UK: E-Commerce News – RIPA Code of Practice, Online Gaming in the UK, Hague Convention on Jurisdiction & Foreign Judgements, Data Transfers to Non- EU Countries, Electronic Signatures

Last Updated: 30 August 2001

Public Consultation on the Draft RIPA Code of Practice

The Home Office put a draft Code of Practice for the Regulation of Investigatory Powers Act (RIPA) 2000 out to public consultation on 13th August 2001. The draft code lays down the guidelines that public authorities should follow when accessing communications data. While it does not apply to private businesses, it does set the tone for things to come if this changes. The draft code will:-

  • explain and define in detail the provisions of access to communications data; and
  • set down the authorisation procedure and the information which must be obtained before an authorisation can be granted or a notice given.

The RIPA, which received Royal Assent just over a year ago, is an extremely controversial piece of legislation. The Act gives a wide range of public authorities unprecedented access to communications on public networks and private networks such as internal e-mail systems. The Act has also been criticised for failing to comply with either the Data Protection Act or the Human Rights Act. In addition to privacy considerations, opponents of the Act have raised concerns about the cost of compliance with its provisions. Consequently, many commentators believe that the Code of Practice is imperative to ensure the Act is implemented as originally intended and if public authorities are to avoid accusations of civil rights abuses.

The draft codes lists examples of conditions that must be met before public authorities are entitled to access communications data: for example, where interception is in the interests of national security; for the purpose of preventing or detecting crime or preventing disorder; or in the interest of public safety.

The consultation period began on Monday 13th August and will finish on Friday 2nd November 2001. The press release states "the Government invites comments on all aspects of the code and will give careful consideration to consultation responses before the code is laid in Parliament".

Copies of the code are available from the Home Office website at http://www.homeoffice.gov.uk/ripa/ripact.htm

The Government intends to publish a summary of consultation responses on the Home Office website once the consultation process has ended.

Online Gaming in the UK

By virtue of gaming and gambling legislation which is now over 30 years old, the provision of on-line gaming is presently not legal in Great Britain. This is essentially due to the requirement that a punter be present in the room in which the gaming takes place. The Department for Culture Media and Sports has commissioned an independent review of the controls on gambling in Great Britain, which was chaired by Sir Alan Budd. The report has now been delivered to the Government and it has requested views on the proposals of the report - which can be sent to gamblingreview@culture.gov.uk prior to 31 October 2001.

In addition to dealing with gambling generally, the report makes several recommendations concerning on-line gaming. The fundamental recommendation of the report concerning on-line gaming was that it should be regulated. This was due to the belief that Internet gaming would greatly increase the accessibility of gambling, which it is believed may exacerbate the prevalence of problem gambling and expose new audiences with particular vulnerabilities, such as children, to these vices. It was recognised that it would be virtually impossible to regulate offshore sites accessible by British punters, but that British sites should be regulated so that the punter can have a choice of gambling in a regulated environment, or can take a chance with an unregulated overseas site. In contrast, the report found no need to further regulate on-line betting - which was described as gambling events which received entries online (i.e., using a telephone connection), but where the event actually occurred off-line.

The report made the following recommendations :

1. that an on-line gaming operator seeking a license from the Gambling Commission should, at the minimum : be registered as a British company; locate its server in Great Britain; and use a UK web address for its gambling site;

2. that it not be an offence for punters in Britain to use unlicensed sites, but they do so at their own risk. Similarly, it will not be an offence for unlicensed operators to allow UK punters to use their sites, although it is recommended that there be a prohibition on advertising such sites in the UK;

3. that while on-line gaming should be permitted, on-line gaming software systems should be tested and inspected by the Gambling Commission to ensure amongst other things, that the software operates on a random basis;

4. that the Gambling Commission set the parameters for the development of on-line games;

5. that punters are made aware of the game rules and the terms and conditions of play on on-line gaming sites before play commences;

6. that all punters that register to play on-line should be properly identified before they are permitted to play. The Gambling Commission should issue guidelines to ensure that identification standards are comparable with those of off-line casinos;

