Steve Savory provides an insight into our plethora of online services:
A bumper crop of new editions and updates this month so what better place to start an online update newsletter than with the new edition of Gringras: Laws of the Internet?
- In his Preface to the 5th edition, author Paul Lambert notes that ‘some of the issues we had thought of as being solved have arisen afresh. The reader will be aware of an increasing volume of, and media interest in, current internet legal problems. These range from vast data breaches, hacking, misuse of huge amounts of personal data for errant political and profiling purposes (eg Cambridge Analytica), ransomware (eg NHS), revenge porn, to whether personal data can be transferred from Europe to the US for commercial purposes, issues relating to data erasure and forgetting, to multinational taxation issues – already an issue of political controversy'. It is, perhaps, too obvious to require statement that the internet is now more of an essential utility service than an option but the figures are instructive: In 2016, British consumers spent £133 billion buying goods and services online. It is estimated that 87% of consumers concluded at least one online transaction in the same period. Amidst all these commercial benefits, it is useful to have a clear statement of the issues online transactions may create for contract law, as follows:
‘1. What are the requirements for a binding contract to be made over the internet?
- How do you decide when a contract formed over the internet is made?
- What are, and do we need, digital signatures?
- How can digital forms of payment be used to bind agreements?
- What type of contract should be used to provide digital information over the internet?
- Which country’s courts will resolve the disputes arising out of an e-commerce contract?
- Which country’s law will apply to an e-commerce contract?’
- A new issue of Business, Internet and the Law went live online during the month. The update addressed, amongst other things: internet advertising; payment for goods and services; employer liability and defamation; data protection, hacking, security and ISP liability. Here’s a useful tip from the chapter on internet advertising. What happens if you or your client’s business accidentally offers a product for sale at an absurdly low price?
‘A number of well publicised incidents where well known companies’ web sites have inadvertently advertised goods at a very low price in error have normally led the courts to conclude the price on the site is simply an invitation to treat and the buyer attempting to buy is putting forward an offer which may or may not be accepted at that price. Indeed all readers who supply via web sites are advised to ensure their terms and conditions allow them to reject any order – one would expect this in any event for a number of reasons – a customer may have a bad credit rating or the card number might be wrong etc.’
- A new title was added to the Family Law Service during the month: Public Children Law: contemporary issues by Alexander Laing and Dr Bianca Jackson. The Rt Hon Lord Justice McFarlane described the book in his Foreword to the new edition as follows:
‘The publication of this focused and most useful book introduces a novel hybrid into the family law library. Each of the dozen chapters focuses upon a different topic of current interest and importance. The topics have been well chosen and the treatment that each receives is partly that of an authoritative, in-depth journal article, partly a back-to-basics tutorial in the essential legal context, and partly sound pragmatic advice written by practitioners for practitioners. Even to the seasoned eye there will something to be gained from each chapter in addition to the value of having the learning on each issue drawn together in one easy article.’
Here’s an example of that approach, taken from the chapter on achieving best evidence with children:
'That initial questioning should seek to elicit only a brief account of what is said to have happened, with a more detailed account to await the formal ABE interview. It is suggested that such questioning should focus simply on where and when the alleged incident took place and who was involved or present, that information being required to take immediate investigative steps. Subsequently, the Court of Appeal has suggested the following formulation:
"… with the benefit of experience of many similar cases I would suggest that discussions about the facts in issue in respect of an allegation as distinct from whether and what allegation is being made against whom, should be rare and should not be a standard practice which avoids the purpose of a full ABE interview where the recording can pick up the nuances of suggestion and demeanour".
Part of the reason for this, of course, is that the more times the child is asked about the same subject, the less weight can be put on the answers given.'
- Another new edition to go live in the month was the second edition of Mediation Advocacy: Representing and Advising Clients in Mediation. In this field too we see that everything is heading online. Author Stephen Walker remarks that online dispute resolution (“ODR”) is the next big thing in mediation: ‘it will be transformational’. His discussion of these developing technologies identifies them as ‘almost apocalyptic’ in their effects:
'Professor Ethan Katsh wrote, with Janet Rifkin, the first book on ODR, Online Dispute Resolution: Resolving Disputes in Cyberspace (2001). His definition is: "most basically, online dispute resolution is dispute resolution that is supported, facilitated, helped by the use of technology."
