A growth in counterfeit goods was widely reported in the run up to Christmas last year. If you have a strong brand for your products or if you are selling products that are leading brands, you cannot afford to ignore the risks of counterfeit products appearing within the markets in which you operate.

There are a number of measures that can be taken to prevent counterfeiting.

Protect your intellectual property rights

The first step in preventing counterfeiting is to make sure that your intellectual property rights are protected.  If you have not done so already, you should obtain legal advice to ensure that you are adequately protected.

Intellectual property is a collection of distinct legal rights, each protecting different components of the creativity, innovation and investment which its owner’s work represents.

As a simple rule of thumb:

• patents apply to inventions only, and not names, titles, logos or literary or artistic works;
• trade marks protect names or logos;
• designs protect the outward appearance of your product and packaging, including colours, shape, texture, decoration, lines and materials;
• passing off aims to prevent anyone falsely presenting their goods or services as someone else’s goods or services;
• copyright protects literary and artistic works, as well as films, television programmes and music.

Patents, trade marks and registered designs must be registered in order to obtain protection.  Having a registered intellectual property right can make enforcement of your intellectual property rights easier.

An appropriately qualified lawyer can work with you to create a system of checks that allow new intellectual property to be identified early, protected through confidentiality and, where possible, registered.

Create an awareness of intellectual property rights in your organisation

Raising and maintaining awareness of issues relating to intellectual property is essential.  Your staff will then have a better understanding of how the products that they sell and/or manufacture are protected.  They will also be better able to recognise when intellectual property laws are being broken and this may help to increase awareness of any counterfeit products that may be being sold.

Managing supply chain

You should use business information agencies and Companies House (or its equivalent in other countries) to check your suppliers, manufacturers, subcontractors, distributors are legitimate and of good standing.

Make sure that you only buy genuine materials and goods and keep records of your purchases.  Advise your suppliers that you only accept genuine materials and goods.

You should use contracts in your supply chain to protect your rights and to control the risk of counterfeiting. It is always important to start thinking, at an early stage, how your rights will be used.  Licensing provisions in agreements should determine the scope of their permitted activities and will allow the owner of the intellectual property rights to control how their rights are used.

Once contracts are signed the work should not stop.  Regularly check compliance.  For example, you can use “mystery shopping” to buy back products that you have sold to distributors and check that the products are priced, packaged and labelled correctly and lawfully.

Ensure that waste products are securely disposed of and destroyed to avoid them being used to develop or sell counterfeit products.

Regularly check well known internet sites, for example auction sites, and report anyone breaking the law on counterfeiting to the owner of the sites.

Packaging and product design

It is important that products and their packaging are designed so that they cannot easily be copied.  This can include complicated labels or parts that are difficult to produce.  This can increase production costs, but this can be balanced with losses that you may suffer from counterfeiting.

Customers are increasingly adept and using packaging and design to identify and authenticate products to ensure that they are buying a genuine article.

Also clear and distinctive packaging with contact information will help police and other enforcement agencies to look out for counterfeiters’ products.  Counterfeiters may seek to cut costs in areas of packaging and labelling – enforcers often look out for poor quality printing and packaging to distinguish between the fake and the genuine.

It sounds obvious, but you should also ensure that the information is free from grammatical and spelling errors – these are common on counterfeit goods!

Educate your customers

Imitation is a form of flattery.  It shows that you have a leading brand.  Customers will want to “buy into” the exclusivity of that brand.

Businesses are, therefore, increasingly educating their customers about the existence and dangers of buying counterfeit products.  You can find ways of reassuring customers that the products that they are purchasing are genuine.  Business such as Uggs (click here) provide guidance on websites to warn people of the risks and dangers of purchasing counterfeit products and identifying ways in which genuine products can be distinguished from counterfeit products, by reference to the design of the product and packaging.

Notify appropriate authorities of any suspicions

You should get the appropriate authority involved as soon as possible if you suspect counterfeiting.  In the UK, counterfeiting may involve a number of crimes being committed, so there are a number of ways that criminal law may be applied.  The main authorities are the police, trading standards (local government officers) and customs (as appropriate) and/or the United Kingdom Border Agency.

If you would like more information in relation to any of the issues discussed in this article, please contact Tom Torkar, an Associate in the Technology, Media and Communications Team, at tom.torkar@michelmores.com.

Anyone who works in HR will know how quickly changes come about in Employment Law, and how hard it is to keep up with them all. With that in mind, the Michelmores Employment Team has created a weekly newsletter that encapsulates the most significant Employment Law developments of the last 7 days. The Weekly Update will be sent out around midday on Monday, so be sure to keep an eye out for it!

Employer Failed to Make Adjustments to Redeploy Potentially Redundant Employee

London Borough of Southwark v Charles [UKEAT/0008/14]

Background

Employers have a duty to make reasonable adjustments to help disabled job applicants and employees in certain circumstances. It is for an Employment Tribunal to determine, objectively, whether a particular adjustment would have been reasonable to make in the circumstances.

Facts

The Claimant was employed by London Borough of Southwark (‘Southwark’). He was informed that his role was redundant and he commenced the process of applying for alternative jobs within Southwark. During this time, he was diagnosed with a sleep disorder, and was signed off sick for three months with resulting depression. Southwark was informed of the Claimant’s disability and referred him to its occupational health provider, which advised that the Claimant was ‘not fit to attend administrative meetings’.

However, despite the above, Southwark required the Claimant to attend interviews in order to decide whether he was suitable for the alternative jobs on offer. When the Claimant did not respond to these requests, Southwark confirmed that his employment would terminate ‘in the absence of receiving an expression of interest from you regarding vacancies’ and ‘no indication as to whether you are able to attend interviews’.

The Claimant brought claims for unfair dismissal and disability discrimination, the latter of which was successful at Tribunal.

Judgment

The Employment Appeal Tribunal (‘EAT’) dismissed Southwark’s appeal, and held that Southwark’s practice in requiring those in the redeployment pool to attend interview for potential redeployment posts was a practice which put the Claimant at a substantial disadvantage, because he could not attend interview to demonstrate that he was qualified for the jobs available. Southwark knew that the Claimant suffered from a significant disability in the form of an inability to attend administrative meetings, which the EAT deemed to include interviews for jobs.

Tips for Employers

This case demonstrates that a requirement to attend an interview has the potential to disadvantage a disabled employee. It also raises the question as to how an employer can make reasonable adjustments to remove that disadvantage. The EAT has made it clear that an employer does not need to automatically appoint the employee to the post. It will be for the employer to consider how it can assess the disabled employee alongside other candidates.

