Legal News

The UK's new online safety legislation has passed the House of Lords on 6 September 2023. The Online Safety Bill gained approval with final changes on remote access and ministers’ powers, and a government note allowing content scanning of private communications, though this will not apply until technically feasible. The Bill now returns to the House of Commons, where the government may endorse it or make alterations. It is anticipated to complete its passage by the end of September 2023. Parliamentarians backed 17 fresh amendments introduced by the government minister. While many amounted to minor adjustments, one......

Meta Platforms Inc (formerly Facebook Inc) and other companies v Bundeskartellamt ECLI- EU- C-2023-537 What are the practical implications of this case? This Court of Justice ruling signals a shift in competition enforcement, centring on data-gathering practices that may weaken competition. It recognises that control over personal data is now a key competitive parameter in the digital economy, and that compliance with data protection rules helps to prevent abuse of dominance. Consequently, dominant online platforms that accumulate extensive data for personalised advertising, both on and off their services, can expect their processing to be examined by multiple regulators. The Court’s narrow reading of contractual ‘necessity’, and of Meta’s claimed legitimate interests in processing Facebook users’ data, mirrors the enforcement taken against Meta by the Irish Data Protection Authority in December 2022 (see LNB News 04/01/2023 27). It likewise aligns with obligations for firms in strong market...

An NHS Trust v ST (by her litigation friend, the Official Solicitor) and others [2023] EWCOP 40 What are the practical implications of this case? It is crucial to stress that this ruling turned on its particular facts, and it should not be taken (as the Official Solicitor for ST plainly feared it might be) to amount to the crude rule: ‘if a patient accepts what the doctor says—capacity; if a patient does not—no capacity’. Rather, Mrs Justice Roberts’ remarks highlight the enduring significance of belief within the framework of the functional test set out in the Mental Capacity Act 2005 ( MCA 2005), a point of broader relevance; see further here for more on how the MCA 2005’s language sits with clinical and social work realities. Roberts J was plainly right to note that a formal diagnosis is not required before the court (or indeed...

Re The Sustainable Bathroom Company Ltd [2023] EWHC 2065 ( Ch), [2023] All ER ( D) 60 ( Aug) What are the practical implications of this case? This ruling reassures appointing creditors, their professional representatives and the insurers behind them. Although the judge accepted that the director’s complaints about the creditors’ behaviour had merit, the court still held the administration appointment to be effective. Running through the judgment is the principle that debentures exist to secure indebtedness in favour of creditors, and that this substantive reality ought to trump technical imperfections of form—save, perhaps, where adherence to substance would visit serious injustice on the debtor. What was the background? The applicant was the founding director of a modest enterprise manufacturing electric bamboo toothbrushes supplied to Aldi. To finance the procurement of stock from China, the company entered into a funding arrangement with a financier, agreeing in return to share its...

Wilkinson and others v HMRC [2023] UKFTT 695 ( TC). Mr and Mrs Wilkinson jointly held around 58% of the ordinary share capital in P Ltd. A sale was agreed whereby the BCA group would acquire P Ltd via an acquisition vehicle, TF1 Ltd, for £130m (the transaction), with the price satisfied through a mix of cash and loan notes issued by TF1 Ltd (the exchange). In the days immediately before the deal, they transferred a substantial number of P Ltd ordinary shares to their daughters. On completion, shareholders other than the daughters received cash and loan notes; the daughters instead took a different class of loan notes together with B ordinary shares in TF1 Ltd, and no cash. The daughters were also appointed as non-executive (and unpaid) directors of a company that was a 100% subsidiary of P Ltd. These steps were...

What is the background to the IPO’s Transformation Programme and what stage has the consultation process reached? The UK government unveiled the One IPO Transformation Programme (the Programme) on 22 April 2021. Its objective is to create a centralised, digital platform for administering all UK‑registered intellectual property ( IP) rights, renewing how the UK Intellectual Property Office ( IPO) delivers its services and internal processes, and ironing out unnecessary discrepancies in the treatment of different categories of IP rights. Between 3 November 2022 and 6 January 2023, the IPO conducted its first consultation on how the IP legal framework might be adapted to achieve the Programme’s proposed outcomes. That consultation had two strands, with Part A addressing the digitisation of IPO services and Part B examining the uniform operation of the IPO Tribunal ( Tribunal). It further permitted respondents to nominate...

