News

Technology, Intellectual Property & Data Protection - February 2010

Confusion for consumers by meaning of "copyright"
On 24 February 2010, Jill Johnstone of Consumer Focus, called on the Government to update UK copyright law to take into account advances in technology into account. As technology has raced forward with increased accessibility to greater numbers, copyright laws could now affect millions consumers in the UK.

Consumer Focus research revealed that three quarters of the general public were unsure of what could be legally copied or recorded and only less than one in five knew that it was illegal to copy a CD or DVD they have bought onto a computer for personal use or that it was illegal to download onto their iPod. A legal expert has stressed that there was no little likelihood of individual consumers facing prosecution for copying for personal use.

The Government is looking to the EU to first define 'non-commercial use' but Consumer Focus believes that any delay will only further damage the credibility of copyright law.
Source: www.consumerfocus.org.uk/news/outdated-copyright-law-confuses-consumers
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£200m Boost for Future Technology Sectors
The Prime Minister announced on 22 February 2010 that £200million from the UK Innovation Investment Fund (UKIIF) will be used to benefit life sciences, digital and advanced manufacturing businesses. This follows an announcement in January 2010 that £125million from the UKIIF will be invested in low carbon and clean tech sectors, bringing the total UKIIF investment to £325m.

The UKIIF completed first closing on this £200m UK Future Technologies Fund with fund managers the European Investment Fund (EIF). EIF have raised £100m to match Government funding. They will now make their first investments in UK venture funds, investing in technology-based businesses where there are significant growth opportunities, driving the UK economy forward and creating highly skilled jobs.

The UKIIF was announced in June 2009 by the Prime Minister as part of the Government's strategy for Building Britain's Future. The UKIIF will target small growing businesses, start ups and spin outs including pre-profit and pre-revenue stages of development.
Source and full details available at: Department for Business, Innovation and Skills
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Microsoft offers a web browser choice to Internet Explorer users
Over the next few weeks, Microsoft will start offering a "Web browser choice screen" to Internet Explorer (IE) users in Europe. This follows a legal agreement between Microsoft and Europe's Competition Commission in December 2009.

On 19 February 2010, BBC News reported that Microsoft was committed to letting Windows PC users across Europe install the web browser of their choice, rather than having Microsoft IE as a default. The software update choice will arrive automatically for Windows XP, Windows Vista and Windows 7 customers, according to a blog post by Dave Heiner, Microsoft's vice president and deputy general counsel at: http://microsoftontheissues.com/cs/blogs/mscorp/archive/2010/02/19/the-browser-choice-screen-for-europe-what-to-expect-when-to-expect-it.aspx.

Testing for the update is already underway in the UK as well as in Belgium and France.
Microsoft's commitment to the European Competition Commission is available at: www.microsoft.com/presspass/press/2009/dec09/12-16statement.mspx
Sources: Various
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Outsourcing compliance eased by new 'model clauses', says expert
Companies in Europe may have to negotiate fewer contracts when they send data to foreign suppliers as a consequence of terms published by the European Commission (EC). An expert from leading lawyers Pinsent Mason says that the new rules, effective from 15 May 2010, simplify commercial relationships.

Following the EC decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries, the EC has published its 'model clauses' for overseas transfers of personal data. Contracts entered into from 15 May 2010 should include these clauses.

A cornerstone principle of the Data Protection Directive, which applies across the EU, limits the right to transfer personal data outside the European Economic Area. There are a few options for complying with the principle but the only realistic one in many cases is use of contractual clauses that were published by the European Commission in 2001. These 'model clauses' have been updated for the first time this month.

Louise Townsend, a data protection law expert with Pinsent Masons, the law firm behind OUT-LAW.COM, welcomed the update.

A data controller bears responsibility for compliance with the Data Protection Directive but a data processor does not. Using the model clauses, the controller will enter into a contract with the processor to pass on the controller's duties under the Directive, such as the need for security, to the processor.
Source: www.out-law.com/page-10763
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Traffic alerts on your phone - Highways Agency tunes into latest technology
On 15 February 2010, the Highways Agency announced a project that tunes into the latest technology: Travel on England's motorways and strategic trunk roads is being made even easier thanks to new software that can be downloaded to a mobile phone:

A free iPhone app provides constant live updates from the Highways Agency's National Traffic Control Centre - helping road users plan their journeys and avoid congestion hotspots.
It pinpoints the user's current location, gives a breakdown of any planned roadworks, displays live traffic updates and tunes in to the Highways Agency's own radio station which broadcasts round the clock from the National Traffic Control Centre.

