Relevant Statutes of Computer Law in the UK - Assignment Example

Computer Law in UK Student’s Name Presented To Date 1 (a) Legal Issues relevant to the relationship between the developer and the company It is important for both the developer and the client to enter into a website development/design contract that is enforceable in a court of competent jurisdiction. This is due to the fact that website development/design contracts are characterised by two types of legal liability; civil liability and criminal liability. Therefore, it is necessary for the contract to disclose measurable parameters that are proportionate to its consideration by setting objectives, functions and descriptions of the website. Majorly, it is the website developer who solely retains ownership of the copyright of website design unless otherwise stated in the contract, in accordance to Copyright, Designs and Patents Act of 1988. Although the developer may retain ownership rights pertaining the website codes or tools so as to use them in the future, it is important for the client to demand complete transfer of ownership particularly of those parts unique to his/her website. Besides, the client can request for exclusive rights to restrict the developer from re-using some of the website elements in future. Consideration agreed upon in the contract are supposed to be linked to particular milestones as pertains to when they will be achieved by the web designer. In the same regard, the final consideration requires to be tied to the Acceptance-Testing of the main website functionality. On the other hand, there should be a clause in the contract covering on website maintenance. The source code should be accessible to person mandated to maintaining the website. Such source code can be entrusted in safe custody of a third party in order to avoid cases in which the developer may become bankrupt. Subsequently, the client should make sure that he/she has control of the domain name. This can be accomplished by ensuring domain registration is in the client’s name. It is also imperative to assure the client of site quality in terms of performance and cross-browser appearance. Lastly, the contract should include an obligatory clause that requires the developer to reimburse the client in case of a legal suit, especially if IP rights were infringed (Adlex Solicitors, 2011). Relevant Statutes and Case Laws In respect to UK’s Trade Marks Act 1994, any logo, name and/or badge of the website should be owned by the client. In reference to this case study, clients will have an option of posting comments and participating in online discussion groups on the website which may amount to defamation. In UK, defamation is regulated by the Defamation Act 1996. As such, the company in this context, referred to as the client, should make use of the law in protecting itself against malicious falsehood. Most importantly, privacy, confidentiality and integrity of the data/information contained in and/or used on the website is a major concern to the client. Conversely, UK’s Data Protection Act 1988 grants website owners the right to know information/data held about them and also sets out a legal structure to ensure that their personal information/data is held in confidentiality. In this regard, a website privacy statement or policy should be in place so as to cater for information disclosure requirements in accordance with Data Protection ACT of 1998 (Coleman, 1994). (b) Key elements in negotiation between the web developer and the company The negotiations between the company and the web developer should lead to a legal contract. They should create legal rights and obligations enforceable in a court of law. The rationale behind this is that the engagement between the two parties involves Sales of Goods and Services. However, as required by law, both parties needs to have capacity to contract, legal intentions as well as benefit from the transaction i.e. consideration. In this regard, prior to entering into a contract, it is necessary for both parties to define the functional and design elements of the website. As such, initial negotiations should comprehensively outline the performance, development, ownership and service expectations of both the client and the developer. The main points of concern include an understanding by both parties of long-term and short-term expectations; proficiency of the designer with technical issues, for instance, hardware and software interoperability as well as ensuring that objectives of the project are detailed. In the negotiation process, there are a few key elements to put into consideration. First, what are the key deliverables? Both parties to the contract must discuss in detail the deliverables anticipated from the designer’s work. The deliverables are, for instance; an outline of design and functional specifications, operational flowcharts, user interface requirements, training materials and documentation, code standards and ecommerce requirements among others. A second element is the project schedule that follows-up definition of the project scope that identifies development milestones, payment timelines, as well as testing and acceptance periods. However, the project schedule must be realistic. Third element may cover on Intellectual Property rights. This facilitates the designing elements and structure, organisation and sequence of database systems, graphics and user interfaces. In this respect, it is therefore necessary to have mutual agreements between both parties so as define the ownership of such IP rights among others in accordance with Copyrights Designs and Patent Act 1988. Fourth key element to consider is registration of the domain name. The client should insist on being the registered owner of the domain name and as well be designated as billing, technical and administrative contact. Fifth element should cover confidentiality of information by both parties but more importantly the website developer. The mutual agreement between both parties should