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Legal issues
Three strands of legal issues are
important
- The legal entity that the project
is or becomes (see Accountable
body role)
- Compliance with legislation
- Contracting for supplies and services
Legal capacity
of the project
The project needs to have the legal
'capacity' to deal with a range of
legal issues and to enter into contracts.
This requires a legal identity, which
his generally established through
a 'constitition' for unincorporated
bodies or 'memorandum and articles
of association' for incorporated bodies.
Under an arrangement with a local
authority or a larger voluntary organisation
acting an 'accountable
body', the latter has a separate
legal identity, as well as in-place
systems and procedures and the project
will be able to operate under its
auspices.
The project/accountable body will
have to comply with a wide range of
legislation, as detailed below.
Compliance
with Legislation
Data Protection Act 1998 -
Applies to processing of any personal
data including e-Mails or display
of data. The 'Data subject' must give
informed consent in advance
for the processing of data for specified
purposes. Consent should be obtained
when data is collected. Particularly
important on the Web.
The Sale of Goods Act 1994
applies to all goods and services
supplied
by the project.
Defamation - the UK
Defamation Act 1996 applies and
the project must be able to evidence
that it has no contractual or editorial
control over content and/or has taken
reasonable steps to ensure services
do not publish defamatory material.
Also it must not know or have reason
to suspect that defamatory material
was accessible via its service. The
Liability of employers can be determined
by its policy regarding e-mail use.
Health and safety Act
- 'duties of employers' as well as
the phyical location of equipment
supplied and used in people's home
Human rights Acts 1998 - the
'Right to privacy' makes collecting
individual Internet use information
potentially illegal. It also makes
any monitoring operation difficult.
The 'Right to protection of property'
includes intellectual property. 'Freedom
of Speech' provides that everyone
has the right to freedom of expression.
This right includes freedom to hold
opinions and to receive and impart
information and ideas without interference
by public authority.
'Illicit content' in Chatrooms,
via Email or the Web (community portal).
Intellectual property rights
as applied to Copyright, Trade marks,
Patents and domain names.
Management of ICT infrastructure
- in terms of negligence, where a
duty of care is owed but where care
is not take and damage results. For
example, failure to backup a server
resulting an a loss of a web site
could result in this.
There are general issues around 'ownership
of the ICT infrastructure' and obtaining
planning consent - especially for
physical build initiatives impacting
upon the local amenity.
Procurement of goods and services
- According to EU legislation,
all contracts from the public sector
which are valued above £130k
must be published in the Official
Journal of the European Communities
(OJEC)
Regulation of Investigatory Powers
Act 2000 - it is illegal to intercept
communications on networks or servers
without the consent of the sender
and intended recipient unless there
is lawful authority. There is a potential
requirement to install tapping equipment,
where required to do so.
Telecommunications Interception
of Communication Regulations 2000
- Allows monitoring of employees activity
in particular circumstances DOES NOT
apply to people who are not employees.
Telecommunication Act 1985
- It is a criminal offence to connect
more than 20 properties unless within
your ownership. In terms of TV Licensing,
this is an issue only for those projects
providing set top boxes.
Criminal acts - Criminal action
of employee may lead to prosecution
of employer who has vicarious liability.
Staff hacking other sites or deliberately
spreading viruses could result in
this.
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Contract
for supplies and services
On the procurement of equipment,
the accountable body for each of the
WuC projects met the strictures of
OJEC
in the tender process and usefully
utilised G-CAT
(although recognising that short
timescales did not afford the opportunity
to utilise some local suppliers).
The accountable body then entered
into service level agreements or contracts
with all suppliers and this had the
effect of tightening arrangements
on contract management (especially
in respect of after-sales service
and warranties). However, despite
some rather vigorous procurement procedures
and some solid contract management
via service level agreements, the
WuC projects all experienced some
degree of difficulty with private
sector suppliers - partcularly where
the private sector supplier initially
offered 'value added services' at
reduced or no cost, only to introduce
a charge or cost at a later stage.
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Useful
Documents
Scoping
the legal issues was drawn up
by one of the Wired up Communities
and provides a very useful checklist.
Compliance procedures
Data
protection guidance is a document
produced by the Information
Commissioner providing a detailed
analysis of the Data Protection Act
and subsidiary legislation. A sample
data protection agreement sets
out a project’s action for agreement
by recipients.
A sample
equal opportunities policy and
a draft
equal opportunities policy are
formal statements, and the sample
health and safety policy can be
used as a template for premises based
activities.
‘Customer’ agreements
Examples of these taken from different
projects are:
An equal
opportunities handbill setting
out policy as it affects local people.
Six examples of contract agreements
with recipients:
Three examples of other agreements
to be signed by recipients:
Procurement of supplies and
services
EU
tender rules is a European Commission
document setting out the scope of
the European rules on tendering.
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