7. that on-line operators should make any payments only to the debit or credit card used to make deposits into the punters account, or by cheque to the punter;

8. that any prizes won by minors be forfeited;

9. that on-line operators should be required to set up facilities that enable players to set maximum stakes and limits, and to self ban;

10. that on-line operators set up clocks and counting systems that are displayed on the screen at regular intervals;

11. that online gaming sites provide information about problem gambling treatment and services, and provide links direct to those services;

12. that the Gambling Commission establish a portal on its website by listing licensed on-line gaming providers. In addition, regulated sites should display the Gambling Commission's kitemark. It should be an offence for an operator to claim falsely that a site is licensed by the Gambling Commission, or to make unauthorised use of the kitemark;

13. that on-line gaming sites that are licensed by the Gambling Commission be permitted to advertise in Great Britain; and

14. the Gambling Commission have the power to take action in relation to premises, not licensed as gambling premises, in which terminals or other facilities are supplied primarily for accessing on-line betting services.

Full details of the report can be found at http://www.culture.gov.uk/ROLE/gambling_review.html. Christopher Rees will be speaking on the database law implications of the proposals at a conference in London on 15th November. If anyone would like further details of the conference, please contact Christopher Rees at Herbert Smith.

Hague Convention on Jurisdiction and Foreign Judgements

As reported in the last edition of the Bulletin, delegates from 50 countries met in The Hague from 6 June to 22 June 2001 to negotiate the proposed Hague Convention on Jurisdiction and Foreign Judgements. The proposed treaty aimed to harmonise laws that apply in private cross border disputes, and sought to deal with disputes involving intellectual property (including patents), libel and defamation. Under this proposed Convention signatory countries would be required to agree to enforce legal judgments which are entered in other signatory countries.

However, whilst the delegates unanimously confirmed the importance they attach to the project, no agreement could be reached as to the substantive content of the treaty. The main reason for this failure was a fundamental difference of opinion between the EU and the US.

The EU has already decided that, from March 2002, European customers will be able to enforce judgments made in member states other than their own, and would like this model to apply globally, but the US delegation has argued that such a move would damage free trade and free speech. The Europeans have said in response to this that the treaty would deal only with jurisdiction, and would not specify which laws apply to a dispute. Furthermore, successful claimants can already sue in other countries to get the judgment enforced, so the proposed treaty would only make this process simpler. This argument has not won over the Americans, however, who replied that the treaty would just blur the distinction between jurisdiction and applicable law. Their main concern is finding the US subject to Europe's stricter consumer protection laws.

Business-to-consumer contract disputes are not the only area of disagreement. There is also a body of US ISPs, civil liberty groups and privacy advocates who oppose provisions in the proposed treaty which deal with libel, defamation and copyright infringement. They are concerned that countries with restrictive freedom of speech laws (such as China and Ukraine who are also signatories to the Hague Treaty) might use the treaty as way of clamping down on websites from more liberal regimes.

The delegates also failed to resolve patents and trademarks issues. Countries with strong protection of intellectual property rights, such as the UK and the US, are wary of giving control of such matters to courts in other jurisdictions which do not protect such rights so strictly.

As a consequence, no agreement was reached and the parties have only undertaken to resume the discussions in 2003, with a further preliminary meeting of the Commission on General Affairs and Policy in early 2002. This meeting of the Commission will examine whether conditions are met for a successful conclusion of these negotiations, including sufficient agreement on the way to approach those critical areas where consensus is still lacking, and a schedule for further negotiations.

EC Approves Standard Contractual Clauses for Data Transfers to Non- EU Countries

Applicable from 3 September 2001, the European Commission's Decision setting out standard contractual clauses for data transfers to non-EU countries will provide organisations with a practical contractual means of complying with the requirements of the Directive on data transfer to non-EU countries.

