Legal News

Background These libel proceedings arose after five posts on the website antisemitism.uk about the claimant, a political activist. The first piece, titled ‘ Tony Greenstein’s attempt to shut down Campaign Against Antisemitism showcases the similarities between far-left and far-right’, described the claimant as a ‘notorious antisemite’. The remaining four articles were comparable in tone and examined, among other issues, alleged antisemitism within the Labour Party and the ongoing public dispute between the claimant and the defendant. The parties disagreed over the meanings to be drawn from the words. The claimant maintained that the articles advanced allegations of fact: namely, that he was a notorious antisemite, a racist hostile to all Jews because they are Jewish. He also contended that the first article carried the meaning that he was, more generally, a dishonest fraudster with a background of criminal drug abuse, who was making...

Awbury Technical Solutions LLC v Karson Management ( Bermuda) Ltd [2019] EWHC 233 ( Comm) What are the practical implications of this case? This decision explores the interaction between section 12(3) of the Human Rights Act 1998 ( HRA 1998) and applications for interim injunctions to restrain the use of confidential information in a commercial setting. Although Butcher J did not foreclose the possibility that, in a business context, such relief might amount to an interference with freedom of expression, his judgment indicates that will seldom be so. In particular, where the communication serves only to advance the communicator’s financial interests, is directed to a very small group of recipients, and there is no suggestion that the material is journalistic, literary or artistic, the right to freedom of expression will generally not be engaged. The decision also appears to be the first in England and Wales to...

Koutsogiannis v Randon House Group Ltd Carruthers v News Group Newspapers Ltd [2019] EWHC 48 ( QB) What was the background? This defamation action arose from the 2017 publication of ‘ The Spider Network’ by Random House Group Ltd (the defendant). The book’s cover proclaimed it to be ‘ The Wild Story of a Maths Genius, A Gang of Backstabbing Bankers, and One of the Greatest Scams in Financial History.’ The claimant had served as UBS Investment Bank’s Global Head of Cross Currency Basis Swap Trading from 1999 to 2012. He was subsequently dismissed and, owing to his alleged role in fixing Libor rates, the FCA barred him from carrying out any influential position within the British financial industry. On appeal, the Regulatory Decisions Committee overturned that sanction, determining that he ‘did not behave dishonestly or without integrity.’ The work recounts the Libor scandal, with a...

What impact do the Business Contract Terms ( Assignment of Receivables) Regulations 2018 have on rights of set-off (contractual and other)? The explanatory memorandum to the Business Contract Terms ( Assignment of Receivables) Regulations 2018, SI 2018/1254 (the Regulations), states plainly that these provisions are introduced to render ineffective terms in specified contracts that restrict the assignment of receivables, with effect from 31 December 2018. As a result, many businesses that were previously prevented by contractual limitations will now be able to assign receivables and utilise products such as invoice financing in relation to sums owed to them. This may influence the right of set-off, as some businesses could opt for rapid liquidity by assigning receivables to a third party through arrangements like invoice finance, rather than exercising any right of set-off against invoices presented to them. The principle of set-off is firmly...

UKI ( Kingsway) Limited ( Respondent) v Westminster City Council ( Appellant) [2018] UKSC 67 What is the law in this area? Liability for non-domestic rates turns on a property being recorded as a hereditament in the rating list. A newly constructed building is added to that list once a completion notice has been validly served. The notice fixes the date on which the building is deemed to be complete. What was the background? The dispute concerned the purported service of a completion notice intended to bring a new, unoccupied building into the rating list. The Court of Appeal upheld the appellant’s appeal against the decision of the Upper Tribunal ( Lands Chamber) ( UT), which had found that a completion notice had been served on it, despite the fact that transmission was effected through a person not authorised to accept service......

Average fine for data breaches doubles to £146,000 in just a year What is this development about? Average penalties issued by the ICO have risen to £146,000 ($185,888), up from £73,000 in the equivalent 12‑month period, research from RPC indicates. The aggregate value of sanctions increased by 24% to £4.98m, compared with £4m a year earlier. Richard Breavington, a partner at the firm, said the regulator is showing more bite and a readiness to echo public sentiment, noting that the necessary mindset and authority are in place and that there has been a marked shift. The GDPR took effect in May 2018 and permits fines of €20m ($22.7m) or 4% of annual global turnover, whichever is greater. Before May 2018......

What’s the background to robotic surgery? Robotic surgery, a form of minimally invasive laparoscopic procedure performed with robotic systems, has been available in the UK since 2001. Instead of working directly on the patient, the surgeon uses computer hardware and software to operate from a remote console, carrying out the procedure via a video screen or monitor. Its use has, so far, been relatively limited, mainly for certain operations such as prostate surgery and other cancer procedures. Shorter operating times Lower risk of infection Less blood loss and reduced post-operative pain Quicker recovery and a shorter hospital stay That said, surgeons need extensive training to work ‘remotely’, as this represents a completely new surgical skill, especially given the historically limited haptic (i.e. kinaesthetic) feedback, whether ‘force’ or ‘tactile’. Issues can also occur outside the surgeon’s direct view, including...

