Monday, 31 May 2010

Saying it with flowers: a recent European Court decision case on internet searches and trademark infringement

A recent case has gone some way to clarify the law on use of tradenames for internet searching. The case concerned Google Interflora and Marks and Spencer. Type in Interflora and a Google search and you will get Marks and Spencer Flowers as the second sponsored link on the screen

Whilst I'm not a techie I believed it has something to do with the keywords behind the M&S site which might include the word interflora or similar. Understandably Interflora were not very happy about this and there is ongoing litigation between the two companies of which a recent European judgement is a staging post if hardly the end of the line. Part of the fire was directed at Google itself and whether it was guilty of infringement of the Interflora trademark for allowing this to happen. Google escaped on this one as the court held that creating the conditions for third parties to use a trademark did not mean that Google itself was using the mark. However the court held that third party advertisers could be liable 'in the case where the ad does not enable the average internet user, or enables that user only with difficulty, to ascertain whether the goods and services referred to therein originate from the proprietor of the trademark or an undertaking economically connected with it or, on the contrary, originate from a third party'. Thus confusion in the mind of the internet user is key to whether the law has been broken. No decision was taken about whether M&S had created such confusion, hence the litigation will have to go to further rounds. M&S will no doubt say no because it is clearly demarcated as a separate company selling a common product namely flowers.
Google itself could also be held liable as accessory to trademark infringement if it was informed by an injured party of illegal activity by a third party and failed to act promptly by removing or disabling the offending data.
Incidentally, if you type M&S flowers into Google you will only get the M&S site. Testimony it seems to M&S commercial muscle or possibly the muscle of its legal team.

Saturday, 15 May 2010

Fair votes: on their way to UK?

When I started Legal Eagle, about 18 months ago, I said that it would be as much about the politics of law as practical legal topics. Nothing could be more the politics of law than political reform itself and this is the topic of the minute as the new Liberal-Conservative coalition has committed itself to a referendum on a variant of proportional representation, the Alternative Vote System. This is turn could lead to a major change in the law.

Jimmy Carr the comedian has apparently recently declared that the easiest way to explain proportional representation is to someone who’s interested and already understands it. It is indeed a difficult topic when studied in academic depth and it is now incumbent on politicians to simplify the key concepts and explain why implementation of them in a practical way would lead to a much fairer voting system.

Actually pure PR is quite easy to understand. It’s the variants which are a compromise with element of our existing First Past the Post system which are more difficult to grasp.

I am now going to give examples of what an election result would be per 100 votes cast for different candidates under 4 systems:

1. First Past the Post (FFTP) – which is what we currently use in the UK
2. Pure proportional representation (PR)
3. Alternative Vote System (AV) – which is the system which should now be going to referendum as part of the Liberal-Conservation coalition programme
4. Single Transferable Vote (STV) which is ideally favoured by the Liberal Democrats, and by the Electoral Reform Society

Suppose there were 100 votes given in a constituency and there were 10 constituencies and the outcome was as follows:

Tories 49
Liberal 32
Labour 19

1. Under FPTP, Tories would be elected. If this pattern was repeated in 10 seats, they would get 10 MPs (hence the need for tactical voting in our current system)
2. By contrast, under PP, if this pattern was repeated in the 10 seats, allowing for rounding up, Tories would get 5 MPs, Liberals 3 and Labour 2
3. Under AV, if no candidate gets over 50% (as in example) the votes of the lowest candidate are redistributed on second preferences. Thus in our example the Labour votes will be eliminated. Let us assume that the Labour voters all gave Liberal as second preference. The Labour votes would be added to Liberals which would give Liberals 51, and the Liberal candidate would be elected. If this pattern was repeated in the 10 seats, the Liberals would get 10 MPs
4. Under STV, there would be one constituency comprising the 10 seats. So assuming the voting pattern was repeated the outcome would be:
Tories 490
Liberals 320
Labour 190
To get elected for one seat in the first round, a party would have to pass a quota of 100 votes. So in this example, the Tories would get 4 seats, Libs 3 and Lab 1, with 2 seats spare. The spare votes would then be reallocated on second preferences. But none of these gives any party another seat as they have all give second preference to candidates in the same party list. So we have to go to third preferences. Here the candidate with the fewest votes, the third Liberal are eliminated and let us say the third choice is Labour so Labour gets 110 and gets the 9th seat, with rounding up from 90 to 100 giving the Tories the last seat. So Tories get 5 MPs, Libs 3 and Lab 2 (the same outcome as pure PR in this case).

