Naked Law

M&R launches procurement portal

Readers interested in changes to the UK's procurement regime may want to take a peek at the procurement portal we launched recently.  This follows changes implemented following the Remedies Directive that took effect at the weekend.  Public authorities are now more exposed to challenges if they fail to comply with the Procurement Regulations - and in particular may find that contracts are rendered "ineffective" if there is a breach.

You may also want to join in with the discussions on our new procurement law blog following further changes to procurement law ...

Updates will soon be available for your computer

With the Noughties nearly over, the European Commission's case against Microsoft's naughty abuse of its dominant market position appears to have finally been brought to a close.

Those with good memories (or a dislike of the Internet Explorer web browser) may recall that in January 2008, the European Commission began looking into a potential breach of European competition law by Microsoft following a complaint that it was tying its Internet Explorer web browser to Windows and so abusing its dominant market position.  Perhaps unsurprisingly, the European Commission took a preliminary view that by doing this, Microsoft was gaining an artificial distribution advantage on more than 90% of PCs.

Back in 2004, Microsoft was fined £331 million for bundling its Media Player with the Windows package - the European Commission decided that this also amounted to an abuse of Microsoft's dominant market position.  Having already had this wallet-lightening experience, in order to deal with the web browser complaints, earlier this year Microsoft offered commitments that it would ensure PC manufacturers and users will be able to:

1. install any web browser on top of Windows;
2. make any web browser the default browser on new PCs; and
3. turn off access to Internet Explorer.

Last week the European Commission announced that it was making these commitments legally binding, meaning that by mid-March 2010, all internet users who have Internet Explorer set as their default web browser should have been presented with a "Choice Screen" giving them the option to switch to Apple Safari, Google Chrome, Mozilla Firefox, Opera, AOL, Maxthon, K-Meleon, Flock, Avant Browser, Sleipnir or Slim Browser.  So don't forget to click on the "Install Updates" icon.

This Naked Lawyer wonders if most individuals are already too set in their ways for the "Choice Screen" to make much of a difference, but is making a New Year Resolution to try using a different browser when surfing the web. 

Possibly realising that "it is more blessed to give than to receive" (Acts 20:35), Microsoft has also given a public undertaking to promote interoperability between its products and those created by other companies.  Microsoft claims that this undertaking "represents the most comprehensive commitment to the promotion of interoperability in the history of the software industry".  The interoperability package being offered to third parties is available from its website.  There may well be some interesting experimentation going on during the teen years of the third millenium anno domini.

Cyber Monday - a good thing?

The 7 December this year was declared by Retail Decisions (ReD) , a world leader in card fraud prevention, the busiest on line trading day of 2009.  It reported that over £370m was spent on that day, with £33m being spent in the lunch hour.  This is an increase in 17% over the busiest day last year.

With the top ten sales on "Cyber Monday" being electronic gifts it may be worth reminding ourselves some of the obligations imposed on on-line traders.  An on-line store should, amongst other things, provide contact information for the trader, clear information about the total price for the goods, a clear product description and clear information about the consumer's rights, particularly in relation to the right to return goods for no reason within 7 days of purchase.

Earlier this year the EU carried out an investigation into misleading and unfair practices on websites selling consumer electronic goods.  The EU investigated 369 sites and found that 55% of them showed irregularities.  The most common one being providing misleading information about consumer rights.  66% of the problem websites generally did not inform buyers of their right to return goods or their right to receive a refund as opposed to a credit voucher.

It may therefore be worth checking your rights in the event of needing to return goods or requesting a refund and possibly not trusting what you are told!

Human right to internet access qualified

At the end of November, the European Parliament approved the text for a new directive amending existing EC legislation on electronic communications networks.  Hurrah.  Whilst finalising the text, the European Parliament considered whether any restriction on an individual's access to the internet should require a prior court judgment to that effect.  Naked Law readers may recall that this was the position the French courts took in June this year, on the basis that access to online services is a human right.

The European Parliament has concluded that restrictions on internet access may "only be imposed if they are appropriate, proportionate and necessary within a democratic society".  Although there will be no need for a court ruling to restrict internet access, such measures may be taken only "with due respect for the principle of presumption of innocence and the right to privacy" and as a result of "a prior, fair and impartial procedure" guaranteeing "the right to be heard...and the right to an effective and timely judicial review."

