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INFORMATION, DATA PROTECTION
AND INTELLECTUAL PROPERTY

FREEDOM OF INFORMATION AND ENVIRONMENTAL INFORMATION RESOURCES

Added 28/4/13. This information updates s.43.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Freedom of Information Act 2000 (FOIA) provides a general right of access, although with significant exceptions, to information held by public authorities as defined by the act, and by bodies designated as a public authority for the purposes of the FOIA because they exercise functions of public nature. The Freedom of Information (Scotland) Act 2002 (FOISA) is similar.

Information about the FOIA is on the website of the Information Commissioner's Office at www.ico.gov.uk. There are separate sections for organisations which are or may be subject to the act, and for individuals or organisations who want to use the act to obtain information from public authorities. The ICO's plain English guide to freedom of information and its specialist guidance can be accessed via tinyurl.com/dyndhwc.

The ICO has also issued a plain English guide to the Environmental Information Regulations 2004, which can be accessed along with specialist guidance at tinyurl.com/bt8ed22.

For information about the legislation in Scotland, the website of the Scottish information commissioner is at www.itspublicknowledge.info.

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FREEDOM OF INFORMATION ACT: CONTRACTS WITH PUBLIC AUTHORITIES

Updated 28/4/13. This information updates s.43.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Ministry of Justice confirmed in January 2011 that although some specific named charities are covered under the Freedom of Information Act 2000 (FOIA), there is no intention to extend the FOIA to all charities, or to all contractors that provide services on behalf of public authorities.

Instead, the emphasis is on ensuring appropriate requirements are included in all contracts between public bodies and private or voluntary sector providers of goods and services. In its report on the Freedom of Information Act published on 3 July 2012, the House of Commons justice select committee said, "The right to access information must not be undermined by the increased use of private providers in delivering public services.... We remind all concerned that the right to access information is crucial to ensuring accountability and transparency for the spending of taxpayers' money, and that contracts for private or voluntary sector provision of public services should always contain clear and enforceable obligations which enable the commissioning authority to meet FOI requirements."

This comment is in s.8 of the report, which covers the application of FOI to outsourced public services. The report is at tinyurl.com/cvu7vlb.

In August 2012 the House of Commons public accounts committee expressed concern about commercial confidentiality being used as an inappropriate reason for non-disclosure of full information about contracts between public bodies and other providers. It recommended that the Cabinet Office should set out policies and guidance for public bodies to build full information requirements into their contractual agreements, in a consistent way. This report, Implementing the transparency agenda, can be accessed via tinyurl.com/btkabyt.

In a speech to the Labour party conference on 3 October 2012, Sadiq Khan, the shadow justice secretary, said that a Labour government would seek to extend the act to cover delivery of public services by private and voluntary sector providers: "For the first time, FOI will cover the delivery of public services by private companies. This includes our prisons, our schools and our health service. Public private or voluntary, subjected to the same disinfecting transparency of FOI.".

In Scotland, following consultation in 2010, the Scottish government said it would not implement proposals to extend the FOI (Scotland) Act 2002 (FOISA) to cover contractors running specified services on behalf of public bodies. However, it announced on 16 January 2013 that the act will be extended to cover arm's length bodies established by local authorities to provide cultural, sports and leisure activities to the public. It is intended that this will be the start of a staged process extending FOI coverage to other bodies created by local authorities. The January press release can be accessed via tinyurl.com/ajyc88p.

It looks increasingly likely that in both England/Wales and Scotland, private and voluntary sector providers of goods and services to public authorities will become subject to freedom of information requirements at some point in future, either by the legislation being extended to include them, or by public authorities being required by statute or good practice guidance to include disclosure obligations in their contracts with providers. It is quite possible that the requirements will be different in England/Wales than in Scotland.

Even if an organisation is not subject to FOIA or FOISA, information provided to a public body, for example as part of contract tender documents or monitoring of services, may need to be disclosed by the public body in response to a FOIA or FOISA request for information. And in some very specific cases, a court might find that a charity providing services on behalf of a public body is itself directly subject to the FOIA.

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DATA PROTECTION RESOURCES

Added 28/4/13. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Information Commissioner's Office (ICO), which oversees data protection implementation and enforcement, provides one-day advisory visits for small and medium-sized charities and other voluntary organisations. The visits focus primarily on data security, records management and dealing with requests for personal data, but are tailored to each organisation and offer practical advice on improving data protection practices. Information about the visits and how to request one is at tinyurl.com/ct9694a.

Voluntary sector data protection expert Paul Ticher provides free webinars (internet seminars) on data protection. The next are on data protection and volunteers on 20 May, data protection aspects of membership, supporters and fundraising on 19 June, and data protection overview on 11 September. Details and registration are at www.paulticher.com.

The ICO website at www.ico.gov.uk has detailed information about the Data Protection Act 1998 and related regulations. There are separate sections for organisations about their duties under the act, along with codes of practice and good practice guidance, and for individuals who may want to make a subject access request to see personal data held about them. New or recently revised ICO resources include:

• Bring your own device (BYOD), March 2013. This guidance covers the security vulnerabilities and other data protection concerns that can arise when employers permit employees to connect their personal computing devices (smart phones, tablets, laptops etc) to the organisation's IT systems. It is at tinyurl.com/br5xjhw.



• Draft subject access code of practice, November 2012. In 2011/12 the ICO handled nearly 6,000 complaints from individuals unhappy that organisations were denying them their statutory right to view information held about them. A new code of practice, to be published in spring 2013, aims to explain individuals' rights to subject access and organisations' legal responsibilities. Consultation on the draft code took place from 29 November 2012 to 21 February 2013. The draft code is at tinyurl.com/btmaefa, with the consultation questions at tinyurl.com/ckd2aqs.



