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UK passengers concerned about European flights after 31 October 2019.

With the Brexit deadline of 31 October 2019 looming, many airline passengers that have booked flights to European destinations are concerned about flights scheduled after the deadline. Recent research by Which? Travel showed that “a third of flyers are worried that European flights could be disrupted once Britain leaves the EU”.

For the near future those passengers can have their fears alleviated. In place is EU Regulation 2019/502 that provides for common rules ensuring basic air connectivity with regards to Brexit, allowing UK planes to fly to European destinations. Article 16 4(b) of the Regulation extended the operation of this Regulation until 30 March 2020; recently the European Commission released a statement on 4 September 2019 extending the effect of the Regulation:

“Basic air connectivity (Regulation (EU) 2019/502): the Commission has today proposed to extend this Regulation until 24 October 2020, reflecting the logic and duration of the original Regulation.”

As such, UK-based airlines may continue to operate European flights until 24 October 2020.

Passengers will be reassured to know that they can continue to make travel arrangements for the future. However, what must be considered is that whilst the flights will continue to operate, there will be an increased scrutiny on passports for passengers travelling from the UK to an EU country. The increased scrutiny will require that passengers “have at least 6 months left on an adult or child passport to travel to most countries in Europe (not including Ireland).”

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Nearly 450 Drunk Airline passengers in 2 years

Police figures have shown that nearly 450 passengers have been arrested on suspicion of being drunk in the past 2 years. Freedom of information requests reveal that at least 245 people were arrested on suspicion of being drunk at a UK airport between 1 April 2017 and 31 March 2019.

Heathrow, the UK’s busiest airport, reported the highest number of arrests within that time period with 103 passengers, followed by Gatwick with 81, Glasgow with 47 and Liverpool with 40 arrests. Greater Manchester Police and 3 other forces did not provide figures within the time limit so the final figure is expected to be higher. The ages of those arrested range between 20-58.

The figures emerged after a woman was arrested at Southend Airport for attacking an easyJet crew member. A similar incident took place at Bristol Airport with a man arrested on suspicion of being drunk on an aircraft and sexually assaulting the female crew members.

Chief executive of trade body Airlines UK has described the arrest figures as “ridiculous’’ and has also requested for the introduction of new laws to reduce the number of passengers who drink too much before and during flights.

Ryanair, Europe’s biggest airline, support the proposed changes and stated that “We continue to call for significant changes to prohibit the sale of alcohol at airports, such as a two-drink limit per passenger and no alcohol sales before 10am.’’

The sale of alcohol once a passenger has gone through international airport security in England and Wales is not regulated by licensing laws. A Home Office consultation on whether legislation should be amended closed in February without a decision being announced.

Legislation is important for several reasons, including setting standards and controls to govern the actions of people and groups in the public and private spheres. However, with Parliament otherwise occupied, there seems no sign of any changes any time soon.

Lawfulness of bulk hacking powers under the Investigatory Powers Act 2016

This article was first published on Lexis®PSL Corporate Crime on 20 August 2019. Click for a free trial of Lexis®PSL.

Corporate Crime analysis: Adam Richardson, barrister at Whitestone Chambers, considers the most recent judicial review challenge brought by Liberty concerning the lawfulness of the bulk hacking powers under the Investigatory Powers Act 2016 (IPA 2016).

R (on the application of National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another (National Union of Journalists intervening) [2019] EWHC 2057 (Admin), [2019] All ER (D) 02 (Aug)

What are the practical implications of this case?

As the claimants effectively lost the case, the existing regime vis-a-vis IPA 2016 still stands—arguably even more firmly than before. As such, there will be no new practical implications to consider other than those already created by IPA 2016. The largest concern for lawyers has to be the effect on legal professional privilege (LPP). Ever since the Regulation of Investigatory Powers Act 2000 (RIPA 2000), there has been a question of a surveillance authority legally acquiring information that is the subject of LPP. This goes against years of convention protecting privilege, however RIPA 2000 remained silent on the topic. When IPA 2016 was first drafted, the Bar Council raised explicit concerns about the erosion of LPP through either a failure to distinguish between privileged and non-privileged communications (as a result of bulk hacking) or the power given to authorities to monitor ‘sensitive, highly confidential communications that have nothing to with criminality, national security or threats to individuals’.