All of which means that the way has been cleared for Lord Mandelson to introduce the much anticipated legislation obliging internet service providers to slow or cut off copyright infringers' access to their internet service.  This proposed legislation - the Digital Economy Bill - has its second reading in the House of Lords today.  So watch this space.

In the hierarchy of rights, it would seem that copyright currently trumps the right to online services.  One wonders whether it will continue to do so Sixty Years On.

Fred: Keene to find out

We have a lot of questions from public authorities and suppliers about the scope of the 'commercial interests' exemption under the Freedom of Information Act, particularly in relation to tenders.  A recent Information Tribunal judgment (Fred Keene v Central Office of Information) throws a little more light on things. Fred's business had been one of the unsuccessful bidders when the COI had invited tenders from reprographics businesses several years ago. In January 2007 Fred made a request for information to the COI under the FOIA regarding the selection process, in response to which the COI supplied some information but withheld the crucial evaluation and scoring details.

The COI relied on the Part II FOIA commercial exemption that disclosure would be likely to prejudice the commercial interests of any person, including the public authority holding the information. They argued that low scores or negative comments about the bidding businesses would damage their commercial interests by adversely affecting their reputation, and further that the commercial interests of COI would be damaged as disclosure of the disputed information would deter businesses from tendering, or providing adequate information, in the future.

The Tribunal found that:

• the meaning of 'likely to prejudice' was that there would be a real and significant risk, or 'weighty chance', of detriment or damage to the commercial interests of a party;
• the commercial interests of the bidding business would not be prejudiced by disclosure of the information as there was no commercially sensitive information or performance related comment in the evaluation information - it was held that although an application form was described as 'not great' and the applicant 'would not be able to handle COI's business', these comments were about entirely objective matters and therefore did not reflect negative opinion; and
• the commercial interests of COI would not be prejudiced as the COI had established tendering procedures that businesses would have to abide by, and most businesses were aware that as a public body the COI was subject to FOIA disclosure obligations.

As the test had not been met the COI was obliged to disclose the disputed information. Fred wins. Go Fred!

The court considered as an aside that the public interest in maintaining the exception did not outweigh the 'very strong public interest in promoting transparency and accountability in relation to tendering and procurement decisions of the COI and its expenditure of public funds'. Always good to know.

ICO consultation draft guidance

An update on the ICO's monetary penalty consultation - recent draft guidance has set the maximum penalty for serious breaches of the Data Protection Act at £500k. The ICO believes this is a proportionate sanction for serious contraventions of the data protection principles, and has stated that the possibility of a monetary penalty 'should act as an encouragement towards compliance, or at least as a deterrent against non-compliance' on the part of data controllers.

The guidance states that, following an investigation to determine whether there has actually been such a contravention, the Commissioner will determine whether a monetary penalty is appropriate and the amount of that penalty firstly based on the underlying aim of the measures to promote compliance with the DPA and then based on the circumstances of the particular breach. Factors including the nature of the data, the number of people affected by the breach, whether it was a one-off incident or part of a series, the duration and extent, whether the breach was deliberate and the steps taken by the data controller to prevent such an incident may all be taken into account.

Interestingly, the Commissioner will also consider the size and financial and other resources of the data controller in determining the amount of monetary penalty, and it seems that a data controller with substantial financial resources is likely to attract a higher penalty than one with limited resources for a similar contravention. So large organisations should beware - it would seem that once the 'serious' threshold is crossed in relation to the breach, financial resources may 'proportionately' affect the size of the fine (sorry, monetary penalty) imposed.

The consultation period ends on 21 December this year, and as yet there is no definitive information as to when these measures will be implemented - though the Commissioner has made his eagerness to use the powers public knowledge.

Incidentally, a slight inadvertent slip in Part 4 of the draft guidance - '...whether liability to pay the fine will fall on individuals...'

Good news for disclaimers?

A recent Court of Appeal case may be good authority for saying that website disclaimers can be effective.

A husband and wife wanted a swimming pool in their garden. They searched the Swimming Pool & Allied Trade Association ("SPATA") website (http://www.spata.co.uk/)  in order to find a contractor. The website explained that contractors listed were approved member companies who were fully vetted. Having found their details on SPATA, the claimants engaged Crown Pools Ltd ("Crown") to do the work. However, the work was not completed due to Crown becoming insolvent. The couple alleged that they had suffered financial loss and bought proceedings against SPATA on the basis that Crown was not in fact a full member of SPATA and SPATA had made negligent misstatements on their website to this effect, which the claimants had relied upon.

