Weekly Notes: legal news from ICLR – 23 January 2015
Posted on 23rd Jan 2015 in Weekly Notes
This week’s litany of legal news from home and abroad includes a grilling of Grayling, a vindication of a vocal legend, a consultation over court fees, and a surveillance of snoops.
UPDATED 24 February 2015
Smiling Justice Secretary appears confident of ultimate victory
In a broadly sympathetic interview (more examination in chief than cross) the political columnist Andrew Gimson on Conservative Home allows Chris Grayling, “the first Lord Chancellor for 440 years not to be a lawyer” to put his side of the story and say why he thinks what he’s doing to the legal system is a Good Thing.
As Gimson acknowledges, relations have soured between Grayling and “senior lawyers” (you need to include everyone from junior trainees up to judges and members of the House of Lords in that spectrum of dissent) and this seems to be part of the PR fightback. (Before politics, Grayling worked in the media and he knows how to manipulate the public image.) Nevertheless, Gimson himself is sometimes taken aback by the man’s apparent lack of self-awareness (or “hubris”, as more determined critics have put it):
Only when I transcribed the tape of this interview did I realise quite how astonishing Grayling’s remarks are. For by implying that no lawyer can as Lord Chancellor exercise impartial judgment, at least on any question affecting the legal profession, he appears to insult his many distinguished predecessors.
The interview reveals, inter alia, that Grayling was once a member of the SDP (the Labour wets who splintered off in the early 1980s and were eventually grafted onto the Liberals to form the Lib-Dems, a party that was already a coalition before it joined one) but apparently it was only because of his interest in “a young lady” at the time.
Given free rein, Grayling airs his pet hates, such as lobby groups vexatiously bringing judicial review proceedings over inconsequential procedural errors in decision-making, and the “completely untrue” assertion that a ban on sending books in parcels (or anything else in parcels) amounted to a “prisoner book ban”. Still, as someone who once worked in the media, Grayling ought to be aware how important the look of a thing can be, when scrutinised and magnified.
Grayling, or his department, the Ministry of Justice, has lost quite a few judicial review claims, including the one about books for prisoners, over the last couple of years, but Grayling remains quietly confident about his “reforms”. As Gimson notes,
“You’re smiling. You actually quite enjoyed this, I get the impression.”
Less amused by the whole performance, indeed positively seething at times, was Ian Dunt, who dissected the whole show in a piece on politics.co.uk entitled Grayling: I’m the first impartial lord chancellor in 400 years.
“You have to admire the chutzpah of it. Instead of Grayling’s ignorance of the law being a weakness, it actually makes him the man who dares to speak truth to power, a force of common sense rocking a dull and dusty legal world.”
Dunt then explains how the devil really is in the detail, and says “his every utterance is increasingly filled with misleading statements which wouldn’t stand up in a court of law”.
The legal vote
Does it exist? Who will get it?
Thousands of lawyers set to desert Conservatives if Grayling stays, screams the Solicitors Journal today, perhaps overlooking the boost given by Gimson’s interview (above). The report is based on results of a survey conducted on the latest social media outlet, Mootis, a mini-blogging site designed for lawyers (the limit per post is a waffly 500 words, as compared to the bullet pointy Twitter’s 140 characters).
But the question is, to whom will they transfer their allegiance? Since no one on the Labour front bench has even hinted at the possibility of restoring the legal aid cuts, the battle will be between the smaller parties.
As a public benefit, I propose to scrutinise all their manifestos, including UKIP’s and possibly that of FUKP, in the hope of some ray of light over the future of the legal system. But don’t hold your breath (it’s dangerous).
For a first glimpse at this process, here is FUKP’s party political broadcast, via You Tube. Mr Al Murray, a pub landlord by trade (so I’m told), poses at his desk in what could very easily be a corner of one of our ancient law libraries, judging by the leatherbound volumes on the shelves behind him. Could it be too much to hope there’s a set of Blackstone’s Commentaries there and perhaps a copy of Hobbes’ Leviathan? (Probably not.)