This sounds anodyne but he has gone on to say that ICT is the fourth party in the room. The first issue to understand is that when commentators refer to the line between ODR and ADR becoming blurred they do not mean mediation. They mean ADR. As Ethan Katsh said in his 2014 interview with Aled Davies at www.mediatoracademy.com:
"I think the field of ADR is coming to recognise that the future is ODR. Maybe that’s a bit of an exaggeration, but I think it’s inevitable that ODR technology becomes a part of all dispute resolution practice. It has to be. As I said several times, we have these machines that can do things that skilled arbitrators or mediators have to do."
This sounds considerably less anodyne and in fact almost apocalyptic. ODR in the sense in which Professor Katsh uses the phrase includes adjudication and arbitration. The demand for ODR is growing but that does not mean that the demand for mediation is growing commensurately. In fact some think that the growth of ODR will reduce the demand for mediation. That is mediation in the sense of the traditional facilitative model.'
- A world away from the online worlds of AI where robots interact with each other on our behalf are the, in comparison, somewhat calmer waters of Compulsory Purchase and Compensation Service which also received an update during the month. Here is some commentary on the circumstances in which there may be a right to enter a property for survey purposes:
'This power can only be exercised after confirmation of a compulsory purchase order, since, prior to that date, there is no acquiring authority for these purposes. The acquiring authority must compensate the owners or occupiers of land in respect of any damage occasioned as a result of such entry, and any question of disputed compensation may be referred to the Upper Tribunal. Any such compensation will carry interest from the date of entry until the date of payment. Where a local authority proposes to acquire compulsorily interests or rights in land, it can authorise persons to enter onto the relevant land for the purposes of carrying out a survey, provided at least 14 days’ notice has been given to any occupier or statutory undertaker. Entry for the purposes of survey only does not constitute entry for the purposes of assessment of compensation payable in respect of landtake.'
- Finally, this month, a characteristically fascinating article from David Burrows in the new issue of Bloomsbury Family Law Briefing which considers non-party production of documents in family proceedings, discussing in particular the case Lancashire County Council v A, B and Z (A Child: Fact Finding Hearing: Police Disclosure)  EWHC 1819 (Fam):
“That is the background to one of the care cases considered in this article, which looks at the law in relation to production of documents into family proceedings – mostly, but not only, children proceedings – by non-parties. As will be seen, the law and the guidance for judges and a ‘protocol’ are not clear. In the Lancashire case Gwyneth Knowles J was critical of the police ‘disclosure’:
‘ The fact-finding hearing was beset by problems arising from the late disclosure of material held by Lancashire Constabulary ["the police"]. It was not evident until day five of the hearing that the police held material of potential relevance to the issues I had to determine….
“ It will be obvious that the non-disclosure by the police of potentially relevant material could have both prejudiced the right of X"s parents to a fair hearing and deprived the court of information which might have shed light on what happened to X whilst in the care of her parents. That this could have happened in a case of such seriousness was bad enough but, in this case, the potential unfairness was magnified by the vulnerability of X"s mother who had been assessed as requiring the assistance of an intermediary throughout the hearing. Had it not been for the diligence of counsel and the time I allowed for instructions to be taken, the entire hearing might have been fundamentally compromised on fairness grounds.”
And so it goes on; but was it fair to blame the police? It was not their case. It was the case of the local authority and of the parents. Was it not for them to ensure that evidence was in court, if it was available? This could – should? – have been done by formal application under Senior Courts Act 1981 (SCA 1981), s 34(2) or by witness summons (Family Procedure Rules 2010 (FPR 2010), r 24.2(1)(b): see below).
It is essential that the family courts in care proceedings, especially, have full assistance from all concerned. Where a non-party (such as the police) are required to produce a document or other evidence it must be in a principled way.’