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Archive for July, 2016

Tribunal obscures ICO Guidance on Freedom Of Information Requests made via Twitter

29/07/2016 | Suzanne Hu
The Information Commissioner’s Office issued guidance on how a Freedom Of Information request made via Twitter could comply with the statutory requirements. A subsequent decision by the First Tier

The Information Commissioner’s Office issued guidance on how a Freedom Of Information request made via Twitter could comply with the statutory requirements. A subsequent decision by the First Tier Tribunal, which solicitors had hoped would provide more clarity in this area, has instead blurred the issue further.

Twitter launched ten years ago this month. In its first few years, it enjoyed a fast-paced, if fractious, relationship with the British legal world. There was the “Twitter Joke Trial” where a tweet from a frustrated traveller in January 2010 led to a criminal conviction and three appeals which finally overturned the conviction in July 2012. There was the anonymous tweeter who, in May 2011, revealed allegedly key details of several super-injunctions rendering them somewhat pointless as they then spread like wildfire over social media (which continues to be a thorn in the side of super-injunctions, see our previous article “STOP PRESS!- Supreme Court consider celebrity threesomes to be ‘at the bottom end of the spectrum of importance’”).

Even as far back as October 2009, Twitter played its role in the creation of a new type of court order called a “Blaney’s Blarney Order” whereby an order was permitted to be served against an anonymous individual via Twitter (Donald Blaney v Person(s) unknown, (not reported)).

Such forward thinking looked set to be adopted by the Information Commissioner’s Office who, in July 2011 via its monthly newsletter, opined that a Freedom Of Information request made via Twitter against a public authority could be valid as long as the public authority’s Twitter handle was cited, and the real name of the individual making the request was provided, if not in his/her Twitter handle then in a linked profile. In addition to making requests via Twitter, the ICO also suggested that public authorities could respond to requests via that medium: as to the 140-character limit imposed on tweets, the ICO suggested that the public authority could post its response on a website and tweet a hyperlink to that, or ask the individual for an e-mail address.

However, it appears that the courts are not so ready to embrace the ICO’s pragmatic approach. In November 2015, the First Tier Tribunal dismissed the appeal of a decision by the Information Commissioner, holding that the tweet in question was not a valid Freedom of Information request. The Tribunal held that (i) it did not contain the appellant’s real name (this was available by clicking on his Twitter handle which led to his profile, but the Tribunal stated that the Freedom of Information Act 2000 does not impose a requirement to search elsewhere for this information); and (ii) a Twitter handle did not constitute an address for correspondence (the Tribunal stated that this must mean an address that is suitable for correspondence between the public authority and the requester, and that a method of communication which is limited to 140 characters is unsuitable for such correspondence).

The details

In August 2014, the Department for Work and Pensions sent a tweet from its Twitter account about the percentage of genuine jobs on its ‘Universal Jobmatch’ service. The appellant, Bilal Ghafoor, replied “@dwppressoffice FOI request: copy of internal report or assessment, including all data considered and method, for this assertion. Thanks.

There was then an exchange by e-mail and Twitter, culminating in the DWP’s response (via e-mail) that there was “no set report or assessment” for its assertion regarding the percentage of genuine jobs on Universal Jobmatch and that “this percentage was calculated by the team responsible for removing non-genuine accounts from the service from their own records”.

Mr Ghafoor complained to the Information Commissioner that the DWP had not complied with his request relying on three grounds:

1.      That the DWP was in breach of s.11 of the FOI Act because it had provided its response via e-mail, and not Twitter as Mr Ghafoor had asked;

2.      That the DWP was in breach of s.10 of the FOI Act because it had responded outside of the statutory time limit; and

3.      That the DWP was in breach of s.1 of the FOI Act because it was incorrect to state that no relevant information was held.

In opposing the complaint, the DWP contended that the FOI Act provided that (i) it could respond by any means reasonable in the circumstances; (ii) time did not begin to run from Mr Ghafoor’s initial tweet because it did not state the applicant’s name and correspondence address as required of a valid FOI request; and (iii) it was correct to say that no relevant information was held.

In relation to (ii) and (iii), the Commissioner decided in Mr Ghafoor’s favour and held that the DWP was in breach and required the DWP to issue a new compliant response or a valid refusal notice.

However, in relation to (i) the Commissioner agreed with the DWP. It held that the DWP was entitled to refuse to provide a response via Twitter on the basis that s.11, which allows an applicant to express a preference for the form or format of communication, did not apply to communicating simply – as was the case here – whether the requested information exists or not (known as the duty to confirm or deny). Rather, s.11 only applies to when the information requested does exist and is being provided.

