.)
We won our case. It feels odd to say that I am grateful to Sir Hugh for that, as I feel we won because our cause was right. But I am grateful to him for approaching it in a manner that did full justice to our cause, and for igniting in me the spark of interest that led me to start studying law. As my technical background led me to IP, I soon discovered his wider claim to fame. But I'll always remember him best for his decision in Bradshaw v Hardcastle [2002] EWHC 2816 (QB).
Tuesday, 2 December 2008
Friday, 28 November 2008
The Telecoms Package: What Now and Where Next?
Following on from my previous post about the EU Telecoms Package, the vote in question took place this morning. Monica Horten, who is far more au fait with the minutiae of EU legislative procedure than I am, has given a very good write-up of what happened.
So, this isn't the end of the process. We now have the Council's view of what the Telecoms Package should be, as well as the Commission's view and the EU Parliament's view. All three bodies will now have to try to hammer out a compromise, and it's clear from Monica's report that there is much unease at the Council (i.e. national) as well as Parliament (direct representatives) level as to the way in which both Amendment 138 and its sibling Amendment 166 - which was dropped by the Council some time back - have been expunged. As I noted earlier, Recital 14a remains in the Universal Service Directive to urge proper due process via national legal systems, so with any luck questions will be asked as to why, if the Council is content to leave it in, there isn't some accompanying Article to ensure compliance with it?
As I see it, there are definitely further opportunities for lobbying and action. The Telecoms Package will have to finish its passage through the EU legislative process - Monica suggests this will probably be over the next few months - and the resulting amended Directives will have to be transposed into UK law over the subsequent two or three years. Our MEPs, MPs and Ministers are not off the hook yet.
So, this isn't the end of the process. We now have the Council's view of what the Telecoms Package should be, as well as the Commission's view and the EU Parliament's view. All three bodies will now have to try to hammer out a compromise, and it's clear from Monica's report that there is much unease at the Council (i.e. national) as well as Parliament (direct representatives) level as to the way in which both Amendment 138 and its sibling Amendment 166 - which was dropped by the Council some time back - have been expunged. As I noted earlier, Recital 14a remains in the Universal Service Directive to urge proper due process via national legal systems, so with any luck questions will be asked as to why, if the Council is content to leave it in, there isn't some accompanying Article to ensure compliance with it?
As I see it, there are definitely further opportunities for lobbying and action. The Telecoms Package will have to finish its passage through the EU legislative process - Monica suggests this will probably be over the next few months - and the resulting amended Directives will have to be transposed into UK law over the subsequent two or three years. Our MEPs, MPs and Ministers are not off the hook yet.
Wednesday, 26 November 2008
Whatever Happened to Amendment 138?
A couple of weeks ago I posted about my pro bono project for the Open Rights Group, analysing proposed changes to EU Telecoms law that might allow a 'Three Strikes' sanction against alleged file-sharers without recourse to due process of law. As became clear in preparing our final report, a key measure was Amendment 138, inserted by the EU Parliament in an effort to apply the rule of law to such measures. The EU Council is voting tomorrow on the Telecoms Package, but confusion has now arisen about whether Amendment 138 is still in play. What seems to have happened is that there has (in true EU style) been a lot of horse-trading going on as to the final text of the Telecoms Package that the EU Council is going to vote on tomorrow.
It's worth remembering that EU legislation is made in a complex and not very transparent way and that voting by MEPs in the EU Parliament is only part of the process. The final vote at the EU Council is by representatives of member state governments, all of which have their own agendas. Furthermore, it's not as if individual elements such as Amendment 138 get voted on line-by-line; instead, the final text (including amendments made by the EU Parliament) is argued over behind closed doors before a compromise is voted on by the Council. If you think this bears more resemblance to trying to pass a rule change through your local football club committee than getting a Bill through Parliament, you might not be wrong.
Looking at the final versions of the five amended EU Directives that form the Telecoms Package, it seems that yes, Amendment 138 (which made sanctions against 'unlawful content' subject to due process of law) has indeed disappeared. But so have some elements of another part of the Package that said that national telecoms regulators should regulate lawful and unlawful content. What was particularly worrying about those provisions was that they referred to another part of the Package that mandated co-operation between national regulators and telecoms industry providers - i.e. ISPs and the big telecoms carriers.