• IT asset disposal for organisations, November 2012. This guidance is intended to help organisations securely dispose of their IT equipment. It includes what they need to consider when disposing of electronic equipment that may contain personal data, the use of asset disposal registers, and the arrangements that need to be in place when contracting IT disposal work to another company. It is at tinyurl.com/csqfqme.



• Anonymisation, November 2012. This code of practice and summary of the code cover the steps an organisation can take to ensure that anonymisation is conducted effectively, while retaining useful data. It is at tinyurl.com/con63ya.



• Cloud computing, September 2012. The guide includes questions and approaches an organisation should consider, in conjunction with a prospective cloud provider, in order to ensure that the processing of personal data done in the cloud complies with the Data Protection Act. It is at tinyurl.com/cnvgrmc.



• Practical guide to IT security, April 2012. A short guidance briefing, intended for small business but just as relevant to voluntary organisations. It covers using a layer approach to security; securing data on the move; keeping the organisation and its systems up to date; and keeping an eye out for problems. It is at tinyurl.com/bnlpnhn.

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THE TOP FIVE DATA PROTECTION ISSUES FOR VOLUNTARY ORGANISATIONS

Added 28/4/13. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Information Commissioner's Office published in August 2012 its top five data protection areas for improvement for small and medium sized charities and other voluntary organisations, which may not have the resources to hire dedicated information specialists but often handle extremely sensitive information such as individuals' medical details. Failure to comply with data protection requirements in relation to such data could lead to a monetary penalty of up to £500,000.

The five areas identified by the ICO are:

1. Tell people what you are doing with their data. People should know what you are doing with their information and who it will be shared with. This is a legal requirement (as well as established best practice) so it is important you are open and honest with people about how their data will be used.



2. Make sure your staff are adequately trained. New employees must receive data protection training to explain how they should store and handle personal information. Refresher training should be provided at regular intervals for existing staff. The ICO has a training checklist for small and medium sized organisations at www.tinyurl.com/d7xvzzo.



3. Use strong passwords. There is no point protecting the personal information you hold with a password if that password is easy to guess. All passwords should contain upper and lower case letters, a number and ideally a symbol. This will help to keep your information secure from would-be thieves.



4. Encrypt all portable devices. Make sure all portable devices — such as memory sticks and laptops — used to store personal information are encrypted.



5. Only keep people's information for as long as necessary. Make sure your organisation has established retention periods in place, and set up a process for deleting personal information once it is no longer required.

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IMPLIED CONSENT FOR COOKIES

Updated 28/4/13. This information updates s.43.3.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Under the Privacy & Electronic Communications (EC Directive) Regulations 2003, organisations which use "cookies" and similar tracking devices which store information about visitors to a website must provide information about the use of cookies and allow individuals to refuse them. Under amendments to the regulations which came into effect on 26 May 2011 (but were not enforced in the UK until 26 May 2012) this is no longer enough; now, in nearly all cases, visitors must opt in by giving "informed consent" to the cookies.

The initial view was that informed consent would have to be explicit. But a few days before the grace period ended in May 2012, the Information Commissioner's Office said that consent could be implied rather than explicit, provided that the implied consent is based on information that is "sufficiently full and intelligible" to allow users to clearly understand the potential consequences of accepting the cookies. Implied consent cannot be used for collection and storage of information defined as sensitive under the Data Protection Act 1998, such as health information, where the legislation requires explicit consent.

Many websites now show a banner or pop-up when a person first accesses a website, explaining that cookies are used and asking the user to click to accept cookies, or saying that the user will be considered to have accepted cookies if they continue to use the website. Alternatively there will simply be a statement on the home page that the website uses cookies and continued use indicates an acceptance of cookies on the site. Regardless of how consent is obtained and whether it is implied or explicit, there will then be, either in the banner or elsewhere on the home page, links to the organisation's privacy statement and an explanation of the cookies it uses. For examples, see the Information Commissioner's Office's own pages at www.ico.org.uk/Global/privacy_statement and www.ico.org.uk/Global/cookies.

Information about all aspects of the rules on cookies is on the ICO's cookies page at tinyurl.com/cvl5xjv and in its detailed guidance on the use of cookies, issued in May 2012, at tinyurl.com/ce6r9bw.

Russell-Cooke solicitors has a straightforward briefing on the rules and obtaining consent, at tinyurl.com/brrwjo3.

The Privacy and Electronic Regulations (EC Directive)(Amendment) Regulations 2011 are at www.legislation.gov.uk/uksi/2011/1208/contents/made.

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REFORM OF DATA PROTECTION LAW

Updated 29/4/12. This information updates s.43.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The UK's data protection legislation is intended to implement the EU's data protection directive, but the Data Protection Act 1998 has been challenged on the grounds that it does not properly implement the directive. EU data protection law in general was reviewed in 2011, with proposals for a new EU data protection regulation presented by the EU commissioner responsible for this area in January 2012. This regulation would replace the current EU directive and national data protection in all 27 member states, and could lead to significant changes in data protection requirements in the UK.

The proposed regulation enhances the rights of individuals, responds to changes in the internet and social media and other technological developments in the 15+ years since the current legislation was created, and aims to do away with the current fragmentation of 27 different national data protection laws

A regulation is in effect a single law that applies throughout the EU, while a directive sets out rules which each member state has to transpose into national legislation. A directive therefore allows more flexibility, and allows for variation between member states. As of November 2012 the UK and five other member states were reportedly in favour of the current data protection directive being replaced by a new directive, nine states were in favour of it being replaced by a regulation, and the remaining 12 were undecided. A regulation needs a three quarters majority to be approved.