Other services fed by the live data from the National Traffic Control Centre include:

overhead variable message signs on motorways;
telephone information services;
Traffic Radio on DAB digital radio and the internet;
travel bulletins on nearly all local and national radio stations;
Google maps; and
more than 300 different websites run by various media organisations.

http://nds.coi.gov.uk/ImageLibrary/DownloadMedia.ashx?MediaDetailsID=1446
Source: http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId=2&ReleaseID=411264&SubjectId=2
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ICO launches new consultation on auditing notices
On 12 February 2010, the Information Commissioner's Office (ICO) launched a consultation on a new draft code of practice which sets out the privacy watchdog's proposed approach to using its new auditing powers due to come into effect in April 2010:

The powers were recommended in the Data Handling Review, commissioned by the Prime Minister after HM Revenue & Customs lost the child benefit details of 25 million families.
The Code will provide the framework for how audits will be conducted when an Assessment Notice has been served on an organisation. It will outline the approach to the audit including opportunities for consultation in relation to the audit report findings and recommendations.

The ICO says that it will take a proportionate and risk-based approach to auditing, based on a range of intelligence including complaints received, business and media reports and annual statements issued by the organisation. The auditing process allows the ICO to assess whether organisations are processing personal information in line with the Data Protection Act (DPA) and to advise on best practice. The ICO will continue to request consent for an audit to be carried out where it is identified that personal information may be at risk.

However, where an organisation refuses to work with the auditing team, but is considered as being at significant risk of compromising personal data, the ICO will be able to serve an Assessment Notice - a compulsory audit notice. Initially the ICO will only be able to conduct these compulsory audits on central government departments but it will be able to make a case to the Government for the power of compulsion to be available more widely. The draft code of practice has been designed to provide advice on the ICO's auditing framework to all public and private sector organisations and will be relevant whether an audit is to be carried out by consent or with compulsion.

With these new powers of assessment the ICO will be better placed to provide assurance to individuals that those holding their personal information respect their privacy and do not abuse their trust.
Source: www.ico.gov.uk/about_us/consultations/our_consultations.asp
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Government crackdown on cyber scams
On 15 February 2010, the Department for Business, Innovation and Skills (BIS) announced that the Government is taking the fight to fraudsters, criminals and rogue traders who use the internet and email to con consumers. Each year scams cost three million UK consumers £3.5 billion and recent research from the Office of Fair Trading (OFT) shows that email is now the most common scam approach - 73% of adults have received a scam email in the past year.

The formation of a new specialist cyber enforcement team and extra funding for Trading Standards will help the OFT and Trading Standards to put in place the new specialist teams, training and technology required to take the fight to these criminals. The Government is investing £4.3 million over three years:

OFT's team has already set up a fully equipped laboratory with specialist equipment and is being trained by an international expert. This new functionality adds to the OFT's capability across all of its enforcement work from cartels to consumer protection cases;
New highly trained trading standards enforcers with specialist equipment will also be placed in every region of England and in Scotland and Wales.

Online scams on which the teams will focus include:

fake products and traders who try to hide their identity to avoid giving consumer redress;
ticket scams where tickets sold for concerts, festivals, football games and other events are either counterfeit or non-existent; and
scam websites purporting to sell goods that dupe consumers into making what appear to be bargain purchases, but consumers receive either nothing at all or counterfeit products.

The East of England Trading Standards Association (EETSA) will manage the coordination of this work for Trading Standards, on behalf of BIS, together with the Scambusters, East of England Trading Standards Association, London Trading Standards Association & Trading Standards South East Ltd (SELT).
Source: http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId=2&ReleaseID=411224&SubjectId=2
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Model clauses for overseas transfers of personal data updated
European companies will have to use new standard clauses in the contracts that control their overseas transfers of personal data as a result of a formal Decision adopted by the European Commission on 5 February 2010, according to international lawyers Pinsent Masons.

The Decision modifies current standard contractual clauses to take account of the expansion of processing activities and new business models for international processing of personal data. It contains specific provision to allow, under certain conditions, the outsourcing of processing activities to sub-processors, while ensuring a constant protection of personal data. Outsourcing companies outside the EU will now have to get written permission to subcontract the processing of personal data after the European Commission changed arrangements permitting the export of such information.