So, what we were looking at until now was a set of provisions buried within the Telecoms Package that said:
a) National regulators must promote lawful content.
b) National regulators must co-operate with ISPs.
c) Measures to do this must be by due process of law. (Amendment 138)
In the latest version, (c) is gone - but so is (a), leaving (b) more as a general mandate that regulators and the telecoms industry must work together, but not with a set 'stop unlawful content' agenda. In fact, the end result of the latest round of changes is to put much of the underlying legislation back to its current state, as first passed in 2002.
So does the Telecoms Package say anything at all now about due process? Actually, yes. At this point it should be noted that EU Directives work not by making law directly (well, not generally, but for EU law experts I am simplifying here) but instead by giving a template that each member state must then turn into national law. It does this by means of Articles, which must be turned straight into local law, and Recitals, which are more like explanatory notes of what the new law is meant to do. In theory a Directive should contain a list of Recitals explaining what the Directive is trying to do, followed by a set of Articles that lay down the laws to be made that will do it.
Here though, the relevant Articles have been amended or deleted so there is no specific one saying 'make a law guaranteeing due process for telecoms disconnection'. But the related Recital, inserted by the EU Parliament, is still there:
"In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the relevant authorities of the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful or not."
In other words, EU member states, when implementing the Telecoms Package, are strongly guided to do so in a way that relies on the rule of law and due process rather than delegating the whole thing to ISPs.
Where are we left after all this? If the current Telecoms Package passes on Thursday, it will have the desired safeguards removed, but it will also be rather watered-down. Instead of clearly laying down a Three Strikes policy, it now gives guidance to say that such measures must be subject to due process. Now this won't on the face of it stop a particular country from passing its own Three Strikes law if it wants to, although it will give a heavy hint that any such law must allow for due process. My own opinion is that the Three Strikes battle hasn't been won or lost this week - instead it's been moved to each EU member state to be fought locally.
But what this whole mess does highlight is the very opaque and convoluted process by which EU law is made. The EU is often described as suffering from a 'Democratic Deficit', with law-making processes that, as I noted above, more resemble those of a club than a nation. Given that the EU started out as a club, albeit of countries, that is not surprising - but if it is now acting like a super-state setting telecoms laws governing the net access of half a billion people, is this really a good way to carry on?
Finally, I'd like to thank Monica Horten at IPtegrity.com for essential and insightful analysis of the latest changes.
It's worth remembering that EU legislation is made in a complex and not very transparent way and that voting by MEPs in the EU Parliament is only part of the process. The final vote at the EU Council is by representatives of member state governments, all of which have their own agendas. Furthermore, it's not as if individual elements such as Amendment 138 get voted on line-by-line; instead, the final text (including amendments made by the EU Parliament) is argued over behind closed doors before a compromise is voted on by the Council. If you think this bears more resemblance to trying to pass a rule change through your local football club committee than getting a Bill through Parliament, you might not be wrong.
Looking at the final versions of the five amended EU Directives that form the Telecoms Package, it seems that yes, Amendment 138 (which made sanctions against 'unlawful content' subject to due process of law) has indeed disappeared. But so have some elements of another part of the Package that said that national telecoms regulators should regulate lawful and unlawful content. What was particularly worrying about those provisions was that they referred to another part of the Package that mandated co-operation between national regulators and telecoms industry providers - i.e. ISPs and the big telecoms carriers.
So, what we were looking at until now was a set of provisions buried within the Telecoms Package that said:
a) National regulators must promote lawful content.
b) National regulators must co-operate with ISPs.
c) Measures to do this must be by due process of law. (Amendment 138)
In the latest version, (c) is gone - but so is (a), leaving (b) more as a general mandate that regulators and the telecoms industry must work together, but not with a set 'stop unlawful content' agenda. In fact, the end result of the latest round of changes is to put much of the underlying legislation back to its current state, as first passed in 2002.
