Monthly commercial law update: Top 5 developments in August

As we move into Autumn you may start to wonder where the year has gone.  For those of you who managed to leave the office behind for your summer holidays here's what you missed by way of the top 5 commercial law developments over August, as chosen by the team at Comet.

 Advertising and marketing: ASA issues guidance on price promotions

Following an adjudication on an advertising campaign by Tesco, the Committee on Advertising Practice has issued guidance clarifying its approach to regulating price advertising. Whilst the Advertising Standards Authority (ASA) is aware that there is currently a review of the Department for Business, Innovation and Skills (BIS) Pricing Practices Guide taking place, and that this may have an impact on pricing practices in the future, the need to ensure clarity of pricing for consumers is highly likely to remain a prominent feature. 

Confidentiality: High Court rules on breach of confidence case

The High Court has dismissed a claim for breach of confidence in JRC Roofing Distributors v Philbin [2014] EWHC 2455 (Ch), [2014] All ER (D) 257 (Jul). The defendant worked for the claimant company as a managing director. He was dismissed at a meeting in December 2012. On the day of the dismissal, after the meeting, he forwarded company documents to his personal email account and went home. The company brought proceedings for breach of confidence. The High Court held that, on the evidence, the defendant had not behaved improperly, and the claim would be dismissed. The events of the meeting were disputed. Following the meeting, the defendant sent an email to his personal email address including some confidential data on the suppliers of the company and their products. After doing so, the defendant left the company premises. The defendant admitted that he had sent the email to his personal account, but said that he had done so in the course and for the purposes of his employment and not for any wrongful purpose. A number of issues of fact arose, including whether the defendant had left the premises on 10 December to work at home; and whether directors of the company had previously taken copies or extracts from the list with them on work business. The court considered the defendant's motives in emailing the list, and the fact that, having sent it, he had deleted it from the list of 'sent' items on his computer. The defendant contended that he had needed the list to accurately price requirements from customers who telephoned him. The High Court dismissed the claim. As managing director, the defendant had had implied authority to make use of the company's records and databases for work purposes. He had been entitled to send the list to his home address if the purpose of doing so had been to assist him with his work as managing director. The defendant could work from home, and the court accepted his evidence that he had done so on the day in question. The company had overreacted.

Consumer protection: guidance on new rights for consumers where misleading and aggressive commercial practices

Consumers will have new remedies in cases where a trader lies or uses aggressive commercial practices, and will be able to seek redress by bringing private actions in the civil courts, under the Consumer Protection (Amendment) Regulations 2014 SI 2014/870. The government has issued guidance which aims to help businesses and consumers understand their rights, obligations and liabilities under the regulations, which come into force on 1 October 2014. The guidance document is split into two parts, covering the triggers for the new rights and what the new rights are. It also sets out the sectors not covered by the regulations, including real estate, financial services and credit agreements (except restricted-use credit agreements). In addition, the guidance includes sections on what types of transactions are covered, consumer payments and civil recovery (eg where a customer is accused of shoplifting and asked to pay a fee to avoid prosecution), the 'average consumer' test and the due diligence defence for traders.

Data protection: the right to be forgotten

The House of Lords Home Affairs, Health and Education EU Sub-Committee has said that the 'right to be forgotten' is unworkable, unreasonable and wrong in principle. The committee's report follows a speedily held inquiry into the issue. It states that the recent judgment of the CJEU in Case C-131/12 Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González is wrong in principle. The report claims that the assumption of the Presidency that the 'right to be forgotten' exists has created an unworkable and unreasonable situation. The Committee's conclusions are:

 o           neither the Data Protection Directive 95/46/EC, nor the CJEU's interpretation of the Directive, reflects the current state of communications service provision, where global access to detailed personal information has become part of the way of life

o           it is no longer reasonable or even possible for the right to privacy to allow data subjects a right to remove links to data which are accurate and lawfully available

o           the committee agrees with the government that the 'right to be forgotten' as it is in the Commission's proposed Data Protection Regulation, and a fortiori as proposed to be amended by the Parliament, must go. It is misguided in principle and unworkable in practice

o           the committee recommends that the government should ensure that the definition of 'data controller' in the new Data Protection Regulation is amended to clarify that the term does not include ordinary users of search engines

o           there are strong arguments for saying that search engines should not be classed as data controllers

o           the committee further recommends that the government should persevere in its stated intention of ensuring that the proposed Data Protection Regulation no longer includes any provision on the lines of the Commission's 'right to be forgotten' or the European Parliament's 'right to erasure'

In a related development, Google has set up its own Advisory Council to review the issue, which has issued a formal call for comments and evidence. The consultation ends on 11 August 2014.

Social media: House of Lords report

The House of Lords' Communications Select Committee has published its report on social media and criminal offences. The House of Lords appointed the committee on 12 June 2014 to consider the media and the creative industries. The Committee considered how the development of media affects people's behaviour and how the law and public policy need to respond. In that context it set out to explore the social media and criminal offences. The Committee has worked quickly as the topic is one of current concern and has considered issues such as cyber-bullying, revenge porn, trolling and virtual mobbing. It has concluded that the criminal law in this area, almost entirely enacted before the invention of social media, is generally appropriate for the prosecution of offences committed using the social media.

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