The EU's data protection regime limits the export of personal data outside the European Economic Area (EEA) which comprises the EU, Iceland, Norway and Liechtenstein. A small handful of countries have proved their data protection regimes the equivalent of the EU's and so are permitted to receive personal data without further steps (Switzerland, Canada, Argentina, Guernsey, the Isle of Man and Jersey), while the US has a special arrangement, the Safe Harbour scheme, under which participating US companies can receive data if they promise to abide by rules over and above US law. For transfers to all other countries there must be specific data protection contractual arrangements in place before the personal data of EU residents can be sent to companies based there for processing. The European Commission produces standard clauses that are used in such contracts.

The Commission has changed the terms of those clauses to allow companies in non-European Economic Area (EEA) countries to sub-contract work, but only with the explicit permission of client companies.
Source: www.out-law.com/page-10734
See also: Commission Statement on the Decision and Overseas transfers of personal data, an OUT-LAW guide
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New technologies unveiled to help protect mobile phone users from crime
On 11 February 2010, the Home Office announced three new design innovations designed to tackle mobile phone crime, including a device that locks a phone and alerts the owner if it is taken away from them. The prototypes were developed by teams of designers and technology experts as part of the Mobile Phone Security Challenge, an initiative from the Home Office Design and Technology Alliance and the Design Council, with support and funding from the Technology Strategy Board.

Important factors are:

228 mobile phones every hour are reported stolen in the UK;
Mobile phone identity fraud rose by 74 per cent in the first half of 2009 according to the UK fraud prevention service CIFAS; and
Contactless transactions in the UK are predicted to account for £151 billion by 2013.

The solutions are:

i-migo - a small device which the user keeps about their person. The i-migo sounds an alert and locks the handset if it is taken out of a set range - either through theft or loss. The i-migo also provides automated backup of important data using Bluetooth technology;
The 'tie' solution - this electronically matches a handset to a SIM card and protects data stored on the handset with a password and encryption. If stolen, the handset cannot be used with another SIM and data such as saved passwords, browsed websites, and contacts cannot be accessed by criminals, who can use it to defraud victims, by hacking into online bank accounts; and
TouchSafe - aimed at making "M-Commerce" transactions more secure by using a small card worn or carried by the user, who discreetly touches the phone to the card to enable the transaction. Touch Safe uses the same Near Field Communication (NFC) technology currently used by the Oyster travel card.

Source: http://nds.coi.gov.uk/content/detail.aspx?NewsAreaId=2&ReleaseID=411125&SubjectId=2
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Information Tribunal abolished and replaced with a branch of the First Tier Tribunal
The new body which has taken over the power to rule on appeals from decisions of the Information Commissioner's Office (ICO) has issued guidance on how to conduct an appeal.

The Information Tribunal has been abolished and replaced with a branch of the First Tier Tribunal, which is part of the General Regulatory Chamber. The change was part of a Government policy to centralise tribunal activity. Appeals from notices of the ICO on complaints about the Data Protection and Freedom of Information (FOI) Acts are now heard by the First-tier Tribunal (Information Rights).

The Transfer of Tribunal Functions Order 2010 is part of a series that transfers the jurisdictions of a range of tribunals into the First-tier Tribunal and Upper Tribunal under the tribunal structure created by the Tribunals, Courts and Enforcement Act 2007.
An Explanatory Memorandum to The Transfer Of Tribunal Functions Order 2010 is available at: www.opsi.gov.uk/si/si2010/em/uksiem_20100022_en.pdf
Original Source: www.out-law.com/page-10717
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EU public consultation on a future EU-US data protection and information sharing agreement
On 5 February 2010, the European Commission launched a public consultation on a future EU-US data protection and information sharing agreement. The consultation aims at gathering the views of stakeholders and the public at large on the basis of a discussion paper as part of the preparatory work for the recommendation to authorise the negotiation of a future EU-US agreement.

The views of all stakeholders and organisations involved in the protection of personal data and/or processing, transfer or sharing of information for law enforcement purposes in the transatlantic context are invited to respond to the public consultation.
The consultation document can be found at: http://ec.europa.eu/yourvoice/consultations/index_en.htm
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Technology, Intellectual Property & Data Protection - February 2010