The government listened and added a few additional safeguards for privileged information. A warrant would be required to be issued for the interception and review of information that is subject to LPP. The authority issuing the warrant must have regard to the ‘public interest in the confidentiality of items that are subject to legal privilege’. Further, IPA 2016 also requires public interest, necessity and prevention of death, or serious injury conditions to be satisfied before such a warrant can be issued.

Needless to say, this is a very high bar. There can be no getting around that as a result of bulk hacking, privileged information will be intercepted if only through inadvertence. Given the number of practical and operational issues raised by the claimant in the case, this should be concerning at best.

The claimants have made clear they intend to appeal this, and it may end up in the European Court of Human Rights (ECtHR) where there may well be a different view taken, so, until all appeals are exhausted on this matter, no position is settled.

What was the background?

The High Court’s judgment in Liberty, R (On the Application Of) v Secretary of State for the Home Department & Another is the second iteration of the issues raised on this claim. See R (on the application of the National Council for Civil Liberties (Liberty)) v Secretary of State for the Home Department and another [2018] EWHC 975 (Admin), [2018] 3 WLR 1435, , [2018] All ER (D) 129 (Apr), where the court gave judgment on the first part of the claimant’s challenge to IPA 2016. That challenge was brought under EU law. It only concerned IPA 2016, Pt 4 (regarding powers to require the retention of ‘communications data’), as this part had just been brought into force. The court found in that judgment that IPA 2016, Pt 4 was incompatible with human rights law and gave the government until 1 November 2018 to redraft it, which it duly did.

In the instant judgment, the court was concerned with the second part of the claimant’s challenge, which arises under the Human Rights Act 1998 (HRA 1998). This challenge concerns various other parts of IPA 2016, which have now been brought into force on various dates.

The claimant challenged four different sets of provisions in IPA 2016. What they all have in common is that they concern bulk powers, rather than powers which are directed at any particular individual who may be a potential subject of interest (sometimes called targeted surveillance). The relevant provisions are as follows:

IPA 2016, Pt 6, Ch 1—which relates to bulk interception warrants
IPA 2016, Pt 6, Ch 3, and IPA 2016, Pt 5—these concern warrants for bulk and thematic equipment interference. The claimant has described this in its submissions as ‘hacking’
IPA 2016, Pt 7, which relates to warrants for bulk personal datasets (BPD)
IPA 2016, Pt 6, Ch 2, and IPA 2016, Pt 3–4—respectively warrants for bulk acquisition of communications data and retention notices for, and acquisition of, communications data. Communications data is not the content of communications but other matters such as where, when and who

The only remedy which the claimant sought was a declaration of incompatibility under HRA 1998, s 4.

A very simplistic summary of the claimant’s case is that the minimum safeguards established by the ECHR for secret surveillance regime were not met. As not all human rights are absolute, certain breaches may only take place where they are in accordance with law or necessary for a democratic society. The claimant submitted the measures in IPA 2016 were neither necessary nor proportionate.

What did the court decide?

The court went to great pains in this judgment to be as comprehensive as possible. The judgment itself is almost 400 paragraphs long (excluding accompanying legislation) and gives an incredibly detailed overview of the law. While the claimant was able to bring to light shocking examples of government data use, including data being lost in ungoverned spaces without the necessary controls, among others, the court still found that IPA 2016 was not incompatible with HRA 1998. Among the extensive reasoning is that the mechanisms for oversight within the legislation itself, such as the establishment of the office of the Investigatory Powers Commissioner (to conduct independent oversight of spy agencies’ use of the powers), provide sufficient checks on the risk of abuse. The court dubbed the regime as ‘a suite of interlocking safeguards’.

The court spoke specifically of Parliament’s consideration for the fears about abuse expressed by the claimant but noted they chose to address those in IPA 2016 through those various interlocking safeguards mentioned.

Interviewed by Alex Heshmaty.

Pressure on BA after customer email mix up.

British Airways have been instructed to reimburse passengers who were mistakenly told in an email that their original journeys had been cancelled and that they should source alternative means of transport. The airline emailed passengers who were not affected in error telling them that their flights had been cancelled and “it is likely that you will not be able to travel.’’

A source from the Daily Mail further explained that the passengers were later angered even more after receiving another email saying that, their flights would proceed as planned. This however was too little too late as some passengers had already acted on the first email and had booked another flight.

