Legal News

FBT Productions, LLC v Let Them Eat Vinyl Distribution Ltd, [2021] EWHC 1316 ( IPEC) What was the background? FBT Productions, LLC maintained it was entitled to interest under section 35A of the Senior Courts Act 1981, or, in the alternative, by virtue of the court’s inherent jurisdiction. It also contended that interest ought to be calculated by reference to US borrowing benchmarks, for example the US prime rate, or a margin of about 2.5% above the three-month US LIBOR, accruing from the date the infringing copies were delivered to the distributor. Let Them Eat Vinyl submitted that no award should be made......

Newman v Southampton City Council and others [2021] EWCA Civ 437 What are the practical implications of this case? This ruling reinforces that, as the Supreme Court confirmed in PJS v News Group Newspapers Ltd [2016] AC 1081, appeal courts are slow to disturb a trial judge’s evaluation of the balance between the competing rights under Article 8 and Article 10 of the European Convention on Human Rights, provided the judge has conducted the exercise correctly. The dispute centred on how the principle of open justice operates where privacy and freedom of expression are finely balanced. It offers a practical illustration—against particularly delicate facts—of the degree to which written material placed before the court in proceedings should be available to non-parties, and the form in which such access ought to be granted. More broadly, the case exemplifies the ongoing tension in the family courts between...

Glenn v Kline [2021] EWHC 468 ( QB) What are the practical implications of this case? This ruling illustrates, in a straightforward way, how damages are assessed in online harassment and defamation disputes, and sets recent awards in comparable matters side by side. It further confirms that where defamation and harassment claims intersect, and the defamatory publications are themselves the harassing conduct, a single, composite sum for damages is the correct approach. As a result, claimants may sensibly question issuing both causes of action unless they relate to different timeframes. Here, the harassment claim encompassed posts that were out of time for defamation (ie before May 2019), together with publications that also featured in the defamation claim. The court also offered guidance on the likely form of relief under section 12 of the Defamation Act 2013 ( DA 2013), which obliges a...

Software Solutions Ltd and others v 365 Health and Wellbeing Ltd and another [2021] EWHC 237 ( IPEC) What are the practical implications of this case? For practitioners advising on software, this judgment carries weight for several reasons, notably its treatment of copyright and database right in relation to XML. It clarifies that while XML schemas can attract literary copyright, they will not qualify as a ‘database’ under the Copyright and Rights in Databases Regulations 1997 (the Database Regulations) unless they amount to a ‘collection of independent data’. The decision also offers useful guidance on the courts’ approach to awarding additional damages for copyright infringement under section 97(2) of the Copyright, Designs and Patents Act 1988 and under Regulation 3 of the Intellectual Property ( Enforcement, etc) Regulations 2006 ( SI 2006/1028), which implements Article 13 of the Enforcement Directive. It includes a...

The objections centre on well-known long-standing concerns over data retention, access for law enforcement, and immigration policy; moreover, lawmakers went further, drawing attention to serious earlier issues with the UK’s use of the Schengen Information System ( SIS) database and to both potentially conflicting commitments under other international agreements. Under EU data protection rules, sending personal data to countries beyond the EEA is strictly lawful only where protection is judged ‘adequate’, where extra safeguards are adopted, or where one of a small set of derogations applies. At present, ongoing data flows between the EU and the UK run under an interim framework embedded in the broader EU– UK Trade and Cooperation Agreement of December 2020, which will lapse by June 2021 at the latest. The Commission must determine whether the UK, which officially departed the 27‑nation EU last year, affords...

Introduction On 31 December 2020, the Withdrawal Agreement’s transition phase (discussed here) concluded. From 1 January 2021, relations between the UK and EU are currently regulated partly by the remaining Withdrawal Agreement (as further discussed in this Twitter thread) and partly by the Trade and Cooperation Agreement ( TCA) formally agreed between the EU and the UK themselves. ( There are also two other agreed treaties, on security information and nuclear cooperation, as well). Basic legal issues The EU and UK have agreed to apply the TCA provisionally and temporarily (a common practice in international law). This arrangement runs until 28 February 2021, though the parties may change that date via the Partnership Council (composed of representatives of both contracting parties). This is intended to give the European Parliament sufficient time to examine the treaty in detail before deciding whether to give its consent. By...

Riley v Sivier [2021] EWHC 79 ( QB) What are the practical implications of this case? This judgment offers a practical benchmark for the bare minimum particulars needed to run a truth defence in a libel claim. The pleaded case relied on social media threads that required reading in their entirety. They were to be considered in full, rather than taken in isolation or fragment by fragment. Assertions that Ms Riley participated in, and incited, Twitter harassment of a 16-year-old were not borne out by the ‘straightforward’ and ‘civil’ interactions. The court dismissed the notion that a public figure with a sizeable audience, like Ms Riley, is obliged to stop followers from abusing another user on Twitter. That will reassure high-profile users who trade in forthright debate on the platform. The judgment sets out, with clarity, how these principles apply to Twitter, and they ought to be...