Data protection expert Paul Ticher has produced a clear, nine-page briefing about the proposals, the UK information commissioner's views on them, and their implications for data controllers (organisations or individuals who decide, either on their own or with others, how personal data is to be processed and the purposes for which it is to be used) and data subjects (identifiable living individuals about whom personal data is held by the data controller). The briefing is at www.paulticher.com.

The information below is a brief summary of some of the key points from Paul's briefing.

Rights of individuals

• Wider definition of personal data. In some situations, individuals and their data would be covered by the new regulation where at present they are not covered or the position is unclear. This could include, for example, online identifiers such as IP addresses and pseudonymous user names.
  
  A change from directive to regulation could mean that decisions by the UK courts which have narrowed the definition of personal data, in particular the Durant decision in 2003, would no longer be valid.
  
  The regulation does not clear up the confusion over the definition of a manual (paper) filing system. The UK information commissioner has suggested that it would be more useful if the definition was based on the nature of the information, rather than the form in which it is kept.



• Sensitive personal data. The current rules on "sensitive personal data" are confusing and unhelpful. The proposed regulation does not resolve the difficulties relating to these rules. Indeed, the regulation may make matters worse by replacing the term "religious or philosophical beliefs" in the current directive with "religion or beliefs", which could well be open to too wide an interpretation.



• Tighter requirements for consent. Consent would be required in more situations, and would have to be freely given, specific, informed and explicit. "Soft consent", such as assuming consent if a person carries on using a service, or providing a pre-ticked consent box, may no longer be valid. The marketing opt-out would have to be "explicitly offered ... in an intelligible manner". Organisations involved in marketing and fundraising are concerned about the implications of these changes.



• Clearer policies. Data controllers will have to have transparent and easily accessible policies, written in plain English, and adapted to the data subject, especially children.



• Clarity about what is being collected, why and how long it will be kept. When collecting information from individuals, data controllers will have to provide more information than the current minimum. This will have to include the length of time for which data will be held, and whether the information being requested is obligatory or voluntary. The UK information commissioner has recommended having to make clear whether obligatory information is obligatory by law, or because the service requested cannot otherwise be provided, or because the data controller has decided it is obligatory.



• Clarity about source of personal data. If data controllers obtain personal data from a source other than the data subject, they will have to tell the data subject where they got it from.



• Right to be forgotten. Partly in response to problems people have had in getting embarrassing information deleted from social media sites, the regulation introduces a "right to be forgotten". This will not be an absolute right, and there is considerable concern about whether it is realistic.



• Children's personal data. The regulation defines a child as under 18, and would make it harder to process information about children solely on the basis of the data controller's "legitimate interests".
  
  Processing data of a child under 13 [not 18], in respect of "information society services", would require parental consent, verified as far as possible. This appears to be aimed primarily at ensuring children cannot sign up to online services without their parents' knowledge. The UK information commissioner has pointed out the difficulties with this: "The ingenuity of children in circumventing age verification systems should not be underestimated."

Data controllers

• Unincorporated organisations as data controllers. Both the EU directive and the proposed regulation make clear that any kind of organisation can be a data controller, but the UK's Data Protection Act defines defines the data controller as a person. Human beings are persons, as are incorporated bodies such as companies, charitable incorporated organisations and industrial and provident societies. Unincorporated organisations are not legally persons, but despite this the UK information commissioner has allowed their data protection registration to be made in the name of the organisation rather than in the names of individuals acting on its behalf. If the directive is replaced by the proposed regulation, this anomaly will be removed and it will be clear that unincorporated organisations can be defined as data controllers.



• Policies, procedures and documentation. The proposed regulation sets out detailed policies and procedures that data controllers will need to have in place and documentation they will need to maintain. The UK government is strongly opposed to this provision, saying it would impose an unnecessary and expensive burden on business, for no great benefit in terms of protecting individuals.



• Data protection officer. Under the proposed regulation, an organisation which is a public body, or employs more than 250 staff, or carries out monitoring of individuals as a core activity would have to appoint an independent data protection officer with specified tasks. There is considerable concern about this requirement.



• Registration with ("notifying") the information commissioner. The proposed regulation does not include any requirement to register with the national supervisory authority (in the UK, the information commissioner). Instead, the authority would have greater powers to find out what is going on if they need to, for example by asking to see the documentation referred to above. Paul Ticher comments that it is hard to discern much benefit from the current notification procedure, although it is not clear how the information commissioner's office would be funded in the absence of notification fees.



• Notifying breaches. The proposed regulation would require all personal data breaches to be notified to the supervisory authority within 24 hours of the data controller becoming aware of them, and requiring the affected individuals to be notified where their personal data or privacy could be adversely affected. Not surprisingly, there are concerns that this is unnecessary and burdensome, and would result in over-disclosure.



• Data sharing. The regulation would require joint data controllers to have an arrangement setting out their respective data protection responsibilities, but it does not specify the form or content of the arrangement.



• Relationship with data processor. A data processor is an organisation or individual who handles information on behalf of a data controller, but has no say in how the information is collected or used. Examples of data processors are payroll services, external fundraisers or mailing houses. The proposed regulation specifies in more detail than the current directive what must be in the contract between a data controller and data processor.



• Overseas transfer of data / cloud services. Although the proposed regulation significantly revises the provisions for overseas transfers of data, there are still many issues. In particular, the problems of using cloud services are not covered in the regulation.

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DATA PROTECTION BREACHES: COULD IT HAPPEN TO YOU?

Updated 28/4/13. This information updates s.43.3.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Since 6 April 2010 the Information Commissioner's Office has been able to impose monetary penalties (fines) of up to £500,000 if a breach of one or more of the eight data protection principles is likely to cause substantial damage or substantial distress, and either the breach was deliberate or the data controller knew or ought to have known there was a risk of serious breach and failed to take reasonable steps to prevent it.

