Are the lights on for UK-registered designs?
Registered designs are not expensive or difficult to obtain for businesses and can provide strong protection over and above unregistered design protection in the UK.
That said, registered designs have had somewhat of a difficult recent history in the courts of England and Wales. A selection of recent decisions has perhaps given the impression that registered designs can be difficult to enforce against infringers and led to some uncertainty around filing practices.
However, a recent decision in the Intellectual Property Enterprise Court (IPEC) suggests that the tide could be about to change in favour of registered design owners.
We take a look in more detail at the case.
The Case
In the relatively short judgment of Lutec (UK) Limited & Ors v Cascade Holdings Limited & Or [2021] EWHC 1936 (IPEC), the court found that the claimant’s registered designs were infringed by the defendants’ outdoor light fittings.
The judge determined that the defendants’ “Helios” fittings (pictured right) did not create a different overall impression on the informed user than that of the registered designs (pictured left), which is a part of the test for infringement:
You can find the full decision and the source of the above images at bailii.org.
Interestingly, there was no challenge to the validity of the registered designs based on the existence of earlier designs in the marketplace, which is a common method of trying to avoid a finding of infringement.
If the registration is invalidated, there can be no infringement, so an early search by defendants for pre-existing designs is an important exercise. Whilst it appears that there was a late attempt by the defendants to put in evidence of earlier designs (which was denied), ultimately they were left exposed with just the question of whether their products infringed.
Whether or not you agree with the outcome, there are a number of important take-home points from this decision which will be of interest to owners and would-be owners of UK registered designs.
Further thoughts
The decision of IPEC Deputy Judge Stone reads very much like a statement of intent for UK registered design infringement cases.
Where the parties and their legal advisers take a sensible approach to the proceedings, registered design proceedings can be streamlined to be dealt with quickly and at a proportionately lower cost.
Since the proper interpretation of the registered designs is a matter for the court, there is no need for expert evidence to address the point, so the added complexity of expert evidence will rarely be required in registered design cases.
This particular claim was issued in August 2020 with the liability hearing in June 2021, and the trial took place by a remote hearing using MS Teams in just over one hour.
Whilst a fully argued validity challenge would have increased the duration of the trial, the point stands that the courts, and in particular the IPEC with its more focused procedural rules, can dispose of registered design cases relatively quickly.
This case should be of interest to a wide range of businesses, including owners of Community (EU) registered designs who will now own equivalent UK “re-registered” designs protecting their UK interests.
If the UK had been previously overlooked in terms of any perceived difficulties with enforcement, it may be time to re-evaluate your design protection strategies in the UK.
Get in touch
At Shakespeare Martineau we have experience of guiding clients through registered design cases in the Intellectual Property Enterprise Court. If this case is relevant to your business and you require assistance protecting your business’ own interests please do get in touch with Daniel Goodall or a member of our Intellectual Property Team.
We have updated our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of restrictions and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.
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Telecoms Leases - Do you have a mast on your land or property? You could be missing a trick
Following the introduction of the New Telecoms Code back in December 2017 (the New Code), there has been a noticeable shift in the balance of power from landowners in favour of telecoms operators.
This is particularly true in relation to the rent payable by operators to landowners. Prior to the New Code being introduced, landowners were receiving a market rent from operators, however, the rent now payable by operators is much lower as rent is determined by a statutory valuation mechanism contained in the New Code.
How has this affected social housing providers?
This has resulted in a number of social housing providers seeing a reduction in the income being received from telecoms operators following a renewal of an expired lease. This is far from ideal as the cost of accommodating operators on land/buildings may now outweigh the benefit of the rent received. Social housing providers are having to incur the time and cost of frequent access requests from operators to gain access to their equipment as well as disputes that arise in the event damage is caused to their premises by virtue of the apparatus being in situ (e.g. roof leaks).
What can be done to maximise rental, despite the New Code?
It is crucial that social housing providers are able to obtain the highest sums for rent from operators, notwithstanding the principles of the New Code, to retain its income stream for as long as possible.
It is vital that any existing telecoms leases are reviewed to assess how rental levels can be maintained. There may also be the possibility of obtaining additional sums for rent from telecoms operators too. One of the ways we have assisted is through reviewing the rent review provisions in a telecoms lease and activating these in order to secure additional sums of backdated rent from operators.
It is often the case that rent reviews have not been actioned for many years. However, seeking to activate past rent reviews now could result in thousands of pounds of unpaid back rent which social housing providers are entitled to and need. We have been able to successfully obtain back-dated rent for a number of our clients.
However, it will not be a one size fits all, as each telecoms lease is different – varying rent review terms, the valuation mechanism of the rent review and the trigger dates for the review.
How we can help
We can review your telecoms leases, advise you on your position and how you may be able to seize an opportunity to maintain rental levels or receive back-rent owing to you.
Contact us
Please do not hesitate to get in contact with our specialist telecoms litigation team or contact Justine Ball directly.
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Uber under fire yet again, this time with their facial recognition technology
Hot on the heels of the recent Supreme Court decision, where Uber drivers were found to be workers in accordance with the Employment Rights Act 1996, the Uber name has come under fire yet again. Allegations have been made by Uber Eats couriers claiming that the company’s “racist” facial recognition software resulted in their engagement being terminated.
What is facial recognition technology and how does it work?
Facial recognition is a way of confirming an individual’s identity using their face, either via a photo, video or in real-time. It uses algorithms to identify specific and distinctive characteristics, such as distance between the eyes or shape of the chin, which are then compared to faces collected previously in a face recognition database.
What facial recognition technology does Uber Eats use?
Uber Eats, which is a subsidiary of Uber, uses facial recognition software/face matching software developed by Microsoft to verify the identity of its couriers. When logging onto the platform to accept “work”, couriers are required to take a selfie and submit it for verification, so that Uber Eats can ensure they are not subcontracting their work to other individuals.
As a result of the software’s inability to correctly match selfies taken by couriers of a BAME background to the photos on their Uber Eats file, couriers have been threatened with termination, had their accounts frozen or had access to the Uber Eats platform permanently blocked – leading to their ability to “work” as an Uber Eats courier permanently terminated.
What are the concerns around facial recognition technology, such as Uber’s?
Facial recognition software has a well-known reputation for failing to identify individuals from BAME backgrounds. Notably, in 2018, Uber was sued by a driver who claimed that his access to Uber’s platform was terminated after the facial recognition software, which was similar to that used by Uber Eats, failed on multiple occasions to successfully match the selfies he had taken to the driver’s photo on Uber’s database.
What does this recent case highlight for employers?
Where an employer is relying on facial recognition software for verification purposes, the employer must ensure that they have appropriate safeguards/procedures in place which allows the company to verify an individual’s identify if/where the facial software recognition has failed.
This is of particular importance where such failures may put some staff at a particular disadvantage, compared to others, and could therefore give rise to claims of indirect discrimination.
We’re here to help
If you have any concerns or queries regarding facial technology, and the potential issues that can occur, then we can help. Our team of experts can advise you on the various legal aspects of facial recognition software, including data protection and employment law issues.
For more information, advice or support please contact Danielle Humphries or another member of our employment team.
Our employment team is ranked as a Leading Firm in the Legal 500 2021 edition.
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Challenges and opportunities ahead for the UK’s second city
“Fibre optic could be as important for the Midlands as HS2 and the region should have great appeal for global funds investing in energy and tech infrastructure.” - Adrian Bland
These were two themes that came out of the Urban Land Institute/PWC`s Emerging Trends in Real Estate Midlands 2021 recent event. The exciting announcement of plans for a Gigafactory at Coventry Airport came a few days later, to underline those views.
Digital connections though, go hand in hand with physical connectivity – especially rail, air and mass transit – and these continue to rank top of investors` lists when choosing which cities to back. That came over loud and clear in the report at the heart of the event. Good news then for the first region to benefit from HS2 and with significant mass transit expansion in the pipeline.
