Week 9: Intellectual Property, Data Protection, Tort Law Flashcards
What does IP law cover?
Trademarks, Copyright, Patents, Design Rights
What is tangible vs intangible property rights?
Copyright is considered to be intangible property, whereas the object in question is considered tangible property - owning a book doesn’t mean you own all copies of the book
What is the point of IP rights?
Too offer an incentive and a reward for innovation
What sits between innovation and reward?
Societal benefits
What sits between reward and incentive?
Private benefits
What act regulates trademarks?
The Trademark Act
What act regulates trademarks?
The Trademark Act
How can you infringe a TM?
If you use a TM in the course of trade without consent affecting the functions of a TM
What do TMs offer protection against?
Free-riding (unfair advantage) Against blurring (detriment to distinctive character) Against tarnishment (detriment to reputation/repute)
What can you trademark?
Anything graphical that can be distinguished from competitors
What cannot be trademarked or copyrighted?
Colours or shapes, or morally offensive terms
What does copyright need?
Artistic work Real author Sufficiently original Of the right type Fixed in a tangible medium
When has copyright been infringed?
When you copy all or a substantial amount of others work
When can you use others work?
When you use it fairly and with credit
What are patents?
These are the strongest form of protection that require you to invent something novel
What must something you want to patent be?
It must something new, with an inventive step and have an industrial application
How long do patents last?
20 years
What can you not patent?
Scientific theories, discoveries, mathematical methods
Literary, dramatic, musical, artistic work or any other aesthetic creation
A scheme, rule or method for performing a mental act
Presentation of information
What is the cost of a patent?
They are expensive!
$10,978 to maintain one in the US
What is a design right?
This offers protection for the visual appearance of an item or product that gives the holder exclusive rights for that appearance - Febreze cans for example
What are your IP rights if you are employed?
It is likely that your employer has the IP rights over anything you create
Sum up each of the IP rights
Copyrights - aesthetic subject manner
Patents - technical subject matter
Trademarks - commercial subject matter
Design rights - protecting confidentiality
What is personal information defined as?
Any information related to an identifiable natural subject - one who can be identified by reference to an identifier such as name, ID, location data…
What data is processing of prohibited unless agreed to?
Racial/ethnic origin, religious beliefs, union membership, sexual orientation or biometrics
What does data protection give individuals?
The power to manage their information in the public domain
What 4 areas does data protection refer to?
Consenting
Knowing
Objecting
Withdrawing
What and whom do you have control over in regards to data protection?
What refers to the use of the data (preprocessing) and whom refers to those who use the data (the controller)
What are the major data protection laws in the EU?
The General Data Protection Regulation
What are the data protection laws in the UK?
The UK-GDPR and the Data Protection Act of 2018
Why did the UK introduce the UK-GDPR?
As a result of Brexit
What does the Data Protection Act of 2018 do?
Supplements the GDPR by filling some gaps - lowers children’s age of consent from 16 to 13
What is the key theme of data protection?
That data protection must be by design and by default
From when should data protection be considered?
From the start - not as an after thought
What technologies are now legally mandated?
Privacy-enhancing technologies (PETs)
What is a potential penalty for non compliance of data protection laws?
€20M or 4% of annual turnover
What are the basic principles governing the use of personal data?
Lawfulness, fairness, transparency Purpose limitation Data minimisation Accuracy Storage limitation Integrity and confidentiality
Who is responsible for following the principles governing the use of personal data?
The controller
What is pseudonymisation?
It is the process of disguising identities, such that you can use data without needing to know the identity of the individuals in the data set
How can pseudonymisation be achieved?
Through the process of a hash map or a two way cryptography algorithm
What does the effectiveness of pseudonymisation algorithms depend on?
How easy it is to re-trace the data, size of population, whether you can link records back to the same person
How does the GDPR incentivise pseudonymisation?
By making this data subject to fewer restrictions
What is the strongest form of data protection?