Rihanna wins on appeal
Singer was p*ssed off by Top Shop’s top pic
The pop singer, Rihanna (suing in her full name Robyn Rihanna Fenty) has won the appeal brought by the defendants, Arcadia Group Brands Ltd and Topshop/Topman Ltd, against the judgment of Birss J granting Rihanna an injunction to stop them passing off one of their T-shirts, bearing a recognisable photograph of the singer, licensed to the retailer by the photographer who took it, as having also been authorised by Rihanna herself, which it hadn’t been.
Giving the main judgment in Fenty v Arcadia  EWCA Civ 3 at , Kitchin LJ summarised Birss J’s findings (the story so far):
The judge accepted that the mere sale by a trader of a t-shirt bearing an image of a famous person does not, in and of itself, amount to passing off. But he found the sale by Topshop of this t-shirt was, in the particular circumstances of this case, likely to lead people to buy it in the belief that it was a t-shirt which Rihanna had approved or authorised, and that this had caused her damage. He found that Topshop’s activities therefore amounted to passing off and he granted an injunction prohibiting Topshop from dealing in it any further without clearly informing prospective purchasers that it had not been so approved or authorised. It is against that decision and order that Topshop now appeals.
In Kitchin LJ’s judgment, at para 38,
this allegation did disclose a sustainable case in passing off. In substance Rihanna alleged that she had suffered damage to the goodwill in her business as a result of the misrepresentation, implied in all the circumstances, that she had endorsed the t-shirt.
Underhill LJ was more sceptical, but eventually concurred with the judge’s reasoning:
I am bound to say that I regard this case as close to the borderline. The judge’s conclusion that some members of the relevant public would think that the t-shirt was endorsed by Rihanna is based essentially on two things – her past public association with Topshop (as described by Kitchin LJ at paras. 17-18) and the particular features of the image itself, which is apparently posed and shows her with the very distinctive hairstyle adopted in the publicity for Talk That Talk. I do not believe that either by itself would suffice; in particular, Rihanna’s association with Topshop does not seem to me to have been such as to weigh very heavily in the balance. But the judge considered the question very carefully, taking due account of the factors going the other way, and in my view he was entitled to find that the two features in combination were capable of giving rise to the necessary representation.
Richards LJ agreed. For video of Kitchin LJ handing down judgment, see You Tube.
For more commentary, see
- IP Kat blog, Rihanna T-shirt: Court of Appeal says it’s passing off
- NIPC Law, Court of Appeal upholds Birss J in Rihanna’s Case
- Hilary Atherton, of Bird & Bird, via Primary Law: Topshop’s sale of Rihanna t-shirt was unlawful, agrees the Court of Appeal
- Jade Rigby on Keep Calm Talk Law, The Rhianna row – where fashion clashes with privacy
Press regulator rules under scrutiny
Chairman of IPSO questions validity of current rules
Giving evidence to the House of Lords Communications Committee on 20 January, Sir Alan Moses, chairman of the Independent Press Standards Organisation (IPSO) said the regulator’s rules gave publishers too many opportunities to object to complaints in the hope of avoiding fines, and should scrap rules which “obfuscate and resist” its investigations. Not one to mince his words, Sir Alan is reported by the Press Gazette as having told the committee:
“Many of the rules – this awful collection of rules and regulations – are opaque, sometimes self-contradictory, difficult to understand and sometimes difficult to find.
“One of our main tasks at the outset has been to identify those rules and regulations which we say need amending or cutting out in order to demonstrate an effective and robust simplicity and directness.
“I believe that that is the way we will demonstrate our independence. Only time will tell whether we can successfully persuade and convince others.
“The moment anybody else tries to tries to control us by any means, whether by opaque rules or by difficulties in any other way, that seems to me to be heavily damaging to independence.”
IPSO replaced the Press Complaints Committee in September 2014, and one of its key new powers was the ability to launch investigations into serious wrongdoing at newspapers and issue fines of up to £1m.
Sir Alan said he hoped IPSO could work with rival regulator, Impress, or even merge, since their aims were identical. According to the report in the Press Gazette:
He (Sir Alan) said there was no chance of IPSO applying for recognition under the Royal Charter on press regulation, because the 69 publishers who have signed up to IPSO do not want to be part of an organisation accredited by it. This means that publishers in IPSO are open to the threat of punitive costs and damages in libel and privacy actions. But Moses said he thought it would be “very difficult” to envisage a case where such penalties were imposed.