The Civil Aviation Authority have expressed the fact that “Those affected should not be left out of pocket for any extra expenses such as accommodation, food and travel which incurred due to the error.’’ This is illustrated in the case of Alitalia Linee Aeree Italiane, S.p.A. v. Airline Tariff Publishing Company [1968] where the court rejected Alitalia’s negligence and gross negligence causes of action because all of the parties’ duties to each were set forth in their agreement, and ATPCO had no data input duties to the airline that were separate from those set forth in the agreement.

British Airways stated that they will reimburse passengers on a ‘‘case by case basis’’, many are not hopeful and fear that they will not be reimbursed. This incident could have ramifications for similar mistakes in the future.

The CAA added pressure on British Airways by saying that; ‘’Those consumers that took action should not be left out of pocket and any reasonable costs of re-booked flights should be claimed from the airline.’’

Guy Anker, deputy editor at consumer website Money Saving Expert said that ‘’What British Airways did was amateurish in the extreme. The CAA is absolutely correct that British Airways should return every single penny to anyone who unnecessarily booked alternative flights, transport and accommodation.’’

A spokesperson for British Airways said: “We are sorry for the frustration and inconvenience. As soon as we were issued with dates, we contacted airlines across the world to support with rebooking agreements. Our teams are providing customers whose flights have been cancelled with options.’

Plane damaged by bird strike may result in compensation to passengers

An Airbus 321 travelling from Russia to Crimea has crash-landed in a field as a result of damage caused by a flock of birds that were sucked into the plane’s engines. Although there were no deaths caused by the impact, some passengers experienced injuries, and all suffered significant delays. As a result of this the passengers may be able to make a claim under the Montreal Convention 1999 (the ‘Convention’) for a non-EU flight.

Article 19 of the Convention states that “the carrier is liable for damage occasioned in the carriage by air of passengers, baggage or cargo” however, the carrier will not be liable if “it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”

A bird strike is considered an extraordinary circumstance in EU law in relation to EU 261/2004 as per Marcela Pešková, Jirí Peška -v- Travel Service A.S. (C-315/15). Considering this judgment it would be unlikely that a view would be taken that the damage caused by a bird strike could be avoided or any further precautionary measures could be taken. As such, the passengers are unlikely to be able to recover for their delay.

Those injured may make a claim for compensation. Article 17 s(1) of the Convention states that “the carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft”. Any passengers who were onboard the aircraft at the time of the accident would therefore meet this requirement. Once a claim under this Article has been established Article 21 is considered.

Under Article 21 s(1) of the Convention, for damages arising under Article 17, the carrier may limit its liability to 100,000 Special Drawing Rights provided there was no negligence, wrongful act or omission of the carrier or its servants or agents; or if the damage was solely due to the negligence or other wrongful act or omission of a third party. At the time of publication of this article this would limit a carrier’s liability to around £113,000 per person in this event.

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Supreme Court rules that all courts and tribunals are subject to the open justice principle

The Supreme Court has ruled in the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] that all courts and tribunals that exercise the judicial power of the state are subject to the ‘open justice’ principle.

The principles of open justice are that the public can understand and scrutinise the court, thereby enabling the public to understand the issues and evidence that is provided by parties.

Civil proceedings have moved from being dominated by oral evidence to proceedings that generate a great deal of written evidence. As this movement has continued, questions have arisen as to how much of the written material placed before the court in a civil action should be accessible to those who are not parties to the proceedings and how this material should be made accessible to them. As most of the evidence is now reduced to writing and is not read out in court it is almost impossible to know what happens in court without access to the written material which, therefore, hinders open justice.

Lady Hale, delivering the Supreme Court’s judgment, said of access to court documents that “the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum…”

As per R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, the default position as to court documents is that “the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing.”

The court has the power to grant access to these documents, however the applicant does not have an automatic right to be granted access to them. The applicant must put forward a cogent case as to how access will advance the open justice principle following which the court will balance against the possible harm caused by disclosure, such as the release of confidential information.

Also to be considered are the proportional and practical aspects of granting a request. It is advisable that the application for the written material is to be submitted during the trial as the documents would be readily available at this point. After the trial has concluded the likelihood of a successful application diminishes with time as identifying and retrieving the documents becomes practically difficult as the court and parties may not have retained them and, as such, the effort required to reproduce them may not be proportional to the principle of open justice.