What are the definitions of ‘service provider’ and ‘information society services’ under the E- Commerce Directive and the Electronic Commerce ( EC Directive) Regulations 2002? The E- Commerce Directive ( Council Directive 2000/31/ EC) and the Electronic Commerce ( EC Directive) Regulations 2002 ( SI 2002/2013) state that a ‘service provider’ is any natural or legal person who supplies an information society service. Recital 17 of the E- Commerce Directive describes ‘information society services’ as any service typically supplied for remuneration, delivered at a distance, using electronic equipment for the processing (including digital compression) and storage of data, and provided at the individual request of the recipient. The notion of ‘information society services’, together with related terms such as ‘at a distance’ and ‘at the individual request of a recipient of services’, is further clarified in Article 1(1) of Directive 2015/1535/ EU. The condition that a...

How has the exemption available for controllers under the GDPR in relation to liability to compensate data subjects changed? Under the earlier Data Protection Directive 95/46/ EC ( Article 23(2)), where a person was entitled to damages from a controller due to unlawful processing, the controller could rely on a potential exemption if it was not responsible for the event that caused the loss. Recital 55 offered two illustrations of situations for which the controller would not bear responsibility: a mistake by the data subject, and a case of force majeure The language of these provisions lacked clarity, and the concept of ‘force majeure’ has no consistent definition across EU legal systems (it does not even carry a settled meaning in English law, depending heavily on contractual wording). Unsurprisingly, this carve-out, and the reference to force majeure, was therefore loosely carried across into...

Burki v Seventy Thirty Ltd; Seventy Thirty Ltd v Burki [2018] EWHC 2151 ( QB) What was the background? These proceedings stemmed from Ms Burki’s dissatisfaction with the service delivered by 70/30, a matchmaking company to which she paid £12,600 for assistance in finding a romantic partner. On its website, 70/30 promoted itself as an ‘ Exclusive Matchmaking and Elite Introduction Agency’, stating that its members are high net-worth individuals drawn from diverse and distinctive backgrounds, nationalities, lifestyles and industries. During meetings and discussions with 70/30 personnel, Ms Burki made clear that any prospective partner must be willing to have children and, ideally, be of comparable wealth. Staff showed her member profiles and gave her information about 70/30 which, in substance, indicated there was a significant cohort of affluent male members who were actively involved with the agency’s matchmaking services. Ms Burki entered into a...

DIFC Courts and Smart Dubai The Dubai International Financial Centre Courts ( DIFC Courts) are partnering with the government‑backed Smart Dubai initiative to examine how blockchain can be used to authenticate court judgments for the purpose of cross‑border enforcement. According to the DIFC Courts and Smart Dubai, the purpose of their joint task force is to deliver a ‘blockchain‑powered future for the judiciary’ that will streamline the judicial process by making legal tasks more efficient. Amna Al Owais, chief executive and registrar of the DIFC Courts, said in the statement: ‘ This task force is in line with our’......

What are the practical implications of this case? This judgment grappled with a bold attempt by the defendant in a libel claim to recast the Lucas- Box meanings set out in its defence, notwithstanding that the court had already settled the issue of meaning earlier in the proceedings. In essence, it addressed whether a party could revisit and amend its Lucas- Box meanings after a prior judicial determination of meaning had been made. What was the background? The claimant, Irina Bokova, who at the relevant time was Director- General of UNESCO, commenced a libel action arising from articles published on the Mail Online and in the Daily Mail. The defendant, Associated Newspapers Limited, put forward a defence of truth under section 2 of the Defamation Act 2013 ( DA 2013). The claimant sought a ruling on the articles’ meaning and orders striking out the truth defence...

R v Sarker [2018] EWCA Crim 1341, All ER ( D) 61 ( Jun) What is the background to this case? This decision concerns reporting bans imposed during the trial of Sarker, a medic facing a single fraud charge. The allegation was that, when applying for a role with an NHS Trust—later accepted—he dishonestly overstated his experience. That count alone was pursued at Worcester Crown Court; other aspects of his background were kept from the jury. Those matters concerned later inquiries into substandard surgical practice after he joined the Trust. Because such material risked prejudicing the proceedings, it was excluded from the trial. During the hearing, defence counsel applied for an order preventing any press coverage until the jury returned its verdict. The rationale advanced was that publicity about his wider history could reach, and influence, jurors. The judge made the order and...