Apparently unsatisfied with the decision, Mr Ghafoor appealed. He argued that:

(a)       the drafting of s.11 must have been an oversight because permitting the use of one means of communication for the duty to confirm/deny, and then a different one to actually provide the requested information was counter-intuitive;

(b)       permitting a public authority to ask for an address different from that stated in the FOI request would be a breach of the 3rd data protection principle (i.e. that an organisation should not hold more information than it needs for the purpose it is holding it for);

(c)       where a FOI request had been made by a tweet, it should be responded to by a tweet where reasonably practicable;

(d)       the DWP frequently published information via tweets which contained links, thus avoiding the 140-character limit problem, and therefore the DWP could do the same for a FOI response; and

(e)       he had made his FOI request through the same medium through which the assertion he was challenging was made, and it was reasonable to expect the DWP to reply through this medium and give equal publicity for the evidence as it did for its claim.

The First Tier Tribunal maintained that the DWP had not breached s.11 as it did not apply to the duty to confirm/deny. However, it agreed with Mr Ghafoor that a public authority could not demand a different address for correspondence from the one stated by the applicant in a FOI.

Unfortunately, given the efforts to which he went, the Tribunal held that Mr Ghafoor’s FOI request was not valid in the first place. It did not contain his name or an address for correspondence as required by s.8 of the FOI Act. In so finding, it ruled that ‘name’ must mean ‘real name’ and ‘address for correspondence’ must mean an address that is suitable for correspondence between the public authority and the requester, and that a 140-character limit meant this method of communication was unsuitable.

Analysis

Despite the ultimate outcome for Mr Ghafoor, this decision leaves open the possibility that Twitter could be suitable for FOI requests if certain hurdles can be overcome, for example had Mr Ghafoor signed off his tweet with his real name, or if his Twitter handle was @BilalGhafoor.

It is unclear, however, whether the Tribunal’s Decision applies only where individual correspondence would exceed Twitter’s 140-character limit, or whether it means no FOI requests made via Twitter can ever be considered valid even if both the FOI request and the response would be within the character limit. There is no consideration of whether, per the ICO’s guidance back in July 2011, attaching links (or screenshots) to Tweets would make a Twitter handle a suitable ‘address for correspondence, or of Twitter’s ‘direct message’ function which has a much bigger limit of 10,000 characters. There is also, of course, the possibility that Twitter may increase the character limit for Tweets generally. It has made various changes to its service in the past year: in addition to the increased character limit for direct messages, it also added an option for tweeters to permit anyone (not just followers) to direct message them and, in May 2016, Twitter announced that it would make changes to reduce what counts towards the 140-character limit on ‘public’ Tweets. This limit, which is largely a vestige from when Tweets were originally sent by text message, is a key issue for Twitter and its users.

However, until another Twitter FOI request comes before the courts, these issues will remain unresolved. We will be monitoring this area, and report on any further developments.

Suzanne Hu is an Associate in our Dispute Resolution department. If you require any assistance with matters requiring dispute resolution, please do not hesitate to contact Suzanne on 0207 955 1441.

High Court ruled that an order for costs could be revised to include provision for a payment on account.

28/07/2016 | Lucy Hamilton-James
On 21 June 2016, a Judge, in handing down judgment at the hearing, ordered the claimant to pay the defendant’s costs.  When counsel for both parties were subsequently seeking to agree the terms of

On 21 June 2016, a Judge, in handing down judgment at the hearing, ordered the claimant to pay the defendant’s costs.  When counsel for both parties were subsequently seeking to agree the terms of the order, counsel for the defendant sought to include provision for payment on account.  The claimant objected to  such provision being included in the order on the basis that the request for the inclusion of any such provision should have been made at the hearing when the order was made.  There were other minor issues considered and dismissed by the Judge but, as he stated in his judgment: “The substantial point, as it seems to me, is whether a request for payment on account can only be made at the hearing itself.  If so, then, once the parties come to draw up the order for the court’s approval, it is too late to argue for its inclusion.”

However, the judge went on to clarify that, while the general rule is that an order is effective from the moment it is made by the court, the court still has the power to alter its judgment or order at any time until it is entered and perfected by sealing, and that such power is not limited to exceptional circumstances.  The judge went on to order a payment to be made on account within 14 days.

