May 23rd, 2013
On 1 April 2013 the much heralded Jackson Reforms became a reality, implementing key changes to legislation, regulations, and rules that will impact mainly on the personal injury world, and also to wider commercial disputes.
Lord Jackson recommended “a coherent package of interlocking reforms, designed to control costs and promote access to justice.” However following the implementation of these reforms, are parties prepared for the changes that will ensue? And how significant will these changes going to be in practice?
This briefing note provides an overview of the Jackson Reforms highlighting some of the key changes that have been made, and the practical implications to parties involved in the litigation process. The first half of the note addresses the practical effects of the extension of the RTA Portal Process to claims of up to £25,000, and the extension of the Portal to Employer’s Liability and Public Liability Claims. The second part of the note addresses some of the key procedural changes that have taken place and the changes to litigation funding.
To read the full briefing note, please click here.
January 24th, 2013
The Supreme Court yesterday in R (Prudential plc and another) v Special Commissioner of Income Tax and another  declined to extend the availability of legal advice privilege beyond members of the legal profession, holding, by a majority of five to two, that it would not extend the scope of legal advice privilege to legal advice given by PricewaterhouseCoopers. The accountancy profession has for a long time sought to establish the availability of legal advice privilege for advice given by chartered accountants on tax matters.
The court did comment that the restriction of privilege to advice from members of the legal profession could fairly be said to be illogical in the modern world but stated that it was not for the judiciary to change the law which had been unequivocally endorsed by Parliament. Any extension of privilege to advice given by non-lawyers will be a parliamentary decision.
For the foreseeable future, therefore, only communications with lawyers will remain confidential and protected from disclosure on the basis of legal professional privilege.
December 19th, 2012
It may not be terribly festive, but it is an old truism that some things will always be with us. In an update that has a large focus on both Death and Taxes (and with a particular warning in the latter case about the need to take prompt action in the New Year) we thought that we had better start with some Charity.
Charity (governance) begins at home
‘Tis the season of charity, and glad tidings of good cheer. As Will Richmond-Coggan’s review of the troubles facing the Wikimedia UK charity demonstrates, however, it does not have very many reasons to be cheerful on the first anniversary of its registration.
Among other things, of course, Christmas is a time to think about those no longer with us. As Helen Clarke explains, for those who have lost loved ones in circumstances where proof of death is not easily obtainable, there may at last be some prospect of an earlier and a more straightforward resolution to the uncertainty that such families can face.
New Year’s resolutions
Meanwhile, Helen Clarke and Michael Jepson cover the new draft legislation which the government has finally published following its consultation earlier in the year in relation to taxation of high value properties. They also sound a warning about the need to move quickly after the final details of the scheme are disclosed in the New Year, prior to its implementation in the Spring.
For further information on these articles, please contact Pitmans’ Private Tax and Family Business team.
December 19th, 2012
Whether it is a single person that goes missing, or hundreds in a natural disaster like the 2004 South East Asia Tsunami, or the terrorist attack on New York City in 2001, the aftermath for relatives when the event is no longer front page news, is often overlooked by outsiders. What remains for those families affected by such an event is a minefield of legal issues which needs to be navigated before their lives can return to some form of normality.
In the UK (according to SOCA), around 900 missing person reports are filed daily equating to over 320,000 per year. Despite a large majority of the cases being solved within 48 hours, around 1% of those remain open after a period of 1 year. The emotional strain placed on family members and loved ones when a person goes missing is immeasurable, however the process can be made worse by the difficulties posed in dealing with their affairs during the time of uncertainty.
Currently in England and Wales there is no single source of law that deals with the many legal issues arising when a person goes missing, meaning that many simple tasks such as managing household bills or cancelling bank payments are not possible. Unlike when a person dies, a death certificate cannot be obtained by the family of a missing person as their body is not available to serve as evidence, and so the legal rights obtained with a grant of probate or letters of administration are not readily available.