So does the Telecoms Package say anything at all now about due process? Actually, yes. At this point it should be noted that EU Directives work not by making law directly (well, not generally, but for EU law experts I am simplifying here) but instead by giving a template that each member state must then turn into national law. It does this by means of Articles, which must be turned straight into local law, and Recitals, which are more like explanatory notes of what the new law is meant to do. In theory a Directive should contain a list of Recitals explaining what the Directive is trying to do, followed by a set of Articles that lay down the laws to be made that will do it.
Here though, the relevant Articles have been amended or deleted so there is no specific one saying 'make a law guaranteeing due process for telecoms disconnection'. But the related Recital, inserted by the EU Parliament, is still there:
"In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the relevant authorities of the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful or not."
In other words, EU member states, when implementing the Telecoms Package, are strongly guided to do so in a way that relies on the rule of law and due process rather than delegating the whole thing to ISPs.
Where are we left after all this? If the current Telecoms Package passes on Thursday, it will have the desired safeguards removed, but it will also be rather watered-down. Instead of clearly laying down a Three Strikes policy, it now gives guidance to say that such measures must be subject to due process. Now this won't on the face of it stop a particular country from passing its own Three Strikes law if it wants to, although it will give a heavy hint that any such law must allow for due process. My own opinion is that the Three Strikes battle hasn't been won or lost this week - instead it's been moved to each EU member state to be fought locally.
But what this whole mess does highlight is the very opaque and convoluted process by which EU law is made. The EU is often described as suffering from a 'Democratic Deficit', with law-making processes that, as I noted above, more resemble those of a club than a nation. Given that the EU started out as a club, albeit of countries, that is not surprising - but if it is now acting like a super-state setting telecoms laws governing the net access of half a billion people, is this really a good way to carry on?
Finally, I'd like to thank Monica Horten at IPtegrity.com for essential and insightful analysis of the latest changes.
Monday, 24 November 2008
The Onward March of Technology...
... applies even to misconduct in the jury room. Ouija boards (as in R v Young (Stephen) [1995] QB 324) are clearly old hat, as the lazy or delinquent juror now has recourse to Facebook.
Leaving aside the fact that this person now faces the prospect of being charged with Contempt of Court, this once again highlights the way in which Facebook is so often used without any regard to the privacy settings available. My friend Pangloss has many a time lamented the way in which students in particular post all manner of personal details to social networking sites without considering who might see them - either now, or down the road when they're looking for jobs, and prospective employers are liable to make use of Google.
But what happens if and when we have security-conscious web users and genuinely anonymous net access? The current laws on jury process evolved when the only opportunity a juror had to seek outside advice was to go down the pub. How well will they work when user randomjuror53234 posts a query on an anonymised discussion board?
Leaving aside the fact that this person now faces the prospect of being charged with Contempt of Court, this once again highlights the way in which Facebook is so often used without any regard to the privacy settings available. My friend Pangloss has many a time lamented the way in which students in particular post all manner of personal details to social networking sites without considering who might see them - either now, or down the road when they're looking for jobs, and prospective employers are liable to make use of Google.
But what happens if and when we have security-conscious web users and genuinely anonymous net access? The current laws on jury process evolved when the only opportunity a juror had to seek outside advice was to go down the pub. How well will they work when user randomjuror53234 posts a query on an anonymised discussion board?
Monday, 17 November 2008
Caught in the Middle
via The Register - which runs the story under the by-line 'Magazine faces legal action for bowing to legal action' - news of how The New Statesman is being threatened with a libel suit via whistle-blowing site Wikileaks for removing, under legal threat, a link to a WikiLeaks article.
This sounds a rather odd course of action to me. For starters, removing a link to a story is a long way short of saying, or even clearly implying, that it is inaccurate. Furthermore, The New Statesman was presumably acting under legal advice and quite possibly in response to an interim injunction, in which case it would have been anything from inadvisable to illegal for it not to take down the link.
If Wikileaks does file a claim, I can see another court hearing coming up - an application for summary judgment and/or striking out.
This sounds a rather odd course of action to me. For starters, removing a link to a story is a long way short of saying, or even clearly implying, that it is inaccurate. Furthermore, The New Statesman was presumably acting under legal advice and quite possibly in response to an interim injunction, in which case it would have been anything from inadvisable to illegal for it not to take down the link.