Adrian Bland, partner in our real estate team and chair of the Urban Land Institute (ULI) Midlands, shares his views on the future plans for Birmingham.
Themes and debates of the day
There is a lot of noise out there at the moment. The challenge is to distinguish between the noise and the signal. With that in mind, experts –and delegates at the event shared views and set debates rolling such as:
- Boris`s “Build, Build, Build” vs a shrinking pool of contractors, skills/materials shortages and rising costs
- Birmingham City Council`s imaginative new vision for central Birmingham vs the challenges of funding and implementation
- Affordable housing plans launched by West Midlands Combined Authority and housebuilders allocating more land for affordable vs increased costs post-Grenfell and environmental requirements impacting on housing providers
- The rise and rise of logistics vs the search for more advanced automation which will reduce the number of jobs in the sector
- Investor requirements for covenant vs buildings becoming less a commodity, more part of a service offer with occupiers deciding on flexibility, facilities, systems and brand
- Offices – large city centre spaces (reconfigured post-COVID) vs smaller floor space with suburban satellite offices, decline in demand vs more floor space per person.
Real Estate Prospects
The report ranks 31 major cities across Europe according to their real estate prospects. Berlin tops the league, closely followed by London, Paris and Frankfurt. In fact, there are four German cities in the top 10.
The near-1,000 key real estate decision-makers across Europe, who contribute to the report, have viewed major UK regional cities less favourably since the decision to leave the EU. Birmingham, Edinburgh and Manchester have all slipped from flying high to places outside the top 20. UK investor sentiment, those that are more familiar with the regional cities, is more positive though: ranking Birmingham 18 in Europe, up from 27 – despite Brexit and Coronavirus.
What this past year and the beginning of life outside the EU has shown us is that there is no shortage of challenges and opportunities for our regional cities, but as a commercial development specialist, having worked in the Birmingham and Midlands market for many years there is a perceived resilience and potential for Birmingham and the wider Midlands as a whole and I am excited to see its future.
Contact us
If you’d like advice or guidance contact Adrian Bland for support or another real estate team in your local office.
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Shakespeare Martineau supports Solid State in multi-million pound acquisition
Shakespeare Martineau has supported Worcester-based technology manufacturer, Solid State plc ,with the acquisition of London headquartered Active Silicon Limited for an initial consideration of £6.3m.
AIM listed manufacturer Solid State produces computing, power and communications products, and is a value added supplier of electronic and opto-electronic components.
Established in 1988, Active Silicon designs and manufacturers imaging and embedded vision systems, allowing the capture, processing, and transmission of image data in high performance and critical environments. With a longstanding, global customer base, Active Silicon’s products have applications in multiple areas of industry, science, and technology - including advanced manufacturing, life sciences, robotics, medical imaging, security and defence.
The acquisition of Active Silicon will boost the manufacturer’s product portfolio and enables the enlarged Group to address the growing demand for 3D vision and robotic applications, as well as the increased requirements for embedded machine vision and edge AI computing products. As a result, the acquisition also provides scope for the design and manufacture of own brand products and further routes to a global market for the expanded Solid State plc Group.
The initial consideration of £6.3m which, when adjusted for the cash on the balance sheet, resulted in an effective net initial consideration of approximately £2.7m. It has been funded by the Group’s existing cash resources and banking facilities.
Keith Spedding, corporate partner, who advised Solid State plc on the legal aspects of the acquisition, said: “We’ve been working with Solid State plc for more than 10 years, seeing them make multiple deals in that time. It’s great to a see a West Midlands headquartered firm continue to grow and move from strength to strength in the current challenging environment. There are clearly opportunities in the current market for those with strong businesses.”
Gary Marsh, CEO at Solid State plc, said: “Solid State’s acquisition strategy targets complementary technologies with exposure to structural growth markets. The acquisition of Active Silicon achieves both of these objectives while additionally broadening the capacity for the enlarged Group to increase its range of own brand products and value-added services. This marks the sixth acquisition on which Shakespeare Martineau has advised us. The high quality, pragmatic advice provided by Keith Spedding and his team is very much appreciated.”
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For further information please contact Keith Spedding or another member of the corporate team.
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2021: a year of potential
Keeping positive can be a challenge during a pandemic, but it’s vital that businesses look ahead to the future and the opportunities that 2021 holds.
Although the economy is flirting with a second recession and some sectors are struggling under nationwide restrictions, the area of mergers and acquisitions is looking promising.
An ideal opening
For businesses that are well-prepared and unafraid to take the leap, the current economic situation means there are plenty of M&A opportunities available.
If the deal market continues to move, British businesses will remain attractive to overseas investors. Making strategic or opportunistic acquisitions while prices stay low, could even accelerate growth plans.
Which sectors are performing well?
Certain sectors that lend themselves to our current climate, such as pharmaceuticals, technology, PPE and MedTech, have all been performing well over the last year, even with the uncertainty caused by Brexit.
Due to this uncertainty, some international buyers may be waiting to see what the post-Brexit landscape looks like before making a move, but many others are still showing an interest in UK acquisitions.
Read our 2021 predictions for the education and construction sectors.
Strategising for the future
Whilst the present remains unstable, it might be difficult to think about future strategies, but it is important to do so.
Industries hit hardest by the pandemic should continue to use the financial support available to them, including the furlough scheme, CBILS and Future Fund. However, they must keep on top of any changes to the current schemes and be aware of when they are set to end.
For those facing less challenges, they should consider whether they are in a position to expand and invest. Many companies are in need of a buyer or strategic partner, and with valuations being difficult to carry out accurately at present, a host of potential investment opportunities have been opened up.
With the changes to Capital Gains Tax (CGT) still looking likely, a short-term deal rush may be on the horizon. As such, businesses and business owners should also be assessing whether they can take advantage of this.
In any market there are always investment opportunities to be had. So, although it may be some time before confidence returns, there’s much to be gained from businesses taking a positive approach to 2021 and readying themselves for growth.
Contact us
2021 holds plenty of unknowns, but it is also a year for potential and there are many reasons to remain positive. If you have any questions or concerns about issues that may be affecting your business, get in touch and the relevant team will aim to reply to your query within two hours.
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Copyright confusion: three key things online content creators need to know
Online platforms such as TikTok and YouTube have made sharing content easier than ever before.
From music and dance routines to video game streaming, people can now show off their talents to a global audience at the click of a button.
However, this can leave them open to copyright infringement, whether that be the infringement of their own work or someone else’s. So, what do content creators need to know before clicking upload?
1. Sharing is part of the package
Content creators must be aware that the purpose of these online platforms is for people to be able to share material freely. For this to work, the ‘terms of service’ and ‘community guidelines’ generally include provisions granting very wide licences for the platform and other users to share and reuse content posted on the site without further payment.
This runs contrary to the point of copyright, which aims to encourage creators to publish new works by enabling them to charge royalties if they are to be shared or reused.
2. You can’t copyright an idea
Users of these platforms should also bear in mind that copyright protects the expression of an idea and not the idea itself, so it can be hard to stop copycats taking themes from original content and applying them to their own creations. However, music and video material is capable of being protected if it is downloaded and distributed outside of the platform’s terms.
Read more about copyright and how it can be a valuable asset to your business.
3. Keep valuable content protected
Although the basic principles of copyright remain the same regarding online content, creators do not have the same leverage when trying to police their rights through platforms as they might enjoy against more traditional forms of infringement.
Therefore, for content considered valuable by the creator, it may be wise not to upload it to an online platform that encourages sharing, unless the creator is willing to spend money policing it themselves.