So one election counted four different ways produces three different results. I believe STV is the fairest voting system but there is no perfect system.

For more information on voting reform look on the site of The Electoral Reform Society.

Friday, 7 May 2010

UK election 2010: polling irregularites

I did not expect to be returning from my recent stint as part of an election observer team in Sudan (see last blog entry) to find my services might have been put to use in the UK as well. But I was wrong.

Insufficient ballot papers for the voters, voters names not found on the electoral register, people unable to vote due to slow processing before ballot closure, inconsistent decisions on procedure by polling staff faced with difficulties : all these things happened in the UK election last night, variously in Sheffield, Leeds, Liverpool and London, being our major conurbations. And we did not even have the obvious remedy to hand which the Sudanese government used when faced with the same issues, namely extending the period of election (in their case from 3 to 5 days, but the country is 10 times our size, is predominately rural and has nothing like our infrastructure).

It does our country no good internationally that these irregularities and mistakes should have happened. After all, one of the exports we are most proud of is our British democracy. Now it seems we are losing our record there as, regrettably, we have done elsewhere.

The UK Electoral Commission on polling night put the difficulties down to having to apply procedures first set in the Victorian era to a substantially increased electorate. But this just won't wash. Whilst the turnout in Thursday's election was up on the previous one (something which should be of course applauded, not seen as a problem) it is still down on the 1950s when turnout was over 80%. It is quite depressing to think that local authorities, who are responsible for resourcing and conducting the ballots, should have based their resource calculations for ballot materials and staff on what they thought they could get away with based on more recent lower turnouts, rather than on what was required for a healthy democracy, but this is the conclusion one is drawn to, especially in a climate of budget cuts due to the recession and public deficits.

So what is the legal position when people have been unable to vote due to these problems?

The Parliamentary Election Rules are set out in Schedule 1 of the Representation of the People Act 1983. In particular:

1. The Returning Officer for a constituency must provide each polling station with such number of ballot papers as in his opinion may be necessary (reg 29(1)) (my emphasis). It does not appear that this rule was followed in all constituencies

2. The Returning Officer must appoint and pay such clerks to attend the polling station as may be necessary. Whilst it is not acceptable for loads of people to take a chance and pour out of the pub, for instance, and expect to be processed to vote 10 minutes before close of polling at 10.00, if, by contrast, there were queues at 9.00, which were not processed due to insufficient staff, then there may have been a breach of this rule too. I would agree however that this 10.00pm rule needs amending in part due to societal changes. People are having to work more shifts (at call centres etc) and longer hours generally, plus are living further away from their work meaning that it is more difficult to get in line to vote early enough to exercise it in the evening

3. It is correct however that only voters who already had ballot papers issued should be allowed still to vote after 10.00, although it seems that this rule was not applied consistently as in some areas people were still processed to vote after 10.00. This raises the prospect of a legal challenge on this issue too as public law should always be applied consistently.

4. The appointed Registration Officer is responsible for preparing the Electoral Register and if names were missed off this due to clerical error this could also be the subject of legal claim by a disappointed voter.

5. Many postal votes have also 'gone missing' which could certainly be the subject of a claim

What is the remedy for a citizen who is disenfranchised by one or more of the above events occurring? The general remedy is the issue of an election petition in the prescribed form under the Local Government Act 1972, which will be heard by a specialist court called the Election Court. The outcome could be that an election in a particular constituency is declared void. Such a legal action could of course be expensive and would require specialist advice before it was embarked upon. It would only be a likely course where the collective disenfranchisement of voters could have tipped the balance in a seat another way than the outcome declared on the night. Maybe voters in one of the conurbations will club together and issue a petition.

The European Convention provides the right to vote and therefore it might be possible to sue a local authority or the Electoral Commission, as supervisor, for damages for denial of a Human Right. Counsel has suggested that £750 would be payable per disenfranchised voter. Maybe a settlement 'out of court' might happen early on.

But they shouldn’t have to go to all that effort to get their basic democratic rights.

May 6th 2010 was not a great night in the history of British democracy whatever your political allegiance and whether you are satisfied with the ultimate outcome or not. We can only hope that big lessons have been learnt.

Anthony Wooding