September Online Service Updates

Steve Savory provides an insight into our plethora of online services:

  • Paul Lambert’s new third edition of A User’s Guide to Data Protection: Law and Policy, part of the IT/IP Law service, is now available online. This title provides the in-depth coverage of GDPR one might expect, but has plenty of informed and stimulating comment on a broad range of other topics too. For example, here’s a short extract from the coverage of online bullying, “trolling” and so on.

The cyber-bullying of teenagers is just one facet of online abuse, which can range from threats to defamation, harassment to stalking, grooming and breaches of privacy and data protection. There are also overlaps. The cyberbullying of children can involve harassment, threats, verbal abuse and defamation, or in the case of Amanda Todd, privacy and data-protection breaches later expanding to threats. The solutions are multifaceted. Much of the recent commentary points to education, educators and parents. While this is correct, it is only one aspect.

One point missing from the current discussion is that it is legally possible to find anonymous abusers. Victims and the police can apply to court for the disclosure of user details from relevant websites and service providers. These are frequently known as Norwich Pharmacal orders. Online abusers can face civil as well as criminal consequences, even if they are children or teenagers. It goes without saying the police must properly follow up reports. It is clear from recent media commentary that the UK police are proactive and considered in this area.

  • Staying with the IT/IP Law service, issue 53 of Business, The Internet and The Law was also updated online during the month. Author Susan Singleton is, of course, very well known to practitioners and it’s easy to see why in this title. Useful guidance clearly stated is something of an authorial trademark. Take the following notes on comparative advertising, for example.

Comparison with a competitor’s products is one of the most convincing means of showing a customer why the advertising business’ products are best. However, many businesses have regretted this form of advertising and it can result in very public disputes about the product concerned with rival experts’ reports being used in evidence. Therefore, businesses should consider the following.

- Only engage in comparative advertising after having taken legal advice.

- Using a competitor’s trade mark on an internet website is likely to lead to greater risks than use in other media because it will be broadcast in other jurisdictions. This means the damaged party can pick the country where such advertising is prohibited and avoid suing in countries such as the UK which have a relatively benign regime.

- Only use scrupulously fair comparisons and avoid any comparison which is in anyway inaccurate.

- Compare like with like.

  • Moving on from IT/IP Law to the even choppier waters of Professional Negligence, the latest issue of the Journal of Professional Negligence was added to Professional Negligence law. Anneliese Day QC in her Year in Review – Professional Negligence in 2017 contains an extensive discussion of BPE Solicitors v Hughes-Holland ([2017] 2 WLR 1029) but the following notes on a somewhat less well known case caught my eye:

'In Denning v Greenhalgh Financial Services Ltd, the court considered whether a pensions adviser owed a duty to review work carried out by a previous adviser and advise the client of a potential claim. It concluded that no such duty was owed on the facts and the claim was struck out. Green J stated that in order for there to be an extended duty to advise, there needed to be a close relationship between the agreed retainer and the matter that it is alleged that the professional had failed to advise upon. The mere fact that a professional reads a document he was not asked to read and, by doing so, discovers a risk to the client is not sufficient (distinguishing the 2002 case of Credit Lyonnais v Russell Jones & Walker on the facts). Only in ‘obvious cases’ will an extended duty arise. The case highlights the importance of a carefully prepared retainer – especially in circumstances where there is a risk that the professional might be expected to advise on historic matters – but also shows that there may be limited circumstances in which a court may be willing to extend a professional’s duty beyond the scope of its agreed retainer.'

  • Meanwhile, in the Employment Law service, Termination of Employment has been updated to Issue 63. During the discussion of recent case law on constructive dismissal, author Julian Yew moves on to consider the need for employers to familiarise themselves with the employment law principles relevant to the decisions they are taking, even where the law is complex:

This principle was extended in the recent case of IBM United Kingdom Holdings Limited v Dalgleish concerning changes to a pension scheme. The Court of Appeal held, taking into account the decision in Braganza, that a rationality approach equivalent to the Wednesbury test should be adopted in cases involving the exercise of an employer’s express or implied discretionary powers, in order to decide whether the employer had acted in breach of the implied term of mutual trust and confidence. This rationality test requires a court to ask firstly whether only relevant matters (and no irrelevant matters) had been taken into account by the decision-maker and secondly whether the decision was such that no reasonable decision-maker could have made it. In order to decide whether an employer’s decision satisfies the rationality test, the court may need to know more about the employer’s reasons and the decision-making process to assess whether all relevant matters, and no irrelevant matters, were taken into account. However, the Court of Appeal noted that:

‘Other cases very different from those of contractual discretion include conduct which is aimed at a given employee or a group of employees, of the kind that can lead to a claim of constructive dismissal, such as harassment or other objectionable behaviour. For such cases the Wednesbury test is hardly likely to be directly relevant.’

The rationality test is therefore limited to situations where the employer exercises a discretionary provided for under a contract.

  • Also updated to the latest edition during the month was The Law of International Banking, part of the Banking and Finance Law service. Naturally, this is a subject for a highly specialised audience but there is much of interest to the general reader too. For example, the prevalence of securitised debt is perhaps one of the more noteworthy features of global finance in the 21st century. For those with an interest in the topic, author Andrew Haynes gives a straight answer to the question: why securitise?

'The commonest reason is that funds raised by this method should involve lower interest rates than bank borrowing, as securitised debt is potentially accorded a higher credit rating than the originator’s own debt; and also allows sub-investment grade originators to access the international capital markets. It provides the originator with access to a new source of funds, particularly over the medium- and long-term. In addition, it potentially frees existing capital reserves to finance the business, provides a quick increase on assets and improves liquidity, especially in the case of ongoing multi-seller bond issues. Another is that it is possible for the originator to remove the assets involved from their balance sheet, thus reducing gearing. Another advantage is that the arrangement may also be confidential. It provides access to the international capital markets which may not otherwise have been available for the originator. As a result it may also be possible to arbitrage and access cheaper funds in other markets. It may also be used where bank loans would not have been available. Only the assets concerned with the securitisation are affected, which is more attractive from the borrower’s point of view than secured lending which tends to involve a fixed, and in jurisdictions where they exist, a floating charge over the borrower’s assets up to the level of the debt, interest and costs. There may also be liquidity advantages particularly in a revolving issue. The arrangement will not normally fall foul of negative pledge clauses 112 in the favour of the originator’s lending bank covering the assets that have been transferred from the balance sheet. It also diversifies the originator’s funding sources and provided there are no financial problems the originator will find the arrangement should not impact on their relations with other lenders. Securitisation affects only the assets securitised whereas in a secured financing security is frequently taken over all the assets of the borrower, present and future. Securitisation leaves other assets free to be financed using different methods. In addition, the registration procedures that are needed in the case of charges and mortgages are not an issue here.'

Written by Ellie MacKenzie

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