Protecting your intellectual property
The pace of change of content creation platforms means copyright law has been playing catch up for some time and will likely continue to do so for a while to come. However, it is not so much that the law has become unsuitable, but that such platforms have become so large that they have almost become untouchable. As such, online content creators must ensure they are aware of the risks they are taking when uploading their creations to sharing platforms.
Contact us
If you have concerns or queries around copyright infringement then our team of intellectual property lawyers can guide you through the process and advise you on the options available – contact Martin Noble for advice and support.
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The future’s bright – the future is electric vehicle charging points
You might not have felt it, but on 30 June 2020, the first rumblings of a tectonic shift in the housing market began with the first reading of a bill which aims to set minimum standards for new developments.
Housebuilders and residential developers, would be well advised to have a look at these development standards now. The standards could be implemented at any point in the lifespan of many residential developments, and could therefore result in developers having to expensively retrofit properties to bring them up to standard. The wording of the draft law will be debated in March of this year, but the three key themes are clear. The bill proposes that all new builds must have:
• Full fibre-optic broadband (rather than a mixture of copper and fibre);
• An EPC rating of C or higher; and
• ‘The electric vehicle charging points that are needed’.
There is not a lot of information yet about how many charging points would be sufficient for a development. Some guidance suggests that all new residential buildings with a car parking space should be built with a charge point, other guidance suggests one charging point per 10 parking spaces. At the moment though, the raw numbers are less important than how those charge points are deployed.
A charge point on every drive
This gives the most utility to residents, but it also places the greatest burden on the cables and wires distributing power to the estate. Where electricity distribution networks need reinforcement, the developers requesting it will be responsible for the full upfront cost. They will be able to recoup some of their expenditure as future parties join downstream, but this is no consolation when large amounts of working capital are being invested in buried cables. The size of the potential spike in demand caused by many residents charging their cars at the same time could result in an eye-watering expensive network reinforcement, and these expenses will either come out of developers’ profit, or purchasers’ pockets.
So – is it just doom and gloom? Not necessarily. If developers start planning a development to incorporate communal EV charging infrastructure, rather than individual ones, a convincing case could be made that fewer charging points are required. Particularly adventurous developers could do well to start thinking about incorporating electric vehicles into a wider development eco-system, with charge points, solar panels, and district heating systems all owned and operated by a management company that works on behalf of the residents. Early adopters are already showing how demand spikes can be smoothed by turning off chargers when power is at a premium and turning them back on when it is cheap or generated on-site.
These business models are still being trialled and developed, and developers will need to take advice on a site by site basis to ensure they do not fall foul of the laws regulating electricity supply, generation and distribution. However, the direction of travel is clear, and though trial villages are underway, any developer who can turn this additional forthcoming regulation to their advantage will have a head start in this very competitive market.
Contact us
For further information on this fast-moving subject, do contact Isaac Murdy or another member of our energy team in your local office.
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Rent for Telecoms Masts at Greenfield Sites
The Judgment on the first case of its kind - where the Tribunal has had to determine the consideration (rent) and compensation payable under paragraphs 24 and 25 of the New Telecoms - was handed down on 15 December 2020. The Tribunal also decided upon whether the operator should be granted unrestricted rights to upgrade and share their equipment with other providers.
The case of On Tower UK Limited v JH & FW Green Limited [2020] UKUT 348 (LC) relates to the renewal of an existing telecoms agreement under the New Telecom Code at the Dale Park Estate of the South Downs National Park in West Sussex. The Estate is a greenfield, residential site with a number of nearby dwellings (some of the significant historical value) in close proximity to the telecoms apparatus belonging to On Tower UK Limited.
Consideration and Compensation
The Tribunal ultimately decided that this residential site attracted a rent of £1,200 per annum.
This sum comprises £100 for a potential alternative use of the land, £600 for the benefits enjoyed by the Operator and £500 for the burdens upon the landowner by virtue of the existence of the apparatus. The Tribunal also granted compensation to the landowner in the sum of £7,957.90 plus VAT (the full sum requested) for legal costs negotiating the new lease.
Unhelpfully for landowners, the Tribunal added that where there are greenfield sites which do not have the “special attributes” of this particular site, a figure of £750 per annum would be appropriate. This was decided on the basis of “no-network” considerations set out in the New Telecoms Code, as well as the comparable evidence of other renewal agreements entered into by the operator.
Whilst the Tribunal generally preferred the comparable evidence put forward by the operator in this case, some interesting points were raised in the Judgment. Whilst it was expected that rent would decrease, these points may help landowners negotiate higher rents under the new Code:
- The extent of the rights of access by the operator for maintenance and operation of the apparatus – the wider the rights and the more of a burden these are to the landowner and of benefit to the operator, the more valuable these will be;
- Whether there are any sharers – this would lead to increased access to the land by additional operators;
- Rights to upgrade and share the apparatus with others – this would lead to increased amounts of apparatus in the future etc., more visits to the site etc.;
- Rights to trim trees/other vegetation if these interfere with operations;
- To connect to a landowner’s electricity supply, and to use a separate generator in the event of a power outage;
- Whether there is a break clause in favour of the operator;
- Loss of amenity from the mast itself – there was a loss of amenity in this case in particular given that the land is a rural site with dwellings in close proximity.
Unrestricted Rights to Upgrade and Share
The Tribunal also granted the operator unrestricted rights to add to and upgrade their apparatus and unrestricted rights to share that apparatus with other operators. This goes beyond the statutory provisions for upgrading and sharing in paragraph 17 of the New Telecoms Code which include conditions which operators must meet in order to upgrade/share their equipment.
The Tribunal considered that without the unrestricted ability to share, the operator cannot fulfil its statutory purpose which would affect its business and this would be very onerous for the operator. The Tribunal also considered that allowing an unrestricted ability to upgrade and share is important in allowing the roll-out of new technology, such as 5G.
As a result, where an agreement exists with an infrastructure provider such as On Tower, landowners may need to reformulate their conditions on upgrading and sharing. However, where an agreement exists with a mobile operator there may be an argument that such operators do not require unrestricted rights to upgrade and share given that their business is not dependent on sharing with others as do infrastructure providers.
Our team can provide you with specialist advice on this case, and other cases that have recently been determined by the Tribunal to assist you in achieving the best rents and terms for new or renewals of telecoms agreements. Get in touch with us and we can have an initial discussion with you as to how we can help.
Contact us
Please do not hesitate to get in contact with our specialist telecoms litigation team by contacting Justine Ball by email or 0121 214 0306. Alternatively, you can get in touch online or visit our telecoms lawyers page to learn more.
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“Codebreaker”: New Help for Landowners Fixing Rent on Telecoms Lease Renewals
“Codebreaker”: New Help for Landowners Fixing Rent on Telecoms Lease Renewals
If your negotiations with a telecoms operator over the terms of their new lease have stalled then the judgment in this recent test case, by the Courts, should certainly assist you.
The long awaited decision in Vodafone Limited v Hanover Capital Limited assists landlords to secure open market rents and longer lease terms which properly reflect reality, and dismisses operators’ arguments for “no network valuations” to value rent.
This case will particularly assist landlords where they are renewing a telecoms agreement under the Landlord and Tenant Act 1954 (“the 1954 Act”) where the new Telecoms Code is presently of limited relevance.
This is the first guidance issued by the Courts on the approach to be adopted when valuing rents and other key lease terms in this area. This highly significant case is likely to be of direct application to hundreds of other cases.
The details of the case - The Length of Term and Tenant Break Option
Vodafone wanted a three year lease with an unconditional tenant break on six months’ notice exercisable at any time. The landowner, Hanover, wanted 10 years but with a break after five years.
The Court fixed a 10 year term but with a break option at year five on the giving of six months’ notice to expire at the end of year five or each subsequent anniversary of the term. The break option granted by the Court was also conditional on the operator not being in arrears of rents or in material breach of covenant.