The 8th data protection principle in Schedule 1 of the Data Protection Act 1998 (which implements Directive 95/46/EC within England and Wales) permits transfers of personal data to countries outside the EU only where there is an "adequate level of protection" for the data, unless one of a limited exemptions in Schedule 4 applies (for example, the data subject has given his consent or the transfer is necessary for the performance of a contract).

The standard contractual clauses are neither compulsory nor are they the only method of transferring personal data to recipients outside the EU. Indeed, the contractual clauses are not necessary where the transfers of data are to either Switzerland or Hungary, both of which the Commission has previously recognised as providing adequate protection of data, or where the transfers are to organisations adhering to the US Safe Harbour Privacy Principles. However, organisations will find these standard contractual clauses a straightforward means of ensuring "adequate protection" for personal data transferred to countries outside the EU since Member States are obliged to recognise the standard contractual clauses as providing adequate safeguards and fulfilling the requirements of the Directive.

The standard contractual clauses may be accessed at http://europa.eu.int/comm/internal_market/en/dataprot/news/index.htm. They may also be used in a wider contract or may be added to, as long as the standard contractual clauses are not contradicted or prejudiced by the other contractual clauses. The clauses have however, been the subject of criticism from many commentators as being overly long and complex.

This Decision is only a first step in developing contractual solutions for the transfer of personal data world-wide. Other specific types of transfers and solutions are in the pipeline. The Commission is presently consulting Member States and Data Protection Authorities on a new draft Decision concerning standard contractual clauses for the transfer of personal data from data controllers within EU to data processors in non-EU countries.

Global Network for Authentication of Electronic Signatures

The European Commission has recently cleared agreements between a number of major European and non-European banks (including ABM-AMRO, Bankers Trust, Bank of America, Barclays Bank, Chase Manhattan Bank, Citibank, and Bank of America) creating a global network (known as Identrus) used to authenticate electronic signatures and other aspects related to financial and electronic commerce transactions. Identrus, established as a joint venture company by the various participants, filed notifications with the Commission seeking clearance in April 1999 in order to enable those participants to operate as individual and competing certification authorities for the purpose of secure e-commerce transactions.

The Commission commented in relation to this clearance that its "negative clearance decision illustrates the importance the Commission attaches to development of competitive e-commerce related markets. The European Union has already in its Directive on electronic signatures of 1999 recognised that global certification authority services over open networks are fundamental for the success of e-commerce in Europe".

Calling all would-be Celebrities

Previously we reported that The Internet Corporation for Assigned Names and Number (ICANN) announced seven new top level domains (TLDs) - ".biz", ".name", ".info", ".pro", ".museum", ".aero" and ".coop". Celebrities, politicians and other famous personalities and indeed their fans will soon be able to bid for the latest TLD - ".name".

London based Global Name Registry is the Registry accredited to launch the ".name" TLD. The first assigned .name domain names will go live in mid-November. However, the so-called "sunrise period" (a 30 to 45 day window during which trade mark owners may stake a claim to the domain name containing their mark) officially opened on 15th August to authorised resellers who in turn will sell them on to consumers.

The ".name" domain is designed to give all individuals an equal claim to a domain that matches their identity. In other words, Tom Cruise the actor is not guaranteed to get "Tom.Cruise.name" if Tom Cruise the teacher manages to get there first.

The allocation of the latest batch of domain names which includes ".info" and ".biz" has already created controversy. ".info" and ".biz", which are due to go live this autumn, have already been snapped up by individuals accused of cyber-squatting and there is talk of law suits by businesses seeking to alter the pre-registration process.

Domain name disputes involving celebrities, politicians and other famous personalities are filed at a regular basis. Almost 3000 domain name disputes have gone before the World Intellectual Property Organisation (WIPO), an international organisation appointed to deal with such disputes and other aspects of intellectual property protection, in the past two and a half years. In celebrity-related domain name disputes, celebrities win their claim on average, 80% of the time usually by proving that the site is being used in bad faith by the registered owner. The introduction of the new ".name" domain later this year will undoubtedly lead to a new wave of domain name disputes.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.