Do NOT try this at home!

This extraordinary video of a man literally blending everything from iPads to entire cars, reminded me about data safety, especially on mobile devices. How often have you done your work emails from your mobile phone or iPad whilst on the go? More importantly, how often have you lost your phone or just thought you had for a few heart stopping minutes?
From a legal point of view, you may not realize that you could be facing a fine of up to £500,000 from the Information Commissioner, the man who enforces the Data Protection Act! He has formed the view that in future, where such losses occur and where encryption software has not been used by a business to protect the data, he may come after you!
The Information Commissioner’s Office recommends:
1. Portable and mobile devices including magnetic media, used to store and transmit personal information, the loss of which could cause damage or distress to individuals, should be protected using approved encryption software which is designed to guard against the compromise of information.
2. Personal information, which is stored, transmitted or processed in information, communication and technical infrastructures, should also be managed and protected in accordance with the organisation’s security policy and using best practice methodologies such as using the International Standard 27001. Further information can be found at 27001-online.com.
So what should you do now? Get to grips with encryption!

There are a number of different commercial options available to protect stored information on mobile and static devices and in transmission, such as across the internet. Best place to start your research is the government and business sponsored website getsafeonline.org.
What is ‘encryption’ exactly? Encryption software uses a complex series of embedded mathematical algorithms to protect and encrypt information. This process hides the data and prevents any inadvertent access or unauthorised disclosure of information. Since encryption standards are always evolving, it is recommended that data controllers ensure that any solution which is implemented, meets the current standard such as the recommended FIPS 140-2 (cryptographic modules, software and hardware) and FIPS – 197. Encryption products certified via CESG’s CPA or CAPS schemes to at least FOUNDATION grade would also meet the current standard.

Good luck and stay away from Mr Blender!!

PS . If you still don’t have a Privacy and Cookie Policy, you can get one from our oven-ready document shop .

Poor Mr Snail!

Whereas in the present case, James and Jasmine Watson were enjoying a candlelit dinner of steak ,chips and salad when they made the gruesome discovery of the bird, Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of  Stevenson ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury and shock as a result. She commenced a claim against the manufacturer of the ginger beer and, after a lengthy battle,was successful. Indeed it went all the way to the House of Lords, and the case established  the modern law of negligence and  the neighbour test.

The case aroused so much attention because in most cases one would have brought a claim on the basis of a contract of sale between the seller and the consumer.However, Mrs Donoghue had no contractual relationship with the ice cream parlour as she had not purchased the ginger beer; and while her friend did have a contract due to placing the order, she had not suffered any injury. Moreover, neither had a contract with Stevenson, the manufacturer of the ginger beer. Mrs Donoghue was therefore required to claim damages for negligence. They studied the rule  that “where anyone performs an operation, such as the manufacture of an article, a relationship of duty independent of contract may in certain circumstance arise, the extent of such duty in every case depending on the particular circumstances of the case“. It was argued that the ginger beer manufacturer owed a duty to take reasonable care in the manufacture of his ginger beer because the sealed bottles were opaque, and therefore could not be examined, and because the ginger beer was intended for human consumption.

And so emerged the neighbour principle: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? According to Lord Atkin, the answer seems to be : persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Maybe Tesco should take a leaf out of his Lord Atkin’s book with its washed and ready to eat salads…( Pardon the pun!)

Clearly I must have been “ little” hormonal myself and stomped off into my office. The first thing I saw was Mrs Moneypenny’s book and I hate to confess to this, but the title made me see red! I thought “how on earth can I plan to be ambitious when I can’t even organise 4 weeks off?” and at that point I tore the book into several pieces! Quite a feat considering it was the hard copy! Needless to say I immediately regretted it, as I was really enjoying the book. The priceless bit came when a week later I was on half term break with youngest costcentre in Cornwall . We had decided to have breakfast together in bed and read our books all morning. Imagine her amusement when I pulled out my fragments of book and had to humbly confess how it had “fallen apart”! So much for my exemplary adult behaviour!

I have since managed to finish the book and I highly recommend it.Maybe I should have taken more heed of Mrs Monneypenny’s chapter: “You can’t have it all“!

To buy the book, simply click here

Another way to cool off!

In an attempt to encourage consumers to make purchases over the internet, the law makers decided it would be a good idea to give them the right to change their mind. This gave rise to the Distance Selling Regulations which kick in automatically no matter what your terms and conditions say. Here is a snapshot of the cancellation rights in particular:

• consumer customers have 7 working days starting from the day after the goods arrive to change their mind and return the goods to the supplier;
• in the case of contracts for services, consumers have seven days from the day after the contract was concluded to cancel the contract. It is always an option to say to the customer that they can start receiving the services right away, but they must waive their cancellation rights
• the customer must tell the business in writing during that time that they wish to do so;
• the business must refund the cost of the goods and the initial postage to the customer within 30 days AND if the business has not expressly said so in its terms, the business has to pay for the return postage too
• businesses must tell customers of this cancellation right before the contract is concluded- it is no good keeping quiet and hoping that the 7 days will pass unnoticed
• there are exceptions to these rules, notably for perishable goods, customised orders made specifically for a customer, audio and downloadable products and CD’s once opened , newspapers and magazines

The Regulations require businesses to take many other steps and these will be covered in another article. Remember too that these Regulations started as a European directive and so will have been implemented across Europe. This means that if you allow consumer customers from abroad to buy your products, they too have automatic rights to cancel, with possibly more time to do so. So it is best to expressly limit sales to UK customers unless you are sure of the foreign law.