In reaching this decision the Court balanced the degree of protection the operator sought to safeguard its business and the need to make sure its decision on lease term was not unfair or oppressive for the landowner. The Court held that such a short a flexible lease term proposed by Vodafone would be unfair to the landlord.
The Court’s Approach to Rent Valuation
Even more fascinating is the insight this case provides into the Court’s thinking and approach to the way rent must be valued in this case (i.e. under the open market as assumed by section 34 of the 1954 Act).
There was a fundamental difference of approach between the valuers on both sides.
Vodafone argued a “no network” assumption. This is the same methodology used under the New Telecoms Code which looks at the value of the site to the landowner (i.e. disregarding the particular significance of the site to a telecoms operator) and which usually produces a lower valuation. In this case Vodafone argued the site was only useful to the landowner for car parking.
Hanover argued the reverse and that in order to calculate the level of open market rent in a hypothetical transaction under section 34 of the 1954 Act, then comparables of other telecoms lettings under the Old Code were relevant, and in particular they showed that those rents were negotiated without “a no network” assumption.
This was in fact the approach favoured by the Court. Section 34 assumes that the landowner offers a site to the open market and in this case there was evidence of sharing of this site with other telecoms operators. As a result, the Court found that in reality there was likely to be more competition for this site as it would be of interest to other telecoms operators. This operation of the “open market” on these particular facts was likely to drive up rental values.
So whilst a “no network” assumption was not accepted by the Court in this case, depending on the nature of the particular site and evidence of competition amongst operators, then the value of the site to the operator market may still be a key factor in valuations and evidence of comparables.
The Court ultimately held that a rent of £5,750 per annum was to be payable which was a significant increase from the rent sought by the operator in the sum of £1,386 a year.
If you are a landowner or their agent we can help you in your negotiations with operators by guiding you through these and other issues which apply to your telecoms lease renewal. This case may mean you can now with some confidence seek to kick-start negotiations previously long stalled.
Contact us
Please do not hesitate to get in contact with our specialist telecoms litigation team by contacting Justine Ball by email or 0121 214 0306.
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Keeping court bundles safe from the dark web
Clive Read, Partner & Head of Birmingham
Keeping court bundles safe from the dark web
It is vital that chambers and their barristers have strong cyber security measures in […]
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Data Transfers to the US: CJEU kills Privacy Shield and fires salvo at Model Clauses
Data Transfers to the US: CJEU kills Privacy Shield and fires salvo at Model Clauses
UPDATED 23 July 2020 : The ICO has, as of the 23 July 2020, updated their position and have now confirmed that:
If you are currently using Privacy Shield please continue to do so until new guidance becomes available.
Please do not start to use Privacy Shield during this period.
See the ICO website for further details.
So for the time being at least, UK businesses can continue to rely on the Privacy Shield (if they have done so to date). But as stated above this is not the position across Europe and organisations will need to review all US data transfers to ensure that they continue to comply with local interpretations. Through our membership of PrivacyRules we can support business in ensuring data compliance both throughout Europe and globally.
In a far reaching judgment (17 July 2020) the European Court of Justice (CJEU) ruled that the EU/US Privacy Shield (which is one of the mechanisms allowing data transfers from the EU (and the UK both pre and post Brexit) to the US is now invalid.
What is the EU/US privacy Shield?
Under GDPR, if the country in question doesn’t have adequate privacy laws in place (which the US does not), then organisations can only transfer personal data out of the EU under certain, limited, circumstances. One of the mechanisms allowed was the EU/US Privacy shield which allowed US companies to certify that they had appropriate internal protections in place. Currently over 5,500 US business (including Microsoft, Amazon and Facebook) have signed up.
The challenge
In a challenge brought against Facebook’s transferring of personal data to the US from its Irish subsidiary, the CJEU found that the US legal system does not allow individuals appropriate protections against access by US security organisations. And as a result the Privacy Shield was not a valid means of transfer.
But this isn’t the end of the problem. One of the alternative mechanisms in GDPR allowing overseas transfers of personal data are the “Standard Contractual Clauses” (SCCs) which can be agreed between companies to allow the export of personal data from the EU. In theory this works for transfers not just to the US but to any country outside the EU. They impose contractual obligations on the non-EU party to provide appropriate protections for the data.
However, the problem here is that, as the CJEU’s judgment has reminded us, SCCs require the party sending the data out of the EU to suspend such transfers if it becomes apparent that the party receiving the data cannot comply with their provisions. And, given that CJEU has just clearly stated that US laws don’t allow companies to provide adequate protections, it is difficult to see how the SCCs can work in the context of EU/US transfers.
This recent judgment could even challenge the use of SCCs generally If they cannot continue to be used where the laws of the country of the recipient mean that the recipient can’t comply with them, then it begs the question of how they can be used other than in a country which provides adequate protections. The clauses may not be the easy route to transfers previously assumed.
Where do we go from here?
The ICO has issued a short statement saying:
“The ICO is considering the judgment from the European Court of Justice in the Schrems II case and its impact on international data transfers, which are vital for the global economy.”
“We stand ready to support UK organisations and will be working with UK Government and international agencies to ensure that global data flows may continue and that people’s personal data is protected”
So at the moment, UK companies have not been told to stop sending personal data to the US under the Privacy Shield. But this is not the case throughout the EU – the Berlin ICO has issued just such a statement. It will be a little while until the dust settles and a consistent approach across Europe emerges if it indeed does.
But while this is going on organisations need to review urgently the basis on which they transfer personal data to the US and, where this is based on Privacy Shield, to engage with the overseas partner to understand how they are proposing to continue to allow transfers.
Contact us
For further information on this or other issues concerning your data and data security, contact Andrew Hartshorn or another member of the IT and technology team.
We have launched our guide to recovery and resilience, helping to support businesses and individuals unlock their potential, navigate their way out of lockdown and make way for a brighter future. Further advice in relation to COVID-19 can be found on our dedicated coronavirus resource hub.
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Telecoms: Keeping the country connected during COVID-19
Telecoms: Keeping the country connected during COVID-19
Every day we are shown the damage that COVID-19 is doing to both public health and the economy, but recent events have also highlighted the virus’ impact on the telecommunications industry.
5G coronavirus conspiracy theories
Although the UK is currently heavily reliant on operators’ networks to keep in touch with loved ones and allow businesses to function, there have also been cases of vandalism of telecoms apparatus due to false concerns that 5G spreads coronavirus.
No matter the circumstances, criminal damage to apparatus is never acceptable. As such, during these times when maintaining communication is so vital, landowners and operators must collaborate effectively to protect the digital network.
How to preserve the telecoms industry during COVID-19
In order to maintain telecommunication infrastructure, government guidance recommends that, under existing contractual agreements, access to engineers and other workers is granted by landowners for:
- Emergency repairs
- Routine maintenance
- Critical upgrades
As a result, clear communication between landowners and operators is essential. However, since lockdown began, the number of reports from landowners being flooded with access requests has increased considerably. Some are even being threatened with legal action if they do not permit operators to build new telecoms masts on their land.
In general, landowners should try to cooperate with operators’ requests, but they should avoid responding too quickly, without considering their own position and first gaining professional advice. On the whole, operators will legitimately need access to maintain their network, but they must also understand the operational difficulties facing landowners because of the Government restrictions.
Guidance for landowners of telecommunications infrastructure during COVID-19
For landowners receiving an increasing amount of correspondence from operators, it is important to remember the following:
- Requests can be scanned and sent over to advisors in order to gain legal advice.
- In existing telecoms leases, provisions relating to the renewal of new rights and granting access should be reviewed, as these will still apply.
- The full details of the proposed works to be carried out should be requested, as this can help landowners to assess the urgency of the works.
- A Risk Assessment Method Statement should also be requested, which explains how the operator will comply with the Government restrictions.