Despite the Common Law presumption of death being available to administer the estate of a missing person, the presumption is a rebuttable one. Furthermore, the presumption only arises where:
a) there is no evidence the missing person has been alive during a seven year period;
b) people who would have been likely to have heard from the missing person have not heard from them during that period; and
c) all reasonable inquiries have been made to find the missing person without success.
It is evident that waiting seven years is not always an option, and indeed in the case of some of the events referred to above, despite the absence of conclusive evidence the family may be completely satisfied in their own minds that death has occurred. In those circumstances, while there are other procedures in place to deal with specific issues such as dissolution of a marriage, obtaining a certificate of presumed death, and obtaining leave to swear a death order, the current position is unsatisfactory.
In an effort to reduce complexity, a Private Members’ Bill supported by the Missing People Charity was submitted in January 2009, to create a single procedure to obtain an ‘all purposes’ declaration for presumption of death. Despite the Bill being dropped initially, the campaign to introduce legislation covering this area has grown in recent years and was recognised by the House of Commons Justice Committee in its report published on 22 February 2012. The Committee recommended the introduction of a Presumption of Death Act, modelled on similar acts already in force in Scotland and Northern Ireland, to clarify the legal position.
The Presumption of Death Bill was at last introduced on 20 June 2012 and has had its first reading in the House of Lords on 3 December 2012. The Bill aims to introduce a new court procedure to enable the relatives of a missing person to obtain a declaration from the High Court that they are deemed to have died. When the declaration can no longer be the subject of an appeal, it will be sent to the Registrar General to enter the details onto a new Register of Presumed Deaths to serve as conclusive evidence as to the presumed death of the missing person. Certified copies of the entry can then be issued to enable others to deal with the affairs of the missing person in much the same way as if they had actually died.
The Bill, if enacted, will simplify the current complex procedures and will enable the affairs of a missing person, such as the passing of property or ending of a marriage / civil partnership, to occur in a straightforward manner. It is to be hoped that in some cases at least, it may also operate to cut short the very lengthy delay before a declaration can be made, and enable surviving family members to move on with their lives.Private
For further information on this article please contact Pitmans Private Tax and Family Business Team.
December 19th, 2012
It has been something of a mixed twelve months for Wikimedia UK, the UK arm of the Foundation which operates to fundraise for, and promote, Wikipedia. Before Christmas last year it was successful in securing charitable status for itself, having gained approval from the Charity Commission of the promotion of Wikipedia as a charitable purpose.
This was a dramatic and positive development for the organisation, which demonstrated that it was possible for charities to secure recognition, even where their purposes were not those identified specifically within the Charities Act 2006. In addition to the extra credibility that registration as a charity secured, there was a further tangible benefit: Wikimedia would be able to receive Gift Aid on donations, thereby securing an additional contribution to its coffers through the rebates available where UK taxpayers make those donations. With these advantages, the charity projected generating revenue over the following year of in the region of £1.4 million (a significant increase on the £1.05 million raised in the preceding 12 months).
Developments over the following year, however, while often as dramatic, have not been quite so positive.
First came controversy in July 2012 when Ashley Van Haeften, then the Chair of Wikimedia UK, was sanctioned by the English Wikipedia Arbitration Committee for inappropriate conduct. This included posting a link to material that was deemed unsuitable, and using his position to launch personal attacks on other users, with a view to discrediting them. He was banned from the English Wikipedia, notionally indefinitely, but with the ability to seek a review of the decision once every six months.
Curiously, Wikimedia UK did not consider that these findings impacted on his ability to operate one of its trustees, or indeed as its Chairman. The charity made clear that issues which were the subject of the Arbitration had been known and openly canvassed as part of the process of Mr Van Haeften’s election to the Chair, which had only taken place in May. Nevertheless, the charity cannot have felt that having its name associated with such stories was entirely beneficial.
The next development did rather more to shake Wikimedia’s equanimity. In early October it was announced that an independent adviser would be appointed (by, it should be stressed, Wikimedia UK itself) to investigate the governance of the charity, following the resignation of its trustee Roger Bamkin. The review will consider the extent of the charity’s compliance with a suite of documentation which it has put in place, setting out its guiding principles and adherence to such external requirements as the well-known Nolan Committee principles (Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership).