cover obligations of the developer not to use and/or disclose specific information. Sixth element in the negotiation encompasses limits of liability and disclaimers. However, in order to establish the extent to which the developer is disclaimed from liability, a legal advice should be sought after from a competent lawyer. Last element to include in the negotiations entails conditions and warranties in respect to the performance and quality of the website. A warrant on the proposed website should be in place in order to assure the website owner that any content on the website does not and has not infringed trademarks, copyrights and/or patents. Breaching any of agreed conditions and warranties would lead to termination and/or claim of damages respectively as outlined in the Law of Contract. Finally, it is important for both the client and the developer to agree on when the contract would be terminated based on either mutual agreement and/or substantial performance of either party’s obligations. By considering the above key elements, the company will have cushioned itself form from unrealistic expectations in the future (Turle & David, 2008). 2. Protection of an invention The UK’S Copyright, Design and Patent Act (1988) provide legal protection to computer programs by recognising them as literary works. In addition, the commercialisation of both the hardware and software is protected by various legislations. First, any contract in the business context involving the new software falls under the Supply of Goods and Services Act (1982) which aims at preventing any misuse. Secondly, in this case study commercialisation of the electronic device which is the hardware is protected by Sale of Goods Act 1979 and Misrepresentation Act 1967. Third, the Intellectual Property in this invention is protected by the Law of Confidence. According to Boon (2009), it is a court involving Symbian application on whether it was patentable or not that formed the basis of Intellectual Property law. Just as in this case study, the Symbian software was a method used in accessing data through a dynamic link library in a computing device. It was considered potential in being copyrighted in that its invention enhanced the reliability and speed of computer functioning and therefore the invention of software can be protected by law as it was argued in the court. The act by the computer technician who was working in partnership to develop the prototype software has left so as to work with a competitor is potentially result in copyright infringement. As such, in the UK, the law is very clear as it was decided in both IBCOS computers Ltd v Barclays Mercantile Highland Finance (1994) and Navitaire v Easyjet court cases. In this regard, under the UK law, the initial designer of the electronic device and software programmer may challenge the computer technician in a court of law by claiming copyright. In this case, the court will decide on whether or not the plaintiff is eligible for copyright as well as establish any instances on the side of the computer technician that amounts to copyright infringement. In this respect, the procedure applied to establish any copyright infringement is based on a number of parameters used by courts to perform disqualifications tests; mere idea and/or procedure, originality, and the abstraction-filtration-comparison test (Website-law.co.uk, 2011). In case of an infringement, remedies granted by the court include, imposing injunction on the technician, damages and restoring copyright to the original owner. 3 (a) Legal issues and laws relevant to child pornography In UK, child pornography is restricted by a robust legal structure as well as various institutional frameworks. In order to deal with internet pornography, UK’s Criminal Justice and Public Order Act 1994 (CJPOA 1994) has in the recent past been amended to introduce stringent measures. The Obscene Publications Act 1959 and 1964 contains sections 1(1) and 1(2) respectively that illegitimates publication, possession, control and/or ownership of obscene articles. The amendments introduced by CJPOA 1994 makes it illegal for anyone to avail pornographic for either electronic transfer and/or download from one person to another. In this respect, although pornography is a concern to both the general public, the major concern to both the parents and legislators is internet child pornography. Reason being internet child pornography amounts to sexual abuse of the children contrary to Protection of Children Act 1978 statutes. In the context of this question, the discovery of sexually explicit child pictures in the internet cache of the hard disk belonging to the pop star amounts to distribution of and availability of obscene child porn pictures as outlawed by the CJPOA 1994 amendment. Therefore, the pop star could be prosecuted under section 84(4) of the CJPOA 1994 which covers the electronic pornographic content. On the other hand, in the process of data recovery, it was established by the investigator that the indecent child images may have been created by modifying other legal images using computer software. In this case, CJPOA 1994 includes such children ‘pseudo-photographs’ and it describes them as being photographs created through manipulation of pre-existing pictures. In this respect, section 1 of the Act stipulates that it is an offence to anyone to make, to be taken or to take, or permit sexually explicit pseudo-photographs of children and/or distribute them. The reason behind this is that such persons involved in creation of pseudo-photographs are highly potential to abuse children in the future. In the context of this case, the post star has a large influence on the general public and children in particular through his/her music and can therefore abuse his/her celebrity stature to abuse children. On the hand, the law is strict because with the advancement of Information Communication and Technology, it is not easy to distinguish between real photographs and pseudo-photographs. Though, children