- Delays are likely to occur when it comes to responding to operators, so landowners should make it clear that they are not refusing access but trying to manage the correspondence they have received based on their resources.
- Access requests can be categorised into emergency and non-essential works. This makes it easier to arrange access for emergency works and to justify denying access to those in the latter category, due to staff shortages and other COVID-19 related issues.
Even with an increase in correspondence, all operator requests should still be considered on an individual basis. Land and building owners are a vital part of preserving the UK’s digital network, and this is only possible if they are able to collaborate with operators in a fair and transparent way.
Contact us
For further guidance please contact Martin Edwards or another member of the property disputes team.
For legal support in relation to the coronavirus or any other matter, get in touch with your team today.
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To combat this, the EU has legislated with a number of Regulations and Directives, however, these are piecemeal and don’t tackle the issue as a whole. Instead, a total overhaul of copyright law may be needed.
What classes as coding copyright infringement?
Copyright infringement can take a number of forms, including:
• Copying a protected work without permission
• Communicating and issuing copied work to the public
• Adapting software code without permission
• Lending copied work
Copying
To succeed in a claim for copyright infringement, a right-holder must be able to evidence copying of the relevant work. There are two types of copying relevant to software infringement claims: literal and non-literal.
• Literal copying – This is the direct and complete copying of some or all source code without permission.
• Non-literal copying – This is when a person copies the architecture of the software or the user interface, instead of copying the source code directly. Due to this creation of ‘new’, but typically very similar code, UK case law tells us that it may be difficult to succeed in an infringement claim.
Communicating and issuing copied work
Social media has thrown a further spanner in the works for copyright protected material, as it allows infringing works to be shared to a large audience with very little control of overall reach. Therefore, finding the origin of some infringement cases could be almost impossible.
Enforcing rights
Consequences depend on the severity of the infringement. Some infringement cases lead to injunctions, others, to damages.
• Injunction – Stops a person from continuing to copy, sell or share infringing code. An infringer may also have to destroy any copies they have stored.
• Damages – These can vary, however, should a person have received an income from the infringing code, then damages could include the repayment of all profits. Additional damages are payable where a right-holder can show that the infringement was “flagrant”.
How can coding-related copyright infringement be stopped?
Now that many people, especially children, are becoming increasingly skilled at using technology (including developing and manipulating underlying source code), clearer warnings need to be issued alongside copyrighted works. For example, prominent warnings may be displayed at the start of video games that state it is illegal to copy any part of it without permission.
Code creators should also check that the technical security measures they use are as effective as possible, so it is more of a challenge for people to access the underlying source code. This could include patching known vulnerabilities as soon they are made aware of them. Should hacking still take place, sophisticated monitoring software may be used, which picks up the IP address of the hacker, making them easier to trace.
Unfortunately, the copying of code is incredibly difficult to defeat completely, and enforcing rights can be complex and expensive. Copyright law needs to evolve at the same rate as technology if right-holders are to keep ahead of the game and protect their valuable intellectual creations.
To discuss any aspect of this blog or to discuss your own copyright or trademark issues, contact Kerry Russell on 0121 237 3017 or any member of our intellectual property team, or click here to get in touch.
This means that AI is being used to support, or to make decisions about individuals and this involves the processing of personal data which in turn requires compliance with the GDPR.
Education institutions and their students are using AI in a huge variety of ways. Some institutions are already using AI to personalise learning and to deliver content that is tailored to a student’s needs. In January 2019 Staffordshire University launched a chatbox dubbed “Beacan”, which can be downloaded by students as a mobile app and has the capability to provide personalised and responsive information to students. It can order replacement student cards and connect students with lecturers, all of which requires the processing of personal data. There is also a significant amount of research that is being done using AI, research that wouldn’t be possible using the human brain – the analysis of masses amount of data in relation to climate change, for example.
Now the Information Commissioner’s Office (ICO) and the Alan Turing Institute have opened consultation on their first draft of Artificial Intelligence (AI) guidance on decisions made with AI.
Rooted within the GDPR, the guidance sets out four key principles. These principles must be considered when developing AI decision-making systems. They are:
- Be transparent: make your use of AI for decision-making obvious and appropriately explain the decisions you make to individuals in a meaningful way.
- Be accountable: ensure appropriate oversight of your AI decision systems, and be answerable to others.
- Consider context: there is no one-size-fits-all approach to explaining AI-assisted decisions.
- Reflect on impacts: ask and answer questions about the ethical purposes and objectives of your AI project at the initial stages of formulating the problem and defining the outcome.
Following on from the above principles, use of an AI system to process personal data will usually satisfy the qualifying criteria under the GDPR for when a Data Privacy Impact Assessment (DPIA) is required. This is because it entails innovative technology and the automated processing of data. A DPIA is used to identify data protection risks to individuals’ interests in relation to processing; it is an ongoing process and should be embedded into an institution’s processes. Any risk should be minimised and an assessment made of whether any remaining risk is justified.
The guidance can be found here. The ICO will be consulting on it until 24 January 2020 and the final version of the guidance will be published later in the year, taking the feedback into account.
To ensure you’re being GDPR compliant when using AI, contact Joanna Forbes on 0121 214 0310.
For advice or guidance on any other commercial or legal issue, a member of our team can walk you through everything. Click here to discuss.
This judgment is good news if you have agreements with telecoms operators that are also protected by provisions of the Landlord and Tenant Act 1954 (“the 1954 Act”) as it has held the 1954 Act will prevail. One of the consequences is that as a building owner you can now rely on the more favourable rent valuation provisions contained in the 1954 Act. This may well mean that, as landlords, you could secure higher rents.
In summary, the case of CTIL vs (1) Ashloch Limited and (2) AP Wireless II (UK) Limited involved the current operator in situ at the premises, CTIL, making an application to the Tribunal to try to impose a new Code agreement upon its landlord, by-passing the 1954 Act altogether.
This was firmly rejected by the Tribunal. CTIL could not go straight to the new Code. They must first submit to a new tenancy under the 1954 Act. They now have to wait for the contractual term of that new tenancy to expire before they can rely on the new Code which could be several years forward. In the meantime they must submit to rents calculated according to the 1954 Act and not the new Code.
The Tribunal held CTIL should have commenced the renewal procedures under the 1954 Act and it was not entitled to invoke the provisions of the new Code.
A key feature of this case was the fact there was already a 1954 Act tenancy running. Whilst there had been an (old) code agreement in place (between a predecessor of the current landlord/building owner and Vodafone Limited) it expired in 2012 a continuation tenancy under the 1954 Act had then immediately arisen at that point because Vodafone had continued in occupation. (Vodafone was then able to assign that tenancy over to CTIL).
Before going into negotiations with telecoms operators landlords/building owners should usefully spend some time checking the history of occupation of any of their sites as to whether or not they can rely upon this decision – particularly before rents are agreed.
We are seeing lots of activity in the Tribunal with new judgments coming through every month which have significant commercial consequences for landlords/building owners
Contact Martin Edwards on 0121 214 0340 martin.edwards@shma.co.uk or Justine Ball on 0121 214 0306 justine.ball@shma.co.uk get in touch with us to see if we can help you get the best out of your telecoms agreements.
Find out more about our IT & Telecoms team or for advice and guidance on telecom matters, a member of our team can walk you through everything. Click here to discuss.
The boy, referenced as “CBV”, used his coding knowledge to dig into Fortnite’s game code to create a series of cheats – or ‘hacks’ which were advertised via his YouTube channel and sold on his website. Epic claimed that the cheats, which were coded, changed its copyrighted work by creating a new form of the game.
Although the content was for entertainment purposes, the fact that CBV benefitted financially from the cheats increased the severity of the copyright infringement considerably.