Well, if Moses can’t bring the tabloids down from the mountain I don’t know who can. (Er… sorry.)
Are snoops the new troops?
Defence of realm increasingly in hands of cybersoldiers
As we noted last week, the spilled blood was barely dry in the streets of Paris, after the slaughter of those whose only crime was to spill ink, before the authorities this side of the channel were clamouring, once again, for more powers to snoop, spy and surveil us all. (See Snoopy rides again, from Weekly Notes – 16 January.)
In a post on Wired today (Charlie Hebdo and the Security State), Julia Powles analyses this opportunistic reaction:
The reaction of power has been altogether less savoury. In particular, the way that the tragedy has been co-opted by politicians, securocrats, and organs of the media, particularly in the service of indiscriminate surveillance and discriminate censorship, shows nothing short of rank hypocrisy — a macabre joke on the memory of those freewheeling cartoonists.
She points out, as others have done, that the perpetrators of the Paris killings, like those of recent terrorist outrages in Woolwich, Boston and Sydney, were already known to the authorities. They were not harvested out of a wholesale filtering of social media exchanges and email accounts. Moreover:
mass data collection, the necessary precursor to recent and proposed laws, can be shownmathematically to make it more difficult to catch terrorists, plus it has a very significant and irrecoverable environmental cost. It is in clear breach of human rights. It also creates unnecessary, unwanted, and costly data storage — and, with it, new vulnerabilities to malevolent actors that far outnumber plausible terrorist threats.
So why do they keep asking for these powers? There is, of course, the usual belief in legislation for its own sake, as a demonstration that Something is Being Done. But, unlike say the SARAH bill (Social Action, Responsibility and Heroism), which is a piece of pure “nudgislation”, having no material effect on the law or its enforcement, the recent attempt, reported by Mike Harris on Little Atoms (Peers launch backdoor attempt to make rejected UK Snooper’s Charter law ) to introduce key measures from the controversial draft Communications Data Bill into UK law by amending the Counter-Terrorism and Security Bill to include the majority of its clauses carries the risk of actually having the desired effect – which would be to grant the intelligence agencies in the UK unprecedented and draconian surveillance powers. They may or may not use these to protect us from terrorists. But we cannot be sure they won’t use them for other purposes, such as snooping on investigative journalists, as they did under the Regulation of Investigatory Powers Act 2000 (RIPA). (See Grim RIPA strikes again, Weekly Notes – 10 October 2014.)
It would be rather ironic if, in the wake of a vicious attack on freedom of expression and fearless journalism, we should grant powers to the police to themselves carry out attacks on freedom of expression and fearless journalism.
Another reason behind this lust for powers to eavesdrop on all our social intercourse might, of course, be that the only troops we have left, after stringent cuts of the military budget, are the cybertroops. So if they are our thin red line, we’d better give them the ammunition. Not just cybertroops, of course. We have the drones in the air, and the bots on the ground.
- The Guardian: ‘Snooper’s charter’: four Lords in bid to pass changed version before election
- Open Rights Group: Abuse of Parliamentary procedure: introducing the Comms Data Bill into the Counter Terrorism and Security Bill
Consultation over court fees hike
Responses from judiciary and Civil Justice Council
In December 2013 the Ministry of Justice proposed “reforms” to court fees which basically involved hiking them up to the point where litigants would think twice about proceeding. The consultation (pdf) begins by saying
The courts play a vital role in our democracy. They provide access to justice for those who need it, help to maintain social order and support the proper functioning of the economy. … It is critical that the courts are properly funded if they are to continue to provide access to justice…
But it goes on to say:
At the same time, the government has made reducing the fiscal deficit a top priority, in order to set the economy on course for growth…. The courts, and those who use them, must make a contribution to reducing public spending.
The document lists the proposed changes (some of which have later been revised). In the response of the Civil Justice Council, the main concern seemed to be that the increased fees for large money claims (over £10,000) which would be based on 5% of the value of the claim, albeit capped at £10,000, might at the lower end “price people out of justice” and, for higher end litigation,
“the fee will be seen, by international standards, as a high entry price to begin a commercial case in this jurisdiction”.