Increasing the scope of access beyond the default position in relation to court documents is therefore “the inherent jurisdiction in support of the open justice principle, not the Civil Procedure Rules, CPR rule 5.4C(2).” The aforementioned CPR subsection states that:

“A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.”

With reference to CPR 5.4C(2), “records of the court” is outlined in the judgment delivered by Lady Hale as meaning “documents and records which the court itself keeps for its own purposes” and is, therefore, distinct from the purposes for which non-parties may be given access to court documents.

Judgment may be viewed at: https://www.bailii.org/uk/cases/UKSC/2019/38.html

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British Airways data breach results in a potential fine of £183m.

British Airways (‘BA’) are facing a historic fine of £183m following a major data breach reported by the Information Commissioner’s Office (‘ICO’) on 6^th September 2018 in which hackers successfully stole customers’ personal data consisting of passenger login details, card details, addresses and travel booking information. The ICO had previously reported that the personal data of around 500,000 passengers was stolen from BA’s website and the mobile app in a different data breach which purportedly started in June 2018.

Following the entry into force of the General Data Protection Regulation (‘GDPR’) on 25^th May 2018, this is the first penalty for a personal data breach that has been made public and it demonstrates the serious nature of the approach undertaken by the ICO when personal data is not treated with the upmost care.

Although this constitutes a significant fine for BA, the ICO has the power to penalise a company for a serious data breach for the higher of either up to 4% or €20m of annual turnover, which could have resulted in a fine of around £460m.

To put the impact of the GDPR into context, some insight is provided by comparing this penalty to the one faced by Cambridge Analytica. Cambridge Analytica was fined £500,000 for a personal data breach that affected around 87 million users; the BA breach affected around 0.6% of the number of people affected by the Cambridge Analytica breach. However, at the time the fine facing Cambridge Analytica was governed by the Data Protection Act 1998, which set the maximum fine for a data breach at £500,000.

Elizabeth Denham, the Information Commissioner, said in relation to the BA data breach that “people’s personal data is just that – personal. When an organisation fails to protect it from loss, damage or theft it is more than an inconvenience. The law is clear, when you are entrusted with personal data you must look after it. Those that don’t will face scrutiny from my office to check they have taken appropriate steps to protect fundamental privacy rights.”

Following the issue of the notice, Willie Walsh, Chief Executive of IAG, stated that British Airways would be making representations to the ICO and that “we intend to take all appropriate steps to defend the airline’s position vigorously, including making any necessary appeals”.

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Heathrow’s third runway mass expansion

The potential knock-on effect for the rest of the UK’s airports if the plan for a 3rd runway at Heathrow gets the green light have been revealed and it does not look promising.

If Britain wants to meet its climate targets, then no further airport expansions will be possible until 2050. Given that carbon-neutral plane engines are still some way away from becoming the norm, further expansions seem impossible.

The Head of the committee on climate change, Lord Deben told Sky News “If Heathrow is built it has to be built within the envelope of emissions which we have allowed for aviation. It has knock-on effects. It means you can’t build similar things elsewhere in the country… It is for the government to decide what we as a nation put our priorities in. But it has to realise that it can’t move outside those parameters.”

In opposition to this view, Karen Dee, Chief Executive from the Airport Operators Association, also told Sky News that she was confident that as long as the industry kept pushing new technology to improve plane efficiency then she didn’t believe the aviation limits would prevent expansion of activity for other UK airports.

As well as the estimated 800 homes that will need to be destroyed to allow the new runway, it seems that the effect of the proposals will extend much further than the immediate vicinity and potentially impact upon the whole of the United Kingdom and the expansions plans of any airports therein.

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North Face – Red Faced Apology Over Wikipedia ‘Hack’

North Face has apologised for manipulating Wikipedia to boost its Google search results.

The well-known US clothing brand, which emerged from humble beginnings as a retailer of specialist climbing gear, came under sharp criticism when its new ad campaign video explaining what it had done, was shared online by Advertising Age.

In the campaign video, North face proudly announced how they had “hacked” the search rankings using Wikipedia pages and it cost “nothing”. Further boasting how they cleverly noticed; “before going on a trip, everyone does a google search” and “most of the time, the first image is from Wikipedia”, so they “did what no one has done before”.