The review’s report is not due until the end of January 2013, and it remains to be seen whether any breaches of the Trustees’ Code of Conduct or the charities governance principles did occur. Nevertheless, the fact remains that the investigation and Mr Bamkin’s resignation were prompted by allegations and concern that there had been failures to follow proper “conflict of interest” procedures in relation to Mr Bamkin’s simultaneous involvement with on the one hand the charity which fundraises for and promotes Wikipedia, and on the other hand with ventures which made use of Wikipedia’s functionality for commercial gain. In particular Mr Bamkin had been involved in projects to integrate Wikipedia more closely with real world physical locations, those locations being self-evident from the names of the projects: Gibraltarpedia, and the perhaps not quite so glamorous Monmouthpedia.
For Wikimedia UK, the timing could not have been worse. While the review is ongoing, the charity has had to hand off a significant part of its fundraising responsibilities to the parent Wikimedia Foundation which operates out of the US. A consequence of this has been that donations made as part of Wikimedia’s annual fundraiser (because they are being processed overseas) no longer attract the Gift Aid benefit referred to above.
While the review has been commissioned in order to demonstrate the high standards to which the UK charity holds itself, and there is seemingly confidence within Wikimedia that its governance will be vindicated by the review, such scrutiny and the practical consequences have therefore come at a high price in any event, for the organisation in its first year of operation as a registered charity.
The lessons to be learnt from this are equally applicable to any charity, however long-established. The procedures that an organisation has in place may well be robust, but it is equally important to ensure that they are always adhered to. More importantly, it is critical for all those associated with a charity to remember that in their conduct they are representing the charity’s principles and ethos, and that it only takes the suspicion of wrong-doing to tarnish that charity’s reputation.
Will Richmond-Coggan is a director and solicitor-advocate in the Dispute Resolution team. He works closely with the Private Tax and Family Business team on a wide range of contentious trust and other disputed private client matters.
December 11th, 2012
Businesses entering into licences for specialist software should not underestimate the time and effort required to ensure that the licence documentation accurately reflects the commercial agreement: to do otherwise risks costly litigation and the threat of mission-critical software being withdrawn.
It is a rare business today that does not use commercially-provided computer software in at least some part of its operation.
Companies using mainstream software, deployed to a small number of users and purchased for a single up-front fee under a shrink-wrap or click-wrap licence, are unlikely to encounter too many difficulties.
However, many larger businesses now rely on specialist software, deployed in a solution specifically tailored to their needs, purchased on bespoke, periodic licences involving an ongoing relationship with the developer and (invariably) payment of ongoing maintenance and support fees. Those fees are often calculated by reference to matters in the control of the customer, such as the specification of the server hardware upon which the software will run, and/or the number of users required.
In such cases, the software in question is likely to be mission-critical. The deployment itself may well be complex, highly technical, and not easily described in writing. For these reasons, it is perhaps unsurprising that software licence agreements provide a fertile area for disputes to arise – in particular, over the boundaries of the use permitted by the licence agreement, and whether the business’s actual use falls four-square within those terms.
Software licence disputes are often time-consuming and costly to resolve. The sums involved can be substantial, with claims for compulsory annual maintenance fees (covering the whole period of the alleged infringing use, up to six years) put forward in addition to the up front licence fees claimed for any use that is said to have been outside of the licence agreement.
These disputes generally involve a two-stage analysis: firstly, what are the precise terms of the licence granted – what do the terms of the licence document, probably filed away and forgotten about moments after negotiations were concluded, actually mean? Secondly, has the business’s use of the software in practice in accordance with that meaning?
As ever, prevention is better than cure. By being aware of these problem areas at the outset, businesses can significantly reduce the likelihood of becoming involved in a dispute in the first place.
‘Just get the deal done’ – a risky approach
The genesis of a software licence is often a discussion between the parties as to how exactly the software will be used, how many user licences are required, and how the software will be deployed on the business’s server hardware.