This ruling demonstrates the court exercising its powers in a measured and pragmatic way in that, if it is appropriate for provision to be made in an order for a party to make a payment on account, it would conversely be inappropriate to prevent such a provision being included simply because its inclusion was not requested at the hearing.  It is often the case that subsequent to a hearing, counsel will agree between themselves certain tweaks to an order, particularly on points in relation to costs, before it is sealed or revert to the judge for clarification on certain points and taking a common sense approach to this can keep costs down.  It is also a reminder that parties should not resign themselves to being unable to have appropriate provisions included in an order even if requests are not made at a hearing.  If after the hearing but before the order is sealed, requests are made and the court considers the requested provisions can and should be included, such requests may be accommodated.

Aliston Albert Ashman v Clyde Caulson Thomas [2016] EWHC 1810 (Ch)

Employment law implications of Brexit

25/07/2016 | Andrea London
In the run up to the EU Referendum held on 23 June 2016 one of the arguments focused on by the leave campaign was the amount of ‘red tape’ imposed on the United Kingdom by European law and the ab

In the run up to the EU Referendum held on 23 June 2016 one of the arguments focused on by the leave campaign was the amount of ‘red tape’ imposed on the United Kingdom by European law and the ability to remove this should the UK leave the EU. Whichever side of the EU debate you were on, there can be little doubt of the direct and substantial influence that European law has had on the UK’s domestic law, especially employment law.

So, what now for UK employment law following the result of the referendum? Here are some answers (or perhaps just further considerations) to some of Brexit’s big questions and a look at several issues that employers may be faced with immediately.

What will happen to EU Directives and Regulations currently applicable in the UK?

In the short term there is a simple answer to this question; nothing. At least not until the UK has actually triggered Article 50 (see http://rosenblatt-law.co.uk/bulletins/brexit-what-happens-next/), undergone the negotiation process and officially left the Union.  Additionally, David Davis – the Brexit minister – has given a “strong indication” that existing employment law will not be radically changed once the UK has left the EU, although the “flood” of new regulation from Europe would be halted. That said, he was not specifically referring here to employment law, but also other market-related regulations many of which he considers to be “wholly unnecessary”.

However, after leaving the EU, which European laws, rules and regulations will continue to have effect is dependent upon the ‘type’ of exit negotiated and the UK government’s subsequent requirement and willingness (or not), to repeal existing regulations that implemented European law in the UK.

For example, should the UK stay within the European Economic Area (the EEA) then based on a relationship with the EU not dissimilar to that of Norway’s, the UK would likely remain subject to most of the key aspects of EU employment law such as the Acquired Rights Directive (implemented in the UK as TUPE), the Working Time Directive (implemented as the Working Time Regulations) and the Part-Time Workers Directive (implemented in the UK as the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations), amongst others.

If the UK negotiates a bespoke deal then of course the terms of that deal could well, potentially, not require the UK to remain subject to any European laws. At the moment a complete release from European law seems highly unlikely, but we are of course in unchartered territory. Should such a deal be negotiated then, which (if any) employment laws are repealed, will largely depend on the political persuasion of the UK government in power.

If the UK is unable or unwilling to reach a specific agreement with the EU and starts to trade with countries in the Union under the World Trade Organisation’s rules – the UK will not necessarily be forced to accept free movement, make financial contributions or adopt EU legislation. If this is the outcome, the UK may start to divest itself significantly of EU laws.

Will the UK courts still be bound by the findings of the European Courts of Justice (the ‘ECJ’)?

Again, this will depend on the type of exit negotiated. Brexit could potentially mean that ECJ decisions will cease to be binding on the English courts. However, as UK case law and legislation has been construed/decided in light of previous ECJ decisions, it is likely (at least in the short term) that the UK will continue to have some regard to the rulings of the ECJ, even if it is merely viewed as persuasive.

However, it is also possible that certain decisions will now be challenged on the basis that, after Brexit, the ECJ will no longer have jurisdiction to preside over UK employment law. A good example of this is the recent developments in holiday pay [http://rosenblatt-law.co.uk/bulletins/holiday-pay-is-this-the-end-of-the-issue/]. In the case of Lock v British Gas Trading Limited the Employment Tribunal followed a ruling of the ECJ which held that (on the facts of the case) an employee’s holiday pay should have included an element of commission. The decision was appealed to the Employment Appeal Tribunal who upheld the Employment Tribunal’s decision, but this is now being appealed to the Court of Appeal. On the face of it, and in light of the ECJ’s decision, it would appear to be a difficult appeal for British Gas to win. However, if ECJ decisions were to become non-binding, then it is likely that this appeal (or an appeal on amended grounds) would potentially have a much greater prospect of success.

