Follow us @LawUpdatesUK

 Law Updates now has twitter – please follow us! @LawUpdatesUK





The Argument: Kent Law Schools new critical student forum

Kent Law School students at the University of Kent have successfully collaborated across campus between Medway and Canterbury to produce a pioneering new student forum for the University.

The new student forum, named the ‘The Argument’ is aimed at reflecting the critical legal focus that Kent Law School fosters on its programmes of study, representing the main alternative to the strict black letter law education. Subsequently, The Argument student forum (or some may say ‘student legal journal’) enables Kent Law School students to use the forum as a platform to provide reflective and critical legal articles. The first issue is now available online and features an exclusive interview with Carl Lygo, Chairman and Principle at BPP Law School.

The founder and Senior Editor of The Argument is Walker Syachalinga who is currently in his second year of studying Law (LLB) at the University. Law Updates has managed to obtain an exclusive interview with Walker Syachalinga about growing success of The Argument.

Walker played the down The Argument as strictly a legal journal, submitting that The Argument is “strictly speaking a law student forum”. Even as a law student forum, I believe The Argument offers a firm critical review of the law that is in keeping with traditions of Kent Law School.

Law Updates asked Walker what compelled the students behind The Argument to create this forum?

“The idea was to provide a medium through which law students could argue and challenge each others’ ideas of the law. The inspiration was the fact that learning law appeared so contrived that it was difficult to successfully question it at undergraduate level. A publication which was not controlled by the law school faculty appeared to be the best way of challenging the learning that the law school provided and also questioning each others’ opinions.”

How do you see The Argument progressing in the future? Will it still be around in years to come, even after you leave Kent? If so, will The Argument feature as a regular publication?

“I hope The Argument will become a permanent feature of the University of Kent. It is difficult to predict its progress because whether or not it succeeds depends on how willing students will be to support it. It is easy to find readers and sponsors but quite difficult to find writers and editors. I hope students will look at the benefits of having such a publication and take it forward with that in mind. We hope to publish one issue per term to start with. This is in order to avoid potential clashes with assessment deadlines and exams.”

What was the difficult part in creating The Argument?

“The most difficult part was coming up with equal input and an efficient team from both the Canterbury and Medway campuses. We had to ensure that both campuses contributed equally. The other difficult part was editing the articles without significantly altering the authors arguments”

How do you feel about the wide range of compliments The Argument has received?

“It has been encouraging to receive the compliments but even more challenging when you realise that people are expecting the same standard or even better next time. There is a developing standard of legal education at Kent and inadvertently or not, we as editors of The Argument have become part of this. In addition to this our exposure to institutions such as BPP, the Crown Prosecution Service and law professionals including judges and barristers means that we do not have the luxury of busking in compliments. A one off publication will be an embarrassing situation to put ourselves in just as a poor second issue will bring about some criticism. In conclusion, we are proud of how far we have come but equally challenged by how far we have to go”.

Walker Syachalinga clearly is focused on the task ahead of him and it appears he will be the key driving force behind the future success of The Argument. Law Updates will aim to keep you up-to-speed with any new publications that The Argument has to offer.

Issue 1 features articles by: Ben Slight (LLM: Medical Law and Ethics), Claire Hunt (final year, Law and Criminology BA), Madelaine Power (final year, Law LLB), Walker Syachalinga (second year, Law LLB – Medway Law Clinic Chair 2008-09), Marta Smorlarz (final year, European Legal Studies LLB), Amie Mackay (final year, Law LLB), Daniel Cooper (second year, Law LLB), Joanne Wilson (second year, Law LLB), Mohammed Asif Mahi (final year, Law LLB), Mohammed Ali Askari (first year, Law LLB), Hannah Jeffreys (final year, Law LLB), Katarzyna Burdzy (Canterbury Law Clinic Chair 2008-09), Jimmy Kapches (second year, Law LLB) and James McDonald (final year, Law LLB).


