Weekly Notes: legal news from ICLR – 7 November 2014

Posted on 7th Nov 2014 in Weekly Notes

This week’s selection of law stories from home and abroad includes a celebration of free legal activity, a promotion of professional excellence, and the lordly stuffing of a legislative turkey. Plus important developments in intellectual property law and some tasty looking legal writing prizes.

 

National Pro Bono week 2014

Celebrating lawyers’ unpaid contribution to underfunded justice

Pro BonoThis week was dedicated to the work done by lawyers of all types, including barristerssolicitors, and legal executives, in making sure that people who can’t afford legal advice are not thereby deprived of access to justice.

For the thirteenth year running, the event featured meetings, debates, panel discussions and drop in sessions aimed at raising awareness and providing information for lawyers and non-lawyers alike.  Typical of the outreach aspect was the drop-in session, which was held at Portcullis House, for MPs to learn more about pro bono.

The opening event took place at the Law Society on Monday 3 November and was followed by a “question time” session at which (according to Legal Futures) Andea Coomber, director of JUSTICE, challenged the government’s reliance on pro bono volunteer advice as a “sticking plaster” over the “gushing wound” of unmet need, following legal aid cuts. She was speaking in response to trumpeting by Justice Minister Simon Hughes of the government’s recent £2m court advice initiative using, inter alios, law students. At the same meeting, Hughes made clear that

“There is going to be no growth in the foreseeable future under any administration in the funding for legal aid – that has been made clear by the government and the Labour Party.”

He also confirmed that by this time next year, all the statutes will be available online. Presumably this refers to fully consolidated editions of the entire statute book (ie as currently in force) via the excellent Legislation.gov website run by (indeed powered by) the National Archives. [For more on this project, watch this space.]

According to an article in Solicitors Journal, “a new report from the Law Society shows that 42 per cent of solicitors have undertaken pro bono work during the last 12 months”. The report followed a survey, which also showed that 65 per cent of solicitors had conducted pro bono work at some point in their legal career. The SJ article concluded:

The estimated value of pro bono work across all private practice solicitors totalled £601m, which is the equivalent of approximately 2.8 per cent of the total turnover generated by solicitors firms. This represents an increase in both the value of pro bono work provided in 2013 and in terms of the proportion of total turnover.

For more information on pro bono work:

Bar Conference 2014

The week concluded with the Bar Conference 2014, held at Westminster Park Plaza, at which the current chairman, Nicholas Lavender QC underlined the Bar’s continuing, indeed ever greater, commitment to pro bono work, although the main theme of the conference was “celebrating excellence”. Either way, the point was to underline the importance of barristers to the fair and proper administration of justice. Thus the very first session was titled “Excellence in pro bono provision: innovation, collaboration, coordination”.

In his speech, Lavender described the recent legal aid cuts as “the biggest onslaught on access to justice through legal aid” there has ever been, but said the justice system might be at a turning point. Pointing to the profession’s 550 year history, he said

“Much has happened since 1466. And through all of that we have not only survived, but gone from strength to strength. We have survived Oliver Cromwell, and I believe that we will survive anything which this or any other Government throws at us.

Two major awards were made at the conference.

1. The  Sydney Elland Goldsmith Bar Pro Bono Award 2014 was awarded to Monika Sobiecki of Pump Court Chambers, and the runner up was David Malone of 18 Red Lion Court. According to the Bar Council announcement:

Monika was recognised for two separate acts of pro bono work, first for setting up an innovative legal advice clinic at the Hackney Winter Night Shelter that provides free legal advice on housing, immigration, welfare benefits and family law to a small proportion of some of the most destitute members of society; and for volunteering her services through the Employment Lawyers Association ‘100 Days Project’ to represent a vulnerable client in a complex ten-day disability discrimination case against a well-known retail brand.

 

David Malone of 18 Red Lion Chambers received a special mention from the judging panel after being nominated by Eve Thomas, a former pro bono client, for 12 months of work she described as ‘Herculean’.
A year ago Eve, a survivor of domestic violence, was being threatened with contempt of court for refusing to reveal her ‘safe address’, fearing her abusive ex-husband would obtain this information. Coining the phrase “Eve’s Law,” David and Eve launched a national campaign to ensure that the safe addresses, and the confidential details of victims of domestic violence and sexual abuse, were protected by the courts and other agencies

2. The Legal Reporting Awards 2014 were won by

  • Maeve McClenaghan, Melanie McFadyean, and Rachel Stevenson, of the Bureau of Investigative Journalism, in the print category, for their piece on joint enterprise, which helped prompt the Justice Select Committee into holding an inquiry;
  • and by Zoe Conway, of the BBC, in the broadcast category, for her report on indeterminate sentences for the protection of the public (IPP) on Newsnight.