The following monetary penalties were imposed in the year from April 2012 to March 2013. Two of the penalties were served on registered charities: £70,000 to Norwood Ravenswood and £150,000 to the Nursing and Midwifery Council. For details see below under Loss of personal data.

Personal data sent to the wrong person

• Aneurin Bevan Health Board, Wales, £70,000, April 2012. As a result of a consultant spelling a patient's name incorrectly and not giving enough information for the secretary to identify the correct patient, a report containing explicit details relating to the patient’s health was sent to a former patient with a similar name. The ICO found that adequate checks were not in place to ensure that personal information was sent to the right person. This was the first monetary penalty served by the ICO on an NHS organisation. ICO news release tinyurl.com/bw4b4po.



• Central London Community Healthcare NHS Trust, £90,000, May 2012. On 45 occasions over a three-month period, sensitive personal data was faxed to an incorrect and unidentified number, compromising 59 patients' personal data. After three months the recipient informed the trust that they had been receiving the faxes but had shredded them. ICO news release tinyurl.com/cabf5o2.



• Telford & Wrekin Council, £90,000, June 2012. A social worker sent an assessment report, containing confidential and highly sensitive personal data, to the child's sibling instead of the mother. In a second incident, foster carer names and addresses were inappropriately disclosed to the children's mother. ICO news release tinyurl.com/czu8kpu.



• St George's Healthcare NHS Trust, London, £60,000, July 2012. Two letters containing a vulnerable individual’s sensitive medical details were sent to an address where the individual had not lived for nearly five years — despite the trust having the correct current address and the address having been logged on the NHS's national care record service. ICO news release tinyurl.com/dyaxlgz.



• Stoke-on-Trent City Council, £120,000, October 2012. Eleven unencrypted emails containing sensitive information about a child protection legal case were sent to the wrong person. ICO news release tinyurl.com/clgljtp.



• Leeds City Council, £95,000, November 2012. Sensitive personal data relating to a child was sent to the wrong person, revealing details of a criminal offence, school attendance and the child's relationship with their mother. When sending internal mail, the council re-uses envelopes that have been used for external mail. But in this case the external address was not crossed out, so the sensitive file was posted to someone who had nothing to do with this case. ICO news release tinyurl.com/cwexp2q.



• Plymouth City Council, £60,000, November 2012. Two reports about separate child neglect cases were sent to the same shared printer. Three pages from the first report were mistakenly collated with the pages from the second case, and were handed to the wrong family. The wrongly collated pages contained confidential and highly sensitive personal data about two parents and four children, including allegations of child neglect in ongoing care proceedings. ICO news release tinyurl.com/blzzvcw.



• Devon County Council, £90,000, December 2012. A social worker used a previous case as a template for an adoption panel report but a copy of the old report, with personal details of 22 people including alleged criminal offences and mental and physical health, was sent out instead of the new one. ICO news release tinyurl.com/cwexp2q.

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NEW SMALL CLAIMS TRACK FOR INTELLECTUAL PROPERTY DISPUTES

Added 16/10/12. This information updates chapter 44 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 1 October 2012 a small claims track in the patents county court provides a quicker, easier and less expensive way to deal with low value claims relating to copyright and database rights, trade marks, patents, and registered and unregistered designs.

The claim limit is £5,000 but along with other small claims limits is due to rise to £10,000 in 2013.

Information about the patents county court small claims track is in the Intellectual Property Office press release at www.ipo.gov.uk/press-release-20121001, and on the court website via tinyurl.com/9tbbjdp.

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EVENTS, LICENSING AND CAMPAIGNING

CONSULTATION ON PROPOSED REGISTER OF LOBBYISTS

Added 29/1/12. This information updates s.46.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Cabinet Office consulted from 20 January to 13 April 2012 on how its proposed statutory register of lobbyists should work, in particular the definition of a lobbyist, who should be required to register, what information should be collected about them and the clients on behalf of which they lobby, how the register should be funded, what sanctions should operate and who should run the register.

Lobbying is described as seeking to influence the UK government or UK parliament on public policy, government decisions or legislation. Lobbyists are defined as those who undertake, or whose employees undertake, lobbying activities on behalf of a third party client. The definition could be broadened after the consultation, but it is not intended to include individuals or organisations who undertake lobbying activities on their own behalf. It would therefore not cover interaction between constituents and their MPs, or the normal interaction between businesses, charities or other voluntary organisations and the government.

It is proposed that the register would include the names of lobbying firms, individual lobbyists and their clients, and whether a lobbyist was previously a government minister or senior civil servant.

Specific consultation questions include whether in-house lobbyists, lobbyists who carry out lobbying on a pro bono basis, trade unions, and organisations which engage in lobbying on behalf of interest groups such as think tanks and charities should be required to register.

Organisations such as the National Council for Voluntary Organisations and ACEVO have said the register must not have the unintended effect of preventing, impeding or dissuading charities from informing government policy. NCVO has said charities should be treated no differently from lobbying firms.

The consultation documents can be accessed via tinyurl.com/7htygy5. Appendix A2 includes an interesting overview of registers of lobbyists for the European Commission and Parliament and in the United States, Canada and Australia, including their exemptions for charities and other not-for-profit organisations.

The Alliance for Lobbying Transparency is critical of the proposals, saying they do not cover enough lobbying activity or reveal enough about what the lobbying involves. The Alliance's website is at www.lobbyingtransparency.org.

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GUIDANCE ON POLITICAL ACTIVITIES BY CHARITIES IN NORTHERN IRELAND

Added 29/1/12. This information updates s.46.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Charity Commission for Northern Ireland published guidance in June 2011 for charitable organisations involved in campaigning and political activities, which can be accessed via tinyurl.com/43orbj9. It is similar to the Charity Commission's guidance for charities in England and Wales (CC9), at www.charitycommission.gov.uk/Publications/cc9.aspx.

