Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.

Monday, 29 September 2008

But Service in Person is still far more satisfying

The latest amendment to the Civil Procedure Rules comes into effect on Wednesday, and amongst other changes the legal system has acknowledged the White Heat of Technology and recognised that SMTP packets travel slightly faster than First Class mail. Current CPR 6.7(1), which says that for electronic methods other than fax, service of a claim is deemed to have taken place on 'The second day after the day on which it is transmitted' is to be replaced EDIT: for a document other than a claim form by new CPR 6.26, which defines service as taking place:

'If the e-mail or other electronic transmission is sent on a business day before 4.30p.m., on that day; or in any other case, on the next business day after the day on which it was sent..'

- in other words, the same as the rule for fax transmissions. Actually, on careful inspection I see that the fax rule has itself been updated to say that service happens on the same day if fax transmission is completed by 4.30p.m. So, if your accompanying Particulars of Claim are 43 pages long, don't send the trainee to the fax at 4.28... 

UPDATE On a more careful read-through I see that the CPR amendment splits out service of Claim Forms from service of other documents. The above rule applies to documents other than claim forms; the revised rules for claim forms themselves actually slow down service, by applying the 'second business day' rule to all forms of service!

Wednesday, 17 September 2008

Why Not To Buy

This BBC report notes how the sudden round of shotgun marriages in the banking and investment world has led some crafty individuals to register domains such as and, presumably in the expectation that the post-merger banks - assuming that they are called that - will then have no choice but to pay whatever is asked in order to have a suitable domain name.

Funnily enough, this has been tried before. Many, many times; indeed, this particular scam predates the spread of the Internet. In Glaxo plc v Glaxowellcome Ltd [1996] FSR 388, a couple of company registration agents noted the announced merger of Glaxo and Wellcome and registered 'Glaxowellcome Ltd' as a company name, which they then offered to sell to Glaxo. Glaxo were unamused and sued successfully for passing off. As Lightman J put it:

"The court will not countenance any such pre-emptive strike of registering companies with names where others have the goodwill in those names, and the registering party then demanding a price for changing the names. It is an abuse of the system of registration of companies' names. The right to choose the name with which a company is registered is not given for that purpose."

The concept that such an abusive registration was an 'instrument of fraud' was seized on with enthusiasm by courts when looking at domain name hijacking, as in the leading case of British Telecom v One In A Million [1998] 4 All ER 476. Moreover, as resolution of domain name disputes has shifted from courts to ICANN-mandated resolution panels, such tribunals have readily adopted the doctrine that such pre-emptive registrations are abusive, as in America Online v Chris Hoffman, where the announced merger of Time Warner and AOL led the defendant to register and other such domains.

Indeed, since the terms of service of domain name registrars invariably include a condition that any dispute is resolved under the ICANN Uniform Domain Name Dispute Resolution Policy, anyone trying this trick is unlikely to even have the chance to argue in court. Instead, they'll have to go to an ICANN-approved tribunal that is, on the evidence of AOL and similar decisions, likely to take such registration as prima facie abusive.

So, I wouldn't bid on if I were you. It's likely to be an even worse investment than Lehman stock turned out to be...

EDIT: I commented on this on BoingBoing when it linked to a similar story. I am indebted to BB user Tubman for pointing out that the value of such speculative sites these days rests on the advertising opportunities they provide. Even if (for example) is doomed to be taken down, it might generate a lot of ad revenue on the way. So maybe such sites are a better bet than I thought - especially now that shorting bank stocks has been banned! In broader terms, this is an excellent example of how the dynamics of e-commerce can change, with measures aimed at protecting the long-term value of a domain becoming irrelevant in the face of its short-term earning potential.

Sunday, 7 September 2008

It's The Data Protection Act, not the Say Nothing To Anyone Act

If you were thinking it had become a little quiet around here then you were right - I've spent the last week in the induction phase of the Bar Vocational Course. After a year doing an LLM that was concerned with specific areas of almost entirely civil law I am having to revisit the whole wider legal spectrum, including that 'criminal' stuff I dimly remember from W201. However, this doesn't mean any less interest in lawblogging on IT and IP law; to the contrary, I am keen to keep myself abreast of my intending area of specialisation.

Something that did catch my eye last week was this story on how Marks & Spencer claimed that the Data Protection Act meant that it could not talk to the mother of a child who had received a defective Superman costume as a gift and insisted on speaking directly to the seven-year-old boy himself. As this item in The Times notes, this is just the latest in a depressingly long line of examples of how the DPA is being misinterpreted and overzealously applied whilst agencies of HM Government - who really should be applying its requirements stringently - repeatedly mislay vast swathes of sensitive personal data. For my part, I would go further; it is hard to avoid the suspicion that the DPA is being invoked to excuse laziness, conceal incompetence and in some cases to indulge in pure administrative bloody-mindedness. In one instance I'm personally aware of, a building management company refused to release financial records on income and expenditure on the grounds of 'data protection' despite the clear statutory requirements of ss.21-22 Landlord and Tenant Act 1985 to do so. In the M&S case, surely common sense should have dictated that the parent or guardian of a minor is the appropriate person to speak to? But no, the bogeyman of Data Protection is offered up instead.

In wider terms, this is symptomatic of a worrying tendency (I almost said 'trend', but I suspect it has long been thus) for people to assume that, because they are dimly aware that a certain area is regulated by law, any conduct impinging on that area is forbidden. The more that the legal regulation is publicised, the more prevalent and extensive this assumption becomes. We see this in the vexed issue of public photography, where anti-terrorism campaigns and hysterical news coverage have had the (I hope) unintended effect of convincing security guards and members of the public that anyone with a moderately decent camera is either a terrorist or a paedophile. Unfortunately, this suggests that the more we see of well-justified news stories about data protection failings, the more we might hear of shop assistants invoking the DPA.