ETIAS will soon mean that visa-exempt travellers can no longer rely on entirely paperwork-free, administratively unburdened short stays in the EU using only a valid passport. Although it aims to operate with maximum smoothness, ETIAS could put a spanner in the works for day-to-day corporate activity across sectors, disrupting company initiatives and their staff’s business trips. To prevent this, and to help travellers and organisations alike adjust their routines and policies to this shift, it is prudent to confront key, practical questions— What is ETIAS? Who will be impacted? Why might an ETIAS request be rejected, and how should businesses get ready? What is ETIAS? ETIAS has been years in development across the bloc and within EU institutions. The initial seed of the concept, in its earliest guise, dates to 2008 as proposals on modernising the EU’s border management system began to surface. At the same time, the...

Ever since 1958, when physicist William Higinbotham unveiled what is widely considered the first video game, the industry’s landscape has been transformed, with successive waves of ground-breaking technology continually reshaping how we interact with the medium. The latest—and arguably most consequential—shift is the adoption of AI technologies within gaming. From livelier, more reactive non-player characters ( NPCs) to procedural generation and heightened immersion, AI is rapidly becoming a cornerstone of contemporary gaming. This piece examines current AI applications in gaming, considers where the technology might head next, and outlines key legal and commercial issues that accompany it. In this article, we set out the state of play, its prospective trajectory, and the principal legal and commercial considerations that arise. The size of the gaming industry As development technology has moved forward, the industry has grown in lockstep. As noted above,...

Galapagos Bidco Sarl v Kebekus [2023] EWHC 1931 ( Ch) What are the practical implications of this case? This decision offers useful clarification on the interpretation of familiar provisions and expressions found in the ‘distressed disposals’ clause of English law intercreditor agreements. The court scrutinised the distressed disposal mechanics in an English law-governed intercreditor to decide whether the restructuring had been properly implemented. A central question was whether the sale of the insolvent group could be treated as being ‘for cash’, notwithstanding that creditors of the insolvent group subscribed for notes in the newly reorganised group and set off the subscription monies against their entitlements under the payment waterfall. The court also considered whether that investment meant the relevant creditors’ claims had not been unconditionally released at the same time as the sale, as the intercreditor required. The court concluded that the...

The EU Data Act The EU Data Act seeks to hand people using Internet‑connected products, from fridges to smartphones, greater control over the information they generate. EU lawmakers approved it in June 2023 after fraught negotiations centred on safeguarding trade secrets, and it is slated for formal adoption before the close of 2023. Negotiators aimed to balance wider data access with protection of trade secrets. A study financed by the Computer and Communications Industry Association, a technology lobby, argues the package will significantly, even dramatically, reshape the landscape for digital commerce in Europe and further afield. It foresees substantial consequences for leading US digital service providers that the European Union has designated as “gatekeepers”—large platforms expected to comply with regulatory duties—as well as for these firms’ hundreds of millions of trans‑ Atlantic European business and individual customers. From the EU’s General Data Protection...

Time GB Group Ltd v Yarwell Mill Country Park Ltd [2023] EWHC 1887 ( Ch) What are the practical implications of this case? This judgment underscores the necessity for solid evidence to support any application seeking to restrain the advertisement of a petition, and showcases the court’s firm response to assertions that are not borne out by the material before it. It also provides a useful restatement of: the core principles that inform an application to restrain advertisement; the characteristics of a promissory note; and the circumstances in which a term of good faith will be implied into an agreement. The court drew upon leading authorities on when advertisement should be restrained, including Coilcolour v Camtrex [2015] EWHC 3202 ( Ch) ( Mr Justice Hildyard). It additionally referenced Lady Justice Arden’s decision in James Dolman & Co v Pedley [2004] BCC 504 (not...

Spencer v Spencer [2023] EWHC 2050 ( Ch) On 9 August 2023, Rajah J handed down judgment in Spencer v Spencer [2023] EWHC 2050 ( Ch), a farming proprietary estoppel dispute. Stephen Jourdan KC and Caroline Shea KC represented the claimant and defendants, respectively. Stephen was leading Christopher Jones, instructed by Tim Russ of Roythornes, while Caroline led Sarah Haren KC, instructed by Russell Reeves of Thrings. The claimant, Michael Spencer, asserted that his late father had assured him he would succeed to the freehold land making up the farm on his father’s death—about 405 acres—and that he had acted in reliance on those assurances so that it would be inequitable for his father to depart from them. Up until shortly before he died, his father’s wills had left the land to Michael. However, a new will executed shortly before death left the land to trustees on a...

