Data Protection Act 1998 and Freedom of Information Act 2000 - Report Example

Law for business Product: Computers Limitation of Liability Clause Neither partys liability to the other arising out of or related to this agreement will exceed the total cost of the product. Liabilities limited by the preceding sentence include, without limitations, or liability for negligence. 2. In no event will either party be liable to the other for any consequential, indirect, special, incidental or punitive damages, regardless of the form of action, whether in an agreement, tort, strict product liability or otherwise, even if advised of the possibility of such damages and even if the damages were foreseeable. The customer bought an action against the manufacturer on the basis that there had been a fault in the hardware of the computers. The fault meant that the computer could not be repaired in time and this resulted in considerable loss to the customer, as its business had to meet a crucial deadline. The customer claimed that there had been a breach of contract because the computers were not of satisfactory quality which is an implied term in the contract and moved on to say that there had been negligence on part of the manufacturer as he had made defective products and thus they wanted the cost of the computers as well as the lost profits. The legal basis of the claim would thus be for breach of an implied term and if there are any express terms as to the quality of the products and negligence on the part of the manufacturer in making the product. Finally if the computer would have caused any other damage, there might have been liability under product liability. The manufacturer has limited his liability in the first clause only to the total cost of the computer and so if either a breach of contract or negligence is proved, he must pay for the total cost of the computers. However, under clause 2 since the loss was incidental or as a consequence of the fault, the manufacturer would not be held liable as the clause has limited liability for such damages, whether it is tort or contract. Memo From: XYZ To:ABC Subject: Data Protection Act 1998 and Freedom of Information Act 2000 After conducting a thorough research, I have evaluated a few points on both acts and so will be discussing each of the acts separately. Under the Data Protection Act 1998, the data has to be processed in accordance with the law and in a manner which is fair and proper. As for the application of the Act, if the firm is small the act applies to both, customer as well as existing and former employees. If information is collected from employees they must be informed of the use that the information is going to be put to and provide them with the right to access such information and correct it in the future. Further, such use of passed on information is done fairly. Any information being passed on to third parties must be done so after obtaining consent from the individual. The information must be held in a secure place, so that it does not reach the hands of any third party. The Act provides for compensation if information is not properly kept. There are two categories of data that is personal and sensitive personal data. The act refers to ‘data subject’ that is someone whose data is stored which is outside of their direct control and so employees are included. Section 5 of the Act states that it applies to a data controller ( who has been defined as ‘a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed’) is established in United Kingdom and the data is processed in the context of that establishment. Further, in section 5(3) tends to include a company in United Kingdom. Therefore, the Data Protection Act 1998 would apply to the company and so it has to maintain the information in accordance with the principles stated in the Act, otherwise it would be in breach of the Act and would be liable. The compensation is provided under section 13, which allows an individual to claim compensation for damage caused due to contravention by data controller. Further, if distress is caused, that can be claimed if he also suffers damage by reason of the contravention or the contravention is in respect of the processing of personal data for special purposes. There is a defence available to the data controller whereby he has to prove that he took such care in all circumstances as was reasonably required to comply with the requirement concerned. As stated earlier the act states that ‘data handling’ of personal data should be done in accordance with the eight principles that is it should be processed fairly and lawfully, should be used for the lawful purposes for which it was collected, should be adequate, relevant and not excessive in relation to the purpose for which it was collected, it should be accurate and kept up to date if necessary, it should be processed in a manner which gives accord to the rights of ‘data subjects, it should not be kept for a period longer than that is necessary, it should be protected using robust technical and organisational procedures, so that unauthorised or unlawful access is prevented, accidental loss, damage or destruction to personal data is also prevented and finally it is not transferred to somewhere outside the European Economic Area. Further the monitoring should be done so as to take into account Human Rights Act 1998. Finally, if a confidential reference is provided to a former employee, it should be done after getting his written permission. As far as the Freedom of Information Act 2000 is concerned, it relates to public authorities and those listed under Schedule of the Act. If the company concerned is a public limited company, the employees may bring enforcement actions, if they are not allowed to view the information. If it is a private company, the problem that they might face is that any information released to public authorities may be released to general public on request thus measures must be in place so as to avoid any such publications, because if such information becomes public and damage or distress is caused to the employee, then there might be an action under the Data Protection Act 1998. The company should thus have clear internal policies, whereby only authorised individuals are allowed to release information to public authorities and having individuals who liaise with the public authority once such information is released to it. Further, the company may raise awareness within the organisation, that such information may be disclosed to public. Finally a clause in the contract which provides a right to be notified about and make submissions in relation to an information request that may contain employee sensitive information should be negotiated and employees should be alerted about their right to object to disclosure of information by means of s.10 of Disclosure Act 1998 . The research on the clause was conducted by looking for draft limitation clauses on the internet and textbooks on law, whereby I searched for the most appropriate clause. After finding that, I worded the clause in a way which would be favourable as well as similar to the product and a manufacturer. The applicability of the clause and how it limited liability was also easily found on the internet and I carefully interpreted the application of limitation clauses and discussed how the clause that I had written limited liability. As for the Data Protection Act 1998 and Freedom of Information Act 2000, I researched it on the government website and found the Acts. I glanced through the sections and found out what was required. While I was going through the Acts I noticed that it said that there were certain amendments pending and so presumed that the Act was not up to date. Therefore, I consulted one of my friends who is currently enrolled as a law student, to provide me access to up to date Acts. He provided me access to Westlaw and LexisNexis whereby I was able to read the most up to date Act. Finally I was told that these two websites were regularly updated and the Acts were up to date. I then read through the Act and then went on to consult a textbook on law which had the Acts and its application. Further, I researched the implication of the Act on employees via the internet and was able to find some useful links which provided me with immense help in doing the question. Bibliography http://www.legislation.gov.uk Read More