There is a growing concern about online privacy and how personal data is protected when the internet is accessed, as several data hacks continue to hit the headlines. In the recent case of Barbulescu and Romania, the European Court of Human Rights’ significantly held that it is not unlawful for the employer to access employees’ communications to ensure that they have been working, including Facebook, messages and accounts.  This blurs the line between human rights to privacy under Article 8 of the Convention rights and rights to data privacy, making it seem that data is not nearly as safe or private as initially thought.

Developments:

Whatsapp, a popular alternative to messaging, has recently enabled end-end encryption in their service.  This new method of protecting your communication means that the key to the encryption is only known by the sender and the recipient, the message is not decrypted when it reaches the server and is even inaccessible to Whatsapp.

This provides a safer method of contact than the unencrypted service we currently have in text messaging. When a text message is sent, it goes straight to the cell phone provider and is stored on the server. This message is then sent to the recipients phone. It is in plain text along the whole journey, meaning that anyone could read it.

Law enforcement versus technology sector:

The timing of this encryption is the interesting part, as it closely follows the battle between the FBI and Apple. A federal judge ordered Apple to help the FBI access the iphone belonging to Syed Farook, one of the people responsible for the terrorist attack on San Bernardino, California. Apple refused and outlined the privacy and security implications of allowing authorities access to a locked iphone, exclaiming it would require new software and would essentially ‘be a master key capable of opening millions of locks.’ Tim Cook, Apple’s Chief Executive argued that if the FBI had access to this one iphone, nothing would stop them from doing it to many others. It seems as though Whatsapp is painting a target on its back as this newly enabled end-end encryption means that nobody will have access to the data or communications between people.

Costly errors made by first instance judge “misapplying and misunderstanding” Mitchell leads to the Court of Appeal overturning judge’s decision.

Background

The Jackson reforms in how courts should impose sanctions in 2013 gave clear guidance to the courts in trying to manage costs.

 In the landmark case of Mitchell MP v News Group Newspapers [2013] EWCA Civ 1537 (“Mitchell case”), the Court of Appeal had given guidance on the revised CPR 3.9 (relief from sanctions) following the Jackson Reforms. It was thought that courts had become too tolerant of delays and of non-compliance of orders. The emphasis therefore would be for the need for litigation to be conducted efficiently and at a proportionate cost and the need to enforce compliance of the rules.

“The question at the heart of the appeal is: how strictly should the courts now enforce compliance with rules, practice directions and court orders?” (Lord Dyson MR)

It was held that a sanction will usually stand unless

(a)    the non-compliance is trivial ( e.g. failure to complete a small section of a form)  or

(b)   there is a good reason for  the non-compliance.

The Court hoped it had sent a clear message that “from now on relief from sanctions should be granted more sparingly than previously.”

The concept of justice in the overriding objective did not refer exclusively to justice inter partes but rather to the needs and interests of all court users.

2016

In the recent case of McTear and Williams v Engelhard and Others [2016] EWCA Civ87 , according to the Court of Appeal, the first instance judge applied the Mitchell case “wrongly and unjustly”. It has caused the original judgment to be set aside and for a new trial to be ordered.

So what had the judge erroneously applied for the Court of Appeal to overturn the judgment?

At the start of the trial, the judge had refused

–          to allow any of their witness statements (served 50 minutes late) to be admitted at trial and for the witnesses to be called to give oral evidence;

–          admission of documents discovered two weeks before the trial which were relied on by the defendants and had been given to the claimants through discovery some weeks before;

–          permission for the defendants to amend their defence in order to plead set off  of mutual debts.

The Court of Appeal was critical of the judge’s errors and approach taken. This is not the first time that the principles in the Mitchell case had been seemingly misapplied and misunderstood by the first instance court. The same happened before leading to decisions that were “manifestly unjust and disproportionate” (Denton v TH White Ltd) and were ultimately overturned by the Court of Appeal.

There has been an interesting case, Alan Castledine the Commissioners for HMRC, concerning the minimum requirement for entrepreneurs relief.   It acts as a timely reminder as to the qualification for entrepreneurial relief.

This is that in order to qualify for such relief from Capital Gains Tax in respect of shares or securities of a company the person seeking the relief, the tax payer, must hold at least 5% of the ordinary shares of the company.   At least 5% of the voting rights in the company must be exercisable by that person, there are other conditions for relief to be made available which include the fact that the shares must be held for a minimum of 12 months and where the relief applies the tax payer will qualify for a reduced rate of Capital Gains Tax of 10% on up to £10,000,000 of the lifetime gain.

This comes into force on the 1st October 2015. In general the new act reflects the current law although there are difference about which businesses should be aware and take appropriate action.

The legislation sets out the regulations effecting contracts between traders and consumers; it includes consumer notices.

Changes to note include a new definition of a consumer, a concept of non-conforming goods, services and digital content and reference to a new category – that of digital content. In general the new legislation may broaden the potential liability of a trader to its consumer customers which in turn could increase the costs of doing business.

In the light of the new law, businesses in this sector should be aware of the position after the beginning of next month and take steps to ensure that their business terms and paper work comply with the law and are drafted to the best advantage of the trader.