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GIVING YOUR VIEWS ON REGULATORY ENFORCEMENT OF VOLUNTEER EVENTS

Updated 27/5/12. This information adds to s.47.1.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 21 May until 2 July 2012 the Department for Business, Innovation and Skills is asking for evidence about regulatory enforcement of short-term (not longer than two weeks) volunteer-based events. This follows the announcement in the budget on 21 March 2012 that it would "launch sector-based reviews of regulation, and creation of the "focus on enforcement" website on 23 March.

The intention is that anyone can have their say about inconsistent or inappropriate enforcement or where enforcement can be improved, reduced or done differently — and good enforcement can be identified, so others can learn from it.

BIS say they are looking at regulatory activity at local or national level that affects volunteer-based events. This includes events, for example, that involve preparing and selling foods, such as cake-bakes to raise funds for school PTAs; sale of second-hand goods, such as jumble sales and bring and buy sales; raffles; sponsored events such as fun runs and challenges; staging of performances involving sale of tickets to raise money, such as choral events, plays and poetry readings (but not including copyright issues); and street parties.

They give the following as examples of the experiences they would like to hear about:

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FOOD HYGIENE FOR STREET PARTIES AND OTHER ONE-OFF EVENTS

Added 27/5/12. This information updates s.40.10.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Food Standards Agency issued on 22 May 2012 basic FAQs on street parties and other one-off events, making clear that one-off events such as these are not usually considered food businesses, even if a charge is made for food, so there are no forms to fill in.

The guidance suggests that the local authority's environmental health team should nevertheless be informed about the event, and makes clear that even if food hygiene legislation does not apply and food hygiene certificates are not necessary, anyone supplying food other than in a purely domestic situation is legally responsible for ensuring that the food they supply is safe.

The Food Standards Agency's FAQs are at www.food.gov.uk/multimedia/faq/parties. The website has links to NHS Choices for guidance on preparing and storing food safely and information about food allergens, and also has a link to find the local environmental health team.

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EVENT HEALTH AND SAFETY

Added 22/4/12. This information adds to a new s.47.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Health and Safety Executive's new event safety webpages, launched in April 2012, provide guidance for event organisers, site or venue owners, supervisors and other workers, volunteers, voluntary organisations and contractors, on topics ranging from street parties and small fetes to public welfare and environmental issues, venue and site design, temporary demountable structures and crowd management.

The website includes checklists for getting started, managing an event, after an event, and planning for incidents and emergencies, and includes links to other industry guidance relevant to events.

The Guidance on running events safely website is at tinyurl.com/82mlq38. It replaces HS(G)195, A guide to health, safety and welfare at music and similar events, and will form part of a wider event industry guide being developed by the Events Industry Forum.

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ORGANISING COMMUNITY EVENTS

Added 27/5/12. This information adds to a new s.47.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Complementing the event health and safety information from the Health and Safety Executive [see above] is a short booklet, Top tips for holding a public event in your community, published on 23 May 2012 by the Local Government Association together with the Big Lunch, Community Matters, the Department for Transport, the Sport and Recreation Alliance and Streets Alive. It is intended for events such as fetes, parades and charity fundraising events that will attract several hundred people and may involve sales of food and alcohol.

The booklet covers the consents or licences that may be required, closing roads or other public spaces, events on private property, insurances, copyright music, fireworks and more. It can be accessed via tinyurl.com/6wlkp4a.

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CHANGES IN ALCOHOL AND ENTERTAINMENT LICENSING

Updated 28/10/12. This information updates s.47.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Licensing Act 2003 requires a premises licence, club premises certificate (CPC) or temporary event notice (TEN) to be obtained before alcohol is sold on any premises or out of doors or is given to people who pay an admission fee or other indirect charge, or before regulated entertainment takes place or late night refreshment is provided. Entertainment is regulated if it takes place in the presence of an audience of one or more persons, and involves performance of plays, dance or live music; indoor sporting events; boxing and wrestling (but not other sports) as outdoor events; film showings; or any playing of recorded music, for example as an accompaniment to dancing. Some regulated entertainment is exempt from the need for a premises licence, CPC or TEN.

A Home Office consultation in 2010 on revisions to the Licensing Act looked at how to reduce the burden and bureaucracy of licensing, revise the system of temporary event notices, deal with the problems of late-night drinking, protect children from the harm of alcohol, ban below-cost sales, and give more local powers to refuse and revoke licences. The consultation led to part 2 (ss.103-140) of the Police Reform and Social Responsibility Act 2011 (PRSRA), which came into effect on 25 April 2012. Changes which are likely to affect voluntary and community organisations are removal of the requirement to live or operate locally in order to make representations on licensing decisions (the vicinity test), and new provisions on temporary event notices.

Vicinity test
From 25 April 2012, the vicinity test for making representations to the licensing authority about new licence applications or existing licence premises is removed. Prior to this, representations could be made only by interested parties as defined in the Licensing Act 2003: a person living in the vicinity of the premises, a body (such as a residents association) representing people who live in the vicinity, a person involved in a business in the vicinity, or a body such as a trade association representing people involved in businesses in the vicinity. The licensing authority could use its discretion in setting the "vicinity", and someone outside the vicinity could not make a representation about the premises, even if they would be affected by the licensed premises.

With the removal of the vicinity test, anyone is able to make representations regardless of where they live or operate, provided the representation is relevant and relates to one or more of the licensing objectives set out in the Licensing Act (the prevention of crime and disorder, public safety, prevention of public nuisance, and the protection of children from harm). A short factsheet describing the change can be accessed via tinyurl.com/6uj976v.