Kerry Russell, one of our intellectual property specialists, explains the complexities of copyright law and computer programming:
“An already complicated area of law, copyright becomes increasingly complex when coding is involved. Technology has developed at a rapid pace and the law has yet to settle on what exactly classes as infringing copyright. However, where there is direct reproduction of underlying source code, there is almost certainly a clear-cut case of infringement.
“The reproduction in this case was most likely, what is known as, non-literal copying. This may involve someone taking the original code and then modifying it with their own “new” code. CBV may have copied and then altered the Fortnite code, but only to an extent that the output, i.e the game, remained the same (apart from the cheats). Therefore, this suggests that a substantial part of the skill and labour of the Fortnite creators had been exploited, which is a basic element of copyright infringement.
“CBV’s YouTube videos effectively encouraged others to copy his actions, with the sale of the cheats taking the infringement a step further. Although a child, CBV would have been aware that his use of the copyrighted work was wrong, (even if his intentions were not malicious) – and this, in the UK at least, usually attracts an uplift in damages, as the Court may decide that this was a “flagrant” infringement.
“Many people (especially children) see video games as a world without rules, meaning cases such as this will only become more common unless action is taken. It may be time to add warnings at the start of games which clearly state that the game is protected by copyright, and unauthorised use of the code will result in legal action.”
Find out more about our intellectual property team.
However a judgment in Sweden last month, as well as recent investigations announced by the Information Commissioner, means the use of AFR remains problematic.
Background
In the UK, and across much of Europe, the legal framework surrounding facial recognition is based on the GDPR. This allows the use of AFR only where one of a number of bases is satisfied.
However, in the US, some cities such as San Francisco, have banned facial recognition technology for law enforcement purposes. Politicians such as Bernie Sanders wish to ban its use nationally, for everything other than private purposes.
United Kingdom
Civil rights group, Liberty, claimed that the use of a camera van by South Wales Police (SWP) was similar to the unregulated capture of DNA or fingerprints. SWP used the camera van to capture dozens of digital images of members of the public every second and cross-reference them against a database of wanted persons. SWP argued that this scheme was necessary for the safety and security of the public at large.
The Court concluded that the SWP’s use of AFR was in accordance with the law under its powers to prevent and detect crime as it was deployed in a transparent and limited way. Perhaps most importantly, SWP had an “appropriate policy document” in place that (only just) complied with section 42 of the Data Protection Act. The court also took care not to evaluate the quality of the DPIA carried out by the SPW.
Sweden
However in Sweden, a far more restrictive approach was taken to the use of AFR. Here the Swedish data protection authority (DPA) fined a school approximately £17,000 for a pilot scheme that used AFR technology to assist the student registration process over a few weeks.
Biometric data in the form of the students’ faces and names were captured and stored in a local computer (without internet connection), which was stored in a sealed cabinet. Parents and guardians had provided explicit consent for their child to be part of the scheme.
Nevertheless the Swedish DPA argued that this use of AFR was disproportionate: the students’ privacy was greatly infringed and the process of registering students could be done in less intrusive ways. Furthermore, despite parental consent being obtained, it held that consent was not freely given as there was a power imbalance between the students and the school board. Finally, although the school had carried out a data protection impact assessment (DPIA) the Swedish DPA considered that the DIPA was not adequate for the purposes.
Recent developments
Last month the Information Commissioner launched an investigation following concerns that live AFR was being used in King’s Cross and Manchester Piccadilly railway stations, as well as in parts of Birmingham. The ICO restated that “any organisations wanting to use facial recognition technology must comply with the law – and they must do so in a fair, transparent and accountable way. They must have documented how and why they believe their use of the technology is legal, proportionate and justified”.
Going forward
AFR looks set to become part of the landscape for UK law enforcement agencies in the same way as CCTV. For private businesses, the use of AFR is more problematic given that the imbalance between employer and employee makes consent unlikely to be an effective legal basis of processing.
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The UK government has stated that it is not an option to hive off autonomous cars and preserve the environment for autonomous cars only – priority must still be given to less damaging forms of transport such as the pedestrian and the cyclist.
This thinking has driven the implementation of the Autonomous and Electric Vehicle Act. It explains the following:
• Where an accident is wholly or in part caused by an insured autonomous vehicle (AV), insurers will be liable for loss and damage;
• Where an accident is wholly or partly caused by an AV which is driving itself at the time but is uninsured, the registered owner is liable for the loss and damage;
• Neither an insurer nor owner will be liable to the person in charge of the vehicle for damage suffered by him or her if the accident was caused by the AV in circumstances where the person in charge of the vehicle used an automated mode ‘where it was not appropriate to do so’.
• Liability may be limited where the accident is cause by modifications to software made by the injured party, or with their knowledge, that are prohibited under the insurance policy, or failure by the injured party to install safety critical software.
This seems to place liability either squarely with the insurer or the car owner. However, should there be any defects in the cars or driving technologies themselves, product liability or negligence claims will come into play. It is therefore still paramount for manufacturers to protect themselves.
The problem of evidence
With a hypothetical driverless car doing all or most of the driving, the potential for large product liability or negligence claims seems to be much greater, particularly in the early stages of product development.
However, evidencing any potential liability, between vehicle, driver or any manufacturer default is extremely difficult. The ‘black box’ of on-board car data will be vital to this. Expert evidence will also be required to point out any limitation in software and how any potential faults could occur.
Manufacturers therefore need to take action to protect themselves. They can do this in a number of ways:
1. Transferring risk through management of suppliers
Manufacturers should ensure that risk is effectively transferred to suppliers or partners in the chain to avoid any questions of liability being decided in court. This can be done by:
• Holding harmless agreements – help ensure that contractors and suppliers are contractually responsible for their own negligence and/or errors and omissions in the case of a claim.
• Statements of financial responsibility – such as certificates of insurance, these can help your company avoid bearing financial responsibility for product related claims by confirming that a contractor or supplier has the appropriate insurance in the case of a claim
2. Managing supplies and imported goods
Managing safety standards on goods across multiple jurisdictions may prove a challenge for international manufacturers. The creation of industry standards in this area will be vital for car makers to operate effectively as they have done, across borders and legal jurisdictions.
3. Building safety into design
Hazards and risks can often be eliminated or controlled in the product design phase. When designing products, a safety review should take into account how a product will be used and the kind of hazards that may result.
4. The data question
In the event of accidents, manufacturers need to decide whether they will make the data from their own vehicles available. Data will hold the key to the successful insurance liability model.
By considering these legal aspects manufacturers can continue to deploy technologies that increase automation in vehicles with minimal fear.
For more information, contact our team.
But new research from IHS Markit suggests that carmakers are now fully committed to producing more cars, as they estimate production of electric vehicles will triple by 2021.
Most of these cars will be produced in Germany, France, Spain and Italy and the UK cannot afford to be left behind, but it looks like it might be should we leave the EU without a deal.
What is clear is that the UK’s charging infrastructure is currently woefully unprepared for this increase, and as such consumers could remain reluctant to purchase EVs despite the advantages.
A greater choice of EVs in UK showrooms and on the roads may force both the private and public sectors to take a look at charging infrastructure options, refitting current petrol stations with charging points, increasing vehicle charging ports in the home or investing public money in a national charging infrastructure scheme. Inevitably, this would put greater demands on the grid, but can it cope?
Implications for the Grid
If EV numbers in the UK were to treble, it would have a grid capacity problem. The UK neither has the generating capacity or network capacity to handle the demand surges of three times as many electric vehicles as it does now.
Incentivising consumers to charge their vehicles in off-peak hours is one potential solution, however, will this be enough given the predictions in recent reports, which suggest that EV production in Europe will triple by 2021?
National Grid stated that the network requirements of EVs won’t be as demanding as feared. Nevertheless, National Grid may still need to revise its forecasts for peak demand increase.
