Norwich Pharmacal orders and the Scottish courts

Our last post included the scarcely contentious claim that litigation is risky, costly and time-consuming. Bad enough, then, if you have to litigate to protect or advance your own interests but what if you get embroiled in someone else’s dispute? A retailer can innocently offer for sale goods, manufactured by another, which are said to infringe someone else’s intellectual property rights. An internet service provider can host a site on which someone anonymously defames, or makes maliciously false statements about, another.  The business stuck in the middle can then find demands being made on it by both sides. Typically, one side will want information to assist in proposed court action whilst the other may have a legitimate right to have that information (for example, their name and personal details) kept private. It’s important for businesses to understand what obligations fall on someone who gets mixed up in this way. After all, it could happen to you. It can save an awful lot of management time, at least, if you already have some idea of what you should and shouldn’t do and what can, and can’t, be demanded of you.

Design rights: remedies for innocent infringement

It's a hazard of modern business life that, if you are offering things for sale, at some point you will receive a letter from someone claiming that you are infringing their intellectual property rights. Fashion retailers in particular can suddenly be told that goods they are selling infringe a design right, registered or unregistered, UK or Community. The letters we see range from the very reasonable to the aggressively ridiculous. There seems to be an increasing trend of demanding all sorts of things (damages, expenses and the like) to which there is simply no entitlement from someone who has merely offered for sale something that they had no reason to suspect infringed anyone's rights: an innocent, secondary infringer. So what penalty might such a retailer face? The answer is, it depends.

Death and a Good Name: defaming the dead

In the view of Charles Caleb Colton, “The two most precious things this side of the grave are our reputation and our life.”

But what about the other side of the grave? The press is currently replete with comment on the recent allegations about the late Jimmy Savile. There are of course many disturbing facets to both the allegations and the details emerging about the responses to them when they were originally made. But the affair also has resonance for lawyers who are interested in what protection the law does, should and could give to the reputations of the dead or what rights might be given, and to whom, when the dead are defamed. 

The reason for the flurry now may seem clear:

"As any good journalist knows, the dead can't sue – that's why it's now safe for everyone to say they knew Jimmy Savile was up to no good in the 1970s and he can't touch anyone for writing it. It's also one of the reasons why now – rather than 40 years ago – the endless revelations about him are churning out of Britain's media industry quicker than people can turn off Channel 4's Hotel GB."

In a number of ways, though, the legal position is not as clear-cut as you might think.