It is common for suppliers in commercial services agreements to seek to generally exclude all their liability for ‘loss of data’—what sorts of potential claims would such an exclusion cover and what is the commercial rationale for including such a clause? As GDPR ( Regulation ( EU) 2016/679) neared its 25 May 2018 start date, these discussions became increasingly routine, with many organisations looking to ‘repaper’ and revise existing contracts to secure GDPR compliance. The term ‘loss of data’ has no statutory definition, so its scope must be read in the context of the particular agreement. In practice, it would usually be treated as catching claims arising from: Destruction of data Corruption of data Accidental disclosure of data Theft of data This would apply however the issue arose—eg through a virus, power failure, mechanical fault, human error or a...

Uber France SAS v Nabil Bensalem Case C–320/16 ECLI: EU: C:2018:221 What are the practical implications? This marked the second occasion on which the Court of Justice was invited to rule on the legal character of Uber’s offering under European law. The earlier reference, Asociación Profesional Élite Taxi v Uber Systems Spain SL, Case C‑434/15, went against Uber in December 2017, when the Court of Justice held that the service constituted transport and was therefore subject to Spanish national and local rules on transport. See Court of Justice declares that Uber is a transport service ( Asociación Profesional Élite Taxi v Uber Systems Spain, SL). The outcome in the present proceedings follows the Advocate General’s Opinion of 4 July 2017 and also confirms that Member States may, as a matter of criminal law, prohibit and penalise the unlawful provision of transport activities in...

Hotlinking does not constitute copyright infringement ( Wheat v Alphabet Inc/ Google LLC & Anor) Wheat v Alphabet Inc/ Google LLC & Anor [2018] EWHC 550 ( Ch) (26 March 2018) What are the practical implications of this case? The decision addresses the thorny issue of whether hotlinking can give rise to claims for breach of contract or copyright infringement. Its technical effect may divert searches away from the originator’s site to an aggregator, with a corresponding loss of advertising revenue. The case shows how evolving technology disrupts existing business models, and the difficulties of pursuing remedies for perceived wrongs within legal frameworks that can lag behind innovation. It further highlights the perils for litigants in person stepping into areas that test even experienced litigators. What was the background? The claimant, acting in person, runs the website...

When does the ‘right to be forgotten’ as established through case law ( Google Spain v AEPD ( Marion Costeja Gonzalez) arise and what does it aim to achieve? The so‑called ‘right to be forgotten’, crystallised in Google Spain, Case C‑131/12, [2014] All ER ( D) 124 ( May), recognises that data subjects may ask search engine operators processing personal data in the context of an EU establishment to remove links to their personal data from indexes and results for particular search queries. Whether such removal must extend to every domain run by a search engine remains disputed. This entitlement applies where, taking all the circumstances into account, personal data is: inadequate irrelevant or no longer relevant excessive in relation to the purposes of the processing undertaken by the search engine operator. In Google Spain, the European Court of Justice concluded that, as a...

Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 ( QB) What was the background? The claimant, who bore several spent convictions for drug-related offences in the past, was a habitual backer of technology ventures, among them Spotify and other firms. He also styled himself as Spotify’s Head of Special Projects. In May 2017 he took part in a podcast interview where he hinted at his past involvement with drugs and at earlier drugs convictions. In that same episode, he said his father had beaten him during his upbringing. In the aftermath, the defendant sent emails to the claimant’s solicitors and to other associates of the claimant, primarily referring to an earlier fundraising request made by the defendant. That was then followed by a letter from the defendant’s solicitors to the claimant’s solicitors asserting that statements made in the podcast interview were...

What are the practical implications of this case? This ruling underlines that, even where no defendant(s) have been identified, the court may still grant appropriate relief, and the absence of named parties will not block remedies, in suitable and proportionate terms. What was the background? The claimant, a transgender woman employed as an escort using a professional alias, issued a harassment claim under the Protection from Harassment Act 1997 after multiple online posts appeared about her, including assertions that she had HIV/ AIDS, alongside other details or supposed details about her sexual life, and her physical and mental health. As the claimant could not identify the perpetrator, an interim injunction was made against persons unknown to prevent ongoing harassment and/or the continued misuse of her private information. The order was served on two non-party websites......

What are the practical implications of this case? Zurich Insurance Plc v Nightscene Ltd [2017] Lexis Citation 445. This ruling is significant, first and foremost, for its analysis of the application of the rule in Shah [2001] EWCA Civ 527 to Deeds executed by companies. Those acquainted with Shah will remember that it addressed the effectiveness of a Deed executed by private individuals. They contended the Deed was ineffective because their signatures had not been attested at the time of signing, so the requirements of s1 of the Law of Property ( Miscellaneous Provisions) Act 1989 ( LP( MP) A 1989) were not fulfilled. The court rejected that case, holding the individuals were estopped from denying the Deed’s validity, essentially because it appeared, on its face, to have been duly executed when it reached the receiving party. This decision logically confirms that the Shah...