Anonymisation
What is a drawback of anonymisation?
It reduces the ability one has to analyse the data
What is a tort?
This is a civil wrong against an entity or individual
What provides a remedy for torts?
The law
How can a remedy for a tort be enforced?
Through a civil suit brought by the wronged party
How can a remedy for a tort be enforced?
Through a civil suit brought by the wronged party
What must torts be distinguished from?
Criminal wrongs (crimes)
What is a claimant in a tort case?
The wronged party or the victim of the tort who can bring damages
What is the defendant in a tort case?
The alleged wrongdoer or injurer who is on the receiving end of the claim of the tort
What is important to note about the defendant in a tort case?
The defendant may not always be the person who committed the tort
What is important to note about the defendant in a tort case?
The defendant may not always be the person who committed the tort
What is an intentional tort?
A civil wrong resulting from a deliberate act on the part of the alleged wrongdoer - only the act needs to be intentional, no intent for harm is needed
What is a negligence tort?
This is a civil wrong that is suffered by someone at the hands of another who fell short of the expected degree of care of a reasonable person
What type of tort is a negligence tort?
Negligence is a damage-based tort and the claimant must show that the damage was caused by the defendant’s act
What is a strict liability tort?
It is a tort where you cannot find a fault of either negligence or intent
What does the claimant need to prove with strict liability?
That the tort occurred and that the defendant was responsible.
What is the purpose of strict liability torts?
To regulate activities that are acknowledged as necessary and useful to society but pose a high risk of danger to the public.
What is the difference between contractual liability and tortious liability?
With a contract, the parties agree to accept the resulting obligations and consequences in the event of a breach.
A tortious liability is not based upon a pre-existing relationship between parties and is imposed on persons and entities without their knowledge or the awareness of the potential extent of this liability
What criteria must be met to show the tort of negligence?
The defendant owes the claimant a duty to take care
The duty has been breached
The defendant’s breach of duty has caused the claimant to suffer loss or damage of a relevant sort (factual causation)
That damage is caused by the defendants negligence (remoteness or legal causation)
What case is used when establishing duty of care in the tort of negligence?
Caparo Industries plc v Dickman (1990)
The case considered the liability of an auditing firm for financial loss suffered by investors
What is the name of the test to determine whether the claimant was owed a duty of care by the defendant?
The Caparo Test
What conditions the court consider being met under the Caparo Test?
The parties must be in a relationship of proximity
Damage must be reasonably foreseeable as a result of the defendant’s conduct
The imposition of a duty of care on the defendant is fair, just and reasonable
What does proximity of relationship entail in relation to the Caparo test?
Proximity should not be restricted to physical closeness but reflect relationship aspects.
What principle is applied to prove proximity of relationship?
The neighbour principle
What is the neighbour principle?
A neighbour is someone who is close enough to be directly affected by the allegedly negligent behaviour and close enough that the tortfeasor should have had their interests in contemplation at the moment the tort was committed
What does reasonable foreseeability of damage mean?
It is an object test that asks whether a person could have reasonably foreseen the harms that resulted from their action. If they could have then duty of care is recognised. This is decided by courts in all circumstances
What is the Bolton v Stone case of 1951 and what does it show?
It shows the reasonable foreseeability of damage. Someone attempted to bring a tort of negligence against a cricket club having been hit by a cricket ball outside their home. The claim failed as necessary precautions were in place, plus the shot was exceptional and never in the history before had a ball been hit out of the ground - therefore not foreseeable
What does fair, just and reasonable mean when establishing duty of care?
This is known as the floodgates argument. If establishing the liability ‘opens the floodgates’ to an indeterminate number of claims, then the court may decide liability should not be imposed
How are public bodies protected by the courts under duty of care?
They apply the floodgates argument.
What is the Michael v Chief Constable of South Wales (2015) case?