The Licensing Act 2003 (Premises licences and club premises certificates)(Amendment) Regulations 2012, implementing ss.105-108 of the Police Reform and Social Responsibility Act 2012, are at www.legislation.gov.uk/uksi/2012/955/made.

Temporary event notices (TENs)
Under the Licensing Act 2003, a temporary event notice (TEN) is required for a one-off event at any premises or out of doors, involving the sale of alcohol and/or public entertainment for which a premises licence would normally be needed. A TEN might also be required for an event at a private home — such as a fundraising event — at which alcohol is to be sold or provided in return for a "donation", or at which regulated entertainment takes place.

Amendments to the Licensing Act in ss.112-117 of the Police Reform and Social Responsibility Act 2011 are:

• the environmental health authority will be able to object to a TEN, rather than only the police as at present;
• the police or environmental health authority will be able to object to a TEN on the basis of any of the licensing objectives, rather than only on prevention of crime and disorder as at present;
• objections by the police or environmental health authority will have to be made within three working days, rather than two working days as at present;
• if there are objections from the police or environmental health authority and all or part of the premises to which the TEN will apply already has a premises licence or club premises certificate, the licensing authority will have discretion to apply the existing licence conditions to the TEN;
• unlike at present, where all TENs must be submitted at least 10 days before the event is due to start, there will be provision for late TENs to be submitted between five and nine days before the event, but if there is any objection from the police or environmental health authority a counter-notice will be issued with no right of appeal and the event cannot go ahead;
• TENs that are submitted 10 or more days before the event will be referred to as standard TENS;
• in any calendar year a personal licence holder can submit no more than 10 late TENS (out of their total of 50 TENs that can be submitted), and a non-personal licence holder can submit no more than two late TENs (out of their total of five);
• the statutory limit on the duration of a single temporary event will be increased from 96 to 168 hours, which will allow week-long events to be run without a break;
• the same premises will be able to be used for events covered by a TEN for a maximum of 21 days in any calendar year, rather than 15 as at present.

Other PRSRA changes
Other provisions of the Police Reform and Social Responsibility Act 2011 will, from 25 April 2012, allow licensing authorities, when making decisions, to take steps which are appropriate for the promotion of the four licensing objectives, rather than the heavier requirement of having to exercise their licensing functions with a view to promoting the licensing objectives as at present; and will change some provisions on persistent sales of alcohol to children.

S.119 of the act, allowing the licensing authority to issue early morning alcohol restriction orders prohibiting the supply of alcohol between midnight and 6am, and ss.125-139, allowing the authority to impose a late night levy to help cover costs of policing and other arrangements to reduce or prevent crime and disorder in connection with the supply of alcohol between midnight and 6 am, came into effect on 31 October 2012.

The Police Reform and Social Responsibility Act 2011 is at www.legislation.gov.uk/ukpga/2011/13/contents. The explanatory notes, available from that page, provide a good summary of the legislation.

The Licensing Act 2003 is at www.legislation.gov.uk/ukpga/2003/17/contents.

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DEREGULATION OF LIVE MUSIC AND OTHER ENTERTAINMENT

Updated 16/10/12. This information updates s.47.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The Live Music Act 2012, which applies only in England and Wales, is in effect from 1 October 2012. S.3 of the act amends schedule 1 of the Licensing Act 2003 so that the following are no longer regulated entertainment and therefore do not require a licence:

• live performance of music or entertainment of a similar description, whether amplified or unamplified, in premises licensed for the supply of alcohol, provided that at the time of the entertainment alcohol is being supplied for consumption on the premises, the audience is not more than 200 persons, the entertainment takes place between 8am and 11pm, and the licence does not include a condition saying this provision does not apply. NOTE: The cut-off time is 11pm — not midnight as I previously had on this website];
• live performance of music or entertainment of a similar description, whether amplified or unamplified, between 8am and midnight to an audience of not more than 200 persons, in premises which are not licensed under the Licensing Act but are workplaces as defined in the Workplace (Health, Safety and Welfare) Regulations 1992;
• the performance of unamplified live music or entertainment of a similar description in any premises, regardless of audience size, between 8am and 11pm, unless the premises are licensed for the supply of alcohol for consumption on the premises and the licence says that this music provision does not apply.

Deregulation of other entertainment
The Department for Culture, Media and Sport has also consulted, from 10 September to 3 December 2011, on deregulation of other types of regulated entertainment in England and Wales, as defined in schedule 1 of the Licensing Act 2003.

The foreword to the consultation document refreshingly starts, "At the moment, the law and regulations which require some (but not all) types of entertainment to be licensed are a mess. For example, you will need a licence if you want to put on an opera but not if you want to organise a stock car race. A folk duo performing in the corner of a village pub needs permission, but the big screen broadcast of an England football match to a packed barn-like city centre pub does not. An athletics meeting needs licensing if it is an indoor event, but not if it's held outdoors. A free school concert to parents doesn't need a licence, but would if there is a small charge to raise money for PTA funds or if there are members of the wider public present. A travelling circus generally needs a permit whereas a travelling funfair does not. A carol concert in a Church doesn’t need a licence, but does if it is moved to the Church Hall. There are many other examples where types of entertainment are treated differently for no good reason — the distinctions are inconsistent, illogical and capricious."

The consultation looks as whether the requirement for a licence to host a performance of a play, live music or dance, a film showing, an indoor sporting event, or any playing of recorded music should be removed. The document makes clear that the government intends to retain the licensing requirements for any performance of live music, theatre or dance, recorded music, indoor sport or exhibition of film where the audience is of 5,000 people or more; boxing and wrestling; and any performance of dance that may be classed as sexual entertainment but is exempt from separate sexual entertainment venue regulations.

The consultation documents are at www.dcms.gov.uk/consultations/8408.aspx.