As outlined in the editorial note to the Guide, this seventh edition is a comprehensive overhaul and reflects developments since the previous edition, including: the roll-out of electronic working and filing in the Central Office of the Queen’s Bench Division at the Royal Courts of Justice, through the CE- File digital court file and management system amendments to CPR 53 and CPR PD 53 relating to the Media and Communications List changes arising from Brexit and the close of the transition period under the UK Withdrawal Act revisions to the contempt regime updates to the enforcement regime For more information, see: What are the key changes? The following summarises the principal changes practitioners should note: Electronic filing The revised Guide introduces a brand-new Chapter 3 addressing electronic filing and codifying the compulsory use of CE- File for legally...

Hanger Holdings Ltd v Perlake Corp SA and another [2021] EWHC 81 ( Ch) What are the practical implications of this case? This decision marks the first time a UK court has expressly recognised domain names as intangible personal property. In OBG Ltd v Allan [2007] UKHL 21, Lord Hoffmann indicated he saw no obstacle to treating domain names as intangible property, though those observations were merely obiter. HHJ Hacon’s reasoning on why domain names amount to intangible personal property was brief, but he drew support from Lord Hoffmann’s remarks and was influenced by judicial statements in other jurisdictions, including Canada. Domain names are obtainable through accredited registrars, typically requiring registrants to agree to terms and conditions in a registration service agreement. Ongoing renewal charges are paid to keep the domain and any ancillary registrar services in place, as well as any...

Martin and another v Kogan and others [2021] EWHC 24 ( Ch) What are the practical implications of this case? The judgment represents the latest chapter in the parties’ protracted litigation. At the retrial, Mr Justice Meade applied the Court of Appeal’s formulation of joint authorship in Kogan v Martin and others [2019] EWCA Civ 1645. He likewise examined the legal framework for evaluating witness testimony, including the overall approach to the dependability of witnesses’ recollections and the comparative weight to be placed on memory as opposed to contemporaneous records. In that context, he addressed the effect of Gestmin SGPS SA v Credit Suisse ( UK) Ltd [2013] EWHC 3560 ( Comm), [2013] All ER ( D) 191 ( Nov). He further considered how the balance of the remaining evidence should be assessed where a portion of a witness’s account is rejected as untrue. In...

Onwude v Dyer and others [2020] EWHC 3577 ( QB) What was the background? This defamation claim arose from articles posted on the BMJ’s website that reported a GMC disciplinary panel’s decision concerning the claimant, Mr Onwude, together with Mr Onwude’s ensuing High Court appeal about the same decision. The defendants were the journalist who wrote the report ( Ms Dyer), the BMJ’s editor ( Dr Godlee), and the journal’s publisher (the BMJ). The context of the claim focused on several charges alleging impaired fitness to practise by reason of misconduct, brought against Mr Onwude by the Medical Practitioners’ Tribunal ( MPT) Service, a statutory committee of the GMC. After the hearings, the MPT found every charge proved and imposed the penalty of erasure from the Medical Register, unless Mr Onwude used his right of appeal within 28 days. It also ordered his...

For data protection specialists, the EU– UK TCA brings encouraging developments. Unrestricted data movement between the EEA and the UK will carry on beyond the close of 2020 ( Article FINPROV.10A(2) also confirms flows from Iceland, Lichtenstein and Norway to the UK). That outcome is warmly welcomed. Recent studies indicated that implementing substitute transfer tools might have set UK firms back £1.6bn. Such a sum reflects funds businesses could otherwise have directed to areas like new kit, staff or procedures, yet would instead be siphoned off to compliance spend or higher prices for goods and services due to interruptions to EU– UK data transfers. Data may likewise keep moving freely for law enforcement transfers. That is essential. Maintaining the sharing of data to prevent and detect crime is vital to protecting people on both sides of the Channel. Without this...

What is the WTO government procurement agreement ( GPA)? The WTO GPA is a voluntary, plurilateral pact that obliges its parties to grant one another access to their respective government contracting and public purchasing markets on a reciprocal basis. Through its EU membership, the UK participated in the WTO GPA; the EU constitutes one of the 20 current participants. The UK has now sought independent accession to the GPA in its own right, and a further 22 jurisdictions hold observer status. Signatories are not free to design procurement systems without constraint; foundational principles are embedded within the Agreement and, indeed, many of these shaped the drafting of the current EU procurement rules. What are the key features of the regime? As noted, the GPA is more than a minimal framework. It comprises the Agreement’s main body together with members’ coverage schedules. While the Agreement...

