"Wet fish" spamming

Phishing spam is a bane of modern life, but occassionally the phishing attempt is so bad that it can actually amuse (for a couple of seconds).  Here is perhaps the lamest attempt we have ever seen.

Telecommunications Law and Regulation

A plug for the Third Edition of Telecommunications Law and Regulation.  Our contribution is limited to one chapter, which we hope you’ll find useful as an introduction into telecommunications technology for non-techies.  (£95.00 from all good bookshops ISBN 978-0-19-955935-0).

There’s lots of other stuff, too.  OUP states that “This new edition:
• Provides practitioners with an extremely thorough and up-to-date survey of the law and regulatory structures related to telecommunications
• Contains discussion of topical issues such as communication privacy in the context of “the war of terrorism”, and the exploitation of the “digital dividend”
• Covers UK, EU, US and other international systems, and
offers a comparative and rounded overview of the global telecommunications industry and its regulation.”

Don't bet your house on it

Avoiding negative equity or a slow-moving residential property market is proving to be a challenge for many homeowners wishing to sell.  One creative solution appears to be the use of competitions, lotteries or raffles, where the prize is the house.  In fact, there are reports of some going further, putting up cars, yachts, planes or helicopters as well as houses.

Sadly, in many cases these are all illegal.  Under the Gambling Act 2005 only licensed operators can conduct lotteries.  Prize competitions are lawful as these are not subject to the Gambling Act 2005 or the regulation of the Gambling Commission.  However, to be a prize competition outside of the scope of the Act it must not be a competition where the winner is chosen by a method relying wholly on chance.  In the words of the Gambling Act 2005:

“A process which requires persons to exercise skill or judgment or to display knowledge shall be treated for the purposes of this section as relying wholly on chance if— (a) the requirement cannot reasonably be expected to prevent a significant proportion of persons who participate in the arrangement of which the process forms part from receiving a prize, and (b) the requirement cannot reasonably be expected to prevent a significant proportion of persons who wish to participate in that arrangement from doing so. (section 14(5))

If a competition does not pass this skill, judgement or knowledge test, it is a lottery.  The Gambling Commission has published guidance in Prize competitions free draw: the requirements of the Gambling Act 2005.  However, this is not very helpful, as there is little case law to determine where the courts draw the line in deciding whether a competition requires an appropriate level of skill and judgement. This has led to a proliferation of “spot the ball” type competitions and other fairly lame ruses to introduce a skill and judgement test.

The Gambling Commission reports in its advice note Prize competitions and free draw: house competitions (May 2009) that the majority of organisers of house competitions it has contacted “have had significant difficulty in satisfying themselves that their house competition is legal.” If you really want to put your house up for a prize, get some proper legal advice.

Commercial Law Handbook

After quite a bit of effort, our Commercial Law Handbook has now been published by The Law Society.  We’ve tried to provide a clear and practical approach to commercial law in 336 pages (£79.95 from all good bookshops ISBN 978 1 85328 723 7).

It has chapters on drafting commercial contracts, competition law and commercial dispute resolution as well as chapters dealing with specific types of general commercial agreements (services, sale and supply of goods, distribution, agency, licensing and franchise, joint ventures).

Are bank charges fair?

This is the question the Office of Fair Trading (OFT) would like to ask, particularly in relation to unauthorised overdraft fees and associated charges imposed by leading banks on personal current accounts.   The OFT has jurisdiction to enforce the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCRs).  In a test case brought in July 2007 against a number of banks and one building society, the OFT sought a court declaration that it had jurisdiction under the UTCCRs to review the relevant bank charges. In both the High Court and Court of Appeal it was ruled that the OFT had the necessary jurisdiction.

The dispute concerns whether the unauthorised overdraft facilities and services provided by a bank are proper services for which the fees and charges are payment, or whether the fees and charges are punitive in nature and potentially unfair.

A great deal of the legal arguments surround the interpretation of Regulation 6(2) of the UTCCRs, which reads:

(2) In so far as it is in plain intelligible language, the assessment of fairness of a term shall not relate-
(a) to the definition of the main subject matter of the contract, or
(b) to the adequacy of the price or remuneration, as against the goods or services supplied in exchange.

The legal arguments are complex, requiring the courts to review the European Union directive that gave rise to the UTCCRs, including the directive’s drafts and associated opinions circulating between the European Union institutions before it was made (the so called “travaux préparatoires”). It is therefore no surprise that the case has now reached the House of Lords, who began hearing the arguments today.