Weekly Notes: legal news from ICLR – 15 April 2016
Posted on 15th Apr 2016 in Weekly Notes
This week’s selection of legal news and events includes fact-checking the EU before the referendum, a new European data protection regime, a copyright claim that’s music to the lawyer’s ears, and the poison of a “millstone” name.
One of the biggest porkies that is often bruited about is the cost to the UK of its membership of the EU. For example, it’s often said that it costs £55 million a day or (using slightly better figures) £350m a week (or over £18bn a year) but these figures all fail to take into account (a) the rebate which we’ve negotiated, and (b) the fact that we get money back from the EU in the form of subsidies etc. The true position is therefore that while the UK might have been liable last year to contribute £18bn, thanks to the rebate or instant discount, it only paid £13bn, in return for which it received £4.5bn in EU spending, leaving a net contribution of about £8.5bn.
Keeping track of the bogus claims is hard work and Full Fact need help not just in funding but in being notified of the flying porkies. So if you hear or read something a bit dodgy, you can ask them to check it out.
Note that Full Fact also checks the law. When the press get the wrong end of the stick on topics such as joint enterprise or the Court of Protection, Full Fact can explain the true position. The people who should really be supporting it are the media who so often seem to do their research on google and/or Wikipedia, and in the case of the former end up feedback looping (and reinforcing) their own unchecked prejudices and assumptions.
What has the European Parliament been up to?
This week, though it is based in several locations, the Parliament was sitting in plenary session in Strasbourg. You can see an account of its business on the EU Parliament website. Highlights include the approval of the new General Data Protection Regulation (discussed below) and the fallout from the Panama Papers (discussed here last week: see Weekly Notes – 8 April)
The MEPs voted to set up a committee of inquiry, under rule 198 of the Rules of Procedure of the European Parliament, Title VIII. The mandate will be determined on 4 May by the Conference of Presidents, with the full House taking a vote during the May plenary session in Strasbourg.
MEPs also adopted an agreement on the sharing of passenger name records to help fight terrorism and debated counter-terrorism measures, less than a month after the latest mass attack on European soil, in Brussels in March (discussed here in Weekly Notes – 25 March).
Among the other topics discussed were the refugee crisis and a centralised asylum system. Here they are (in the image) observing a minute’s silence for bomb victims in Brussels and elsewhere.
Who is my MEP?
Many of those who vote in the EU Referendum probably have no idea who their MEP is. I certainly didn’t, but I did manage to look it up. One reason you can’t name your MEP is because, unlike your (single identifiable) UK MP, the EU voting system gives you a bank of them – in my case the eight representing London. (In terms of party polarity, they go Lab, Con, Lab, Ukip, Lab, Con, Lab, Green.) The MEP most people have heard of is Nigel Farage, but not because of anything he’s done as an MEP. The other one might be Daniel Hannan, who is another fairly outspoken critic of the EU. He represents South-East England, along with nine others, including Farage.
You can see who your MEPs are from this page on the EU Parliament site but you need to download the PDF to get the up to date 2014 to 2019 list) Otherwise it seems to be listing the 2009 to 2014 list, which is a bit rubbish, given the budget they must have for this kind of website.
What’s in a name?
In re C  EWCA Civ 374 concerned a mother was denied her desire to register her twin children (who were in care) “Preacher” (for the boy) and “Cyanide” (for the girl). In a statement filed for the proceedings, she said:
“6. I confirm that I believe it is my right to name the children the names that I have chosen as their mother and I believe it is my human right to exercise my right to choose their names and register my children’s names without the interference of the local authority.
7. I confirm that I have chosen Preacher for my boy child as it is a strong spiritual name. It is a name that suggests proclamation and advocacy and being able to communicate with a wide community.
8. I also consider that Preacher is a rather cool name which will stand my son well for the future and I do not consider that it will impact on his development, emotionally, physically or mentally.
9. I confirm that I have chosen the name Cyanide as I believe that it is a lovely pretty name.
10. I further confirm that the name is linked with flowers and plants, that elderberry, hydrangea, cherry laurel and roses all have compounds of Cyanide found in the leaves and the fruits.
11. I believe that Cyanide will be a strong name that will stand my daughter well for the future and that I believe that it is a poison that has been used since the ancient Egyptians and it is derived from the Greek meaning dark blue.
12. I also consider that Cyanide was responsible for killing Hitler and Goebbels and I consider that this was a good thing and therefore Cyanide can be considered as a positive name, reflecting positive action that destroyed very bad people in the war.
13. I do not accept that it will have an adverse impact on my daughter during her formative years or later in her life.”
Public commentary has focused on the girl’s name and one wonders whether the anonymisation in the judgment name (“In re C”) could be seen as a nod to the name of a drug or the poison that killed Hitler. People do choose some pretty bonkers names for their children, and we do not live in one of those countries where only approved names can be registered. (In France, for example, registrars have a power of veto, notes suesspiciousminds.) However, there must be limits. I don’t think you could name your child Fuck You, even if you changed the spelling to Phuk Yu, though a 23-year-old Vietnamese resident of Melbourne claimed to have a passport in the name Phuc Dat Bich which he posted on Facebook, according to a goofy story in the Daily Mail last year. But five days later the Guardian reported that the whole thing was a hoax.