TUPE: Service Provision Changes

Horizon Security Services Limited v (1) Ndeze (2) The PCS Group

The Facts

PCS, a security contractor, was engaged by Workspace Plc to provide security services on land owned by the London Borough of Waltham Forest (‘the Borough’). The Borough subsequently reclaimed the site from the company and engaged a new security contractor (Horizon) to look after the site, for a limited period of 8 to 9 months, pending its demolition.

The question put to the EAT was whether this amounted to a Service Provision Change (‘SPC’) under Regulation 3(1)(b).

The Judgment

The EAT held that there was no SPC. A fundamental rule relating to SPCs is that the client for whom the services are provided must be the same. In the present case, the client had changed. The original security contractor, PCS, was working for Workspace Plc. However, PCS’s replacement, Horizon, was working for the Borough, which was a different legal entity. Therefore, the SPC rules did not apply and the employees of PCS were not entitled to transfer to Horizon.

The EAT further stated that SPC TUPE transfers cannot occur where the client intends the contract to relate to an event or task of short term duration. The contract that had been given to Horizon was of limited duration, in order that the site was looked after pending its demolition. This was a second reason why there was no SPC in this case.

Tips for Employers

This case is a useful reminder for employers that there will be no SPC where the client, to whom services are being provided, has changed.

Injury to Feelings Award of £10,000 was Not Supported by Facts

The Cadogan Hotel Partners Ltd v Ozog [UKEAT/0001/14]

Background

The Equality Act 2010 states that compensation for discrimination may include compensation for injured feelings. However, the legislation provides no guidance as to how a Tribunal should evaluate injured feelings.

The leading case of Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards.

The Facts

The Claimant was employed by Cadogan Hotel Partners Ltd (‘Cadogan’). She alleged that the new head waiter had touched her inappropriately by kissing her arms, asked her whether she had a boyfriend, and had approached her with his trousers undone, asking her “Do you want this body?”

At the Employment Tribunal, the Judge had made an award for injury to feelings which fell into the middle Vento band. However Cadogan felt that the Tribunal had made an excessive award which did not correlate with the effect that the acts had made to the Claimant’s feelings. Cadogan appealed to the EAT.

The Judgment

The EAT found that the Employment Tribunal had incorrectly focused on its own view of the discriminatory conduct, rather than looking at the effect it had actually had on the Claimant, which had never gone beyond making her feel ‘very uncomfortable’.

The EAT highlighted that awards for injury to feelings should be compensatory and should not be used to punish employers. Therefore, the EAT reduced the original award for injury to feelings that the Employment Tribunal had awarded.

“More efficient”. “Clearer”. “More accessible”. These are the aims of the new Intellectual Property Act 2014 (the “Act”), due to come into force in October 2014. Having received royal assent on 14 May 2014, the Act comes as the response to the Hargreaves Review of IP and Growth in 2011, which set out recommendations for the modernisation of the Intellectual Property (“IP”) system in the UK. 

Many of the provisions, which focus predominantly on patents and designs, will align IP law in England and Wales with European (“EU”) law and provide for ever increasing harmonisation in the future. 

Some of the key provisions of the Act are set out below.

Patents:

• The introduction of a single ‘unified’ patent to be obtained across the 25 participating EU states through one application process. 
• More efficient communication between the UK Intellectual Property Office (“IPO”) and its counterparts overseas, to enable offices to share unpublished patent information. 
• The ability to mark a product with a website link which specifies its patent number, reducing the likelihood of successful defences of ‘innocent’ infringement. 
• Expansion of the remit of the IPO’s Opinions service to provide impartial assistance in relation to a greater range of issues.

Unregistered design rights:

• A designer is to be the owner of unregistered design rights rather than the commissioner (excluding employer) of the design. 
• Greater clarity in respect of the qualifying countries in which the ‘commonplace’ aspect of designs is to be assessed. 
• Limitation of the definition of unregistered design to prevent protection of ‘trivial’ features of a design.
• Extension of the concept of ‘qualification’ of creators of unregistered designs to cover all those who are economically active in the EU.

Registered designs:

• Deliberate copying of a UK or EU registered design, in certain circumstances, will now be a criminal offence. 
• New limited defence of ‘prior use’ to allow good faith third parties to continue using their designs, notwithstanding any subsequent registration by a third party.
• Exemption from copyright infringement for legitimate use of registered designs.
• New IPO Opinions service, similar to the non-binding service available for patents, to cover registered designs, with the possibility for this to also be extended to unregistered design rights. 
• Limitation of the defence of ‘innocent infringement’, to allow registered design owners to make a claim for some or all of the profits gained by the infringing party.
• New enforcement powers for Trading Standards in relation to design offences, to tally with the powers already in place for copyright and trade marks. 

The Department for Business, Innovation and Skills anticipates that the Act will “help businesses to better understand what is protected under the law, reduce the need for costly litigation and provide greater certainty for investors in designs and technologies”. Certainly the removal of unnecessary ‘red tape’ and the introduction of more efficient online services will be welcomed by businesses across the UK, who invest heavily in IP protection and lament the uncertainties fostered by the current system. 

Given the extensive changes to come into force from October 2014, it is important that businesses fully acquaint themselves with the provisions of the Act and understand how these will affect them. Whilst the Act introduces several new protections, it also establishes numerous restrictions (including criminal sanctions) which businesses must consider in order to avoiding falling foul of the changing legal landscape. 

Now is an ideal time for businesses to undergo an IP ‘health check’, prior to the scheduled October changes. This will help to ensure that their intellectual property portfolio is best protected and their key personnel are up to date with the new legislation. By being fully informed, businesses can then make the most appropriate choices about how to deal with their IP rights and respond proactively in the event their own rights are infringed or they are accused of infringement themselves. Although the IP system can be complex, with the right advice, businesses can simply and effectively use the legislative framework to their legal and commercial advantage. 

For further information on the issues raised in this article, please contact Tim Richards, (Partner) at tim.richards@michelmores.com or David Thompson (Associate) at david.thompson@michelmores.com 

Search engines obliged to remove links to inadequate, irrelevant, no longer relevant, out of date, inaccurate and / or excessive personal data

The Google Spain decision has confirmed that search engine providers must take down or erase information and links if a data subject complains that the personal data therein is inadequate, irrelevant, no longer relevant, out of date, inaccurate and / or excessive. This applies irrespective of whether the personal data was lawfully posted on a third party website and / or the data subject has been prejudiced by the information or link. The only exemptions to this in the UK are the pre-existing exemptions under the Data Protection Act 1998 (“DPA”) and if there is an overriding public interest in the personal data remaining in the public domain. The Information Commissioner’s Office (“ICO”) has suggested that such overriding interest depends “on the nature of the information in question and its sensitivity for the individual’s private life. It will also depend on the interest in communicating the information to the public, an interest which may vary, according to the role played by the data subject in public life”.