They photographed models wearing their brand in more than 15 adventurous places, including Brazil’s Guarita State Park, as well as California’s Cabo peninsula and Scotland’s Cuillin mountains. Then in April, with hired help from a Brazilian subsidiary ad agency Leo Burnett Tailor Made, they simply switched the Wikipedia location images for their own branded images. “simple as that” according to the video..

The self-praising video was not well received and experienced a social media backlash whilst The Wikimedia Foundation, which set up and oversees the online encyclopaedia, called the campaign ‘unethically’ manipulating, adding, “what they did was akin to defacing public property,… commercial promotion goes directly against the policies, purpose and mission of Wikipedia to provide neutral, fact-based knowledge to the world.”

North Face was left red faced and duly issued the following apology via Twitter:

“We believe deeply in Wikipedia’s mission and apologise for engaging in activity inconsistent with those principles,”

But North Face didn’t stop there, announcing:

“Effective immediately, we have ended the campaign and moving forward, we’ll commit to ensuring that our teams and vendors are better trained on site policies.”

Leo Taylor Burnett were also suitably humbled by the online condemnation and stated:

“Leo Burnett Tailor Made found a unique way to contribute photography of adventure destinations to their respective Wikipedia articles while achieving the goal of elevating those images in search rankings. We’re always looking for creative ways to meet consumers where they are. We’ve since learned that this effort worked counter to Wikipedia’s community guidelines. Understanding the issue, we ended the campaign. Our team has further accepted an invitation by Wikipedia to learn more about the platform and their work to share unbiased, fact-based knowledge. We look forward to working with Wikipedia to engage with them, and with respect to their network of volunteer editors, better in the future.”

You might be forgiven for thinking that this concluded the saga; social media does have a social conscience, and North Face may just have paid a heavy price after all, having to suffer the financial loss of production costs, agency costs and cost to their reputation. However, a cynic may suggest that the publicity caused by such stunts, the ensuing controversy and attention around it can be part of the overall campaign goal and brand marketing strategy.

So maybe that was the plan all along Now we are all very much more aware, more than ever, of North Face and of course (if you didn’t know them before, you do now), the ad agency Leo Burnett Tailor Made.

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Does Social Media = Jail Time?

Fraudulent litigants be warned!

Have you been entirely truthful? If not, you may fall foul to your own Social Media history!

The recent Court of Appeal judgment in Zurich Insurance PLC v David Romaine, [2019] EWCA Civ 851 (CA), makes it clear that committal proceedings can be brought against a litigant whose Social Media activity, in this case a Facebook account, reveals dishonesty.

The claimant issued personal injury proceedings against his former employer for noise induced hearing loss relying on a medical report which stated that he; ‘had not had any noisy hobbies’. The appellant solicitors commissioned an ‘intelligence report’, in which the claimants Social Media history was inspected, revealing that he was a motorbike enthusiast and performed in a live rock band. This was served. Tactically, the claimant discontinued his claim and the appellant issued committal proceedings. At first instance Goose J found that despite a contempt, it was not in the public interest for proceedings to be brought in circumstances of discontinuance at an early stage and dismissed the appellant’s application. The matter went on appeal, consequently the Court of Appeal granted permission for committal proceedings to be brought.

LJ Haddon-Cave stated; “a message needs to go out to those who might be tempted to bring – or lend their names to – fraudulent claims: that dishonest claimants cannot avoid being liable to committal proceedings merely by discontinuing their original fraudulent claim”.

It is now clearer than ever that:
• Electronic evidence is and will become vital in cases, to establish the merit of a litigant’s case. The inspection of such, ought to be an additional step for legal professionals and will become key part of the preparation process for litigation.

• Over the past decade Social Media has changed how we communicate and share information about ourselves and our lives. It is a treasure trove of evidence in the public domain. This is easily accessible and not exempt from the eye of the law. Any assertion in evidence and conduct of parties, can be proven or unproven by gathering evidence from Social Media platforms to form an ‘intelligence report’, which in light of this recent judgment, will most likely become commonplace.

• Discontinuance under part 38, cannot be used by a claimant as a tactic to ‘wind up’ a claim, without adverse repercussions, in circumstances where there is clear evidence of untruths, particularly, from social media posts and in response to part 18 questions or in their witness statements.

• Committal proceedings should be considered in cases of fraudulent conduct.

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