In due course, a draft licence agreement is put forward for discussion, usually based on the software developer’s standard form document. There then follows a further period of negotiation, usually more focused on the commercial aspects of the deal than the detailed wording of the licence, or any schedule in which the specifics of the licence granted are set out. Those commercial discussions frequently outpace the drafting, until eventually a licence agreement is signed, often late in the evening on the last day of a quarter, by two senior representatives of the parties who themselves have probably had little to do with the negotiations and have not the slightest understanding of the technical requirements they hope the licence embodies.
Without doubt, the most frequent reasons for intractable licence disputes arising are that the language of the licence agreement and its schedule is ambiguous, inconsistent or plainly contradictory, was not properly understood by those actually involved in the negotiations, or was simply not checked by them to confirm it accorded with what they understood at the time the finally negotiated commercial agreement to be.
One of the most common errors behind these faults is to deal separately with the drafting of the licence agreement – which is usually led by the lawyers – and the schedule, which is often led by technical staff. Invariably, IT personnel will be involved right from the outset, assisting with the negotiations and ensure that the agreed structure is technically workable. However, when the work of the IT personnel and the lawyers is brought together at the eleventh hour, the risk of inconsistency is significant.
Particular precision (and care) is needed over the use of technical terms: the meaning of which is not always universally understood between countries, or industries, or even legal departments. For example, if the solution involves elements of ‘hot’, ‘warm’ or ‘cold’ disaster recovery, spell out the meanings of those terms in the agreement to ensure that both parties are clear about the rights being granted. In cases of doubt, terms should always be expressly confirmed in the text of the agreement.
Similarly, although it rarely seems to happen in practice, the value of all involved having a final check through the key terms on price and specification before signature can not be overstated. For example, the wording of the licence may contemplate fees payable on a ‘per CPU’ basis, whereas the pricing schedule (and the commercial negotiations) may have been based on a ‘per CPU core’ structure, leading to debate about which takes precedence, and whether that answer reflects the commercial agreement reached in the negotiations – upon which, surprise surprise, the parties views often differ months or years down the line. Those conducting the negotiations may well have their own view on such issues, but the scope for disagreement months or years down the line – at which point memories have faded, personnel have often moved on, and documents lost – is substantial. If a party considers that the document does not properly reflect the agreement reached, its only remedy may well be a difficult, costly and ultimately unattractive application to Court for rectification.
In short, time spent considering the drafting is rarely wasted, and will pay dividends if it means a potential costly dispute is avoided.
Finally, having been at pains to get the licence agreement right, it is imperative that the implementation of the software is given equally careful attention. Methodical deployment by a well-briefed technical team is as important as getting the drafting right in the first place. Where those involved in the installation of the software are not fully appraised of the rights granted (and the limits thereof), do not be surprised if the practical approach adopted by the IT department bears little relation to that contemplated around the negotiating table!
Tips for avoiding software licence disputes
Business contemplating a significant software purchase would be well advised to:
- assemble a negotiating team with the appropriate mix of expertise and ensure that the right people are involved in the negotiation and documentation of all parts of the final agreement;
- make sure that the drafting of the licence documentation keeps up with the commercial discussions, taking legal advice where necessary;
- be clear on the meaning of technical terms – if in doubt, spell it out;
- thoroughly review the documents before signature; and
- ensure that IT personnel fully understand the need for care in the deployment of software to avoid inadvertent infringements.
For further information please contact Pitmans’ Technology team.
December 11th, 2012
On 2 November 2012, the BBC broadcast an edition of Newsnight which included allegations (subsequently established to be incorrect) by a former care home resident that during the 1980’s he had been abused by a prominent Conservative politician. The BBC did not name anyone within the story but subsequently a significant number of people, speculating about the politician’s identity on Twitter, linked Lord McAlpine to the Newsnight report.
Both the BBC and ITV (who on 8 November 2012 were embroiled in a separate incident where a list of alleged paedophiles was briefly shown onscreen while being handed to Prime Minister David Cameron by his interviewer, Philip Schofield), have settled threatened claims by Lord McAlpine for their part in the story. In each case, substantial damages (reportedly of £185,000 and £125,000 respectively) have been paid by way of compensation. Lord McAlpine has now seemingly turned his attention on the very substantial numbers of individuals (reckoned by some to be in the thousands) who used Twitter to link his name to the original story, thereby defaming him.