What will happen to EU citizens within the UK and British expatriates?

Until the UK leaves the EU, then EU citizens in the UK and British expatriates in other EU member states will still enjoy freedom of movement across the EU member states.

What happens beyond the termination of the UK’s EU membership again depends on the deal agreed between the UK and the EU regarding free movement. Without a deal, or without a deal that provides for free movement, EU citizens will no longer enjoy the automatic right to live and work in the UK – and vice versa. That said, most experts believe that any trade deal with the EU will be contingent upon free movement or some level of free movement. Accordingly it remains possible that a referendum which many people believe was lost on a strong concern about UK immigration levels, will actually have little impact on that issue.

Brexit workplace bullying?

Since the referendum, there has been a reported increase in hate crime and racial abuse.  At work, it is the responsibility of the employer to ensure that employees do not become victims of bullying and/or harassment as a result of Brexit, or their EU nationality.  Employers should therefore be mindful of this potential increase in such behaviour and seek to nip it in the bud, wherever possible.  Employers can go some way to protecting their position by, in the first instance, re-issuing or reminding employees about their harassment and discrimination policies and that such behaviour is likely to be tantamount to at least misconduct (if not gross misconduct) warranting a disciplinary sanction which could include summary dismissal.

Data privacy, intellectual property and information technology after Brexit

The Data Protection Act 1998 (the “DPA”) which implemented the European Data Protection Directive will remain in force unless it is repealed by the government or replaced by the General Data Protection Regulation (the “GDPR”). The GDPR was adopted by the EU in May 2016 to replace the Data Protection Directive and is due to come into force throughout the EU in May 2018. The impact of the GDPR in the UK will depend on whether, at the point of implementation, the UK is still a member of the EU, a member of the EEA or the terms of any trade arrangements reached.

Irrespective of when/if the UK withdraws from the EU, the government is unlikely to pass legislation that would differ substantially from European data protection law requirements, given the links that this area of law has to trade and finance.  The DPA and the upcoming GDPR both prohibit the transfer of data to countries that do not offer adequate data protection, unless certain conditions are met. It is therefore likely that the European requirements will continue to apply following Brexit and UK companies should continue to prepare for the implementation of the GDPR.

Moving forward?

Unfortunately, although big changes may well be afoot, certainty as to what those changes are to be is currently in limited supply.  The government, including the new Prime Minister, appear keen to maintain UK market confidence by holding the status quo insofar as possible. However, only time will tell how Brexit affects UK employment law going forward, despite the current political promises of no major reform.

We will be providing regular updates on employment law changes following Brexit, so watch this space.

If you need help or advice on how the Brexit will affect you or your business, please do not hesitate to get in touch with any member of Rosenblatt’s Employment team on 020 7955 0880

Pokemon Go… Away?

18/07/2016 | Suzanne Hu
Those on social media will already be aware of the gaming phenomenon of Pokemon Go, released recently in the US, and last week in the UK. For everyone else, start getting used to looking at the top

Those on social media will already be aware of the gaming phenomenon of Pokemon Go, released recently in the US, and last week in the UK. For everyone else, start getting used to looking at the tops of people’s heads…

For those not in the know, Pokemon Go is an augmented reality game: as players walk around, they receive a live view of their surroundings (via their smartphone’s GPS and camera) over which Pokemon (animated characters) appear superimposed. The aim is to catch as many Pokemon as possible, then train them up to battle other players’ Pokemon at “gyms” which are located at public landmarks or buildings in the real world.

Whilst the game has been lauded both for its capitalisation of augmented reality and the physical activity factor, it has also caused controversy and raised a number of potential/actual legal issues: invasion of privacy from the game’s initial requirement to access a player’s entire Google account; invasion of privacy and harassment from players congregating outside people’s homes; and involvement in criminal offences (there are already reports of criminals using the “lure” element of the game to rob players, and concerns that the “team” element could facilitate child grooming).

However, it is not only individuals that may be affected. Businesses may too, for example should the work premises become a Pokemon Go location this could be disruptive to daily business, or there may be decreased productivity from employees who either play the game at work or take long breaks in order to do so.

As to the latter, businesses could take a similar approach to that outlined at section 3 of our previous article “Are Employers Ready for Euro 2016?” by reminding employees that any excessive time-wasting will be dealt with in accordance with the employer’s standard policies.