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PPL & PRS LICENCES FOR PLAYING OR PERFORMING COPYRIGHT MUSIC

Updated 16/10/12. This information updates s.47.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
In addition to any licences which might be required under the Licensing Act 2003, licences to play copyright music are required for public events, and for other public situations such as background music in shops, street performances, festivals, use of music in day centres or for dancing or keep-fit classes, or any other performance of live, recorded or broadcast music which is not within a purely domestic setting. Licences are even required for settings which might not be thought of as public, such as offices and other workplaces.

The main licences are from the Performing Right Society (PRS for Music) covering the copyright on the music and any lyrics when they are performed or played publicly, and from Phonographic Performance Limited UK (PPL) covering the copyright on the particular performance of the music which is recorded on a record, tape, CD, computer, game or similar or is being broadcast on radio, TV or other media. PRS royalties go to the songwriters, composers and music publishers, and PPL royalties go to the artists, performers and recording companies.

The cost of PPL and PRS licences depends on a number of factors, including the type of premises — for example office buildings; shops; schools and colleges; social, member and not-for-profit sport clubs; and halls for hire. Information for these and other premises, including what the licences cover and how much they cost, is available from PPL at www.ppluk.com and from PRS for Music at www.prsformusic.com. Note that when the websites refer to businesses, this generally includes charities and other voluntary and not-for-profit organisations.

In addition to PPL and/or PRS, licences may also be required from the licensing authority for regulated entertainment or Video Performance Ltd for music on video or DVD.

End of PPL exemption for charities and other voluntary organisations
Until 31 December 2011, charitable and other non-governmental not-for-profit organisations were exempt from the requirement to obtain a PPL licence if there was no admission charge for the activity at which the music was played, or if the proceeds of any admission charge or sales were used for the purposes of the organisation. This exemption covered only PPL licences, not PRS. The same exemption applied for activities or organisations such as charity shops which are "beneficial" to charitable or similar organisations.

From 1 January 2012, this exemption has ceased to exist, and charities, other not-for-profit organisations and organisations such as charity shops need a PPL licence if they play recorded music.

For not-for-profit sports clubs the exemption from PPL remains in place until 1 January 2013 (extended from 1 June 2012), following a consultation from 24 January to 6 March 2012 on the proposed arrangements for these clubs. The consultation documents can be accessed on the Sport + Recreation Alliance website via tinyurl.com/6sorzw5.

Tariff CB for community buildings
Community buildings are eligible for a special tariff CB, which from 1 January 2012 covers both PPL and PRS but is administered by PRS for Music on behalf of both bodies.

Tariff CB is available only for community buildings run by voluntary organisations, such as community centres, village halls, memorial halls, parochial halls, separate church halls serving the community at large, women's institutes, welfare institutes and comparable premises, "in respect of their use for a miscellany of entertainments or functions at which copyright music is publicly performed [for PRS] and/or sound recordings are played in public [for PPL]", and where the organisation's "defined income" is not more than £50,000 per year.

Tariff CB does not apply to charity shops, buildings run by statutory authorities, church halls used only for activities of the associated church congregation, or musical performances or events for which the price of admission, whether by ticket, programme or otherwise, is more than £20. Other PPL and PRS tariffs must be used for these.

Parish and neighbourhood councils, as statutory bodies, are not eligible for tariff CB. In the past Community Matters has suggested that such councils might be able to make a case directly to PPL and PRS that they should be included, but the music licensing bodies have now made clear that they will not allow parish and neighbourhood councils to join tariff CB.

Defined income includes only income relating to the building: door takings and similar takings of the voluntary organisation that operates the building; hiring charges received from hirers of the building, but not the door takings of those hirers if retained by them; subscriptions; contracts related to activities taking place in the buildings or on its land; and the net takings from food and drink sales if the voluntary organisation receives these. Defined income does not include VAT, bank interest, grants, donations or gifts related to the community building, nor does it include any income to the organisation that is for work unrelated to the community building, such as a contract for outreach work or other projects the organisation runs in addition to managing the building.

Because grants do not count towards defined income, Community Matters has advised in the past that where grants have been replaced by contracts for the same activities, organisations should make the case to PRS and PPL that this should also be exempt. PRS have now ruled that contract income that has replaced grant income is not exempt and that organisations should include this income in the calculation of the fee for tariff CB. PRS has also clarified that organisations should pay a licence fee on income from other contracts for services that they may win, whether or not these are related to music use. The only exception is for income to the organisation that is not related to their community building.

What is covered by tariff CB. The new tariff CB licences community buildings, land surrounding the building, and the activities that take place within them, apart from commercial activities run by third parties which will need their own separate licences. It also covers music played out loud, including radio, in any vehicles operated by the organisation, including minibuses. There has been an issue about PPL but not PRS covering music in minibuses, but PRS confirmed in April 2012 that PRS will cover minibuses as well, and this provision will be backdated to 1 January 2012.

The PPL element of tariff CB does not apply to jukeboxes, which are licensed by PPL through the jukebox operators or hirers. Nor does it apply to any third party hire to commercial organisations and individuals earning an income from providing the activity (such as commercial aerobics groups, dance classes or slimming clubs) or any event where the profit does not go entirely to the voluntary organisation which operates the building. In this case the hiring organisation must itself have the relevant PPL licence.

The PRS element of tariff CB does not apply to some theatrical performances in which the performing right is not administered by PRS for Music.