The concern expressed in the response of the senior judiciary, in the form of a letter from Lord Thomas of Cwmgiedd CJ, is that:
There is likely to be a disproportionately adverse impact on small and medium enterprises and litigants in person.
It highlights that many claims are not necessarily valued by reference to a sum of money, but are incidental to a claim the value of which may not yet be clear, or relevant, such as injunctions or enforcement proceedings.
In addition, the draft impact assessment for these proposals makes some very sweeping and, in our view, unduly complacent assumptions about the likely effect on the volume of court claims issued and access to justice of the proposed fee increases.
At the other end of the spectrum:
However, there are fears that the increase in fees could trigger commercial work moving elsewhere. To illustrate this, the fees proposed are 25 to 100 times greater than those payable in New York. A real concern will be uncertainty over future fee increases and the possible imposition of daily hearing charges putting major litigants off London, particularly as commercial cases can take years to develop.
For more, see Judiciary Website
Law (and injustice) around the world
An alphabetical tour d’horizon
Accidental death of a prosecutor
A few days after formally accusing the Argentine president, Cristina Fernandez, of trying to cover up Iran’s alleged role in the 1994 bombing of the Jewish community centre in Buenos Aires, described as Argentina’s worst ever terrorist attack,and on the eve of a hearing at which he was to present the fruits of a decade-long investigation into the matter, the public prosecutor, Alberto Nisman, was found mysteriously dead.
Iran is blaming Mossad, the Israeli secret service, while in Israel the finger is pointing at Iran; but in Argentina itself, the suspicions of government involvement remain rife, according to a report on the death and the confusion and consternation it has engendered, in the FT, entitled Argentina: The strange death of Alberto Nisman.
Draft terror law open to abuse
A new law on counterterrorism was published for consultation in November 2014 which critics, including Human Rights Watch, say will legitimise human rights abuses in China,
especially in an environment lacking basic legal protections for criminal suspects and a history of gross human rights abuses committed in the name of counterterrorism. Such violations are evident across the country and particularly in the Xinjiang Uyghur Autonomous Region, the region that has been most affected by acts of terrorism and political violence in recent years.
HRW draw attention to the “enormous discretionary powers” in the draft law, which
“define terrorism and terrorist activities so broadly as to easily include peaceful dissent or criticism of the government or the Communist Party’s ethnic and religious policies, and set up a total digital surveillance architecture subject to no legal or legislative control.”
China does undoubtedly face problems from terrorism, just like other nations; but the award of sweeping and discretionary powers is alarming, given China’s endemic corruption and its record of poor respect for human rights and democracy.
Journalism under fire
The Ethiopian government’s systematic repression of independent media has created a bleak landscape for free expression ahead of the May 2015 general elections, Human Rights Watch said in a report released last week. In the past year, six privately owned publications closed after government harassment; at least 22 journalists, bloggers, and publishers were criminally charged, and more than 30 journalists fled the country in fear of being arrested under repressive laws.
The 76-page report, “‘Journalism is Not a Crime’: Violations of Media Freedom in Ethiopia,” details how the Ethiopian government has curtailed independent reporting since 2010.
Critical publisher deprived of licence
Kuwait’s trade minister has cancelled the business license of the company that publishes a newspaper known for being critical of the government, citing violations of corporate regulations, according to Reuters. Al-Watan was one of two newspapers suspended by a judge for two weeks last year after they reported on an audio recording that discussed an alleged plot to overthrow the Gulf state’s rulers. Kuwait is home to about a dozen daily newspapers, which often include criticism of government ministers, including some ruling family members. However, issues related to the ruling system itself – a hereditary dynasty – are especially sensitive.
Football strip off
Erwin Haüer, Knijff Trademark Attorneys, reported via Primary Opinion that Steaua Bucharest, the Romanian football champions, were stripped of their name, colours and emblem last month.
Romania’s most famous club had their trademark registration cancelled by Romania’s High Court, after losing a law suit over their trademark. The Defence Ministry had filed a lawsuit claiming that the club, which was formed in 1947 as an army side, had used the Steaua brand illegally since 2004, and the court decision left the club nameless.