It upheld a long standing rule that the police owe no duty of care in negligence in the context of protecting victims from potential future crimes - not in public interest for police to have the risk of being sued, could have had significant financial implications for police/public
What is the reasonable person test?
A person may be found to be in breach of their duty of care when they fail to meet the standard of care required by law. It asks the question of how a reasonable person would have behaved under the circumstances presented to the defendant
What happens when a reasonable person test is applied to a professional with a particular set of skills?
The standard of care applied is that the reasonable person is one with the same skill or expertise.
What is the standard of care for a young professional?
It is in accordance with the accepted practice for the relevant profession and does not take a lack of experience into account
What is the first hurdle of proving the existence of a causal link?
Showing a historical connection between the defendant’s breach of duty of care and the loss suffered
What is the but-for test?
It asks ‘but-for’ the defendant’s breach of duty of care, would the claimant have suffered the injury they did? If yes, then the defendant’s negligence is not causative of the claimants loss, if no then the defendant is liable.
What is an example of the but-for test?
Barnett v Chelsea and Kensington Hospital Management Committee (1969). Family of a patient who died from arsenic poisoning brought a claim against the hospital for negligence of the doctor for failing to examine him, but the case was dismissed as the concentration of poison in his blood was so high that he would have died regardless of the examination
Where can the but-for test be too narrow?
Where there are multiple causes of injury
Where there is a lost change of recovering or avoiding injury
What does the claimant need to show where there are multiple causes of damage?
That the breach of duty of care by the defendant either ‘materially contributed’ to the damage or ‘materially increased’ the risk of damage
What approach does the court take where there has been a loss of chance?
The all or nothing approach, and they dismiss cases where the balance of probabilities are not satisfied
What must the claimant show once factual causation has been satisfied?
That the defendant should be legally responsible for the damage they suffered
What does legal causation involve?
Consideration of the effect of new intervening acts (novus actus interveniens)
Consideration of whether the defendant should not have to pay for the full extent of the damage because it is considered too ‘remote’
What can break the chain of causation between the defendant’s breach of duty and the loss suffered by the claimant?
A new intervening act, where it is sufficient to break the chain the defendant may not be liable
What can an intervening act be?
A third party act or an act of the claimant
What is said about new intervening acts by a third party?
The original defendant is liable where the act does not cause loss and they are responsible for damage which are natural and probable results of the initial act
What is the Baker v Willoughby (1970) case and what does it show?
It is where the claimant suffered a stiff leg due to negligence, the claimant was later shot in the leg and lost it, the court held that the act was not an intervening act and the damage suffered was still as a result of the original injury and the defendant remained liable
What is said about new intervening acts that are acts of the claimant
For the act to be novus actus interveniens, it must be entirely unreasonable in all circumstances
What is said about new intervening acts that are acts of the claimant
For the act to be novus actus interveniens, it must be entirely unreasonable in all circumstances
What is the McKew v Holland and Hannen and Cubitts Ltd (1969) case?
The claimant had injured his leg in course of employment, while in recovery the defendant attempted to just down a set of stairs, fractured his leg and suffered a disability. The court held that while the employer was negligent, the claimants action was a novus actus interveniens that broke the chain of causation and therefore the defendant was not liable
What is remoteness?
It is the final element of establishing negligent that assesses the extent of damage suffered by the claimant which should be attributable to the defendant. Liability is limited to damages that could reasonably be foreseen at the time of the behaviour
What is the egg shell skill rule?
It states that foreseeability only refers to the type and not severity of the injury, even if not foreseeable, due to some pre-existing special condition on the part of the claimant then the defendant remains liable for all the losses.
What are some defences to the claim of negligence?
Complete (defendant claims no liability) or partial (where the defendant accepts some liability for what occurred but states the claimant was also partially responsbile)
What are the most common forms of defence to negligence?
Illegality
Consent
Contributory negligence
Necessity
What is the illegality defence to negligence?
The claimant has committed an unlawful act, they are prevented from raising a negligence action
What is the consent defence to negligence?