(Source: tweet from Daniel Sternberg @BarristerDan on Twitter.)

 

Essay competition

The Access to Justice Foundation in association with LawWorks are inviting law students to enter their sixth annual competition, by submitting an article between 750 and 1000 words.The article should be aimed at the legal profession, as the winning entry will be published in the New Law Journal.

Undergraduate and postgraduate law students may apply, including GLD, LPC, BPTC and CILEx students. The competition will be judged by the Board of Trustees of the Foundation chaired by former Attorney General Lord Goldsmith QC. Deadline is 1 February 2015.

For more information: The Access to Justice Foundation Student Competition 2015

 

Book competition

Inner Temple promoting 2015 Book Prize to coincide with 800th Anniversary of Magna Carta

The Inn is offering two Prizes, one of £12,000 and one of £5,000. According to the announcement:

The Prizes are intended to encourage and reward the writing of books which make an outstanding contribution to the understanding of the law and in this way to mark the Inn’s long standing commitment to legal scholarship and to the education and training of practising and intending lawyers. The £5,000 prize will be confined to “new authors” i.e. those who, at the date of publication, are within ten years of being awarded a first degree or being admitted as a practising lawyer (whether in any part of the United Kingdom or elsewhere) whichever period is the shorter. It is intended that the Prizes will be offered again in 2018, and thereafter at three-yearly intervals.

For more information: Inner Temple Book Prize 2015.

 

A Bill named Sarah

House of Lords mocks government’s much-vaunted “heroes” legislation

“When it comes to delivering public policy turkeys, there are few ministers as consistently masterful as Chris Grayling.”

Thus begins Meet SARAH, the ‘gallinaceous love child of Grayling and Letwin’, Richard Dunstan’s devastating sage and onion (sagacious and opinionated) stuffing of the turkey that is the Social Action, Responsibility and Heroism Bill (aka SARAH), which had its second reading in the House of Lords this week.

For mor on this legislation, see Weekly Notes – 6 June.

The aim of the Bill, according to Grayling himself, is to:

“say to the courts that we want their decisions clearly to take into account whether people have been trying to do the right thing or not”.

In other words, he wants the court to apply good old “common sense”. But, as most critics have already pointed out, and Grayling himself has admitted in so many words (when announcing the legislation on Conservative Home website):

“Of course courts do apply common sense …”

As Dunstan concludes:

SARAH won’t actually change a thing. She won’t change the (actually very small) number of legal claims against charities, volunteers and ‘heroes’. She won’t reduce the “stresses and strains” allegedly experienced by those against whom claims are brought who “think they have just done the right thing” – whatever that means. And, accordingly, she won’t reduce the ‘fear’ that allegedly holds back so much of society.

In other words, she “really is a turkey”.

The debate in the Lords, faithfully recorded by Hansard, repays reading in full. Parts of it are suggestive of a comic opera by Gilbert & Sullivan, with Grayling cast in the role of buffoon, singing “I am the very model of a modern Lord High Chancellor…”

Lord Pannick QC began quietly but with devastating irony:

My Lords, unlike some of your Lordships, I am not disappointed by this Bill. When I see that the Lord Chancellor is bringing forward a legislative proposal, I worry about which valuable aspect of our legal system he is going to damage: judicial review, human rights and legal aid have all come under the cosh. It is, then, a pleasant surprise that the Lord Chancellor should be using valuable legislative time on a Bill which is so anodyne and pointless that the only appropriate response is a shrug of the shoulders or the raising of an eyebrow. Since neither of those gestures would be recorded in the Official Report, it is necessary to put one’s response into language.

The noble Lord, Lord Beecham, and the noble Baroness, Lady Browning, each quoted Shakespeare. I cannot compete with that, but the Bill puts me in mind of what Basil Fawlty says of his wife Sybil in the celebrated television programme, “Fawlty Towers”. I hope that noble Lords will excuse this unparliamentary language. He said:

“She should be a contestant on ‘Mastermind’. Special subject: the bleedin’ obvious”.