The Google Spain decision is seen as a landmark case as it confirms that:

• search engines are not a neutral intermediary – they are data controllers subject to data protection laws; and
• non-EU operators with a small branch or subsidiary in the EU are covered by EU data protection legislation. This may be the main effect of the Google Spain case. Google unsuccessfully argued that as the physical server processing data was located outside Europe, EU data protection rules did not apply to the search engine.

Google have published an online form for disgruntled data subjects to complete if they want links removed. This includes the data subject explaining how the URL “in search results is irrelevant, outdated or other inappropriate”. Google suggest there is a public interest in “information about financial scams, professional malpractice, criminal convictions, or public conduct of government officials” remaining in the public domain.

The ICO has made clear that:

• search engine providers will have a “reasonable time to put their systems in place and start considering requests”;
• if the search engine provider refuses to remove a link, the data subject should contact the ICO to determine if the search engine provider is lawfully maintaining the link;
• it will initially focus on “concerns linked to clear evidence of damage and distress to individuals”. This is significantly narrower than the European Court of Justice (“ECJ”) judgement. The ECJ specifically ruled “that it is not necessary….that the inclusion of the information in question in the list of results causes prejudice to the data subject”; and
• the original newspaper articles will remain in the public domain. It is simply the Google and other search engine links to the articles that are to be erased. This has prompted the ICO to advise that “A ‘right to be forgotten’ will still be difficult in practice….we have to be realistic about how difficult it can be to completely remove all traces of personal information online”.

Nathaniel Lane is a Solicitor in Michelmores’ Technology, Media and Communications Team who has an ISEB Certificate in Data Protection. For further information on this matter or data protection generally, please contact Nathaniel at nathaniel.lane@michelmores.com or on 0207 788 6313.

On Friday 31 January 2014, House of Fraser lost its trade mark dispute with Jack Wills over the use of logos on its ‘Linea’ brand of casual clothing. The Jack Wills logo in question comprises a silhouetted side profile of a pheasant wearing a top hat and holding a cane. The judge held that the use of House of Fraser’s own logo, a silhouetted side profile of a pigeon wearing a top hat, was an infringement of Jack Wills’ registered UK and Community trade marks.

To successfully protect its trade mark and prove infringement, Jack Wills had to prove the satisfaction of six conditions under Article 5(1)(b) of the European Parliament and Council Directive 2008/95/EC to approximate the laws of the Member States relating to trade marks (the ‘Directive’):

• there must be use of a sign by a third party within the relevant territory;
• the use must be in the course of trade;
• it must be without the consent of the proprietor of the trade mark;
• it must be of a sign which is similar to the trade mark;
• it must be in relation to goods or services which are similar to those for which the trade mark is registered; and
• it must give rise to a likelihood of confusion on the part of the public.

The judge, Mr Justice Arnold, had to decide whether House of Fraser’s use of its pigeon logo was an infringement of Jack Wills’ trade mark rights. In considering the infringement of a registered trade mark, he acknowledged that a claim for passing off ‘stands or falls’ in line with the Article 5(1)(b) criteria so made no further references to passing off in his judgment. Mr Justice Arnold made the following observations:

• in deciding whether there was likely to be confusion, the average consumer varied “in age and socio-economic class”;
• the Jack Wills logo had acquired distinctiveness to a proportion of this class of people, which would increase confusion, although the average consumer class must be looked at as a whole;
• the court could consider the objective effect of the use of a similar sign (i.e. reputation and goodwill), not only the subjective intention to exploit the logo; and
• positive evidence was not required to show economic activity of consumers was affected, logical deductions could be made. 

This judgment clarified several aspects of trade mark infringement case law. Mr Justice Arnold took the opportunity to articulate the characteristics of unfair advantage and moved away from previous case law, which focused on the intentions of the defendant, towards the objective effect of the trade mark’s use (i.e. that the trade mark is used to take unfair advantage of the previous well-known mark).  The judge also revisited the concept of the ‘average consumer’ in relation to confusion, as he did in the 2013 case of Interflora Inc v Marks & Spencer plc. He held that the average consumer must still be viewed as a whole (in this case a consumer of clothing), despite the differing demographic of consumers for the brands in question. On that basis, the judge rejected House of Fraser’s submission that the ‘average consumer’ was ‘a 16-24 Jack Wills devotee’. This reaffirmed the clear message that the definition of ‘average consumer’ is broad when considering a likelihood of confusion. 

As Jack Wills had registered the logo in dispute as a trade mark, it could rely on the Directive and did not have to fulfil the higher evidential burden required for a passing off claim.

The three requirements of the ‘classical trinity’ test for passing off, as set out in the ‘Jif Lemon’ case Reckitt & Colman Products Ltd v Borden Inc., are as follows

• goodwill or reputation attached to the goods or services;
• misrepresentation by the defendant likely to lead to confusion of the public; and
• damage to the claimant as a result of the defendant’s misrepresentation.

To fulfil this test, claimants seeking to rely on passing off must first prove ownership and a significant established goodwill in the unregistered trade mark which members of the public associate with the owner’s business. In contrast, for registered trade marks, only a likelihood of confusion must be proven, the first two limbs of the ‘classical trinity’ test fall away. 

The requirements for passing off place a heavier burden on the owners of unregistered trade marks and therefore this is an incentive for manufacturers and retailers to use registered trade marks to protect their intellectual property rights. Although not discussed in the judgment, it would have been interesting to see whether Jack Wills would have been able to make against House of Fraser.

Trade mark protection is a key consideration for manufacturers and retailers and should always be investigated. Preventative measures, such as trade mark searching and raising brand awareness, should be considered to strengthen a business’ position. We would recommend all businesses, large and small, remain vigilant to competitors’ activities and always seek advice at an early stage.

For further information on the issues raised in this article, please contact Tim Richards, Partner at tim.richards@michelmores.com or Associate David Thompson at david.thompson@michelmores.com.

The Michelmores and Western Morning News Property Awards are the region’s premier property competition, showcasing the very best in West Country property projects, buildings and firms.

The Residential Project of the Year 40 Units and Under category is sponsored by Taylor Lewis. Gilbury Hill, Lostwithiel, Cornwall was annouced the winner at a Gala Dinner at St Mellion International Resort on May 8th 2014.

Watch what our judges had to say…

Shortlist 2014

Gilbury Hill, Lostwithiel, Cornwall

Nominated by Wycliffe Estates

Project Value: £4.1m

Gilbury Hill is a development of 32 houses and apartments on the outskirts of Lostwithiel.  The aim of the project was to provide affordable homes to families with a local connection to the town.  To ensure the homes truly were affordable, 16 were sold at 50% discount with no shared equity and no claw back agreement. These properties remain saleable but only at the same restricted percentage of the current open market value, and only to families with local connections to Lostwithiel.