In consequence, when they played a match last month, they had to do so without using a name, and in different colours (yellow, instead of their usual red and blue. The presenter announced them merely as “the champions of Romania”.
For a more colourful account of the story, and the match, see the Daily Mail, Steaua, the team with no name, win on surreal night
Flogging to, and by
Last week we highlighted the hypocrisy in Saudi Arabia’s sending an envoy to the grand march of human rights and freedom of expression in Paris while back home a blogger was being imprisoned and given 1000 lashes (in 20 instalments of 50 at a time) simply for expressing himself freely.
At the same time, we learned that the MoJ was bidding to sell services to the Kingdom’s prison service, which seemed a marvellous expression of official concern over human rights abuses.
Since then, King Abdullah, who was 90, and had been ill, has died. His 79-year-old half-brother, Salman, has been confirmed as the new king, according to the BBC, which reported:
Within hours of his accession to the throne of the oil-rich kingdom, King Salman vowed to maintain the same policies as his predecessors.
“We will continue adhering to the correct policies which Saudi Arabia has followed since its establishment,” he said in a speech broadcast on state television.
So, no let up on the lashing.
Or indeed the beheading. About which, according to the authorities, the least seen the better, as the following two reports indicate. You could say what this amounts to is: justice must not only not be done but it must not be seen not to be done.
- The Daily Beast, Saudis Arrest Man Who Filmed Beheading
- New York Times: Man Who Filmed Execution Is Arrested, Saudi Outlets Say
For more on the sordid Saudi services deal, see David Allen Green in the FT, The Ministry of Justice’s commercial proposal to Saudi Arabia.
- On Human Rights Watch, Adam Coogle, The Truth About Saudi King Abdullah’s Human Rights Record.
- Bar Human Rights Committee: BHRC calls on British Government to increase pressure on Saudi Arabia following public flogging of blogger Raif Badawi
Illinois: Cyberbullying law requires students to reveal Facebook passwords
According to the Guardian, from which the above headline was grabbed, a controversial new law came into effect this month in the State of Illinois, requiring school kids to hand over their social media passwords as part of a crackdown on cyber bullying. The requirement applies if a school has reasonable cause to believe that a student has violated a school’s policy on social media, even if the post in question appears after school hours.
This contrasts with the position in other states, where the law precludes invasions like this of the students’ privacy. And there is always the risk that a password, once handed over, could perhaps be changed? Or, on the other hand, be misused by someone else into whose hands it might fall (not everyone working in a school is honest and patriotic, dare one say).
AND FINALLY… (This week’s slightly silly story)
New York: Sheer legwork fuels class action (but who will foot the bill?)
According to Bitter Lawyer, a woman has sued Doris Inc, a manufacturer of pantyhose, for false advertising after a product, branded “Kushyfoot”, failed to leave her “super satisfied”. The ad in question can be seen in the video clip below. The claim itself (listed as “orgasmic stockings lawsuit”) can be viewed here.
According to plaintiff Meng Wang, suing on behalf of her dissatisfied self and other plaintiffs by way of class action, with the aid of the Lee Litigation Group PLLC in New York City, the advertisement showed a woman “walking through a neighborhood in a dramatic and sultry fashion” and “feeling orgasmic on the city streets”, before explaining to fascinated onlookers the cause of her bliss – “Oh, it’s Kushyfoot”.
More particularly the ad promises “tension relief” and “additional support” for the soles of the feet, and implies some therapeutic benefit will be derived from its use, but after using the product as directed the plaintiff did not observe any such benefits, let alone the orgasmic bliss apparently enjoyed by the woman in the ad. Therefore she suffered financial injury as a result of buying those products at a premium price instead of cheaper alternatives.
It remains to be seen whether the defendants will offer full and final satisfaction (of her claims).
That’s it folks! Enjoy the weekend, and don’t forget to sign up for weekly Case Law Updates. Click here for last week’s alert.
This post was written by Paul Magrath, Head of Product Development and Online Content at ICLR. It does not necessarily represent any views of ICLR as an organisation.