The Bill is a statement of the legally obvious. I find it very difficult to believe that, if enacted, it is going to make any difference whatever to any case that becomes before the courts. The Government’s own impact assessment of the Bill, says, at paragraph 17:

“Both the possible reduction in case volumes and the size of any compensation payments are unknown, but are likely to be small”.

The Minister is a very fine advocate but not even he can persuade me that the Bill is, as he suggested in his opening remarks this afternoon, significant.

Quoting from this and other choice exchanges, John van der Luit-Drummond had a field day writing it up for Solicitors Journal, in SARAH “just another Grayling gimmick”.

 

This week’s slightly silly story…

(in case the one above wasn’t silly enough) concerns Google (again), but this time in relation to its Streetview project

It seems one of the street level photos it incorporated in its road sweep of planet earth was a woman’s cleavage. Now it has had to pay damages for showing woman’s cleavage on Streetview.

A Canadian judge has ruled that Google owes Maria Pia Grillo $2,250 in damages (plus $159 in court fees) for causing her “shock and embarrassment” after she had appeared in a streetview image from Montreal. As reported by Web Pro News, the story goes that Ms Grillo was beside herself when she looked up her house on Google Street View in 2009 – only to find herself (and her cleavage) sitting on her front step. Though her face was blurred (as Google routinely does when people wind up in their Street View shots), Grillo claimed that her address and license plate number were visible, plus the contextual visual information (her house) made her clearly identifiable.

This is not, apparently, the first time Google have had to deal with (sometimes very) personal material on Streetview. Web Pro News links to other stories in which couples have been caught on camera in compromising positions – though if you ask them now what was going on they’ll tell you (as it appears on Streetview after editing) that it’s all a bit of a blur.

The legally interesting bit (via GigaOm) was that in this case

the court drew a contrast between the law in the United States, and its emphasis on free expression, versus what prevails in Canada and Quebec. The judge also elected to adopt a “European approach” to deciding what should count as “personal information.”

This is what potentially connects the case to European controversy over the so-called Right to be Forgotten, which also weighs privacy rather more favourably as against freedom of expression than might be done in the United States.

 

Law around the world

 

Egypt

Record on human rights now worse than before Arab Spring

At a recent review hearing of the UN Human Rights Council, Keith Harper, US ambassador to the UNHRC, said Egypt had violated “freedoms of expression, peaceful assembly and association [and] deprived thousands of Egyptians of fair trial guarantees”.

The review is Egypt’s first since President Hosni Mubarak was forced out of office in 2011 in what was then hailed as the Arab Spring. Human rights groups say since then there have been mass detentions of government opponents and the deaths of hundreds of protesters and Egypt’s record on human rights has worsened. Some Egyptian human rights organisations refused to attend the hearing, fearing reprisals when they returned home.

Full story: BBC

Men jailed over gay wedding video

Typical of Egypt’s intolerance and oppressiveness is the news that a court in Egypt has sentenced eight men to three years in prison for appearing in a video alleged to show a gay marriage. The eight men denied charges of inciting debauchery and offending public morality. Although homosexuality is legal in Egypt, it remains a taboo. Police raids on gay venues have risen in recent months, say the BBC, possibly in a bid to counter the notion that the current regime of al-Sisi is less conservative, morally speaking, than the Islamist leadership of Mohammed Morsi which it ousted.

 

Iran

Woman jailed for attempting to watch men’s volleyball match

This story has been rumbling for a while – see Weekly Notes – 12 September and 10 October.

After being arrested in June for allegedly “spreading propaganda against the regime” after trying to defy a ban on female spectators at male sporting events, the 25-year-old British law graduate, Ghoncheh Ghavami,  was held in custody for more than 100 days without access to a lawyer, in protest against which she went on hunger strike. She was eventually tried and convicted – in secret, of course, though she did by then have a lawyer  – and was sentenced to one year in prison, though no reason was given by the court.

Although David Cameron did raise concerns at a recent meeting with Iran’s president Hassan Rouhani at the UN, it is thought that the prosecution was motivated by more hardline elements in the regime, over which he has less control than optimistic electors had hoped.

Full story: The Guardian.