There was no design or material difference between the open market and affordable properties on the development, and all homes built exceeded Code for Sustainable Housing Level 3.  This makes all the homes sustainable and environmentally-friendly.

A strong palette of materials includes stone, slate, render, a grey finish to windows and doors, and external fittings of stainless steel or aluminium attempt to create a timeless look. The properties use underfloor heating and air source heat pumps help to make each economic and efficient to run. The design of the buildings and the flow of the site have created a real sense of community and village feel. By not being overly dense, the scheme has achieved a high level of natural openness and light. All the properties have large gardens and the apartments benefit from an abundance of open space.

By helping local people to move out of rented accommodation or family homes into their first wholly owned home, the development has enabled Lostwithiel to keep young professionals within the community, supporting local business and schools.

Castle Gardens, Shaftesbury, Dorset

Nominated by Blue Cedar Homes

Project Value: £6m

Castle Gardens is a scheme that is unusual in its concept and unique in Shaftesbury. The development provides nine freehold houses of varying sizes, together with six spacious apartments specifically designed for people aged 55 years and above.

The properties are designed to be readily adaptable for the changing needs of older residents, whilst appealing to a wide spectrum of ages and lifestyles for people of retirement age. The design philosophy within the properties ensures that all the rooms are well proportioned and spacious in order that downsizers do not have to compromise in terms of their accommodation, when they simply need fewer rooms rather than smaller ones. Each house is designed so that the ground floor can readily be adapted to create a self-contained living area with a bedroom and shower room, suitable for someone in a wheelchair. 

Externally, the combination of natural stone, render, slate and conservation style tiles fits extremely sensitively into the Conservation Area. A major benefit of the site is the setting of substantial trees around the entire development, and these were sensitively dealt with to create a mature setting for the buildings and both the communal and private gardens.

Castle Gardens is located at the same level as Shaftesbury’s High Street, providing a very short and level walk through the adjoining park to all the shops and facilities of the town. The scheme benefits from excellent views across Blackmore Vale, and part of the communal gardens are located within the grounds of the adjoining Protected Ancient Monument known as “The Castle”. 

Meadow Flats, St. Ives, Cornwall

Nominated by Poynton Bradbury Wynter Cole Architects

Project Value: £4.6m

Meadow Flatscomprises sheltered accommodation units at Porthmeor Beach, St Ives consisting of 26 two-bedroom accessible homes with rooftop residents’ lounge and underground parking. 

Constructed on behalf of Devon and Cornwall Housing Association, Meadow Flats are located adjacent to Tate St Ives on a highly restricted site. The buildings were all designed to high sustainability standards meeting the Code for Sustainable Homes Level 4.

The aim of the project was to create accessible, affordable homes for the most vulnerable elderly residents in St Ives. Meadow Flats replaces a series of smaller sheltered accommodation units, constructed in the 1960’s that were suffering from subsidence and damp, compounded by poor access.

The project addressed St Ives’ chronic shortage of sheltered accommodation while at the same time providing quality accommodation and an undisrupted sea view putting older members of the community in the very highest standard of accommodation.

The Meadow Flats Project has become a ‘game changer’ for rented sheltered accommodation in the area. It demonstrates that apartments with shared facilities offer a great way for older members of the community to enjoy life to the full. This includes space for mobility scooter parking, lifts and level access decks with shared courtyard spaces. The project has also enabled Tate St Ives to expand on the land to the rear.

Because of the stunning sea views, the award entry concludes: “Visitors are astounded to learn that the apartments provide sheltered accommodation rather than ‘millionaires’ penthouses.”

The Chardstones, Chardstock, Devon

Project Value: £2.5m

Nominated by Jameson Homes

The Chardstones comprises a scheme of ten individually designed homes on two sites within the picturesque village of Chardstock, near Axminster.

The aim of the project was to deliver high quality residential developments which seamlessly integrate into and enhance the village, providing homes designed with individuality and top-end specification and construction throughout.

Two shared ownership affordable homes have been provided as part of the project specifically to meet identified housing need within the village.

The external appearance was crucial to the success of the overall project, drawing on traditional features and blending vernacular architecture with modern construction techniques and materials. Individuality and attention to detail were carried throughout the interiors of each plot with the inclusion of bespoke kitchen and bathrooms.

The scheme provides a diverse mixture of housing in terms of size, design, price and tenure, with both sites adjoining the boundary of the village Conservation Area. The challenge to the designers was to deliver a development of the highest quality, blending traditional features with the contemporary elements of light airy spaces and open plan living.

The developers opted for a simple palette of traditionally and locally sourced materials, principally natural chert stone and a mixture of roughcast and smooth colour washed render to provide subtle variety and an individual identity to each dwelling. Limited elements of rustic horizontal weather boarding were also introduced to complete the rural appearance.

Summary

This year’s enforcement action at the Information Commissioner’s Office (“ICO”) has continued to largely focus on breaches of the 7th data protection principle (“7th DPP”), which provides for appropriate technical and organisational measures to be taken against unauthorised or unlawful processing of personal data.

Enforcement Actions

The British Pregnancy Advice Service (“BPAS”) was issued with a monetary penalty notice (“MPN”) of £200,000 for not knowing the personal data it held, and allowing a malicious hacker to exploit security vulnerabilities in their website to access the names of 9,000 people who had sought the BPAS’ advice on abortion, pregnancy and contraception. The BPAS obtained an injunction to prevent publication of the information. Nonetheless, the BPAS’ actions breached the 5th data protection principle (governing how long personal data may be held) and were a serious breach of the 7th DPP.

The Department of Justice Northern Ireland (“DoJ NI”) was issued with an MPN of £185,000 due to a failure to check what was in a locked filing cabinet that the DoJ NI sold without a key. This re-enforces previous MPNs, confirming that data controllers must check that any electronic or physical equipment does not contain any personal data or sensitive personal data before it is disposed of or sold.

Kent Police was issued with an MPN of £100,000 for failure to remove highly sensitive information from an old police station. As per the Stockport Primary Care Trust MPN, data controllers must, at the very least, fully clear premises of all personal data (particularly sensitive personal data) where those premises are being decommissioned, vacated or sold.

The need for guidance and training on how sensitive personal data should be handled and kept secure when taken outside of the office was illustrated by the undertaking Neath Care was required to provide to the ICO following a member of the public finding the files of 10 vulnerable and elderly people in the street.

The ICO issued enforcement notices against Isisbyte Limited and SLM Connect Limited for making nuisance calls while failing to correctly identify themselves.  Companies making live marketing calls breach the law by ringing individuals registered with the Telephone Preference Service.