The story demonstrates the remarkable extent to which, even after several high profile cases, individuals appear to believe that Twitter and other Social Media forums are somehow “outside the law” and not subject to the same rules as more mainstream publication. There seem to be several reasons for this apparent sense of immunity to the laws of defamation, stemming from the nature of the “new” technology in question, but whatever the basis for those beliefs they are entirely wrong.
Posters who are using a pseudonym do appear to be emboldened in the statements they make online, believing that it will not be possible to discover their true identity. While potentially costly and time-consuming, it is far from impossible to do so. Orders can be obtained, if necessary at quite short notice, to require the operators of sites such as Twitter, Facebook or Hotmail (other social media are also available) to give up information about their users, where it seems that unlawful activity has taken place. On some occasions this will yield the true name and e-mail address of the perpetrator. Where it does not, it may nevertheless be possible to obtain information about the IP address of the user’s computer, from which the physical location of that machine (and therefore of the user) can also often be determined.
Users also appear to be led astray by the fact that some of them are based in jurisdictions (such as the United States) where free speech is afforded stronger constitutional protection than is the case in this jurisdiction. The multi-national nature of social media means that even those in more restrictive jurisdictions see connections of theirs able to make statements on a wide range of topics, seemingly with impunity, and seek to emulate them. As far as internet defamation is concerned, however, publication of the defamatory statement takes place where the offending article is read, meaning that a defamatory statement published online by a user based in Calcutta about a victim based in Washington DC may nevertheless be actionable in England.
Finally, and often overlooked, there is the fact that the traditional media in this country have, over the past eighteen months or so, had a vested interest in inculcating a belief in the immunity of online publication. During the press’s determined assault on super-injunctions and other anonymised restrictions on publication during 2011, a semblance of strategy seemed to be emerging. Where a celebrity was known to have obtained such an order (and of course the press were singularly well placed to know about that by virtue of the fact that they were served with the orders), their name would rapidly and anonymously be broadcast on the internet. Internet users, a large number of whom are vociferous proponents of free speech, could be relied upon to disseminate the information widely. If a politician or two could be persuaded to name the individual, under the cloak of parliamentary privilege, so much the better. The press would then apply to Court for the injunction to be discharged on the basis that the information was already out in the public domain.
It is difficult to know whether the press took a proactive part in this apparent strategy, or whether they simply were content to make use of a general popular objection to anonymised orders for their own ends. Either way it was certainly the case that a significant number of column inches were devoted to the portrayal of the internet as a haven of free speech, in which individuals could express themselves without fear of the consequences. Some of those who bought into that fiction are now those who are likely to find themselves on the receiving end of damages claims for defamation.
It is true that the law can be slow to keep up with developments, whether in technology or otherwise. The apparent inability of parliament to legislate in relation to privacy is causing on-going uncertainty for litigants on both sides, and the latest Defamation Bill is taking a remarkable amount of time to pass into law. Nevertheless, for publications that are clearly defamatory, it is important to bear in mind that the law makes no distinction between traditional media and the new/social media of the internet. If Lord McAlpine makes good on his threats and pursues even some of those who felt free to defame him so thoughtlessly, perhaps this is something that users on the internet will finally start to take into account.
November 29th, 2012
Today (29 November 2012) marks the publication of Lord Leveson’s report into the culture, practices and ethics of the press. The report is 2,000 pages long – this initial comment is based on the executive summary and the speech made by Lord Leveson on the report’s publication. It is clear that there will be considerable ground for further discussion in the days and weeks ahead.
Prior to the publication of the report there was considerable consternation being expressed within the press at the concept of statutory regulation. Lord Leveson is at some pains in his report to stress that while his proposals for a new framework of regulation does entail some statutory under-pinning, it does not represent state regulation of the press. This is unlikely to be a distinction which satisfies the concerns of the newspapers who will be affected, nor indeed does it appear to have eliminated doubts within government about the appropriate way to proceed.