Under tariff CB there are some exemptions from the requirement to have a PPL licence, a PRS licence, or both licences, provided no other licensable, music related activity takes place within the building. As soon as any licensable activity at all takes place, the relevant licence fees must be paid on all defined income from the activities that would otherwise have been exempt. These exemptions are:

• A PPL licence is not required if only live music is performed and there is no recorded music, or where the only recorded music played is through a jukebox which has its own PRS licence. The building also does not need a PPL licence if the group hiring the space has its own PPL licence.
• A PRS licence is not required if no live music is performed, and any sound recordings played do not include music still in copyright. Some theatrical performances are exempt from PRS licences.
• Neither licence is required if no music is played or performed, or if the only music is any or all of the following:
  • at private functions such as weddings, birthdays or christenings;
  • live performance of music that is out of copyright;
  • specially purchased copyright-free recorded music or other music not controlled by PRS or PPL;
  • for sacred worship;
  • religious or civil wedding ceremonies, and civil partnership ceremonies;
  • for Medical Music Therapy.
  • some educational use between a student and teacher, in specific circumstances.

Other tariffs
Organisations which are not eligible for (or do not want to join) tariff CB or are above the £50,000 defined income threshold Tariff GP (General Purposes) and Tariff I (Workplaces), and a range of specific tariffs such as LP and LC for popular or classical concerts, V for variety shows and T for theatrical usage. Information is available from PPL, PRS and Community Matters.

Organisations working with children and young people
Music licensing for organisations working with children, young people and families is a very helpful briefing published by Community Matters in March 2012, on behalf of the Department for Education's overarching strategic partnership for voluntary, community and social enterprise sector organisations that serve children, young people and families. The document refers throughout to organisations working with young people, but the content also applies to organisations working with other groups. It can be accessed via tinyurl.com/bwht37n.

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PPL 'SPECIALLY FEATURED ENTERTAINMENT' TARIFF

Added 5/2/12. This information updates s.47.6.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
Phonographic Performance Limited (PPL), which licenses the public playing of sound recordings, consulted until 14 October 2011 (informally extended until the end of 2011) on its specially featured entertainment (SFE) public performance tariff. This is additional to the standard PPL licence [see above]. It is proposed that the new SFE tariff will not apply to community halls or youth clubs unless they are hosting ad hoc events such as festivals, dance parties or similar events. It will also not apply to student unions, unless they are hosting such ad hoc events, or discos.

Specially featured entertainment involves the use of sound recordings in a more prominent manner than simply background music. It is proposed that this should apply where a DJ plays sound recordings at the venue, or there is dancing (including dancing on ice or roller discoing) at the venue or facilities are provided for such dancing with the reasonable expectation that dancing will take place. For such entertainment, an SFE licence will be required unless the public performances are specifically covered by another PPL tariff.

The consultation document proposes that fees should depend on the number of events at the venue, the duration of each event, and the number of attendees at each event (or, in default, the capacity of the venue), but that the fact that there is or is not an admission fee should not be a factor. This seems to be contrary to reports in the voluntary sector media at the end of August that festivals etc at or in the grounds of community buildings would not be exempt if the admission charge is £10 or more.

PPL initially anticipated that the changes would come into force on 1 April 2012, with the fees phased in as 25% in the first year, 50% in the second year, and 100% in the third year. However PPL said in October 2011 that more discussions are needed with trade associations and licensees, so no changes will be brought in until 1 January 2013 at the earliest.

The consultation documents are on the PPL website via tinyurl.com/6m8sxyb.

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DEMONSTRATIONS NEAR PARLIAMENT: DESIGNATED AREA OUT, CONTROLLED AREA IN

Added 29/1/12. This information updates s.47.7.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
From 30 March 2012, part 3 (ss.141-149) of the Police Reform and Social Responsibility Act 2011 repeals ss.132-136 and 138 of the Serious Organised Crime and Police Act 2005 (SOCPA). From that date the "designated area" (approximately one kilometre in each direction from the Houses of Parliament) is no longer in effect, it is no longer unlawful to hold a demonstration within that area without giving written notification to the Metropolitan Police commissioner at least six clear days before the event, and the police no longer have the right granted by SOCPA to impose conditions not only on number of participants, location and duration, but also on noise, size of banners, and any other conditions they considered necessary.

SOCPA s.137, banning the use of loudspeakers in the designated area, is repealed from 19 December 2011.

But the rules have not disappeared; they have been replaced by other rules. The Public Order Act 1986 s.14 will once again apply to public assemblies in the vicinity of Parliament. This allows police to impose conditions on any public assembly of two more persons if there is evidence that public disorder or intimidation may occur.

The 2011 legislation defines the central gardens and walkways of Parliament Square and the pavements immediately surrounding the central garden as a controlled area, and makes it a crime to engage in a prohibited activity within the controlled area if a police or local authority officer has given an order not to do so. Prohibited activities include operating amplified noise equipment such as a loudspeaker or loudhailer unless authorisation has been granted by the Greater London Authority or Westminster Council; erecting a tent or other sleeping structure, or sleeping in one; placing or keeping a sleeping bag, mattress or similar equipment in the area in order to sleep there; or using any sleeping equipment to sleep overnight in the area.

Directions to cease doing a prohibited activity or not to start to do one can last up to 90 days. A police officer or local authority officer can also seize any property which might be used to commit one of these offences.

The SOCPA rules did not apply to processions near Parliament, for which the Public Order Act 1986 ss.11-13 requires six days' notice needs to be given anyway (except in exceptional circumstances), and for which there are different rules on the conditions that can be imposed.

The Police Reform and Social Responsibility Act 2011 is at www.legislation.gov.uk/ukpga/2011/13/contents. The explanatory notes, available from that page, provide a good summary of the legislation. Liberty (the National Council for Civil Liberties) has a basic summary at tinyurl.com/875m8su.

Commencement order no.2, bringing this part of the Act into effect is at www.legislation.gov.uk/uksi/2011/2834/contents/made

The Serious Organised Crime and Police Act 2005 and the Public Order Act 1986 can be accessed at www.legislation.gov.uk.

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