There have also been prosecutions regarding failure to register as a data controller (which itself is a criminal offence) and unlawfully obtaining personal data.

Lessons for data controllers

It goes without saying that you can learn from the mistakes that others have already made. The MPNs show that regulatory ‘hot spots’ include accidental loss or theft of data, human error, lack of training, misdirected communications and lack of sufficient policy.  Data controllers should use the subject matter of MPNs and undertakings to:

• ascertain the types of data being handled;
• understand the legal obligations regarding such data and have appropriate guidance, procedures and training in place to mitigate risk; and
• avoid breaching the DPA (particularly the regulatory ‘hot spots’) and ensure there is an effective recovery plan in place in the event a data protection breach arises.

The BPAS MPN shows cybersecurity is likely to be increasingly important in the ICO’s eyes. The Sony and BPAS MPNs should act as warnings to all data controllers that fines for breaching the 7th DPP are not limited to misdirected communications and stolen or lost data (including use of unencrypted portable electronic devices).

If the proposed Data Protection Regulation is passed by the Council of Ministers with no or minor changes, the regulatory sanctions will be even more severe.

Nathaniel Lane is a Solicitor in Michelmores’ Technology, Media and Communications Team who has an ISEB Certificate in Data Protection. For further information on this matter or data protection generally, please contact Nathaniel at nathaniel.lane@michelmores.com or on 0207 788 6313.

The Michelmores and Western Morning News Property Awards are the region’s premier property competition, showcasing the very best in West Country property projects, buildings and firms.

The Residential Project of the Year 41 Units and Over category is sponsored by Kier Western. Beechfield View, Torquay was announced the winner at a Gala Dinner at St Mellion International Resort on May 8 th 2014.

More about what our judges had to say…

Shortlist 2014

Beechfield View, Torquay

Nominated by Torbay Development Agency

Project Value: £20m

This is the second short list achieved by Beechfield View, already having been recognised in the category of Eco Project of the Year.

The objective of the project was the delivery of a flagship mixed tenure sustainable eco-development following a full analysis of housing need in Torbay.  The idea was to identify the best possible mix of tenures to create a mixed and balanced community, including disabled people, key workers, older people, couples and families.

The result is 144 much needed homes for different types of occupant and includes 25 apartments for the over 55s with priority to local residents wishing to downsize; 16 general needs rented apartments and 16 houses; 20 intermediate rent apartments with priority to keyworkers; 15 shared ownership apartments and 2 houses; 32 open market sale apartments and 10 houses, plus 8 wheelchair adapted dwellings that were bespoke for specific clients.

Low-carbon, energy- efficient design is geared towards reducing energy bills, using a number of renewable energy components including photovoltaic roof tiles and a mechanical ventilated heat recovery system that recycles heat within each home.

The design of the homes is eye-catching and unusual, including large overhanging eaves, deep window reveals, wing walls with wrap-around balconies and a good quality finish.

While it has a contemporary feel, the natural stone which is a key feature throughout the development has been particularly well received by residents, planners and the wider community.

The finished development has a distinctive and striking character, where the build form complements the landscape, with split level housing and underground car parking successfully balancing the topography of the site.

Frobisher House, Plymouth

Nominated by Midas Construction

Project Value: £5m

Frobisher House is an eight-storey student accommodation complex located in the heart of Plymouth City Centre amid Plymouth University’s main teaching facilities.

The project aim was to address the growing need for additional student accommodation in Plymouth whilst regenerating an integral part of the city centre. Outdated and crumbling buildings needed to be removed and replaced with a modern new structure which would both embrace its environment and improve the city skyline.

Following demolition of the existing buildings, construction began to create the unusually laid-out student complex which has been built on two separate sites divided by a narrow road. The complex includes 112 en-suite study bedrooms arranged into 17 cluster flats within a six-storey block, and a further 22  bedrooms configured in flats in a three-storey block on the other side of adjacent Trafalgar Road.  The development also includes a supermarket store on the ground floor of the larger block.

The cluster flats feature between 4 and 11 bedrooms each and some unique facilities include blue sky study space areas mixed in around the cluster flats, laundry facilities, storage areas designed for cycle and water sports equipment, a cinema room and state-of-the-art kitchens and bathrooms.

The design took into account the surrounding environment and was cleverly constructed to blend in to the adjacent buildings and the historic structures in the city centre, while also offering something modern and fresh.

Cedar-style boarding and stone banding were included to complement adjacent buildings, and the penthouse levels were designed to blend into the skyline.

The aim was to breathe new life into a dated part of the city centre but without creating a new-build which clashed with existing architecture.

Manor Court, Cossington Somerset

Nominated by Strongvox Homes

Project Value: £8.6m

Manor Court is a development of 47 dwellings built on a dilapidated, village centre site at Cossington near Bridgwater in Somerset.

Cossington is a former winner of ‘Best Village of the Year, Somerset’ so the developers were conscious of the many local elements of distinction and set the new structures within well landscaped surroundings. The new development had to sit comfortably within these surroundings and provide a positive contribution to the village.

The new houses were designed to include local details including stonework elevations, distinctive roof tiling and distinctive local walling. The layout was focused around ‘soft’ road ways and defined with good quality landscape planting.

The development was facilitated by the provision of a new, purpose-built, village hall replacing the previous temporary structure. The village hall now enables the local community to generate a regular financial income stream by hiring the new meeting rooms to local businesses, Local Authorities and child care services for week day use. It also enables the committee to sponsor and fund specific events for the local village.

The new development had to be designed to meet current energy requirements and the Village Hall needed to be built to ensure low energy running costs, which was achieved by the use of natural light were possible, efficient heating systems and PV installations.

The Village Hall is frequently used by the local community and wider area. A wide range of events are held, the success of which are recorded on the Village Hall’s website. The housing element of the project was completed to a high standard and the majority sold quickly in a poor market – a sign of a quality development in a much needed location.

Rowes Meadow, Stoke Gabriel, Devon

Nominated by Linden Homes

Project Value: £6.9m

Rowes Meadow is a development of 43 new homes using 31 different house types, with 35% classed as affordable housing. It is located in an Area of Outstanding Natural Beauty at the northern edge of the picturesque village of Stoke Gabriel in the South Hams, Devon, on land previously used for grazing horses. 

The development features a collection of two, three, four, five and six bedroom homes, all created to reflect the rich architecture and heritage of the area. Each cluster of homes is linked in intimate groups, with both private and shared courtyard spaces and with the affordable housing element indistinguishable from the open market housing.

The land was identified as a proposed housing allocation site in the Rural Areas Site Allocations Development Plan Document in order to assist with meeting local housing requirements.