Tanya O’ Carroll, a human rights advocate and senior fellow at Foxglove, a non-profit dedicated to fairness in the use of technology, launched a High Court action against Meta in November 2022. She asked the court to uphold the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), invoking the ‘right to object’ to data being collected for targeted advertising. The EU GDPR grants individuals the right to object to the processing of their data, although in many areas this is subject to exemptions. Direct marketing, however, carries no exemptions, making it an ‘unqualified’ right. In its June 2023 defence, Meta argued that O’ Carroll’s portrayal of targeted advertising as direct marketing is mistaken, and therefore it does not have to......

What IP issues are involved in making a film that is based on a well-known product like the Barbie doll? ‘ Barbie’ is one of the most talked-about films of the summer. When crafting a feature based on a famous product such as the Barbie doll, a host of IP questions arises. We will return to trade mark protection and the more obvious IP categories, but the launch point for a project like Barbie is a knockout script. A production of this scale is threaded with numerous layers of IP, from the screenplay to the music script. Although Greta Gerwig’s direction has been widely highlighted, there has been less focus on her partner and co-writer, Noah Baumbach. Inevitably, there will be intricate contractual arrangements (likely several) covering authorship and ownership of the screenplay and its related copyright. Copyright also safeguards the...

Cohen and others v O’ Leary (a bankrupt) and others [2023] EWHC 1939 ( Ch) What are the practical implications of this case? Applicants pursuing Bacci v Green relief will generally need comprehensive details of a debtor’s pension before the court is willing to grant it. That includes, for example, the debtor’s rights and benefits under the scheme, the type and features of the scheme, and the identity and particulars of the pension provider. Where such information cannot be obtained readily, applications may need to proceed in two stages, initially seeking an order for further information together with interim protective measures to stop the debtor diminishing those assets. The ruling also offers reassurance to creditors when time is critical. Although permission to commence proceedings against a bankrupt under IA 1986, s 285(3) is usually—and...

The video-sharing platform, owned by the Chinese tech company Byte Dance, counts as one of 17 VLOPs under the landmark content moderation regulation, so it falls under tougher obligations and oversight by the Commission as a result. Bing from Microsoft and Google Search from Alphabet are likewise formally labelled as VLOPs. The Commission assigned that status in April 2023. Tik Tok must comply by 28 August 2023. Tik Tok stated that users aged 13–17 will no longer receive personalised adverts derived from their activity on or beyond Tik Tok. This update applies to users in the EEA, namely the EU alongside Iceland, Liechtenstein......

Stephen John Hunt v Jagtar Singh [2023] EWHC 1784 ( Ch) What are the practical implications of this case? This ruling is valuable for liquidators, as it sets out a clearer pathway for certain claims alleging breach of the duty to consider creditors’ interests. While actions against directors where a company was nearing, or tottering on the brink of, insolvency remain somewhat unsettled after BTI 2014 LLC v Sequana SA [2022] UKSC 25, [2022] 3 WLR 709, a different position applies where the company was, in reality, significantly insolvent unless a liability could be successfully contested. In that circumstance, the liquidator can proceed with greater assurance. The emphasis is not on calculating the precise probability of insolvency; rather, if there was a real prospect that the challenge to the liability might fail, the duty is engaged. The decision also offers a clear warning to...

Introduction In recent months, many commentators have examined the Court of Appeal’s ruling in Pretoria Energy Company ( Chittering) Ltd v Blankney Estates Ltd [2023] EWCA Civ 482. Much of that analysis has focussed on whether, on the particular facts, signed Heads of Terms resulted in a binding agreement for the creation or other disposition of an interest in land (here, the grant of a lease) within section 2(1) of the Law of Property ( Miscellaneous Provisions) Act 1989. This article, however, approaches the decision in terms of its possible ramifications for the procedure to contract out of LTA 1954, Pt II. In particular, remarks by Lord Justice Lewison appear to speak directly to the timing of that process and when the landlord and any guarantor should undertake it. Background facts The discussions between the appellant ( Pretoria) and the respondent ( Blankney) concerned a...

The Financial Conduct Authority ( FCA) has now refreshed its webpage about proceedings against Park First and its senior leadership, stating that it has......

What does ETDA 2023 do? Rooted mainly in the UK Law Commission’s March 2022 draft Bill, ETDA 2023 establishes the framework for recognising and handling trade documents in digital form under English law, giving an electronic trade document the same legal effect as its paper counterpart. In consequence, an electronic trade document attracts the same status and consequences as a comparable paper trade document. It confirms that a person can possess, indorse and transfer possession of an electronic trade document, and that any act carried out in relation to an electronic trade document has the same effect for that document as it would for an equivalent paper document. This parity covers possession, indorsement and ending possession too. Before ETDA 2023, English law did not recognise the possibility of possessing electronic trade documents, and so core English law principles concerning documentary...