Photo: The Argument – Issue One

Google Street View car spotted surveying Sittingbourne

Update 23rd June 2009: Google Street View car spotted surveying Sittingbourne again. This time I spotted the car driving from Park Avenue across the mini roundabout and going onto Bell Road. With a sense of déjà vu I spotted the car on a Wednesday, 17th June 2009 – at 2.20pm. I would like to hear from anyone else who can confirm the whereabouts of my siting – as I could only catch a brief glimpse since I was a number of cars behind on approach to the roundabout.

Original article- 13th May 2009: LawUpdates co-editor Robert Hougham has today (Wednesday, 13th May 2009) spotted the Google Street View car surveying Sittingbourne, Kent, whilst driving along Homewood Avenue at 2.20pm. The Google Street View car appeared to have just surveyed College Road and was pulling out of the junction to go onto Homewood Avenue. The car was a standard black ‘mark 5? Vauxhall Astra featuring a small white ‘Google’ logo on the drivers door. Clearly what stood out was the not so standard, large stalks mounted on the roof to support the camera. Recent reports from America have documented the Street View camera even hitting a low bridge.

Whilst Robert Hougham feels extremely fortunate to have the chance to spot the car that has been subject to the privacy spotlight. LawUpdates would like to hear views from others that who may also have seen the car in recent weeks and how they feel about having their homes surveyed for public view. If anyone manages to capture a photo of the car surveying Sittingbourne area in the next few weeks, please send it to us at LawUpdates to feature. You can now follow LawUpdates on twitter.

Compulsory retirement age compatible with EU law

Update 9 March 2009: It was expected that the European Court of Justice would follow the opinion of the Advocate General. Indeed they have, ruling that a compulsory retirement age of 65 is capable of being justified as being a ‘proportionate means of achieving a legitimate aim’ and so therefore is not age discrimination.

The case will now have to go back to the High Court, where the Government will need to justify a legitimate aim linked to social or employment policy.

The Times
legal editor, Frances Gibb, notes that “the ruling will disappoint those approaching 65 but hoping to avoid retirement because the recession has devalued their pensions”.

Original article: 24 September 2008:

UK laws on compulsory retirement age are compatible with EU equality requirements. In a major setback for the 260 cases waiting at an employment tribunal on the issue of unfair treatment due to being forced to retire at 65 and without compensation, Advocate-General Jan Marzak declared that discrimination on grounds of age can be “justified in the context of national law by a legitimate aim relating to employment policy and the labour market”.

Heyday, part of Age Concern and the campaigners responsible for bringing the case to Europe, claimed that “denying people work because of their date of birth is grossly unfair, and in these tough times we expect more people will need to carry on working into ‘retirement’ in order to make ends meet”.

Although the view of the Attorney-General is not binding, it is usually followed by the European judges who are expected to decide on the case before Christmas.

The decision may not be such a setback for older workers however, as the government have announced that they will be reviewing the effectiveness of retirement age in 2011 and that its long-term aim is to move away from a compulsory retirement age.

Frances Gibb, writing in the Times, recognizes that a victory for Age Concern (now unlikely) “could lead to a far-reaching change in domestic employment law, and a flood of compensation actions in addition to the 260 now pending”.

Sources: Times Online, BBC News
Photo: Peter Hamza

Criminal offence to take photographs of police officers

Anyone taking a photograph of a police officer is in danger of being arrested on the account of committing an offence under section 76 of the Counter Terrorism Act 2008 which provides:

A person commits an offence who— (a) elicits or attempts to elicit information about an individual who is or has been— (i) a member of Her Majesty’s forces, (ii) a member of any of the intelligence services, or (iii) a constable, which is of a kind likely to be useful to a person committing or preparing an act of terrorism

The offender could face a fine or even imprisonment if a link to terrorism is proved.

The result is that amateur and professional photographers could be asked to explain why they are taking photographs, if the circumstances are deemed suspicious.

Some are worried that the legislation could have a negative impact on the freedom of photographers and increase the harassment they already face. John Toner, of the National Union of Journalists told BBC News: “Police officers are in news pictures at all sorts of events – football matches, carnivals, state processions… taking their pictures is not the act of a criminal.” The NUJ are staging a protest today, involving a mass photographing session outside New Scotland Yard.