Where there has been consent (express or implied) to the particular risk of damage
What is the contributory negligence defence to negligence?
Where the defendant through their behaviour have contributed to the extent of the damage
What is the necessity defence claim to negligence?
Where the defendant has acted in a way to prevent an imminent danger to a person or a property
What are some remedies to negligence?
Damages or Injunctions
What are damages to the person?
These aim to place the person in the position they were in before the tort was committed - where injury has been suffered, direct losses may be incorporated (medical, loss of income, travel) as well as damages for pain and suffering. Where there is no real loss, nominal damages may be given
What are damages in the case of death?
If the deceased had been financially supporting their family then the dependants may claim for lost earnings. The Fatal Accidents Act (1976) provides spouses and the parents of a deceased minor may make a statutory claim of £11,800
What are damages to property?
The damages awarded will compensate the claimant for the cost of restoration and may include compensation where a replacement was difficult to achieve.
What is an injunction?
These may be awarded at the discretion of the court and will involve a court order which if the defendant fails to comply with may lead to a fine or imprisonment
What is a prohibitory injunction?
This requires the defendant to cease the action that caused the tort
What is a mandatory injunction?
This requires the defendant to prevent the tort from being committed
What is an interim injunction?
This aims to prevent a tory being committed and any further damage being sustained until the case comes to court
What is the Limitation Act?
It is an act that states that actions in torts must be brought within six years of the data giving rise to the right of action. Claims for personal injury must be brought within 3 years of the date of injury or date the tort is committed. If the claimant is a minor, the time limits don’t start till they become 18. Those with a mental disorder and incapable of managing their affairs do not have these limits applied to them
What is vicarious liability?
It is where one party has the responsibility for a wrong committed by someone else
What is vicarious liability in a business context?
It is a doctrine whereby an employer is held liable for torts of their employees
What can employer do if found liable of a tort committed by an employee?
Claim back damages from the employee
What is rationale behind vicarious liability?
Consent
Enterprise risk
Deeper pocket
Deterring effect
What is the consent argument in respect to vicarious liability?
The employer has expressly or impliedly authorised the employees action so they should satisfy any claim
What is the enterprise risk argument in respect to vicarious liability?
The employer derives financial benefit from the work of the employee, hence they should be responsible for losses
What is the deeper pocket argument in respect to vicarious liability?
The employer is in a better financial position than the employee
What is the deterring effect argument in respect to vicarious liability?
Holding an employer financially liable for employee torts provides an incentive for measures that prevent torts
What two conditions are required for an employer to be held liable for torts of their employee?
The worker must be considered an employee
The tort must have been committed in the course of employment
How do we establish an individuals employment status?
The employment tests as seen in week 6
What is the most important element in establishing whether a worker has the status of employee?
The control exercisable by the employer rather than the existence of a contract
What is the liability for loaned employees?
Where it can be demonstrated that control is exercised by the employer that has taken the loan of the employee, they assume liability
What are the two situations that are accepted as falling within the scope of ‘course of employment’?
Acts by the employee that are authorised by the employer
Unauthorised acts that are closely connected with the employer’s authorisation
What are authorised acts?
These are acts where the employee is following his employer’s instructions
What are the categories of unauthorised acts?
Prohibited acts
Acts incidental to the employment
Unlawful acts
What are prohibited acts?
These are acts that the employer has explicitly stated the employee not to do.
What does the decision of whether the failure to comply with instructions take the employee outside of the scope of employment depend on?
The manner of employment
The scope of employment
What is prohibition on the manner of employment?
This is where an employer merely instructing an employee to refrain from carrying their duty in an unauthorised manner will not be able to escape liability
What is the case for prohibition on the manner of employment?
Limpus v London General Omnibus (1862) - the driver of the bus injured a claimant while racing a driver of a different bus company. Even though bus racing had been prohibited, the court held that the accident took place within the course of employment.
