Naked Law - Details

We frequently see both the costs and timescales of public sector procurements extended beyond the original intentions of the relevant organisations.  This can be down to a number of factors, and generally a combination of several: over-ambitious timescales (often driven by organisational or national politics); lack of sufficient planning for advisors' fees, be they lawyers, financial advisors or technical consultants; the ever present risk of scope creep; and protracted negotiations - to name but a few.

But still, the Highways Agency'stelecoms procurement(late by 3 years, over-budget by £12.5m in advisors' fees) seems an extreme example.  The Public Accounts Committee'sreport concludes that "Most of the additional time and cost was incurred in meeting the Agency’s requirements for high quality bid documents" - an admirable aim in itself, but the PAC also found that:

"The Agency never had a clear idea about the time and cost needed to complete the procurement. In every updated forecast, the Agency’s revised budget and timetable were optimistic, often by considerable margins."

"The Agency did not deploy effective controls over the work of its advisers".

So a salutary lesson for public sector procurement managers.  Inevitably, and rightly, a lot of time is often spent working out an organisation's requirements for the goods or services to be procured.  However, taking time to properly scope advisor requirements and to build good working relationships with them can be equally important - both in terms of budgeting for and managing likely costs and in making use of their expertise in sense-checking the proposed procurement structure and timetable.

The UK IPO isconsultingon increasing the maximum penalty a Magistrates’ Court can impose for the offences of copyright infringement to £50,000. An “exceptional” maximum just for copyright infringement. The justification is that copyright infringement can be very profitable and criminals should be hit where it hurts with a penalty commensurate with the harm done.

The consultation argues that all criminal copyright infringement is highly profitable – so that’s all right then. It seems to ignore the fact that lots of businesses probably infringe copyright without knowing it or while thinking that what they do is harmless.  It also ignores the fact that criminals who are not serial copyright infringers - whose assets can be swept away under the Proceeds of Crime provisions - probably don’t have the assets to pay a fine at the exceptional maximum - and that exceptions have a habit of turning into rules. It may damage enforcement – although maybe the worst cases will get excellent publicity which will educate the public about copyright infringement?

This is a good example of exceptions making bad law. There is no justification for an “exceptional” maximum. The evidence is that there are not (according to the consultation) even that many prosecutions for copyright infringement anyway and those are quite often fraught with difficulties such as the satellite decoder cases. The issue here is not the penalty; it is the motivation to prosecute in the first place. The repeat offender – the ones making money – can already be deprived of assets under the extraordinarily oppressive regime of the POCA.

Write now and oppose an exceptionally bad bit of law!

Arecent casein Italy has suggested that all blogs are likely to be illegal in Italy. Bloggers could be subject to a fine or some time in jail for not registering as publications.

TheItalian constitutionguarantees the right to freedom of speech at Article 21. According tothird party sources, following world war two, there was a concern among Italian legislators that publications which abused this right could have a significant impact on the Italian populace. It was therefore decided to have all publishers register centrally before being allowed to produce a publication or they would be guilty of the offence of 'clandestine publication'(article 16 of Law 47).

This law was expressly stated to apply to the internet in a 2001 statute,Law 62. Recently Sicilian historian Carlo Ruta was censured under this law for producing a 'clandestine publication' on his blog. Mr Ruta was writing a blog about connections between the mafia and politics, hadn't notifed the authorities that he was publishing, and was thereforeguilty of this offence.

I'm no Italian lawyer, but this seems to open the very real prospect of Italian bloggers being required to register centrally as a publication (with all the red tape this involves) or risk a fine or imprisonment for blogging. If Naked Law ever visits Italy, it had better like prison food.....