SPATA successfully argued that they had urged visitors to the site to seek further information as to the members, ie by obtaining an information pack (which had the Claimants done, they would have discovered that Crown was not a full member). This guidance appeared on the home page of SPATA and the list of members was sited very near to the wording mentioned above, namely that 'SPATA supplies an information pack and members lists which gives details of suitably qualified and approved installers in the customer's area'. The court held that the fact that visiters were directed to obtain an information pack meant that it was not liable where a visiter relied on wording on the website without seeking the information pack.  Therefore, the Court of Appeal held that SPATA did not owe a duty of care to the couple.

The verdict will surely be welcomed as it is one of the first to consider the issue of website disclaimers.  I note that the judge specifically states that the fact that the list of members appeared on a website did not make any difference and that no special considerations apply to representations on websites.  However, the fact that in this case a mistake on a website did not necessarily lead the website provider to be liable, means that this could represent good news for website operators who, up until now, have had little guidance or inkling as to the enforceability of their website disclaimers.  The case did not, unfortunately, give a steer on where a disclaimer must be found for it to be able to be enforced against a visitor, but no doubt it was relevant that the wording in this case relied upon by the website operator was very close to the representation in question.

Digital Economy Bill due soon

Proposals for new legislation to combat internet piracy are expected be announced at the State Opening of Parliament. It will be interesting to see how the government’s thinking has evolved since the Digital Britain report suggested that those who illegally download films and music may have their internet connections slowed.

You may recall that in August, Lord Mandelson upped the ante by voicing his opinion that people who illegally download films and music should have their internet connection cut off and possibly incur a fine of up to £50,000.

Whilst Lord Mandelson’s comments have not been unanimously supported some luminaries of the music world, including Elton John, have backed the harsher sanction. Presumably those pirates who have illegally downloaded Mr John’s songs have found that sorry seems to be the hardest word.

Latest ICO intelligence at Intellect

I'm on my way back to Cambridge after a meeting at Intellect's Russell Square offices about the new Information Commissioner and the latest from the ICO. Interesting points covered included:

• ICO will be able to impose fines from early next year for serious breaches with potential to cause substantial damage or distress (which we knew already) - but they're 'monetary penalties' and not fines because they are not criminal sanctions.
• Monetary penalties are still under consultation. ICO currently favours setting a maximum figure (rather than unlimited penalties or a percentage of turnover). The level is likely to be a 'substantial figure' (though less than £1m). Likely to go to a public consultation later this year so may still change further.
• April still the best bet for when the fines ... er ... penalties ... will be available to the ICO.
• They won't only apply to security breaches/7th principle breaches (though the ICO would have expected to be able to impose penalties on HMRC, MOD and the people behind the construction employee gaffe that all made headlines if the power had been introduced earlier).
• Also talk about compulsory audits (after 'assessment notices') for central Government (and other sectors, where extended by order).
• And data breach notification is still on the radar and still under discussion by the EC.

I’m a celebrity…get me out of this courtroom!

As from 1 October 2009, and for the first time in English legal history, Supreme Court proceedings may be televised. We’re passing comment on this in the Naked Law forum because although no mention has yet been made of the possibility of downloading coverage from the internet, one assumes it would be the next logical step...and even if it isn’t, this story is of general interest!

Broadcasting is banned from all other courts in England and Wales, but new rules apply to the Supreme Court under the Constitutional Reform Act 2005. Although the public have been able to see parts of House of Lords proceedings previously, such as the Pinochet extradition, the new broadcasting rules allow unprecedented access to proceedings.

The big objective of broadcasting is to make proceedings more accessible to the public, although there are (naturally) limitations. Footage will be filmed by the court and then passed to broadcasters; justices will be able to stop filming as necessary; and the footage may only be used for news, current affairs and educational and legal training programmes. In this way, the State should be able to overcome privacy issues, but even so, one feels that Strasbourg beckons in the not too distant future.

It remains to be seen whether the decisions of the Supreme Court Justices will be scrutinised as carefully as those of Alesha Dixon during Strictly Come Dancing.