Frank Zappa when challenged about the fact that he’d called his daughter Moon and his son Dweezil, said he thought they’d have more problems with the surname (given his own reputation as a freak and musical controversialist). But these people are eccentric. The sad thing about parents with children in care is that very often the only “gift” they have to give is the legacy of an awkward name, a metaphorical millstone that can only blight the little blighter’s hopes.
In the present case, the Court of Appeal basically affirmed (for slightly different reasons) the judge’s decision at Swansea Civil And Family Justice Centre limiting the mother’s exercise of parental responsibility under section 33(3)(b) Children Act 1989; and issuing an injunction under the Senior Courts Act 1981, s 37.
The source of jurisdiction is what is interesting about this case. The CA held that, while the parent has a statutory duty to register a child’s birth under the section 2(1) of the Births and Deaths Registration Act 1953, the performance of that duty was an act of parental responsibility which could be limited on the intervention of the local authority exercising its own powers, under a care order, to exert parental responsibility in respect of a child under section 33 of the 1989 Act. It followed that 
the law gives the local authority the power to exercise its parental responsibility under section 33(3) CA 1989 in order to prevent the mother from giving her twins the forenames of her choice.”
However, there was also (as you might expect) a human rights angle, by virtue of the mother’s right to respect for her home and family life under article 8 of the European Convention on Human Rights, as noted at 
the seriousness of the interference with the Article 8 rights of the mother consequent upon the local authority exercising that power, demands that the course of action it proposes be brought before and approved by the court.”
The proper way to do that was to invoke the court’s inherent jurisdiction. In this respect they differed from the judge. There is a lengthy discussion of the caselaw on this aspect which it would be tedious to rehearse here. For anyone interested, the judgment is there to be read in its entirety. You can also read a more erudite discussion of the case by suesspiciousminds.
EU Parliament approves General Data Protection Regulation
The European Parliament this week approved a new set of data protection rules that aim to give citizens back control of their personal data and create a high, uniform level of data protection across the EU fit for the digital era. The EU Parliament’s vote ends more than four years of work on a complete overhaul of EU data protection rules. The reform will replace the current data protection directive, dating back to 1995 when the internet was still in its infancy, with a general regulation designed to give citizens more control over their own private information in a digitised world of smartphones, social media, internet banking and global transfers.
The new rules include provisions on:
- a right to be forgotten,
- “clear and affirmative consent” to the processing of private data by the person concerned,
- a right to transfer your data to another service provider,
- the right to know when your data has been hacked,
- ensuring that privacy policies are explained in clear and understandable language, and
- stronger enforcement and fines up to 4% of firms’ total worldwide annual turnover, as a deterrent to breaking the rules.
- Ars Technica: Massive EU data protection overhaul finally approved
- Tech City News: EU approves GDPR to give citizens control of their data
- BBC/Technology: What does shake-up of EU data laws really mean?
- Keep Calm and Talk Law: General Data Protection Regulation:Triumph for Privacy or the End to Expression?
See also: Dates and Deadlines below
The song remains the same (arguably)
Did a Spirited axeman trip the stairway fantastic to Heaven? Led Zeppelin’s most famous song has been ruled by a US court to sound as though it could have been partly ripped off from an earlier work by Randy California, guitarist of the band Spirit. The decision of US District Judge Gary Klausner, sitting in Los Angeles, is not the last note on the case, because he has merely referred it to a jury to determine the factual issue of infringement. In so doing, he rejected an application by the defendants to throw the case out on grounds both legal (or perhaps equitable) and musicological.
In Skidmore v. Led Zeppelin, 15-cv-03462, U.S. District Court, Central District of California (Los Angeles), scheduled to start May 10, Led Zeppelin’s founders Jimmy Page, 72, and Robert Plant, 67, are expected to recount the origins of the song more than 40 years ago, refuting suggestions that drugs and alcohol may have hindered their powers of recall, reports Bloomberg.
But even if there is a recognisable similarity, in a largely diatonic blues/rock tradition, there’s only so much you can do with a chord progression. Credit where it’s due, and tribute as approprirate, but should “payin’ your dues” really end up costing you royalties?
For essential (and somewhat pun-ridden) background on this important intellectual property dispute, see, on this blog, Coda: Spirit of Led Zeppelin (between rock and a hard case)
And for more puns, see Solicitors’ Journal: Stairway to Trial
UPDATE: see also Paul Campos, in Salon: Led Zeppelin are not thieves: “Stairway to Heaven” fight rests on a nearly impossible copyright standard
The closing date for the ICLR Pupillage Award 2016 is [was] 15 April [UPDATE – it is now closed]. From the candidates who have applied, a shortlist will be drawn up, and those who make it to the next stage will be given an unreported judgment and asked to write a headnote suitable for inclusion in the Weekly Law Reports.