Germany, presiding over gatherings of the EU’s member-state governments in the latter half of the year, plans to table an updated draft for the 11 November 2020 session, potentially opening the door to a common position among EU capitals. Should ministers settle on a deal, negotiations with the European Parliament may commence; the Parliament endorsed its own take on the e Privacy Regulation back in October 2017. The Commission first put the proposal forward in January 2017. Berlin has elevated the contentious e Privacy Regulation to a headline file for its six‑month stint at the helm of the EU Council, seeking a mandate to open talks with the European Parliament. Progress has been blocked by disputes about aligning the plan with the EU’s flagship General Data Protection Regulation, Regulation ( EU) 2016/679; about the treatment of ‘cookie walls’ (pop‑up prompts that deny entry to sites until a...

Rayner v Seabourne- Hawkins [2020] EWHC 2895 ( QB) What are the practical implications of this case? The case revolves around alleged spoken statements, giving rise to a slander action. As with any slander claim, Mr Rayner had to establish the exact words said by the defendant, Mr Seabourne- Hawkins, and identify the individuals who heard them. What will matter most to practitioners — and what the Judge took care to emphasise — was the claimant’s omission to obtain relevant, contemporaneous witness evidence promptly after the incident. This is particularly significant in slander because, unlike libel, there is often no record of the words said. In defamation claims, the point at which witness statements are prepared can be more than a year after publication, during which period the recollections of potential witnesses may fade. It is therefore crucial for claimants to seek to obtain......

What is the relevance of UK data protection law to the creation or sharing of deepfakes? Is a deepfake likely to be personal data? Neither the General Data Protection Regulation, Regulation ( EU) 2016/976 ( EU GDPR), nor the Data Protection Act 2018 ( DPA 2018) expressly addresses deepfakes. The real question is whether deepfakes fall within the scope of data protection rules, and in particular the DPA 2018. Personal data covers any information linked to an identified or identifiable living individual, which can include a person’s image or voice. In this setting, creating deepfakes involves training an artificial intelligence ( AI) system on the target individual’s facial features and vocal characteristics, enabling those elements to be placed into material featuring another person; doing so necessarily relies on a person’s audio and/or video recordings. Consequently, even if someone were to argue that the...

On Friday 16 October 2020, the Information Commissioner’s Office ( ICO) confirmed that the airline had not implemented adequate security controls, leading to a data breach impacting more than 400,000 customers. In a 114-page penalty notice, the ICO determined that BA infringed the integrity and confidentiality requirements of the General Data Protection Regulation, Regulation ( EU) 2016/679 ( GDPR), by failing to ensure the proper protection of personal data. ‘ The attack exposed numerous shortcomings across BA’s security arrangements and network,’ the regulator noted (see here). Trinidad and Tobago The decision, for the first time, sets out details of the incident and emphasises the risks in how organisations manage remote access to their servers, particularly during the coronavirus ( COVID-19) pandemic. The breach began on 22 June 2018, when an unknown attacker gained entry to BA’s network using the credentials of a Swissport...

Privacy International v Secretary of State for Foreign and Commonwealth Affairs and others Case C‑623/17 What are the practical implications of this case? From a legal standpoint, the ruling requires the UK to re‑evaluate how and when it acquires bulk communications data from internet and telecoms providers, and to define firmer constraints on its monitoring powers. Existing approaches that involve transferring such data on a blanket and non‑targeted basis are at odds with EU law. Careful consideration must be given to the thresholds that must be satisfied before issuing notices to transfer data under the Telecommunications Act 1984 ( TA 1984), together with the material and procedural safeguards that will regulate the onward transfer and use of that information. Notably, there will probably need to be an explicit nexus between the necessity for the particular datasets sought and the protection of National...

What are the legal implications of audiovisual manipulation and deepfakes and what challenges do they pose to intellectual property rights, rights in personal information and image rights? ‘ Deepfake’ describes a face-swapping method in which AI-driven tools process images of a person to create a digital double, then overlay that likeness onto other bodies in video or stills. Creations built from a lone source image are usually easy to dismiss, but those trained on thousands of photos or clips can appear highly convincing. In contrast, audiovisual edits that do not employ AI are often labelled ‘shallow fakes’ or ‘cheap fakes’. Deepfakes present broad socio-political threats: they can skew public debate, disrupt elections and national security, and undermine confidence in journalism and public institutions. The risks to individuals and organisations are just as significant, ranging from fake endorsements and forged documentary evidence to loss of creative control over...

Collier and others v Bennett [2020] EWHC 1884 ( QB) What was the background? This ruling concerns applications for Norwich Pharmacal relief, or in the alternative pre‑action disclosure, to identify the person behind an anonymous Twitter account and to secure copies of tweets said to be libellous and harassing of the claimants. The claimants, each of whom is Jewish and publicly known for taking an active stance against anti‑semitism, are: Mr Collier – a blogger, researcher and campaigner against anti‑semitism; Ms Riley – a television presenter; Ms Oberman – an actress. They have issued proceedings in respect of a Twitter profile (the account) using the pseudonym “ Harry Tuttle”, which, they contend, has for some time been deployed as a vehicle to target a number of Jewish individuals through harassment and defamation. The defendant, Mr Bennett, is a Jewish barrister who has been described as “a pro‑ Corbyn...