What is prohibition on the scope of employment?
This is where an employer has demarcated the scope of work, meaning they will not be held liable for an employees actions that were outside their duties.
What is the case for prohibition on the scope of employment?
Iqbal v London Transport Executive (1973) - A bus conductor was explicitly prohibited from driving but still moved a bus and injured another employee. The court ruled that since the employee was not allowed to drive he had acted contrary to this prohibition and therefore the tort was outside the scope of his employment
What are acts that are incidental to the employment?
These are acts that do not come directly with their employment but the employer is still liable for
What is the case for acts incidental to the employment?
Crook v Derbyshire Stone Ltd (1956) - lorry driver halted vehicle at a lay-by and proceeded to cross road, caused motorcyclist to swerve and injure himself. Court held the employer was liable since the tort occurred in work hours and the break did not stop him being in the course of employment.
What are unlawful acts?
These are acts that break a law
What test exists to determine whether an intentionally wrongful act by an employee would fall within the course of their employment?
The closeness of connection test
What is the closeness of connection test?
This says an employer is authorised for acts which they have not authorised provided they are so closely connected with acts which they have authorised that they may be regarded as modes of doing them
What is the Lister vs Hall case (2001)?
This is where the claimant brought an action against the employer of a warden at a residential school of boys he attended on the basis that they were vicariously liable for the offences against him
What is the general rule for liability of independent contractors?
There is no liability of employers for the torts of them as they have their own insurance to satisfy claims and there does not exist the same level of control exercised over their actions as is the case with employees
What are some exceptions to the general rule for the liability of independent contractors?
Where the tort was authorised or ratified by the employer
Where responsibility cannot be delegated - employer held vicariously liable for the acts of the contractor
What happens when an employer has authorised or ratified a tort of an independent contractor?
Authorisation can be given explictly or implied/inferred. If the contractor commits a tort and the employer subsequently ratifies and assents to the act, he thereby becomes responsible for it. In these cases, both employer and IC are liable
What is the case for authorisation or ratification of a tort for independent contractors?
Ellis v Sheffield Gas Consumers Co. (1853) - defendant had employed contractor to dig a trench on the street for purpose of assessing pipes without the relevant authority. Trench was excavated but contractors left rubble on the footpath and claimant fell and sustained injury. Court held that agreement with contractors was an illegal act and employer could not delegate responsibility to contractor.
What happens with non-delegable duties for liabilities for independent contractors?
The employer is liable for negligent acts whether committed by employer or independent contractor. Examples include health and safety of staff, extra hazardous acts, duty imposed by statute
What liability is there for defective products?
The Consumer Protection Act 1987 which aimed to make it easier for consumers to claim compensation where a defective product has caused personal injury, damage to property or death
What is strict liability that is established under the CPA 1987?
The claimant does not have to prove intention of negligence but just the existence of a defect in the product and damage it is linked wiht
What must be established under claims under the CPA?
Must be brought within 3 years of awareness of damage
The product contained a defect
Claimant suffered damage
Damage caused by defect
Defendant either producer, marketer, importer, supplier
When is a defect in a product present?
If it is unsafe, falling below the standard which a reasonable man would likely expect, considering:
the ordinary use of the product
the manner in which the product as marketed (including warnings/instructions)
the time when the product was supplied
What damage is covered by the CPA 1987?
Death and personal injuries sustained, or damage to property.
Damage must exceed value of £275 which does not include damage to product itself
Who may be liable for injury or damage caused wholly or partly by a defect in a product?
The producer
The importer
The marketer
The supplier (only if they fail to identify the manufacturer, producer or importer)
What are some defences under CPA 1987?
Compliance with the law (defect is attributable to compliance of law)
Non-supply of the product (did not supply in the course of business)
Non existence of defect (did not exist at time of supply)
Technical and scientific developments (if state of science and technical knowledge at time when product was developed did not allow them to discover defect)