If Wikileaks does file a claim, I can see another court hearing coming up - an application for summary judgment and/or striking out.
Friday, 14 November 2008
Opening Up the Telecoms Package for the Open Rights Group
My posting record has continued to be a bit thin of late thanks to the pressures of the Bar Vocational Course. (And if you're reading this in the UK, BBC 2's new series 'The Barristers' starts tonight, featuring the joys of the BVC). However, part of my work of late has been a pro bono project that came my way from the Open Rights Group, via Prof Lilian Edwards (aka Pangloss).
Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.
Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.
I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.
From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.
Detailed accounts of the background are given by ORG here and Prof Edwards here, but in a nutshell I was asked to review the latest batch of amendments to the core group of Directives governing EU telecoms law. In particular, my remit was to see what had happened to measures inserted by MEPs to ensure that disconnection sanctions - the so-called 'Three Strikes' measures - could only be implemented via due process of law. I was very helpfully assisted by Monica Horten of IpTegrity.com, whilst Judith Rauhofer at UCLAN provided useful advice and of course Prof Edwards oversaw the whole effort; I'm especially grateful to her for comments on the text as it developed and for putting together a very clear and forceful summary for our final report.
Our findings? Yes, there are elements of the Telecoms Package as it stands that raise serious concerns. In particular, some of the measures explicitly inserted by MEPs to ensure due process have disappeared, although it does seem that there are efforts being made to keep at least one in place. Also, some of the definitions of the sort of content or threat that would give grounds for communications providers to read traffic (with associated privacy concerns) are potentially very broad.
I feel I should make my own position clear. As an aspiring IP lawyer I think that copyright protection is a good thing - so long as it is properly regulated, clear in scope and applied under the aegis of the courts. To take an analogy with land law, the law of 'real' property, we regulate land ownership under a system that protects land-owners whilst at the same time recognising rights-of-way, providing for boundary disputes and setting legal constraints on how we deal with land-owners. I don't agree with those who scoff at the whole idea of IP, any more than I'd go along with ideas to allow anyone to do what they wanted on anyone else's land. But equally, nor would I support a proposal to allow large land-owners to take over all responsibility for controlling access to their estates, including the power to decide for themselves if a right-of-way or easement existed and to eject with extreme force anyone they considered might be trespassing. The proposed measures could well lead to providers flagging legitimate peer-to-peer filesharing or fair-dealing use of copyright material as being illicit, whilst denying those affected recourse to the courts to prove their legal rights.
From here on, it's over to the ORG to take this matter forward, and I return to the more mainstream BVC joys of the Civil Procedure Rules, sentencing policy and drafting Particulars of Claim. Oh, and with any luck maybe even posting some IP and technology law stories here - there have certainly been plenty of interest lately. But this has been a fascinating project to be involved with, as well as providing an at times alarming insight into the process by which EU law is made.
Wednesday, 22 October 2008
Rebel Without A Trade Mark
I have to take my hat off to the US Bureau of Alcohol, Tobacco and Firearms (as the old joke goes, it sounds like one heck of a fun corner shop) for its efforts to push IP law in bold new directions by seizing the registered trade mark of a biker gang.
“In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang,” said United States Attorney Thomas P. O’Brien. “The name ‘Mongols,’ which is part of the gang’s ‘patch’ that members wear on their motorcycle jackets, was trademarked by the gang. ... If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.”
Of course, US trade mark law is rather different from that in Europe. I can already see the spectre of Arsenal v Reed rising like, er, a rather naff example of biker jacket art, waving the banner of 'badges of affiliation'. After all, exactly what 'service' is a biker gang's logo being used in connection with? And is it in the course of trade?
“In addition to pursuing the criminal charges set forth in the indictment, for the first time ever, we are seeking to forfeit the intellectual property of a gang,” said United States Attorney Thomas P. O’Brien. “The name ‘Mongols,’ which is part of the gang’s ‘patch’ that members wear on their motorcycle jackets, was trademarked by the gang. ... If the court grants our request for this order, then if any law enforcement officer sees a Mongol wearing his patch, he will be authorized to stop that gang member and literally take the jacket right off his back.”