If you are worried your terms of sale do not comply with the Regulations, there are always the Terms of Online Sale available in our ‘oven ready’ document shop…

So, traders will not be able to enforce a surcharge imposed in breach of the prohibition and must refund any surcharges which have been paid. Trading Standards are empowered to investigate complaints of non-compliance. The Regulations apply to all consumer contracts for goods, services, digital content and most utilities, although there are various exclusions from scope (including certain financial services contracts).

It summarises, for example, a consumer’s right to receive certain information before concluding a contract online, rules on fair and unfair contract terms and delivery of goods, rights in respect of defective goods, rules on withdrawal from online contracts, and a consumer’s rights when in dispute with an online trader. This will be a useful  compliance checklist for all businesses trading on-line.

The bottom line is that advertising should not go as far as claiming or implying that a particular product is endorsed by the Royal Family or that a product is affiliated to royal events when it is not. This is in line with the general provisions on misleading advertising. You must obtain written permission before implying any personal approval of the advertised product and reminds marketers that those who don’t want to be associated with the product could have a legal claim  ( Rule 6.1).

Specifically, members of the Royal Family shouldn’t normally be shown or mentioned in a marketing communication without their prior permission (rule 6.2) and the Royal Arms or Emblems must not be used without prior permission from the Lord Chamberlain’s Office. References to a Royal Warrant should be checked with the Royal Warrant Holders’ Association (Rule 3.52).

The Lord Chamberlain’s office has issued guidelines regarding the sale of souvenir products. Advertisements for souvenir products are not, in and of themselves, likely to be considered to imply a Royal endorsement, although care should be taken in the copy to ensure that the ad doesn’t imply that a souvenir product is official memorabilia. In light of rule 6.2, the ASA advise against using images which have been provided for souvenirs or other specific uses in marketing communications for unrelated products.

As always, advertisers must ensure that advertising for such products is not misleading. In October 2012 the ASA upheld a complaint against an ad for a Prince William Royal Bridegroom Porcelain Doll because the image in the ad was found not to be an accurate representation of the product and therefore breached the Code. There is no minimum number of complaints required to spark an investigation, however it’s worth noting that the popularity of such products can result in a higher level of complaints if something goes wrong . This was the cae in August this year regarding a Royal Jubilee DVD offer .

It is worth noting that the Code states that an incidental reference unconnected with the advertised product, or references to material such as a book, article or film about a member of the Royal Family, may be acceptable.

Lastly, anyone considering marketing food supplements to pregnant women should be aware that significant changes are afoot in relation to health claims made on food products, please see this guidance for further information. The Comittee of Advertising Practice also has specific guidance on referring to Morning Sickness here.

*The Rules referred to are from the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing ( usually referred to as the “CAP Code”). This Code must be followed by all advertisers, agencies and media. The Code is enforced by the Advertising Standards Authority, who can take steps to remove or have amended any ads that breach these rules.

For more information, please follow this link to the Code. CAP also offer a free bespoke copy advice service if you are in doubt about your ads.

1. There is no implied duty of confidentiality owed by a self-employed consultant (as there would be for an employee). So all of your business information, client and supplier contacts that you may share with your contractor are exposed and free for them to use as they please. Therefore, it is important to impose express confidentiality obligations on the consultant which cover his/her activities both during and after the engagement.
2. For those businesses in the creative industry, it is vital to understand that if you sub-contract a creative project, the intellectual property rights (e.g. copyright) arising as a result of services provided will normally belong to the consultant and NOT to you. As you will usually want to take ownership of these rights, it is important to include specific assignment provisions in the consultancy agreement.
3. If the job or project you outsource would cause a big loss if the contactor gets it wrong, you can use the agreement to impose an obligation on the contactor to take out insurance to cover his/her liability and have added peace of mind.
4. Without an agreement, there is the risk that the terms between you and the sub-contractor are not at all clear and that statements you have made casually become legally binding.
5. You may be inadvertently creating an employer- employee relationship and not only have to account to the tax man for PAYE and NIC, but also face claims for maternity/paternity pay, unfair dismissal and redundancy claims if you do not follow the proper process!

If you need terms to get you started, we have a brand new Freelance Contractor Agreement in our ‘oven -ready’ document shop to put your mind at rest.

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I asked people in the queue for the cloakroom whether they had seen the sign and whether they were still willing to leave their property? Every single person had and each just shrugged sheepishly and said they would –after all , what could go wrong? I can tell you what could go wrong: the attendant could get bored, pop off for a coffee, someone could walk into the cloakroom, make off with your laptop bag and coat and have a field day.

What is it that makes people not truly read the legal small print even if it is in bold letters? Would they have behaved the same way if they were handing their child over to a nanny who wore a big sign on her lapel stating : I do not accept liability for loss or injury to your child”? I think not!