might not be involved in creation of such pseudo-photographs, it is justifiable that child pornography has high correlation with sexual abuse of children. Subsequently, section 84(4) of CJPOA 1994 amended section 160 of the 1988 Act in order to make it an offence for anyone to possess pseudo-photograph and indecent photograph of children. To illustrate how potential it is for the pop star to be prosecuted for being in possession of pseudo-photographs, The Birmingham Case involving Fellows and Arnold is a good example. The two had with 18 charges under the CJPOA 1994, Obscene Publications Act 1959 and Protection of Children Act 1978 because of storing explicit pornographic pictures featuring children in a computer system and which could also be accessed via internet. Fellows and Arnold were jailed for three years in respect to possession and six months in respect to distribution respectively. The judge presiding over the case, Owen J, argued that the pictures had high potential in fuelling fantasies thereby leading to incitement of sexual abuse on children. In the context of the case, it is this illegal for the pop star to possess pseudo-photographic of sexual nature that features children (Akdeniz, 1997). 3 (b) the role of expert witnesses in civil and criminal case The expert witness has become of critical importance nowadays in major court cases especially in criminal cases where before making any judgement, the evidence must be proofed beyond reasonable doubt. For any expert, his/her appearance in court, entitles him/her to a few limited privileges and may as well make him/her exposed to serious evaluation especially in reference to conduct, dress-code and demeanour. The expert witness is supposed to demonstrate high level of honesty and competency. According to Bosco et al. (2010), admissibility of expert evidence was expressed in the court case involving Folkes v. Chadd (1782 Doug KB 157) in which the court argued that scientific opinions based on proven facts can be presented before a court in order to provide the court with scientific information that may probably be outside jury’s knowledge. The same court’s opinion was held was held in R v. Turner (1975). In this respect, the lecturer in this context qualifies to appear in court and give expert evidence in that he possesses unique knowledge in cryptography. However, it important for the expert to be aware that he may be held liable to misleading the court into making use of false evidence. On the other hand, the fact that he is regarded by law to be highly qualified, the lecturer is required to be of reasonable mind and thus when he/she conducted forensic investigation, he was supposed to be in full control and knowledge. Failure to do these results in expert witness negligence as the court argues that he/she failed to do what a person of reasonable mind in such a position may have done to avoid such mistakes. This is in reference to the Law of Tort where negligence is regarded as lack of care or skill to both the client and the court. On the other hand, the lecturer which is a cryptographic expert ought to exercise Professional Standard of Care as stipulated in Codes of Practice and Guidelines set out by professional bodies relevant to his field of study. In this regard, an example of a court case in which expert evidence was discarded by court is that of Professor Sir Roy Meadow in R v. Sally Clark. Prof. Meadow was requested by the court to provide statistical information as to the reasons behind the cause of two cot deaths in one family. The evidence provided by the professor did not implicate Sally as to having caused her infants’ deaths. However, upon critical analysis of the evidence provided by Prof. Meadow, the court found inconsistencies compared to expert evidence presented by other statisticians of Prof Meadow’s calibre. As a result, previous court cases in which Prof. Meadow had given expert evidence were subsequently re-looked into by the UK Court of Criminal Appeal and a number of them were overturned. Besides, his conduct in as practitioner started being investigated by the UK’s body responsible with registration of doctors. In this respect, to avoid such scenarios, the lecturer requires to be aware of what kind of evidence is required by the court and ways in which he is supposed to collect it. For such a case involving Information technology, it is imperative to use original data. This means that the lecturer will use his/her cryptographic skills and knowledge to decrypt and information/data required by the court. On the other hand, to improve the chances of evidence admissibility, it would be necessary for the expert to demonstrate continuity of the evidence. In other words, this is in respect to the chain of hands as the information changed hands from time to time right from the suspect’s computer, when it was analysed by the expert and the time it was presented before the court. Deviation from such chain would render the evidence to be considered inadmissible and probably questionable. Consequently, it is important for the expert to demonstrate that the evidence of high integrity through illustrating continued evidence custody. On the other hand, the jury will try to establish whether the expert has done forensic examination i.e. professional and comprehensive examination of the evidence. This involves examining materials, interpreting them and correlating evidence from various sources and the capacity to explain and resolve real conflicts among evidence material from different sources. However, one critical exercise in respect to presenting expert evidence in a court of law is justification of every step taken and inference made throughout the investigation process. The presentation of the evidence in court must be in a consistent, concise and clear style by having self-confidence. As a result, the expert will have exempted him- or her-self from liability of having misled the court and/or being challenged by other professionals (Jones, 2004). Read More