 

 

The Netherlands

Copyright exhaustion extended to e-books

This is a court decision by the District Court of Amsterdam, in a case cited as  Nederlands Uitgeversverbond and Groep Algemene Uitgevers v Tom Kabinet, Case C/13/567567/KG ZA 14-795 SP/MV, which was given in July, but recently written up in the Journal of Intellectual Property Law & Practice.

This records that the court applied to e-books the principle previously laid down by the Court of Justice of the European Union in respect of computer software, in the case of Usedsoft GmbH v Oracle International Corp (C-128/11) [2013] Bus LR 911; [2012] WLR (D) 192 when it stated that the “exhaustion doctrine” was applicable to downloaded software which lacked tangible support. That meant, in essence, that the purchaser of a computer program could re-sell it.

In the instance case, Tom Kabinet set up a website enabling customers to resell e-books. The claimants, Nederlands Uitgeversverbond (NUV), the Dutch Publishers Association and Groep Algemene Uitgevers (GAU), the General Publishers Group, asked him in vain to cease and desist and then took him to court. They contended that the UsedSoft principle did not apply because the licensing arrangements were different. The defendant said it did. Moreover, he had  implemented a system of scanning and watermarking which protected the works against duplicate sales. In the judge’s view, this business model (more fully described in the article which I am paraphrasing) did not contravene the law and he awarded costs against the claimants. They now intend to appeal and it seems likely the matter will end up in the ECJ before, well, not too long one hopes, to get a conclusive determination.

For further comment on this case, and another about e-lending: IPKat Dutch court refers questions to CJEU on e-lending and digital exhaustion… 

See also: The future of copyright, Dutch Court refers preliminary questions on the lending of e-books to ECJ

 

Spain

Reform of copyright law passed

On 30 October 2014 the Spanish Parliament passed the proposal for the reform of Royal Legislative Decree No. 1/1996, of 12 April, approving the Restated Text of the Copyright Act.

The law aims to improve measures to deal with internet piracy, while protecting those who carry out mere technical intermediation activities. Where relevant, proceedings against infringement will be taken by an administrative body, Sección Segunda de la Comisión de Propiedad Intelectual (the “Commission”) ascribed to the Spanish Ministry of Culture. The Commission can order infringers to remove unlawful content and imposed penalties for failure to comply.

More significantly, the Reform establishes a new right of remuneration to be paid by news aggregators to publishers or other right holders for the re-use of “non-insignificant” pieces of information, opinion or entertainment (snippets) but not images. Moreover, free-to-use search engine operators are excluded when using isolated pieces of information necessary to provide results to a specific search and links to original content.

This is the so-called “google tax” – though that refers to google’s news aggregator, not its search engine.

There has also been some limitation of the scope of private copying exceptions, particularly where used for professional or business uses. There are also provisions for collective rights management and orphan works.

For a more technically reliable report see the IPKat blog.

 

United States of America

Nonegenarian do-gooder charged with feeding homeless

Fort Lauderdale police said Arnold Abbott committed a crime when he gave food to the homeless. Abbott, together with two local pastors, was charged with violating the city’s newordinance that effectively bans giving out food in public. He faces 60 days in jail and a $500 fine and plans to do it all over again. He says his only crime is to “love thy neighbour” and has set up a non-profit org called Love Thy Neigbor Fund, Inc.

The problem for the Florida city is that it is beset with 10,000 or so homeless folks who know they won’t freeze there in the winter. The law does not ban feeding the poor outright, just places restrictions on location and volume of distribution. Still, it sounds pretty hard hearted. Abbott, a World War II veteran who won two Purple Hearts as an infantryman, said he won’t stop the fight he has dedicated to his wife, who died 23 years ago, and in whose memory he set up his charity. He’s not afraid to bring legal proceedings against the city, having won once already.

“I’ll go to court again and sue the city,” said Abbott. “They are doing the bidding of the very wealthy, and they are trying to sweep the poorest of the poor under the rug.”

Source: Fox News

 

And finally…

To mark Remembrance Day during the centenary of the First World War, this remarkable aerial image (via The Times) of staff at GCHQ wearing red ponchos to create a giant poppy seems almost more incongruous than the blood-moat at the Tower.

Poppy

 

 

 

 

 

 

 

 

 

 

 

 

 

 

That’s it folks. Have a great weekend. And don’t forget to sign up for weekly Case Law Updates. Click here for this 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.