Of course, US trade mark law is rather different from that in Europe. I can already see the spectre of Arsenal v Reed rising like, er, a rather naff example of biker jacket art, waving the banner of 'badges of affiliation'. After all, exactly what 'service' is a biker gang's logo being used in connection with? And is it in the course of trade?
Monday, 29 September 2008
But Service in Person is still far more satisfying
The latest amendment to the Civil Procedure Rules comes into effect on Wednesday, and amongst other changes the legal system has acknowledged the White Heat of Technology and recognised that SMTP packets travel slightly faster than First Class mail. Current CPR 6.7(1), which says that for electronic methods other than fax, service of a claim is deemed to have taken place on 'The second day after the day on which it is transmitted' is to be replaced EDIT: for a document other than a claim form by new CPR 6.26, which defines service as taking place:
'If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent..'
UPDATE On a more careful read-through I see that the CPR amendment splits out service of Claim Forms from service of other documents. The above rule applies to documents other than claim forms; the revised rules for claim forms themselves actually slow down service, by applying the 'second business day' rule to all forms of service!
- in other words, the same as the rule for fax transmissions. Actually, on careful inspection I see that the fax rule has itself been updated to say that service happens on the same day if fax transmission is completed by 4.30p.m. So, if your accompanying Particulars of Claim are 43 pages long, don't send the trainee to the fax at 4.28...
UPDATE On a more careful read-through I see that the CPR amendment splits out service of Claim Forms from service of other documents. The above rule applies to documents other than claim forms; the revised rules for claim forms themselves actually slow down service, by applying the 'second business day' rule to all forms of service!
Wednesday, 17 September 2008
Why Not To Buy www.lloydstsbbarclaysrbsabbey.com
This BBC report notes how the sudden round of shotgun marriages in the banking and investment world has led some crafty individuals to register domains such as lloydstsbhbos.com and barclayslehman.com, presumably in the expectation that the post-merger banks - assuming that they are called that - will then have no choice but to pay whatever is asked in order to have a suitable domain name.
Funnily enough, this has been tried before. Many, many times; indeed, this particular scam predates the spread of the Internet. In Glaxo plc v Glaxowellcome Ltd [1996] FSR 388, a couple of company registration agents noted the announced merger of Glaxo and Wellcome and registered 'Glaxowellcome Ltd' as a company name, which they then offered to sell to Glaxo. Glaxo were unamused and sued successfully for passing off. As Lightman J put it:
"The court will not countenance any such pre-emptive strike of registering companies with names where others have the goodwill in those names, and the registering party then demanding a price for changing the names. It is an abuse of the system of registration of companies' names. The right to choose the name with which a company is registered is not given for that purpose."
The concept that such an abusive registration was an 'instrument of fraud' was seized on with enthusiasm by courts when looking at domain name hijacking, as in the leading case of British Telecom v One In A Million [1998] 4 All ER 476. Moreover, as resolution of domain name disputes has shifted from courts to ICANN-mandated resolution panels, such tribunals have readily adopted the doctrine that such pre-emptive registrations are abusive, as in America Online v Chris Hoffman, where the announced merger of Time Warner and AOL led the defendant to register timeforaol.com and other such domains.
Indeed, since the terms of service of domain name registrars invariably include a condition that any dispute is resolved under the ICANN Uniform Domain Name Dispute Resolution Policy, anyone trying this trick is unlikely to even have the chance to argue in court. Instead, they'll have to go to an ICANN-approved tribunal that is, on the evidence of AOL and similar decisions, likely to take such registration as prima facie abusive.
So, I wouldn't bid on www.barclayslehman.com if I were you. It's likely to be an even worse investment than Lehman stock turned out to be...
EDIT: I commented on this on BoingBoing when it linked to a similar story. I am indebted to BB user Tubman for pointing out that the value of such speculative sites these days rests on the advertising opportunities they provide. Even if (for example) www.lloyds-tsb-hbos.co.uk is doomed to be taken down, it might generate a lot of ad revenue on the way. So maybe such sites are a better bet than I thought - especially now that shorting bank stocks has been banned! In broader terms, this is an excellent example of how the dynamics of e-commerce can change, with measures aimed at protecting the long-term value of a domain becoming irrelevant in the face of its short-term earning potential.