What remains unclear is precisely why this part of the media considers itself to be entitled to continue to self-regulate (and Lord Leveson’s detailed report makes very clear that on a significant number of occasions this has actually meant to fail to self-regulate) in light of all that has happened. The first sentence of Lord Leveson’s speech, echoed in the introduction to the executive summary of his report, recorded that this was the seventh occasion in less than seventy years in which a government organised inquiry has reported following failures by the press. On each previous occasion, the answer proposed by the press and accepted by government has been for there to be an improved system of self-regulation. The catalogue of further failings, the numerous examples of poor ethical conduct and practices, that the Leveson Inquiry has identified, make it clear that this is a solution that has not worked.
This is so, even though large parts of the press are not guilty of any such failings, and even though the vast majority of journalism is undertaken in the public interest, and with the objectives (as Lord Leveson himself put it) of “informing, educating and entertaining”. He acknowledged in his speech that in doing so, the press should be free to be “irreverent, unruly and opinionated”. However, as he also recognised, with the great power that is afforded to the press in light of the public interest that they serve, there is an accompanying responsibility to serve that interest. Failures to do so had, he said, “wreaked havoc in the lives of innocent people”.
It is these failings that have led to the current position and to the Inquiry’s recommendations, and the consequences of that will be for the whole industry to grapple with. Lord Leveson pointed out that he does not know of any organised profession, industry or trade where serious failings of a few would be overlooked because of the good works done by the many. Indeed, he makes the critical point that if such failings took place in any other profession or industry, and were not properly held to account, the press could be expected to subject such failings to the very highest level of scrutiny. In a pithy summary, he said that the free press holds power to account, but with “a few honourable exceptions” the press had singularly failed to do so in relation to its own powers.
So much for the catalogue of problems that Lord Leveson has identified. What, then, is envisaged by the Report’s recommendations? Although the press will undoubtedly try to paint this as a dark day for journalistic freedom and independence, a significant degree of self-regulation would actually remain, even if the recommendations were implemented in full. What is recommended is that a regulatory body and code of conduct should be established by the press, albeit crucially (in light of the discredited Press Complaints Commission) with a membership drawn from outside either of the industry or of government. That wholly independent regulatory body would not be a creature of statute or more importantly of parliament. The statutory under-pinning would be confined to three critical areas:
(1) the imposition of a statutory duty on the government to secure and safeguard the freedom of the press;
(2) the recognition of the independent regulatory body providing the public with a mechanism to reassure them that the body would at all times be truly independent; and
(3) through that recognition, securing legal status for an arbitration procedure to be operated by the new body.
That would have valuable advantages in relation to costs consequences for a failure to participate in the low cost and streamlined dispute resolution process, which would have advantages both for individuals fearful of being outgunned by well-resourced media opponents in the Courts, and for newspapers wishing to avoid the risk of exposure to the (somewhat apocryphal) high level of claimant’s court costs.
These are modest objectives, and certainly go no further than the existing statutory basis for regulation of other parts of British society which one might reasonably regard as being important to keep independent. Lawyers are subject to regulation which derives its statutory under-pinning from the Legal Services Act and the body created by that statute, the Legal Services Commission. No-one sensibly suggests that this precludes lawyers from maintaining their independence in litigation involving the government. Rather closer to the territory of the press, television media has been subject to statutory regulation since its inception, and it is rarely suggested that this regulatory regime precludes that part of the media from pursuing free and impartial investigative journalism. Indeed, on several noteworthy occasions, the print media have been quick to suggest that the regulation of television does not go far enough.
In those circumstances, the press’s continued opposition to any statutory basis for regulation starts to look much less like a principled objection based on the preservation of fundamental freedoms, and much more like the desire to retain the competitive advantage that a self-authored and self-imposed code of conduct (with all of the flexibility and freedom from consequence that that entails) has to date afforded them. Lord Leveson plainly regards it as unacceptable that the press should be entitled to continue to “mark their own homework”. There will therefore no doubt be a great many who were disappointed this afternoon to see the Prime Minister express his instinctive resistance to any form of legislative consequence to the Leveson Report’s conclusions. Similarly, there will be those who are relieved that the principle of no statutory regulation is not going to be conceded without a fight.