Number 10 have issued a statement stressing that it would be an ‘operational matter for the police officer concerned as to what action should be taken’. It is this discretion that is a further concern of the legislation with fears that junior officers will use the section to overcome difficult situations, but where there is no direct link to terrorism.

Sources: BBC News, Guardian
Photo: nickwinch

The high price for consumers – how copyright extension in sound recordings works

The European Parliament’s Legal Affairs Committee has voted in favour of an amendment to almost double the duration of copyright protection in sound recordings from 50 to 95 years (the announcement was made in the European Parliament’s press release). The plenary vote of the European Parliament is due to take place on 24-26th March 2009. You can petition your Member of European Parliament (MEP) by finding them on the UK office of the European Parliament or find your European Parliament MEPs

For further information and reports on the subsistence copyright in sound recordings please visit

Video: Produced by the Open Rights Group.

Europe backs 95 year music copyright

The copyright duration for sound recordings is set to increase after the Legal Affairs committee of the European Parliament backed an extension to the current 50 year protection, proposing an almost double protection term of 95 years.

Currently, song writers and their estate benefit from royalties for their lifetime plus 70 years. However, sound recordings from performers such as Cliff Richard and the Beatles who relied on song writers for some of their hits, are on the verge of dropping out of copyright.

The British parliament has previously disagreed with extending the duration of copyright, based on a 2006 review by Alan Gowers. However, the current culture secretary Andy Burnham, is in support for extension saying that “there is a moral case for performers benefiting from their work throughout their entire lifetime. An extension to match more closely a performer’s expected lifetime, perhaps something like 70 years”

There is expected to be some debate as to the final duration agreed before it becomes law, with the UK and other EU member states proposing a term of 70 years.

A number of musicians and societies have campaigned for an increase in the duration of copyright term. The Robert Farnon society submits that extending the term to 95 years would achieve parity with other countries such as the USA and would mean that composers and performers would have deserved equal protection with the performance itself being a ‘work of art’. It is also argued that extension would increase the supply of new music, benefiting consumers.

Alan Story, senior lecturer in Intellectual Property law at the University of Kent and Chairperson of the CopySouth Research Group, commented on the proposed extension: “Europe should follow the example of the United States and give proper names to bills that such create statutory changes. In the US, the term of copyright was extended in the late 1990s by the ‘Sonny Bono Copyright Term Extension Act’. Why doesn’t the European Parliament call its own term extension in sound recordings the ‘Bertelsmann Bonus Bill’…and then we would finally have a bit of truth telling as to who this new proposed legislation seeks to benefit”.

Alan went on to submit that, “bankers are getting bonuses, why not us too?, the multinational music companies are demanding.”

Sources: Times Online, Robert Farnon Society

Photo: Ratnesh

Promotional items not ‘genuine use’ of trade marks

The European Court of Justice has ruled that a trade mark used in relation to free promotion items does not constitute genuine use. Under Article 12 of the Trade mark directive a trade mark is lost if it is not used genuinely for five years.

Silberquelle v Maselli was a preliminary ruling case on the interpretation of the Directive. Silberquelle had brought an action against Maselli for the partial revocation, for lack of genuine use, of a Maselli trade mark. Maselli, a clothing manufacturer and retailer owned the word mark ‘WELLNESS’ which it had used on gift bottles handed out with sales of clothing. Silberquelle, an alchol-free drinks retailer, had applied for cancellation of the mark on the grounds of non-use.

The ECJ noted that “the protection that the mark confers and the consequences of registering it in terms of enforceability vis-à-vis third parties cannot continue to operate if the mark loses its commercial raison d’être, which is to create or preserve an outlet for the goods or services that bear the sign of which it is composed, as distinct from the goods or services of other undertakings.”

“It is essential, in the light of the number of marks that are registered and the conflicts that are likely to arise between them, to maintain the rights conferred by a mark for a given class of goods or services only where that mark has been used on the market for goods or services belonging to that class.”