Sunday, 7 September 2008
It's The Data Protection Act, not the Say Nothing To Anyone Act
If you were thinking it had become a little quiet around here then you were right - I've spent the last week in the induction phase of the Bar Vocational Course. After a year doing an LLM that was concerned with specific areas of almost entirely civil law I am having to revisit the whole wider legal spectrum, including that 'criminal' stuff I dimly remember from W201. However, this doesn't mean any less interest in lawblogging on IT and IP law; to the contrary, I am keen to keep myself abreast of my intending area of specialisation.
Something that did catch my eye last week was this story on how Marks & Spencer claimed that the Data Protection Act meant that it could not talk to the mother of a child who had received a defective Superman costume as a gift and insisted on speaking directly to the seven-year-old boy himself. As this item in The Times notes, this is just the latest in a depressingly long line of examples of how the DPA is being misinterpreted and overzealously applied whilst agencies of HM Government - who really should be applying its requirements stringently - repeatedly mislay vast swathes of sensitive personal data. For my part, I would go further; it is hard to avoid the suspicion that the DPA is being invoked to excuse laziness, conceal incompetence and in some cases to indulge in pure administrative bloody-mindedness. In one instance I'm personally aware of, a building management company refused to release financial records on income and expenditure on the grounds of 'data protection' despite the clear statutory requirements of ss.21-22 Landlord and Tenant Act 1985 to do so. In the M&S case, surely common sense should have dictated that the parent or guardian of a minor is the appropriate person to speak to? But no, the bogeyman of Data Protection is offered up instead.
In wider terms, this is symptomatic of a worrying tendency (I almost said 'trend', but I suspect it has long been thus) for people to assume that, because they are dimly aware that a certain area is regulated by law, any conduct impinging on that area is forbidden. The more that the legal regulation is publicised, the more prevalent and extensive this assumption becomes. We see this in the vexed issue of public photography, where anti-terrorism campaigns and hysterical news coverage have had the (I hope) unintended effect of convincing security guards and members of the public that anyone with a moderately decent camera is either a terrorist or a paedophile. Unfortunately, this suggests that the more we see of well-justified news stories about data protection failings, the more we might hear of shop assistants invoking the DPA.
Something that did catch my eye last week was this story on how Marks & Spencer claimed that the Data Protection Act meant that it could not talk to the mother of a child who had received a defective Superman costume as a gift and insisted on speaking directly to the seven-year-old boy himself. As this item in The Times notes, this is just the latest in a depressingly long line of examples of how the DPA is being misinterpreted and overzealously applied whilst agencies of HM Government - who really should be applying its requirements stringently - repeatedly mislay vast swathes of sensitive personal data. For my part, I would go further; it is hard to avoid the suspicion that the DPA is being invoked to excuse laziness, conceal incompetence and in some cases to indulge in pure administrative bloody-mindedness. In one instance I'm personally aware of, a building management company refused to release financial records on income and expenditure on the grounds of 'data protection' despite the clear statutory requirements of ss.21-22 Landlord and Tenant Act 1985 to do so. In the M&S case, surely common sense should have dictated that the parent or guardian of a minor is the appropriate person to speak to? But no, the bogeyman of Data Protection is offered up instead.
In wider terms, this is symptomatic of a worrying tendency (I almost said 'trend', but I suspect it has long been thus) for people to assume that, because they are dimly aware that a certain area is regulated by law, any conduct impinging on that area is forbidden. The more that the legal regulation is publicised, the more prevalent and extensive this assumption becomes. We see this in the vexed issue of public photography, where anti-terrorism campaigns and hysterical news coverage have had the (I hope) unintended effect of convincing security guards and members of the public that anyone with a moderately decent camera is either a terrorist or a paedophile. Unfortunately, this suggests that the more we see of well-justified news stories about data protection failings, the more we might hear of shop assistants invoking the DPA.
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