Monthly commercial law update: Top 5 developments in April

Welcome to spring and the top five commercial developments in April.

Data protection: Data Retention Directive declared invalid

The decision in the Digital Rights Ireland and Seitlinger and Others case (Joined Cases C-293/12 and C-594-12) will have far-reaching implications for data retention and data protection in the EU and further afield.

In this case, the European Court of Justice declared that the Data Retention Directive (Directive 2006/24/EC) was invalid. The court’s declaration of invalidity takes effect from the date on which the directive entered into force (ie, on 3 May 2006).

The purpose of the Data Retention Directive was to harmonise member states’ provisions concerning the retention of certain data by telecommunications providers, among others. The directive stated that providers had to retain traffic and location data as well as related data necessary to identify the subscriber or user. However, it did not permit the retention of the content of the communication or of information consulted.

The court held that current collection practices, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented. Collecting such information interfered in a serious way with the fundamental rights to respect for private life and to the protection of personal data.

The Court also held that there were insufficient safeguards against the risk of abuse and against any unlawful access and use of data including outside of the EU. The retention of data should genuinely be for reasons such as the fight against serious crime or terrorism. It also found that the provisions relating to data retention periods were unlawful in that it did provide for a sophisticated enough mechanism to determine what time period should apply.

On the date the judgment was handed out, 8 April 2014, the EU Commissioner for Home Affairs, Celilia Malmström, confirmed that the European Commission will be carefully assessing the judgment and its impact. She further stated that it, ‘will take its work forward in light of progress made in relation to the revision of the e-Privacy directive and taking into account the negotiations on the data protection framework’.

The President of the European Parliament, Martin Schulz, stated that the European Commission will have to make a new proposal that, 'strikes the right balance between the legitimate interests at stake' and which also, 'enshrine[s] a high level of data protection'.

Following the ruling, the Commission published a set of Q&As related to the matter. The Commission indicates the importance of data retention for criminal justice systems and law enforcement. It also gives a short overview of what national constitutional courts have said about data retention and the Directive. Finally, the document makes an attempt at answering what will happen to national legislation following the Court's decision.

In conclusion, it is clear that a more proportionate approach to data retention will need to be considered and therefore a blanket approach to collecting data in the future is unlikely to be lawful.

Contracts: Interpreting contracts

The High Court has considered the meaning of 'issued and served' in a share and business sale agreement in T&L Sugars Limited v Tate & Lyle Industries Limited [2014] EWHC 1066 (Comm).

The dispute about the meaning of the phrase arose in the context of a preliminary hearing on whether the claims were issued and served in time under the agreement. The issue was whether the phrase 'issued and served' had the meaning given to it by the Civil Procedure Rules; or simply delivered and received in a non-legal sense.

The judge held that the phrase meant served in accordance with the Civil Procedure Rules, in particular because there were contrasting provisions in the agreement for service of contractual notices and for service of legal process. Therefore the parties were aware that service of legal process was distinct from contractual notices.

The word 'issued' when used in connection with proceedings had to mean issued in accordance with the procedural rules in force in England at the relevant time and so in accordance with the Civil Procedure Rules.

Consumer protection: European parliament votes in favour of cap on card fees

Members of the European Parliament have voted to cap the amount of service or interchange fees that banks charge retailers for processing shoppers’ payments. The proposal caps those fees at 0.3% of credit card transaction values and in relation to debit cards the fee would be capped at either €0.07 or 0.2% of the transaction value, whichever is lower.

The caps would apply to both cross-border transactions within the EU and to those transactions which take place within a Member State. Measures to make online payments safer, reduce costs and give users more choice were also adopted by a separate vote and the proposals cover:

  • online payment security rules would be updated to keep pace with technical progress, market developments and the growing number of payments made online with online payment service users receiving a uniform set of information (charges, execution times, contact information and where applicable exchange rates, would have to be clearly stated)
  • unauthorised payments would be refunded within 24 hours of their being noticed and clients could be obliged to bear losses resulting from the illegal use of a lost or stolen payment card or device up to a maximum of €50
  • a payer using an online account would have the right to use payment software or devices provided by an authorised third party of his choice and have his payments executed on his behalf by this provider without extra charges to be added by the payee, and
  • payment service providers would be required to disclose the actual cost of processing payments on request. Caps for payment service charges should be laid down in EU rules on card payments and should apply regardless of the specific payment device or means of execution

Further consideration of the draft proposals will take place later in the summer.

Freedom of information: Supreme Court rules on freedom of information

Does a journalist’s failure to obtain information from the Charity Commission about its inquiries, under the Freedom of Information Act 2000 (FIA 2000), prevent him from requesting the material on another basis?

The claimant journalist had sought disclosure under FIA 2000 from the Charity Commission of documents relating to inquiries that it had conducted. Disclosure had been refused on the ground that it was information covered by an absolute exemption from disclosure pursuant to FIA 2000 s32(2). That decision was affirmed by the Supreme Court, which also found that the exemption had not ceased when the inquiry had ended and that FIA 2000 s32(2) was not to be read down to comply with the European Convention on Human Rights, art 10 (ECHR).

Intellectual property: Assessing the impact of the new copyright regulations

A number of new and revised exceptions to copyright are planned to be introduced in June 2014 under the following regulations:

  • Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 SI 2014/Draft—under which an exception is introduced into UK law permitting caricature, parody or pastiche without infringing copyright in the work, to the extent the use is fair dealing, from 1 June 2014. This transposes EU copyright rules into domestic law and includes an expansion of the use of quotations, and
  • the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 SI 2014/Draft—under which an exception is introduced into UK law permitting an individual to make personal copies of a copyright work (other than a computer program) which is lawfully owned by that individual, provided the copies are made for that individual’s private use, without infringing copyright in the work

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