“That condition is not fulfilled where promotional items are handed out as a reward for the purchase of other goods and to encourage the sale of the latter.” The ECJ continued: “In such a situation, those items are not at all distributed with the aim of penetrating the market for goods in the same class. Under those circumstances, affixing the mark to those items does not contribute to creating an outlet for those items or to distinguishing, in the interest of the customer, those items from the goods of other undertakings.”

The court summarised that “where the proprietor of a mark affixes that mark to items that it gives, free of charge, to purchasers of its goods, it does not make genuine use of that mark in respect of the class covering those items.”

For a more critical review of the case read Jeremy Phillip’s article “WELLNESS? You can’t even give it away …

Photo: mzacha

Sharon Osbourne wins libel action

Sharon Osbourne has today accepted substantial (undisclosed) damages and costs from the News Group Newspapers Limited, publishers of the Sun newspaper for its defamatory article published on the 1st October 2007. In addition, the Sun newspaper has agreed to publish an apology and a statement in open court has been read out. A statement in open court allows the media to report the contents of that statement without the risk of defamation actions since they are privileged by law, so long as they are accurate and fair reports.

In the article published by the Sun, it wrongly alleged that Sharon Osbourne was “driving her frail husband Ozzy Osbourne to destruction” by forcing him to perform at a series of live shows. The defendant (News Group Newspapers Limited) agreed never to republish the allegations and apologised for embarrassment or distress it caused.

The claimant Sharon Osborne was represented by the solicitors Schillings and the defendant News Group Newspapers Limited by Farrer & Co. The open court statement was signed by solicitors for both parties.

The full text PDF statement to open court of Sharon Osbourne v News Group Newspapers Ltd can currently be downloaded from Schillings solicitors.

Photo: Devin Wright (U.S. federal government)

The newspaper diaries that were strictly not Elton John’s

This is the recent case of Elton John’s spoof diaries written by Marina Hyde. In Elton John v Guardian News & Media Ltd [2008] the High Court heard the claimants (in this case Elton John) submission that the use of innuendo in the spoof diary would have been understood to mean that Elton John had been insincere, dishonest or false in relation his fund raising activities associated with White Tie & Tiara Ball and his long standing commitment to the Elton John Aids Foundation (EJAF). In addition, a claim for aggravated damages was pleaded further to the claim for malice. These claims may have arose from the fact that this was a ‘spoof diary’ and inevitable use of material exaggerated for comicalexpression along side the use of actual fact on the part of Marian Hyde when writing the the diary.

Mr William McCormick (Carter Ruck) for the claimant submitted the judgment of Millet LJ in Berkoff v Burchill that “The question, however, is how the words would be understood, not how they were meant, and that is pre-eminently for the jury”.
Justice Tugendhat undertook the critical and highly beneficial approach to the media defendant of examining the newspaper as a whole. Noting that the newspaper is split into various supplements such as Fashion, Food & Drink, Features. In particular the spoof diary of Elton John appeared under the the “Weekend” section, thus Justice Tugendhat took the common sense approach of respecting that different styles of speech and the extent of its factual basis with be dependant on what area of the newspaper supplement the complained of article appears. Thus, it was held that the Guardians Weekend section is not the news section of the paper.
Justice Tugendhat accepted the submissions of Mr Millar (for the defence) that it could not be understood by a reasonable reader of The Guardian Weekend supplement that the ‘spoof diaries’ contained such a serious allegation. Rather such factual statements would be adept in more factual parts of the newspaper.
Thus, the Guardians ‘victory’ was much to the satisfaction of Marina Hyde who argued that “We British have a rich tradition of irony and satire but there is very little case law protecting [it]” and the Guardians readers would clearly have read the diary as obvious teasing.
The ability of the media to make parodies, irony and satire has regularly been ignored by legislature in terms of both libel and copyright law. The social benefits of these forms of entertainment has long felt the hand of those who wish to protect copyright and libel defendants. Perhaps Elton John v Guardian News & Media Ltd [2008] is a step towards a more open and free speech parody defence that exists in the USA.

Decide for yourself, read a small extract of Elton Johns spoof diary written by Marina Hyde.