There had not been any new homes built in the village for a number of years and so there was a definite need to provide local housing. However, as the village is so quintessentially English, it was very important that the development was as characterful as its surroundings and that the homes blended in and didn’t stand out as brand new homes.

Rowes Meadow was designed to reflect the varied styles of the older buildings within the village core, which has evolved over time and incorporates various architectural influences, including small vernacular cottages and village houses, to larger Victorian or Georgian style villas.

A palette of colours and materials were used including traditional stone, render of different colours, slate roofs and high stone boundary walls, making the development look like part of the village and reflecting the rich architecture and heritage of the area.

The Michelmores and Western Morning News Property Awards are the region’s premier property competition, showcasing the very best in West Country property projects, buildings and firm.

The Eco Project of the Year category is sponsored by Midas Construction and the winner, South West Energy Centre, Paignton, Devon was announced at a Gala Dinner at St Mellion International Resort on May 8th 2014.

Watch what our judges had to say…

Shortlist 2014

South West Energy Centre (SWEC), Paignton, Devon

Nominated by: LHC Architecture + Urbanism/Kier Construction/South Devon College

Project Value:  £6.5m

Already on the shortlist in the category of Building of the Year, the South West Energy Centre is designed to be a ‘one-stop-hub’ to access impartial information and training for the energy/low-carbon sector and emerging industries.

In addition to providing an outstanding learning environment, SWEC provides up-to-date advice for businesses including energy audits, business consultancy, research and development, access to new markets and funding, and provides guidance for communities and individuals on sustainable construction, renewable energy and selecting local professionals.

As a flagship education and information facility in the renewable sector, it was vital that the building clearly has its own eco-friendly credentials.  The building demonstrates outstanding sustainable features in design and construction including bio-mass boiler, building management system, solar thermal wall, sedum roof and photovoltaic arrays achieving BREEAM ‘Excellent’. Plant and servicing, along with building fabric, demonstrate best practice methods in low-carbon technology. 

The flexible Construction Hall and Advanced Technologies Zone contains two real houses including the only certified Passivhaus inside a UK College.  Other features include a dedicated hybrid/electric vehicle area, flexible classroom and IT spaces and interactive Display Zone providing training in renewable technologies, sustainable construction, environmental science, conservation and carbon management.

The architects were particularly proud that the building’s sustainable credentials “are there for a purpose to inform the teaching, research and entrepreneurship undertaken daily.  The building provides a flexible showcase for sustainable technologies and building methods, but it’s also a vital element of the programme itself.”

SWEC is currently engaged with 165 businesses as part of the ERDF business engagement project. The building had an average of 200 visitors a month in its first three months while 165 students have visited the Passivhaus.  As part of a research project four families will be invited to live in the Passivhaus for a week.

Beechfields View, Torquay

Nominated by Torbay Development Agency

Project Value: £20m

The objective of this ambitious project was to deliver a flagship mixed tenure sustainable eco-development that would help meet Torbay’s strategic housing needs for a range of different client groups. It was also important to reduce fuel poverty by lowering the energy bills of the residents.

Beechields View comprises 144 much needed homes for different types of occupant and includes 25 apartments for the over 55s with priority to local residents wishing to downsize; 16 general needs rented apartments and 16 houses; 20 intermediate rent apartments with priority to keyworkers; 15 shared ownership apartments and 2 houses; 32 open market sale apartments and 10 houses, plus 8 wheelchair adapted dwellings that were bespoke for specific clients.

The project demonstrates that Code 4 and 5 properties can be developed which are aesthetically pleasing without highly visible renewable energy features. The low-carbon, energy efficient design is geared towards reducing energy bills, using a number of renewable energy components including photovoltaic roof panels, a mechanical ventilated heat recovery system that recycles heat within each home, rainwater harvesting and triple glazing.

Occupants are now benefitting from the quality of materials used which reduce ongoing maintenance, while research is showing that the residents’ fuel bills have reduced by 50% when compared to the previous accommodation.

Ten properties of various types and tenures will be monitored over the next two years by researchers from Plymouth University, to assess how well the energy efficiency measures are performing.

The judges considered this to be a well-conceived project with good design, high specification and a ‘practical interpretation of sustainability’.  It addresses the housing needs of a number of different groups while engaging with the existing local community having communicated with approximately 1000 households over the course of the project.

Trinity Court, Long Sutton, Somerset

Nominated by Brookvale Homes (SW) Limited

Project Value: £299,000

The terrace of three masonry built houses at Trinity Court were designed to fit in with the existing village environment, utilising local materials, whilst ensuring a Passivhaus philosophy of a ‘Fabric First Approach’ where the building does the work reducing the reliance on renewables that will be expensive to install and maintain.

The client, Yarlington Housing Group, identified Long Sutton as a village with a need for social and shared ownership dwellings and as an opportunity of trialling the tremendous potential of building competitively-costed Passivhaus social housing, something that if successful, could be rolled out across the region.

The project aspired to demonstrate that Passivhaus schemes do not have to be expensive and unaffordable for social housing, providing functional and super-airtight, environmentally friendly and highly efficient homes delivered on budget.

The scheme has been built using a masonry constructed superstructure, including a locally sourced stone façade that fits in seamlessly with the surrounding buildings in this quaint village environment.

The benefits of Passivhaus design include: reduced energy costs – a 70m2 Passivhaus with gas heating could spend as little as £25 on space heating each year; healthier living – good indoor air quality is provided by a whole house mechanical ventilation heat recovery system (MVHR); excellent ventilation – over 80% heat recovery from the MVHR system; super airtightness and insulation.

This development of three dwellings is the first Certified Social Passivhaus Scheme in Somerset and only the second in the South West of England.

The Michelmores and Western Morning News Property Awards are the region’s premier property competition, showcasing the very best in West Country property projects, buildings and firms

The Building of the Year category is sponsored by Girling Jones and the South West Energy Centre nominated by LHC Architecture + Urbanism/Kier Construction/South Devon College was announced as the winner at a Gala Dinner at St Mellion International Resort on May 8th 2014.

More about what the judges had to say…

Shortlist 2014

South West Energy Centre (SWEC), Paignton, Devon

Nominated by: LHC Architecture + Urbanism/Kier Construction/South Devon College

Project Value:  £6.5m

SWEC is a ‘one-stop-hub’ to access impartial information and training for the energy/low-carbon sector and emerging industries. It aims to fuel an economic recovery in South Devon, driving demand and ensuring manufacturers, suppliers and installers have the skilled workforce they need, leading to the creation of private sector jobs. It’s a catalyst for private-sector growth, opening up market opportunities through activities designed to drive demand and promote growth in the green-sector.

In addition to providing an outstanding learning environment, SWEC provides up-to-date advice for businesses including energy audits, business consultancy, R&D, access to new markets and funding, and provides guidance for communities/individuals on sustainable construction, renewable energy and selecting local professionals.