No-deal Brexit
Should the UK leave the EU on 31 October without a deal, it is likely these EVs made on the continent will not be offered to the UK market, as the UK cars sold will not make up part of the car manufacturers’ quota of EVs they must produce under EU emissions regulations.
Ultimately this forecasted rise in EV production is not demand-led, in that it is being forced by EU regulations changing manufacturer’s behaviour. There is not yet the consumer-led market demand for EV’s in the UK. However, by 2040 – if the price of EVs come down and battery technology gets better – there could be a sharp rise. The grid will therefore have a problem if it doesn’t develop some solutions soon.
Find out more about our commercial and energy teams.
How else is AI being used in the sector?
AI is particularly helpful at automating mundane and repetitive tasks including natural language processing, allowing them to be completed much faster and more accurately than if they were performed by a human. Automated contract reviews and intelligent assistants leverage this kind of emerging technology and there are many examples that demonstrate success in these scenarios, including a quite famous example where chatbots were used to fight and overturn parking tickets with an incredibly high success rate.
How can AI improve the profession?
AI can improve and supplement the profession by servicing the way in which administrative, repetitive and mundane tasks have been traditionally completed. AI can also enhance and support the evolving way legal practitioners and clients communicate, by automatically triaging initial requests to determine key criteria/ parameters to then seamlessly provide clients with access to the right expert. Of course, face-to-face client engagement and delivery of key services will still be led by professionals, but improved automation will increase efficiency and help to provide value-add services considerably.
Potential developments in the legal field
Humans will always be needed to review, plan strategies and represent clients, but AI can be of great help when it comes to improving efficiency and accuracy.
DevOps techniques, microservices, robotics and machine learning mean that the provision of ICT services to law firms and their clients has endless opportunities. In turn, this can lead to increased client satisfaction with more accurate services with increased value.
Other possibilities involve:
• Voice-driven attendants to give legal advice
• Bots that can check any forms completed by clients
• Systems that can propose the “most likely to win” strategies
• Machine learning cybersecurity initiatives to determine malicious trends and patterns and take mitigating actions
• Identifying emerging threats in the marketplace
Future goals for AI in the legal sector
If AI were able to learn from multiple sources of information and inputted variables, it would drastically improve efficiency and potentially offer more certainty around outcomes and delivery timescales, supplementing many of the services provided by professionals today. Personal and tailored engagements with human interactons would always however have a place and continue to further extend delivery of key legal services.
In general, the success of AI relies on the ability to monitor and learn from everyday business operations and processes. This can supplement current processes and identify new and innovative ways to function within the legal sector. It also requires businesses to invest time and effort in the technology to ensure the best possible outcomes. It is certainly an opportunity, not a threat.
Naomi Tudor, our head of corporate banking, explains the threats and processes that banks must be aware of:
Threats
• Funds being transferred directly out of individual accounts
• Customer information being sold on to other criminals
• Customer information being used to hold institutions hostage
All these threats lead to business disruption in various ways, with banks having to put their time and resources into resolving the breaches.
Cyberattack methods
• Direct attacks to computer systems and IT infrastructure
• Approaching customers pretending to be their bank in order to gain personal data
The latter method catches out many people every year. Once the money is sent to the criminal and the funds are cleared, it is usually too late to recover them.
Security approaches
• Investing in IT infrastructure – Even before the introduction of the new GDPR regulations, businesses were encouraged to improve their data protection policies. In house systems need to be secure to lessen the risk of direct attacks succeeding.
• Ensuring third party suppliers have secure IT infrastructure – Criminals can use the weaknesses in third-party systems to access the main bank. Before engaging in a commercial arrangement, businesses must be vetted for suitability and checked for compliance.
• Educating the public – Having an awareness of the details that should never be given out, such as account or pin numbers, is vital to tackling customer scams. The methods fraudsters use are constantly evolving, but the public having this knowledge will hinder their attempts.
• Training internal staff – Data protection and information security courses are an effective way to ensure staff know the risks, warning signs and processes of cyberattacks. This way, they can be more proactive in the fight against cyber criminals.
Minimising damage
No matter the level of precautions put in place, banks can still become victim to cyberattacks. There are processes that should be followed if this is to occur:
• Alerting customers – Customers should be informed of breaches as soon as possible if their personal data has been compromised, whether large-scale or not. However, it must be done in a way that does not trigger mass panic. Many institutions have processes in place to ensure this happens.
• Alerting the ICO – There are certain incidents that need to be reported to the ICO such as, personal data breaches. Incidents should be logged promptly, and no later than 72 hours after the breach. Failing to comply with the new GDPR reporting requirements can see business facing fines of up to €10 million, or 2% of annual global turnover, whichever is highest.
• Early action – Junior staff are often the first port of call for customers who have been tricked by fraudsters. Training is vital for situations such as these, as it allows the next steps to be taken correctly and quickly, increasing the chance that stolen funds can be returned.
Cyberattacks alone can damage the reputation of a bank, but the management of a breach can make or break them. Reputation and trust are what banks rely on to gain and keep customers, so the correct response is important for the continued success of the institution.
These systems are vital for digital services, such as online search engines and cloud computing, as well as essential services, such as transport and energy.
Our partner and information law specialist, Andrew Hartshorn, gives his insights on what the regulations mean for organisations:
What challenges do the rules present?
“Understanding how the rules will alter the practices of the organisation is the first concern of any company. For example, the response of each of the Competent Authorities created under the NIS regulations, is different so consistency of rule interpretation is not guaranteed.
“An OES (Operator of Essential Services) must understand the possible risks to their networks and information systems. Vulnerability issues are not limited to an organisation’s own systems, but their supply chain systems too to the extent that they are reliant on them. It is vital that this is considered.
“Any changes to networks and information systems should be looked at in terms of risk. Data, including sensitive data, flows inside and outside organisations. Therefore, it must be appropriately protected. If GDPR is anything to go by. the more that companies look into their systems and processes, the more issues they find.”
How have organisations responded to the rules?
“No official responses have emerged from the public domain, but responses will vary across sectors, due to the different approaches the regulators take.
“In particular, the energy sector is taking the regulations very seriously. OES were required by Ofgem to undertake self-assessment activities by 15 February. Any necessary self-improvement plans are to be submitted by 30 April. On the other hand, Ofcom has issued interim guidance, but has not explained how the rules will be applied.”
Where could organisations struggle to comply?
“Pulling the sheer amount of information together about data flows will be a struggle for some. As well as this, understanding how sub-contractors and supply chains can expose vulnerabilities could be difficult.
“Employee bases must also understand the implications of the regulations in order to fully comply. This does not happen overnight.”
What should organisations do to ensure they are lawful?
“Ongoing monitoring of infrastructure, processes and supply chain by OES is needed in order to ensure compliance.
“As soon as possible, energy suppliers should be updating all the relevant processes, procedures and policies to fit with the regulations, with employee training programmes complementing this. Ideally, a C-suite level individual should take on the task of ensuring compliance.
“Much like GDPR compliance, all organisations should use data protection impact assessments to assess both personal and general data security. If this is done, the compliance process will be made much easier.”
In response, the government has carried out reviews of the current protections and has recently launched a consultation paper to consider a number of potential changes to the current pregnancy and maternity protections.
What are the proposed changes?
- Extension of redundancy protection to new mothers for six months after they return to work – the WESC report recommended that additional protection for new and expectant mothers was provided throughout pregnancy and maternity leave and for six months afterwards. The current protections end as soon as a new mother returns to work and her maternity leave ends
- Proposal for redundancy protection to begin from date employer informed in writing of pregnancy. Current protections only begins when an employee goes on maternity leave
- Extension of redundancy protection to other groups – the WESC report notes that those taking similar leave such as adoption leave, shared parental leave and longer periods of parental leave may also experience similar problems to women taking maternity leave. The consultation therefore seeks views on whether the additional protection should be extended to some or all of those groups
- Extension of time limit to bring an employment tribunal claim from 3 to 6 months in pregnancy and maternity discrimination cases
What does this mean for employers?
