Articles by Paul Herbert

Privacy concerns in a digital age: the Facebook-Cambridge Analytica scandal

In a global age of technology, we are using more online platforms to assist with many aspects of our everyday lives, whether for ordering our weekly grocery shop online, or taking advantage of social media to interact and share our lives with other online users. We are, as a result, placing a greater reliance on […]

The Audiovisual Media Services Directive – a “potential loophole” exposed by a recent decision of the European Court of Justice (Peugeot Deutschland GmbH v Deutsche Umwelthilfe sV Case C-132/17)

In the recent case of Peugeot Deutschland GmbH v Deutsche Umwelthilfe, the European Court of Justice gave a preliminary ruling concerning the interpretation and scope of the Audiovisual Media Services Directive (2010/13/EU) (“the Directive”). This decision exposes a potentially significant loophole in the Directive, namely the exclusion of self-promotional channels on You-Tube: they are neither […]

Implications of Brexit on the UK’s AV Sector

Whilst there is a large amount of uncertainty surrounding Brexit, it is possible to look at some of the more obvious implications of Brexit for the Audiovisual (“AV”) sector. We also look at current EU developments which are to be implemented in the near future and which we may therefore by missing out on. What […]

The dangers of informality in contractual dealings

An essential element of contract formation is that the contracting parties make an agreement with the unequivocal intention to create a legally binding arrangement as opposed to a frivolous promise that is not intended to be kept. But just how interpretive can the actions of parties be when it comes to determining exactly what they […]

Non-Variation Clauses: actions speak louder than words

Non-variation clauses are an evergreen boilerplate provision found in commercial contracts. They typically provide that a binding variation of a contract is generally limited to certain prescribed circumstances, most likely for the variation to be formalised in a written instrument and signed by the contracting parties. Most understand this to be the final word on […]

Contra proferentem: when to exclude an exclusion cause

The contra proferentem rule broadly states that where there is doubt about the meaning of a contract, the words will be construed against the party who put them forward. This is because a party who imposes terms on another must make those terms clear and should suffer the consequences if it fails to do so. […]

Driverless cars: the legal issues

The UK Government is committed to becoming a world leader in the development of automated vehicles. However, the lack of a legal framework which is able to sufficiently address issues associated with the use of this technology continues to be both a cause of concern and interest. Here’s a brief heads up as to some […]

Draft e-Privacy Regulation published by EU Commission

On 10 January 2017, the European Commission presented its formal proposals for a new ePrivacy Regulation. These represent an overhaul of privacy rules relating to direct marketing, cookies and similar technologies, and other forms of online monitoring. The Commission’s aim is to have the new Regulation adopted by 25 May 2018. Accordingly, unless the UK […]

EC Proposals for a directive on copyright in the digital single market

  Implications for book publishers Context “The evolution of digital technologies has changed the way works… are created, produced, distributed and exploited… even though the objectives and principles laid down by the EU Copyright framework remain sound there is a need to adapt it to these new realities…”.  This is how the EC set the […]

Guide to the General Data Protection Regulation (GDPR)

The General Data Protection Regulation (GDPR) represents the new legal framework of data protection law across the EU and is due to come into force on the 25 May 2018. The GDPR will supersede the Data Protection Directive (DPD), which has governed EU data protection law for over 20 years since its introduction in 1995. […]

High Court rules member’s profit share can be subject to forfeiture (Hosking v Marathon Asset Management LLP [2016] EWHR 2418 (Ch))

The High Court has ruled that a profit share payable to a member of an LLP was capable of being subject to forfeiture where the member was found to have breached his fiduciary duties to the LLP. Facts The Claimant, Jeremy Hosking, was a founding member of the Respondent, Marathon Asset Management (the “LLP”), and […]

Karen Millen loses name game, again.

Karen Millen has lost yet another legal battle, in this case to use her own name on clothing and household goods in China and the US. In Karen Denise Millen v Karen Millen Fashions Limited and Others[1], the judge found that the use of Millen’s first name in connection with clothing and accessories would breach […]

High Court rules software = goods in commercial agency relationship

The question of whether software constitutes goods or services has always been problematic.  The answer can determine if and when certain terms are implied into a commercial contract, which in turn may have significant financial consequences for the losing party in a dispute. This was illustrated most recently in the High Court case of The […]

Brexit – An impact analysis for businesses

Timescale If Article 50 is invoked, the UK will have a 2 year window to negotiate terms of its departure from the EU. This can only be extended with the unanimous consent of all Member States. There are various schools of thought on whether Article 50 notification can be withdrawn unilaterally.  One school of thought […]

BBC Independence; a contradiction in terms?