Located on a highly visible site at South Devon College, it was important that the building reflected its environment whilst demonstrating contemporary architecture to complement the activities within.

The flexible Construction Hall/Advanced Technologies Zone contains two real houses including the only certified Passivhaus inside a UK College.  Other features include a dedicated hybrid/electric vehicle area, flexible classroom and IT spaces, and interactive Display Zone providing training in renewable technologies, sustainable construction, environmental science, conservation and carbon management.

The building demonstrates outstanding sustainable credentials in design/construction including bio-mass boiler, building management system, solar thermal wall, sedum roof and PV arrays achieving BREEAM ‘Excellent’. Plant and servicing, along with building fabric, demonstrate best practice methods in low-carbon technology.

The judges were impressed with the aims and objectives of this building in addressing much needed skills development and the employability of young people, and that this innovative building is also open to the public.

Eagle House, Exeter Science Park

Nominated by Eagle One Limited/LHC Architecture + Urbanism

Project Value: £2m

The ‘gateway’ building to Exeter Science Park has already been featured in the shortlist for Commercial Project With a Value Under £5m, where it has been recognised for its role as flagship building that has provided momentum to the ambitious development.

However, as a building, Eagle House has many positive features and provided the architects LHC with some significant challenges.

The new headquarters of developers Eagle One/Blue Cedar Homes is a high-quality building designed to emerge confidently out of its parkland setting while projecting its purpose as a contemporary office/research building. The design takes its inspiration from local agricultural structures by emulating their colour and their precise, monolithic form.

Grey fibre-cement rain screen cladding was chosen for the main accommodation floors to provide a precise and well-defined shape. The random, graduated ‘pattern’ of the plinth is created by blending two varieties of brick, to replicate the colour of the Axminster stock from the now-defunct Pinhoe works and to emulate local ‘brick patterning’ found in the area.

Integral to the design is the landscape treatment, which exploits the contours of the land to anchor the building into its farmland setting by creating a soft connection between landscape and architecture.

Eagle House has exemplar but understated sustainable credentials and by meeting the requirements of BREEAM ‘Excellent’ and best practice from the British Council of Offices, it sets the tone of innovation and confidence that underlines the Park’s aims.

Everyone involved with the Science Park development is committed to providing an attractive and open public realm with Eagle House setting the benchmark for buildings.

The Research, Innovation, Learning and Development Centre (RILD), Exeter

Nominated by Interserve Construction Limited

Project Cost: £27.5m

Already shortlisted in the category of Commercial Project With a Value Over £5m, RILD is a stunning building in its own right.  It is a world class research and post graduate education facility resulting from a partnership between the University of Exeter Medical School and the RD&E NHS Foundation Trust.

The building houses the Wellcome Wolfson Centre for Medical Research comprising both clinical research areas and laboratories; a post graduate education centre with lecture theatres, teaching rooms and social areas; an information management and technology training facility; faculty of health and social work provision and a GP training scheme.

RILD is the first phase of the site’s masterplan and is designed to create a unified whole with the existing medical school building.  The external material was selected to blend with existing buildings and draws inspiration from the tradition of stone quarries in the Exeter area.

The stylish modern development incorporates a highly glazed central hub which forms the main entrance area and features external solar shading to the east and west facing facades.

The scale of the structure was challenging to fit its environment. This was addressed by the use of 22m walls which slope away from the viewer at a 15 degree angle making the building feel less imposing.  Despite the challenges of constructing such an impressive building on a tight site, the development achieved a BREEAM Excellent status.

RILD has created operational synergies for both the University of Exeter and the RD&E. While the different user groups require separation and privacy, the central hub contains largely shared spaces such as reception, meeting rooms, break-out areas and a café providing operational efficiencies and opportunities for collaboration.

University of Exeter Sports Park

Nominated by Kier Western & Wales/Grainge Architects

Project cost:  £7m

The primary aim of the building is to provide high quality health and fitness for the student and staff population of the University.  This was achieved in the fitness suite through the development of two large fitness spaces, a state-of-the-art exercise studio and consultation rooms, all fitted out with Life Fitness equipment, and an upgrade of the changing facility. Underlying the project was the requirement for it to be “cool” with the student fraternity.

The University’s former facilities were dated and unable to handle the increased demand for these spaces following expansion in student numbers.  Appropriate access, circulation and management space were also affecting the ability to deliver a high quality service to users.  Income from health and fitness underpins many of the other facilities, so providing a high quality offer in this area was considered to be critical.

The scheme consists of 4 elements:- a two-storey Health & Fitness Centre acting as the gateway to the Sports Park, the tensile cover to the ‘outdoor’ tennis courts, the new changing pavilion and spectator seating to the all-weather hockey pitch and the new multi-use games area. These 4 elements are arranged around the all-weather hockey pitch and help bring a sense of cohesion to what was previously quite an open and exposed part of the site.

The Sports Park now has its own separate identity within the University while still being regarded as an integral part of the Streatham Campus.  It has seen a 70% increase in the number of health and fitness visits and 1600 new premium memberships compared to the same period last year and 12 new staff positions have been created.

This article was first published in Private Client Adviser on 18 December 2013 and is reproduced by kind permission (www.privateclientadviser.co.uk).

Four years studying Law can only take you so far. Nothing during that time prepares you for the practicalities of your training contract, especially if it is also your first office job.

Previously I have had only ‘summer jobs’, predominantly farm labour (aside from a brief stint waitressing brought to a timely end by an incident involving lobster bisque and an Armani jacket). Whilst my education and part-time jobs had equipped me with the requisite education and work ethic to fit the trainee mould, in reality I was ill-prepared for a full-time job. I don’t mean the politics, but the practicalities.

One of the hardest things that I wrestle with is how to use secretaries. However cliché, secretaries are the foundation and driving force of any law firm. Their knowledge is vast and their role invaluable. Therefore, it is not the discussions with or research for the partners that plunges me into a cold sweat, it is asking a secretary to do something for me. As a trainee, how can you possibly feel justified delegating to someone of that aptitude? I have wasted time agonising over asking and I have wasted even more time in doing tasks myself that I should have in reality, delegated. And yet no secretary I have ever come across has ever made me feel like I shouldn’t be asking for their help. I have even been berated on occasion for doing things myself or for my grovelling thanks.

Another thing I hadn’t considered was that when you work full-time, you don’t have a summer holiday. July rolled around last year and the realisation dawned. For the first time in my life I wasn’t automatically due a month respite. I found myself wanting to travel back in time to shake Pippa of the past and tell her to stop whining about how hard it is to be a student. Also, no-one ever told me that as a trainee, 70% of the time that you speak to someone more senior than you, any ability you once had to effectively verbalise your thoughts is lost. You open your mouth to find that anxiety has afforded you the communication skills of a rock.