The consultation period ends on 5 April 2019, so none of the above recommended changes are certain to happen. Nevertheless, the proposed changes will result in a number of key changes which will particularly limit an employer’s flexibility in terms of redundancy procedures.
It is important that employers are mindful of what the government and pressure groups are considering in terms of pregnancy and maternity protection so that they can ensure policies, procedures and training for managers are current and in line with the most recent legislation. If you would like to contribute towards the consultation, you can do so via email.
5G has been sold to the public as a ‘game changing’ technological development, offering 10 to 20 times faster download speeds than 4G. If this becomes a widespread reality then in the long term this could have a significant impact across a range of industries, from assisting in the processes of autonomous cars to enabling on-the-move paramedics to give specialist guidance through video streaming.
Full connectivity
Connectivity is of paramount importance to business tenants, meaning that 5G will certainly be an attractive prospect for landlords in the commercial property sector to offer. With the enhanced networks, commercial properties could have access to a range of helpful connected devices, including connected light bulbs with the ability to transmit data (Li-Fi), HVAC systems and even entire building management systems. In fact, WiredScore, a connectivity rating provider, expects that more than one in three connected devices used in smart cities over the next year will be for business-related purposes.
The rise in remote working from home means landlords must work to provide welcoming spaces with superior digital infrastructure, to entice tenants back into the office space. By getting ahead of the curve and acting now to invest in 5G tech, fast-thinking landlords may also be able to increase the value of their newly ‘smart’ properties in future.
However, this doesn’t mean there won’t be any challenges to be overcome, particularly regarding infrastructure. 5G’s range is much shorter than 4G and is more susceptible to interference. It therefore requires the installation of transmitters and their associated infrastructure in densely populated areas.
The Electronic Communications Code
The new Electronics Communications Code, implemented at the end of 2017, saw changes made which has created a great deal of trepidation surrounding telecoms installations. This has led to some cases in which landlords have refused to allow the installation of 5G masts on their sites. However, this doesn’t necessarily put an end to the matter. In fact, the new Code allows operators to ask the courts/tribunals to impose an agreement to install communications apparatus, even without the landlord’s approval.
Managing a dispute
If a dispute does arise between a landlord and an operator, the landlord should seek advice from a telecoms law expert. There is very little case law precedent to offer further guidance as the Code has currently only been in place for a limited amount of time.
Many landlords don’t have the available resources to spend on interpreting their rights, presenting a real challenge when they’re approached by operators. With site rents expected to fall dramatically, landlords must ensure that they are fully informed before signing any agreements.
Lease agreements – clarity is key
If landlords do enter into a lease agreement, they should ensure that they are explicitly clear as to the length of term and any contractual termination provisions for the 5G apparatus. Landowners are required by the new Code to give 18 months’ notice to terminate an agreement, after which point operators have a 3-month window to serve a counter-notice opposing termination.
However, considering all of this, landlords need to carefully contemplate whether moving to 5G is right for them. If they are planning to keep leasing the property over the next 10 years, the opportunities 5G affords in terms of connectivity could well be worth the installations and investment, as long as the rent expected for housing the apparatus offers enough of an incentive. Alternatively, if they are already thinking of possible redevelopments to the property, such a commitment may be unwise.
Additional considerations should include the likely installation costs of private 5G infrastructure, aside from the masts themselves, such as transmitters, signal boosters and additional cabling, as well as the maintenance costs of these. One possible way of dealing with these costs is to include them in tenants’ service charges, potentially increasing them mid-lease depending on agreed terms.
Keep disruption to a minimum
When retrofitting a building with equipment such as this, it is essential that to keep in mind the rights of all current tenants. All landlords are under an express or implied obligation to allow tenants ‘quiet enjoyment’ of leased premises and in most cases they must demonstrate that they have taken any and all reasonable steps to minimise disturbance. Sensitivity and communication will be crucial throughout the installation process. For instance, they could attempt to ensure that all work is carried out after hours to minimise disruption, while still making all tenants aware to ensure that those working flexible hours are warned. If any disputes arise in relation to disturbance, these should be dealt with as quickly as possible by finding a mutually acceptable arrangement.
The benefits associated with 5G make for an exciting prospect, which will be particularly enticing for business tenants in commercial properties. However, landlords should be wary not to make any impulsive decisions which could have negative implications down the line. By approaching any new installations with care and consideration, both landlords and tenants can benefit without suffering from any excessive upheaval.
For more information please contact James Fownes or another member of the property litigation team.
Understand what personal data is
The starting point for anyone considering GDPR is to ensure that they understand precisely what constitutes personal data and what does not. The general rule of thumb is that any information that can be used to identify a living individual (on its own or in combination with other readily available information) is personal data.
Some personal data is also classed as sensitive personal data, because it contains particularly private information about an individual, such as their religious beliefs and sexual orientation. This is precisely the kind of information that an HR team may hold about employees – information that goes far beyond an individual’s name and address. Employees need to properly safeguard sensitive personal data and the conditions for using it are more stringent.
Do a data audit
The next step is to carry out an audit, in order to understand how the employer collects information from its employees. In this context, it is important to consider potential employees; so job applicants should also be considered. As an HR team, you will need to identify what personal data is being collected from employees and the purposes for which it is being used. The reason this is important is because employers will then need to tell employees that this is what they are doing. The GDPR is far stricter when it comes to informing individuals about how their data is being used, even if you do not necessarily need to obtain their consent for doing so.
Understand how personal data is stored
GDPR does not change the principle that organisations need to look after personal data. So in addition employers do need to think carefully about how personal data is stored. Typically this means linking up with the IT team, but not forgetting that personal data can also be stored as hard copies as well as electronic copies.
The audit will need to identify where all of the personal data is kept. The likelihood is that it will not all be kept in the same place – particularly where an organisation is in fact a combination of two or more businesses that have merged over time. The business may use several databases for different purposes. There may also be filing cabinets brimming with documents. Consider too, who has access to the personal data and do they need a key and password?
It starts to get a little more complicated when looking at where information is stored, because a particular database might actually be an online piece of software so the data is held in the cloud, perhaps in another jurisdiction. Personal data might also be used by third party providers such as payroll and pension administrators. All of these uses and locations need to be considered as part of the audit process, as well as how secure they are.
Communicate with employees
When the audit has been completed, this will give the HR team a good overview of how personal data is used and where it is stored. Only at that point can you start to identify any gaps in security measures. It will also enable you to properly inform employees how their data is being used Bear in mind too that under the GDPR the rights given to individuals over their personal data have been increased.
Know how to deal with subject access requests
One area where HR teams will probably see more activity is subject access requests. These exist already and do mean there is a lot of work to do in responding within the 40-day time limit to requests for details about what personal information is held about an employee. Under the GDPR, this is reduced to one month, the information should be made available electronically and there is no longer any fee. So being able to readily access information is very important.
Consider appointing a data protection officer
Finally, HR teams will also need to consider whether to appoint a data protection officer, where there is a significant amount of personal data being used. This is a new position under the GDPR and that person will need to have a good working knowledge of the legislation and be able to deal with any breaches as and when they arise.
What’s next?
Many businesses will be well on the way to compliance with the GDPR if they are already well versed in the Data Protection Act. The penalty for non-compliance has significantly changed and so it is very important that care is taken to consider the GDPR in detail. One key feature of this new legislation is being able to demonstrate how an organisation complies and so carrying out a detailed audit is the best way to kickstart this process.
Data protection is the responsibility for the whole organisation and so make sure you link up with other colleagues around the business, such as IT, and marketing to ensure as a business you are fully covered and employees understand processes and procedures will need to be adhered to, to be compliant with the new guidelines.
