UK: A Queen’s Speech For The IT And Digital Media Worlds?

Last Updated: 16 May 2012
Article by Elisabetta Rotondo, Kathryn Dooks, Paul Garland and Richard Kemp

Of the nineteen draft bills in the Queen's Speech of 9th May, of most interest to the IT and digital media world will be the draft Communications Data Bill.

But before we take a quick look at that, three other proposed measures are likely in due course to be of relevance also.

First, two parts of the Enterprise Regulatory Reform Bill will address reforming competition law, and second, overhauling Employment Tribunals.

Competition Law Changes

The reforms on the competition enforcement regime have been the subject of much debate and consultation between government, the legal community and industry over the past year. They include:
  • the creation of a Competition and Markets Authority ('CMA') from the merger of the Office of Fair Trading and the Competition Commission;
  • the imposition of statutory timetables on the CMA's investigations and the separation of power between the investigatory team and the ultimate decision-makers to ensure the robustness and impartiality of the decisions taken;
  • the removal of the dishonesty element from the cartel offence making it easier for criminal prosecutions to be brought against individuals .
  • Together these measures are designed to streamline the enforcement of competition law in the UK in order to increase its deterrent effect.

The bill is also likely to incorporate the decisions taken by government in response to its consultation on private damages actions in the UK. This proposes a wider jurisdiction for the Competition Appeal Tribunal to hear stand-alone actions as well as enabling claimants to bring opt-out collective actions for both stand-alone and follow-on claims. If the proposals in the consultation on damages actions are adopted and included in the new bill, such changes may herald the beginning of a new and altogether more contentious approach to competition enforcement in the UK.

Employment Law Changes

There were no real surprises on employment law reforms, with all of the proposals having been trailed extensively by the government since the Chancellor's 2011 autumn statement, as part of its push to reduce red tape for businesses. The bill will:

  • make the employment tribunal system "more streamlined and efficient";
  • require all employment tribunal claimants to submit details of their claim to Acas for a period of pre-claim conciliation; and
  • rename Compromise agreements as "Settlement agreements" to make them more accessible.

The Government believes these measures will encourage employers to take on more staff. They come on top of changes already made to the Tribunal system with effect from 6 April this year .In addition, a new Children and Families Bill will introduce measures to make it easier to share parental leave between both parents.

The Director General of the British Chambers of Commerce, John Longworth, welcomed the proposals but warned that "Positive steps such as reform to employment tribunals and red tape reductions could be undermined by complex new burdens around shared parental leave."

Defamation Law Changes

Also of note is the Defamation Bill. Its stated aim is to address widespread concerns that the UK's existing defamation regime protects reputations too often at the cost of freedom of speech. The draft legislation looks to redress that balance and seeks to ensure free speech is not unjustifiably impeded by actual or threatened libel proceedings. The corner stone of the proposed legislation is a requirement that a statement must have caused serious harm in order for it to be defamatory. In addition, a number of new statutory defences are proposed including defences of truth (replacing the current defence of justification) and honest opinion (replacing fair/honest comment). There are also proposals for a new online takedown procedure.The intention is that these changes to defamation laws run alongside Lord Jackson's proposals for reform of civil litigation funding.

Communications Law Changes

Interception of communications legislation has long been one of the main fault lines where the 'Democracy' plate grinds against the 'Essential Interests of the State' plate; and although HMG has progressively let in more sunlight on this difficult area of law making, the changes proposed on 9 May seem certain to generate as much heat as light. The Home Secretary has already announced a Communication Capabilities Development Programme to enhance monitoring of online activity by the security services and in announcing on 9 May that:

"[M]y government intends to bring forward measures to maintain the ability of the law enforcement and intelligence agencies to access vital communications data under strict safeguards to protect the public, subject to scrutiny of draft clauses"

the Home Office is signaling its intention to push ahead.

The cornerstone of the current law is the Regulation of Investigatory Powers Act 2000 ('RIPA'), which authorises and controls five powers:

  • the interception of communications;
  • the acquisition of communications data;
  • intrusive surveillance;
  • cover surveillance for specific operations; and
  • the use of covert human intelligence sources – spooks to you and me.

Each power is subject to controls as to:

  • the purposes for which it may be used;
  • the authorities that may use that power;
  • who authorises how the power is used;
  • how the information obtained by the exercise of the power may be used;
  • independent judicial oversight; and
  • means of individual redress.

RIPA itself repealed the Interception of Communications Act (1985) to bring it into line with the Human Rights Act 1998, the UK's transposition of the European Convention on Human Rights. The Data Retention (EC Directive) Regulations 2009, Intelligence Services Act 1994 and Police Act 1996 (each as amended) complete the background.

The proposals foreshadowed on 9 May address the second of the powers that RIPA authorises, those relating to 'Communications Data' ('CD') - 'envelope' data about the communication like time, duration, destination phone no./email address and (potentially) origination location, but not the content of the communication itself. The draft bill will propose an updated and technology neutral (and hence adaptive) framework, authorising CD acquisition and retention subject to appropriate safeguards and independent oversight.

Collection and retention will effectively be a two-step process, first through a framework for telcos, Internet and other communication service providers ('CSPs') to collect and retain CD; and secondly for the police, security services and other authorised public authorities to access and use that CD.

The safeguards proposed include a 12 month retention limit by CSPs and measures, reviewable by the Information Commissioner, to protect CD – much of which will be personal data for Data Protection Act 1998 purposes - from unauthorised access or disclosure. Finally, the Interception Communications Commissioner, the Government watcher of the watchers established under S. 57 RIPA, and the Investigatory Powers Tribunal will have their roles extended and a new independent Technical Advisory Board will be available to CSPs to consult on the hard questions.

At one point the legislation looked as though it would be part of a composite bill, but it's now likely to proceed as a stand-alone bill which will allow greater scrutiny as it goes through the parliamentary process. But, as the Register of 9 May notes, the Home Office remains determined to push its plans to hugely step up surveillance of the internet onto the nation's law books".

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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