Should your work premises become a Pokemon Go location, it would appear that little can be done in the immediate future. The UK’s harassment laws do not apply to businesses and, whilst they do have privacy rights, they are more limited than those afforded to individuals such that fleeting (albeit unwelcome) gatherings of gamers is unlikely to meet the privacy thresholds. Either by design or oversight, the game’s designers have put the onus on individuals/companies to request that their home/workplace be removed from Pokemon Go, rather than ensuring first that those would be appropriate locations in the first place. Even then, the game currently only provides for removal requests if locations present “immediate physical danger”; apparently, requests “for other reasons cannot be addressed at this time”. So for now, you may simply have to resort to polite notices to the public asking them to stay at a respectful distance and move on quickly.

Of course, your business may welcome the increased footfall, particularly if the premises are a retail or entertainment venue. The game is very much still in its infancy, and it is easy to foresee businesses paying to have their premises selected to be “gyms” or other Pokemon Go key locations. Any businesses interested in this should keep a watchful eye on developments in order to be ahead of, or more appropriately in, the game.

The author would like to make it clear that she does not, and does not intend to, play Pokemon Go as she has far better things to spend her time on. After all, those Sims don’t feed themselves.

Suzanne Hu is an Associate in our Dispute Resolution department. If you require any assistance with dispute resolution, please do not hesitate to contact Suzanne on 0207 955 1441.

Libyan Investment Authority v Goldman Sachs: David and Goliath?

15/07/2016 | Tom Spiller
We take a look at the recent trial of the dispute between the Libyan Investment Authority (the “LIA”) and Goldman Sachs. At the core of the LIA’s claim lies a fairly familiar charge against

We take a look at the recent trial of the dispute between the Libyan Investment Authority (the “LIA”) and Goldman Sachs.

At the core of the LIA’s claim lies a fairly familiar charge against Goldman Sachs; a charge which has been made all too often against financial advisors such as UBS, RBS and JP Morgan of late – that a sophisticated financial institution used its reputation for excellence to swindle its client. The LIA say that they were advised time and time again to enter into overly-complex transactions which not only lost them money, but resulted in very large fees being paid to Goldman Sachs. It is alleged that Goldman Sachs made an up-front profit of around $350m from the LIA, despite their advice resulting in substantial losses.

It was, they say, a clear case of the advisor putting its own interests above that of the client in an egregious breach of the duty that they were owed. If the LIA’s allegations are upheld by Mrs Justice Rose of the Chancery Division of the High Court then this case will stand as another unfortunate example of investments being recommended to a client on the basis that they will generate lucrative fees, rather than their suitability.

On the first day of the trial, counsel for the LIA, the heavy-weight Roger Masefield QC of Brick Court Chambers, read extracts from internal Goldman Sachs emails in which bankers engaged in back-slapping and congratulated each other for selling complex products to “someone who lives in the middle of the desert with his camels”.

There are also allegations that the Goldman banker in charge of the bank’s relationship with the LIA granted a much-sought-after internship at the bank to the younger brother of the LIA’s Vice-Chairman, that Goldman paid for expensive holidays and even procured prostitutes for LIA figures, in an attempt to create an exceptionally close relationship through which he could exert undue influence on the LIA.

In litigation, it is often the largest “too big to settle” cases that end up in long, expensive litigation because of the personalities involved, choosing to fight a matter all the way rather than be seen to be weak by making offers to settle. If this case is not settled shortly then it is almost certain that the trial will last for the eye-wateringly expensive period of two months that it has been listed for, serving as another reminder that only the most determined client, from nascent sovereign wealth fund to an individual or small business, will obtain justice from a financial institution that has wronged them.

But also that the English Courts remain the best suited arena in which these disputes should be fought. Rosenblatt’s dispute resolution department has extensive experience in representing both businesses and individuals in financial litigation. As we are not on any panels, we are rarely, if ever, conflicted from acting for claimants against banks and the larger financial institutions.

In many cases potential Claimants are put off by the sheer scale of their opponent because they cannot stomach a “David vs Goliath” battle; but, it is indeed the person with the sharpest and most well-aimed stone that wins, not the biggest combatant. Claimants who are prepared to be patient, and invest resources in obtaining legal advice from experienced solicitors need not fear and, if the correct strategies are used, many claims can be settled either before proceedings are issued, early on in the life of a claim or before trial. However, there is often no magic bullet in commercial disputes and both solicitors and Claimants must have the strength to persist and slug out a dispute, with disputes often taking over 12 months to come to trial.

Case-specific financial products such as after-the-event insurance and litigation funding are also available to help lighten the financial burden that litigation can place on Claimants who may otherwise be put off. Rosenblatt has also been involved in both since their inception and is well placed to connect its clients to the correct service provider.

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