What is clear is that the Report marks the start of what is likely to be a prolonged and difficult debate, and one which all who have an interest in the ways in which press behaviour is regulated should follow with great interest. We will be providing further comment on developments in this field as they emerge, and in the meantime are always ready to assist individual clients who wish to understand the implications of these changes for themselves or their businesses, with any questions they may have.
Will Richmond-Coggan is a director and solicitor-advocate at Pitmans LLP in the Dispute Resolution team, specialising in media and reputation disputes, including those involving online and social media elements.
November 21st, 2012
“Whether he went on with the diary, or whether he did not go on with it, made no difference. The Thought Police would get him just the same. He had committed— would still have committed, even if he had never set pen to paper— the essential crime that contained all others in itself. Thoughtcrime, they called it.” – George Orwell, 1984
Last week, an employee of the Trafford Housing Trust, who had been demoted and had his salary cut by 40% for a posting that he made on his Facebook page, was successful in his High Court claim for breach of contract against his employer.
Adrian Smith expressed the view, on a page on Facebook which was not visible to the general public but critically was visible to several of his colleagues who were connected to him on the site, that gay marriages in church would be “an equality too far”. When questioned by one of these colleagues, via a comment on Facebook, what he meant by this, he explained that he had no objection to the State giving civil marriage to gay couples, but that in his opinion “the state shouldn’t impose its rules on places of faith and conscience”.
The trust took the view that in expressing this opinion, Mr Smith infringed the code of conduct which formed part of his employment contract, by expressing views on religious or political matters which might be upsetting to co-workers. Mr Justice Briggs in the High Court made clear in no uncertain terms that the Trust had misapplied its policy and thereby committed a “serious and repudiatory” breach of its contract. The Judge was equally clear that Mr Smith had done nothing wrong.
It is tempting to view this case on its specific facts, as a case about the misunderstanding of an employer’s social media policy, and the importance of disciplinary responses which are proportionate to the breach that occurs. Even in this narrow respect the case carries an important object lesson for any employer looking to apply such policies. The Trust no doubt believed that they were acting to prevent discrimination. But the consequences for them have been severe: even if the damages they ended up paying have been very low, the costs they will have incurred in defending Mr Smith’s claim are likely not to have been. It also seems likely that if Mr Smith had pursued his complaint in the Employment Tribunal, his damages could have been significantly higher.
But the case is of equal interest when viewed in its wider context. At the moment social media issues are enjoying a particular prominence in the press and in the public consciousness. A debate is going on about appropriate online behaviour, informed in part by the Director of Public Prosecution’s consultation on the boundaries of when conduct on Twitter and elsewhere ought to be prosecuted. At Pitmans, we have seen a notable rise in the number of enquiries and instructions we are receiving in relation to sometimes quite serious cases of defamation or harassment involving the internet.
But caution is required. There has been an erroneous tendency for social media users not to regard postings made on blogs or message boards as subject to the same constraints as more mainstream publications. Equally, there is now a danger that employers, rightly concerned not to be seen to be promoting or condoning genuinely harmful or discriminatory conduct, may err too far the other way. In a statement made after his success in Court, Mr Smith said that “[s]omething has poisoned the atmosphere in Britain, where an honest man like me can be punished for making perfectly polite remarks about the importance of marriage.”
Employers, like the public at large, need to be careful. In seeking to prohibit the most obvious forms of discrimination they must not subscribe to more subtle and insidious prohibitions on the fundamental rights that everyone has, to hold opinions and to express them honestly as part of a wider social dialogue. In an environment where the legal boundaries of expression are still being evolved, the consequences of inadvertently over-stepping the mark can be serious, time-consuming, and costly.
Will Richmond-Coggan is a director and solicitor-advocate in the Dispute Resolution team. He works closely with colleagues in the Employment and Data Privacy teams in connection with a range of online disputes involving social media, defamation and harassment.
October 29th, 2012