The ICLR award is one of a number designed to support legal training at the Bar. This week Middle Temple announced its new Pupillage Support scheme, which, like the ICLR’s, is designed to help those doing pupillage in a predominantly publicly funded chambers or organisation. Full details here.
Another scheme, the Justice First Fellowship, awarded by the Legal Education Foundation, is providing funding for a special two-year long fellowship, during which trainees spend half the time working for the Bar Pro Bono Unit and half in one of two sets of chambers doing predominantly family law work. This is the first year the fellowship has been extended to cover pupillage at the Bar. The chambers are
- Pump Court Chambers (one of the leading common law sets at the Bar with chambers in London, Swindon and Winchester);
- St. John’s Chambers (one of the largest barristers’ sets in the South West, with over 80 members including seven silks, specialising in all major areas of law)
Dates and Deadlines
Public Talk: Cardiff School of Journalism 21 April 2016, 7-9pm
A talk on the subject of Troubled families, fearful parents, children at risk: The challenges and opportunities in reporting family courts will be given by Louise Tickle (Guardian / freelance journalist specialising in family law topics) and HHJ Stephen Wildblood QC, Family Court judge.
Seminar: Bird & Bird LLP, Brussels 25 April 2016, 2 – 6pm
General Data Protection Regulation: Navigating through the new legal landscape
Bird & Bird Data Protection specialists Catherine Erkelens, Benoit Van Asbroeck, Julien Debussche, Thomas Van Gremberghe and Jasmien César will guide you through some key aspects of the GDPR and how these can impact your business. Anyone interested should email email@example.com.
Law (and injustice) around the world
I’m sometimes asked why I include this stuff about the rule of law or its absence in foreign parts. The answer is that it’s good once a week or so to prick one’s conscience and perhaps also dispel the assumption that our own problems are too serious to allow us to worry about other people’s. Unless you’re in a really bad place, you can be sure there are plenty of others far worse off than you. And sometimes there’s even some good news.
Satirist to be prosecuted over Erdogan poem
Jan Böhmermann is to be prosecuted on charges of personal defamation and insulting a foreign head of state after reading out a sexually explicit poem referring to the Turkish head of state during his comedy show on German public broadcaster ZDF. If found guilty, Böhmermann faces up to six years in prison on both charges. The poem was supposed to illustrate what would not be allowed in Germany, but was considered too offensive and a breach of German law, according to The Atlantic
The German law under which he’s being prosecuted prohibits insulting the head of a foreign state (though it says nothing about his private parts – all right, all right, settle down now) but any prosecution must first be sanctioned by the German state. Apparently Angela Merkel has given the green light, saying it is now a matter for the German judiciary to determine.
The Times (Saturday 16 April) was pretty scathing in its editorial ( “Faustian pact”) over what it called “kow-towing” to the Turks on this. See also news story: Merkel buckles to Erdogan demand to prosecute TV comic.
Blogger wins Prix Voltaire
Raif Badawi, the Saudi blogger sentenced to 10 years in prison and 1,000 lashes for criticising the country’s clerics, has been awarded the first IPA Prix Voltaire, previously known as the IPA Freedom to Publish Prize.
Badawi set up the now-closed secular website Free Saudi Liberals as a forum to facilitate political and religious debate in repressive Saudi Arabia. He remains in jail but has so far only been subjected to 50 of the thousand lashes: the injuries having failed to heal, further weekly instalments have been postponed. (See Weekly Notes – 6 February 2015).
His wife Ensaf Haidar Mohamed collected the prize of 10,000 Swiss francs (£7,300) on behalf of her husband.
Full report: The Bookseller
Right to be forgotten (again)
Spain is where the RTBF was first given judicial recognition by the CJEU and now the Supreme Court in Spain has weighed in on the question whether a Google subsidiary is, like Google Inc, a data controller. Twice. And the problem is that two different chambers of the Supreme Court have come to different conclusions on the matter, as Miguel Peguera explains, in Clash between different chambers of the Supreme Court on the right to be forgotten , on Inforrm’s Blog (reposted from ISP Liability):
Only a few days after the Administrative Chamber of the Supreme Court issued [five rulings holding that Google Spain SL is not a controller and declaring DPA delisting orders against it null and void] the Civil Chamber ruled on the civil appeal. In essence, the ruling held that Google Spain is in fact a controller, no matter what the other Chamber may say. The case was decided by the Civil Chamber in full, which attaches more relevance to the judgment.
Whatever you may think about considering the local subsidiary a controller, this radical disparity of conclusions within the Supreme Court looks far from desirable.
That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR, who also tweets as @maggotlaw. It does not necessarily represent the opinions of ICLR as an organisation. Comments welcome on Twitter @TheICLR.