These are all things which the law degree doesn’t prepare you for. Even the LPC, with all of its supposedly ‘practical’ focus, didn’t prevent me from spending hours trying to format my first letter so that the address lined up with the envelope window, before finding the letter template. It didn’t teach me how to fix printer jams or not to wear your skirt suit to site visits without carrying a sewing kit. Sometimes trainees come to their contract after having had previous jobs, and I envy them this advantage over the ‘traditional’ route that I took.

Occasionally I have moments when I feel overwhelmed by the fact that I have a career, I’m training to be a solicitor, and these are the hallmarks of a grown-up. Mostly I forget how long I have been aspiring to make this a reality. It feels like something that other people do, and I am amazed when I remember that in fact it is something that I do. I remember that I am on a two-year job interview. I have anxiety that someone will come to my desk and scream “FRAUD”. The fact that I only have these panic attacks occasionally says a great deal about the way my colleagues make me feel. The reason I am not in a perpetual state of angst is because I am made to feel at ease here.

Sometimes at marketing events or client meetings I realise I am talking about the law and someone is listening. Not only that, but I know what I am talking about. I realise I am having a genuine professional discussion, with someone who looks at me and sees a future solicitor. I have finally got here without even realising that I had. I would love to know if these moments of realisation will abate once I qualify or as my career draws on, or whether everyone suffers from flashes of reality every now and again.

Our laws in the United Kingdom are designed to protect individuals against the misuse of personal information, such protection being enshrined in the Data Protection Act 1998 and related legislation which in turn implements several European Directives.

Websites and online applications will often track user’s information, using “cookies” – usually with a user’s consent.

However, Google Inc. (“Google”) has been accused of taking a more liberal interpretation of responsibilities under data protection and privacy laws.  To date, where web advertisers collect and/or use such information without a user’s consent, it has proved difficult for a user to enforce their rights under data protection laws because the servers are located overseas and operated by companies established overseas.  A recent landmark decision in the English high courts, however, may change this and force web advertisers to behave more responsibly having regard to laws outside the web advertiser’s own jurisdiction.

The British claimant’s alleged misuse of personal information by Google:

In a recent test case against Google, Vidal –Hall v Google Inc., the High Court rejected Google’s argument that the English Courts have no jurisdiction to hear the privacy claims brought against it by three British internet users.

The British claimants alleged that Google: (i) misused their private information; (ii) breached confidentiality; and (iii) infringed the data protection laws through the unlawful  use of their personal data without their knowledge and consent, when they used Apples’ ‘Safari’ web browser between 2011 and 2012. They claimed compensation for damage and distress suffered.

The case centres on the collection of information by Google from the devices used by claimants to access the internet and the subsequent use of that information to provide targeted advertisements. The claimants contended that as a result of Google’s use of the information to display adverts, third parties whom they permitted to use their computers or view their screens had access to deeply personal information about their interests. As a result, they claimed to have suffered acute distress and anxiety. The nature of the personal information revealed through targeted advertising was not disclosed in court, to protect the claimants’ privacy.

The case focused on Google’s use of “third party cookies”. A “third party cookie” is a cookie sent to a browser by a website other than the website that the browser is on, usually to gather information about websites visited by the user’s browsers in order to target advertising.

In this case, the claimants used the Apple Safari internet browser.  Google’s AdSense service places “third party cookies” when the user visits certain websites displaying adverts from Google that are placed using AdSense.  The claimants complained about Google’s practice, which exploited a loophole in the Safari web browsers privacy settings.   A first “intermediary cookie” would be legitimately placed when the user visits certain websites and requests content (through use of social features such as “like” buttons).  However, once the intermediary cookie was placed, Safari then allowed further third party cookies to be sent if one cookie from that domain was already present on the browser (the “One In, All In Rule”). This happened without the users’ further knowledge or consent.  It was this final aspect of the Safari privacy settings that Google’s “AdSense” service exploited.

Google challenged the jurisdiction of the English Courts to hear the claims:

The claimants were initially given leave by the English Courts to serve proceedings on Google.  Google then challenged this and sought an order stating that the English Court did not have jurisdiction over the claims.

Google, which is registered in Delaware and has its principal place of business in California, argued that the issues at trial were likely  to focus on Google’s conduct and therefore the USA was the most appropriate jurisdiction, although it did not specify a particular state in which the case should be heard

The English High Court decided that England was the appropriate jurisdiction to hear the case:

Mr Justice Tugendhat made the following observations:

• The focus of the case is likely to be on the damage that each claimant has suffered. The damage occurred when their screens could be viewed in the UK.
• The claimants are resident in the UK; therefore to bring proceedings outside of the UK would be unduly ‘burdensome’.
• The claim of misuse of private information and the claim in relation to unlawful processing of data protection legislation were both clearly arguable and were serious issues to be tried.  The High Court rejected Google’s claims that they should be set aside.
• The English courts were an appropriate forum for the claims. If an American court was to decide the complicated issues of English law raised by Google, it would be costly for all parties involved. As this is a developing area of law, it is more appropriate for these issues to be resolved in an English court with the usual right of appeal – not available in the USA.

On this basis, the High Court held that the claimants had clearly established there were serious issues to be tried and that England was the most appropriate jurisdiction for these to be heard.

Mr Justice Tugendhat also acknowledged that there was no general ‘tort of invasion of privacy’, although he identified a number of cases in which misuse of confidential information was referred to as a ‘tort’. He concluded that there was a distinct ‘tort of misuse of private information’.

What is the likely impact of this decision?

It remains to be seen whether the claim will be settled or whether the case regarding the alleged breaches will be heard before the English Courts.  If the claims are successful, this may lead to more claims against Google in England as well as in European Union member states. What is clear is that the use of the “Safari workaround” during 2011 was a controversial practice. Mr. Justice Tugendhat pointed out that Google has faced considerable civil penalties ($2.5 million) in the USA resulting from the practice.   Google has since ceased this practice

The wider effect of this case may be to encourage other non-EU internet service providers to consider their own compliance with data protection laws which are often stricter than the laws they may otherwise be more used to complying with.

In particular, the case sheds a further spotlight on the difficulties of regulating the use of “third party cookies” by internet service providers.  These are an invaluable tool to web-advertisers, but equally there are difficulties in determining how users should be provided with information about the cookies and how their consent should be obtained. This case may serve to focus attention on the lucrative internet advertising business, so that the web-advertising industry and regulatory bodies decide on effective means of protecting users’ privacy.

For further information on the issues raised in this article, please contact Associate Tom Torkar at tom.torkar@michelmores.com.