The much anticipated BBC White Paper, published this month, heralds fundamental changes. On the basis that almost £5 billion of our annual revenue (including £3.7 billion from the licence fee) goes into funding the BBC’s activities, transparency over its decision-making is clearly vital. On the other hand, over-interference may damage the BBC’s commercial competitiveness and […]

Data protection: EU-US Privacy Shield update

Background This article provides an update on the new EU-US Privacy Shield agreement (click here for our earlier piece on this subject) as well as a summary of the EU General Data Protection Regulation. To recap, in October 2015 the Court of Justice of the European Union (“CJEU”) declared the EU-US Safe Harbour agreement invalid. […]

Getting the message out – political broadcasting in the UK

This is an extract of an interview given by Paul Herbert, Partner at Goodman Derrick to Giverny Tattersfield for a Lexis Nexis publication. What are the rules around political broadcasting? There is a long-standing ban on advertisements of a political nature on television or radio in the UK on the grounds that allowing political advertising in […]

Digital Single Market Strategy

In May 2015, the EU Commission announced its Digital Single Market Strategy for Europe, highlighting a number of initiatives which supported the Commission’s aim to create a connected digital single market and to encourage e-commerce throughout the EU. The EU Commission also announced that it was to investigate the restrictions that prevent the cross border […]

Legal Update: Vidal-Hall and Others v Google Inc

Last month, the Court of Appeal handed down judgment in Vidal-Hall and Others v Google. The appeal was only on preliminary issues and it looks like there will be a subsequent appeal before the substantive matter reaches trial. However, this decision is likely to have a far-reaching impact on UK data protection and privacy law. […]

Privatise BBC Three? – I don’t believe it

This article was first published on Lexis®PSL IP & IT on 28 January 2015. Could private bidders buy a chunk of the BBC and stop BBC Three from becoming an internet-only channel? Paul Herbert, head of media, technology and communications at Goodman Derrick LLP, considers the challenges the bidders are likely to face. Background In […]

Intellectual Property Act 2014: A Summary of the Key Provisions

The Intellectual Property Act 2014 (IPA 2014) came into force on 1 October 2014. It aims to modernise copyright law and help designers and patent-holders protect their IP. It is hoped that the changes will support business innovation and bring clarity to the scope of protection afforded by design rights. Many of the changes will […]

US Supreme Court rules in Aereo TV Copyright Case

US broadcasters have won an important battle in their efforts to prevent an unlicensed service from providing online real-time streaming of their broadcasts. The Facts On 25 June 2014, the US Supreme Court delivered a pivotal judgment in American Broadcasting Companies v Aereo, tackling the question as to whether or not Aereo, a technology company […]

Copyright: Hyperlinking And The Right Of Communication To The Public

Svensson and others v Retriever Sverige AB Overview Linking is the practice of posting clickable links on the internet which lead to content posted elsewhere. Under s20 of the Copyright, Designs and Patents Act 1988 (“CDPA”), it is prohibited to communicate to the public by electronic transmission the whole or a substantial part of a […]

Consumer Protection Strengthened Against Misleading or Aggressive Trading Practices

On 06 August 2013 the Department for Business, Innovation and Skills (BIS) published the Draft Consumer Protection from Unfair Trading (Amendment) Regulations 2013 (the “Draft Regulations”) for scrutiny. According to BIS, unfair consumer practices incur a cost to the economy of around £3.3 billion a year and 60% of the population has fallen victim to […]

Flower Power: High Court Rules that Marks & Spencer did Infringe Interflora’s Trade Mark

The High Court has handed down judgment in the long-running case of Interflora Inc v Marks and Spencer plc [2013] EWHC 1291 (Ch), May 2013. The case concerned the unauthorised use of third-party trade marks as advertising keywords through Google’s AdWords service.

Press Regulation and Exemplary Damages

On 17 March, the three main political parties struck an eleventh hour deal on a new regulatory regime for the press. The agreement, made in the wake of the Leveson Report, will establish a regulator with new powers. We outline exactly what has been agreed and how this will affect news publishers. Then we consider one of the more controversial aspects of the deal concerning exemplary damages, and the likelihood of success of a press challenge based on Human Rights legislation.

Hargreaves: Changes to Protection of Copyright Protected Works

On 20 December 2012 the Government published its final response to the Copyright Consultation following the recommendations made in the Hargreaves Review. What changes can we expect and what has been the reaction to the proposals?

Ofcom decision on Fit and Proper Assessment of Sky

An analysis of Ofcom’s recently published decision that Sky remains a fit and proper person to hold a broadcasting licence.