Rewriting the UK&#39;s laws I'll preface with the (probably obvious) fact that I'm no law student or professional. I have read the guidelines for questions in law.se, and am confident that my question is specific and on-topic (at least according to my interpretation of the guidelines). Let me know if I'm wrong and how I can rectify it. Question How could we achieve a full, or at least partial, review and rewrite of our complex and archaic laws? This could broadly apply to many countries but I am thinking specifically of the UK. Background This question has been building in my brain for a while, and it's emerged from a few different angles. One (admittedly trivial) cause has been the articles and videos which float around, describing 'weird' and 'ridiculous' British laws still in effect, banning activities such as 'handling a salmon in suspicious circumstances' or 'carrying a plank along a pavement'. While I have read other articles which appear to debunk some of these laws, many appear to be legitimate and completely useless - well in need of removal or rewriting. On the other end of the spectrum are the news items, or bursts of public indignation, that pop up from time to time regarding tax loopholes for the super rich and similar financial quirks that, on the face of it, seem to be needlessly complex and unfair. I'm aware tax loopholes specifically may be harder to close than one might assume, especially when the super rich have the incentive and resources to impede it, however this just seems like more reason to me why a complete overhaul may be needed. As a general impression (again, I'm no expert), I also get the feeling that often court proceedings are much more drawn out than they need to be, due to subjective wording of laws, or other complexities that could be ironed out with a rewrite. This one is less definitive, more of the impression I get as an outsider looking in. I've also been reading and thinking a lot about AI and other advanced technology developments recently. A lot of the discussion seems to be about how limited our current legal system is in dealing with matters around AI ethics and culpability/accountability as they begin to arise. It seems to me the solutions being worked on will rely on building upon many existing, complex laws which were written in a time when AI wasn't even conceivable. Won't this problem of out of date laws tangling with new technology get worse and worse? It seems to me another reason redoing some or all of our laws would be a great idea and save us a lot of bother down the line. There are many more reasons this question has occurred to me time and time again, but I hope these suffice to give an idea. Research and Thoughts I've tried to look into this for myself, both here on law.se and online in general. Besides being buried in a mountain of results for the recently released song 'Rewrite the Stars', however, there really doesn't seem to be a lot out there addressing this. Possibly because it seems such a ridiculous concept. I'm aware laws have to be passed in Parliament, and evidently an entire legal system couldn't just be passed at once. I'm interested if there could be a way to overcome this however, even if it involved dramatically reworking the way laws are passed. Other obstacles that spring to mind: -It would be a gargantuan undertaking in terms of time, money and manpower. -There would be no real world testing, and a messy changeover between old and new -People could exploit the overhaul, by trying to manipulate the new system to benefit them While this may come across as a silly question, I truly feel the benefits that could be reaped from a completely modern, logical system of law would at least balance these difficulties? What would the process look like, and can these obstacles be overcome from a legal perspective?
The Law Commission already does this, including: repealing legislation that no longer serves any practical purpose creating consolidation bills, which merge multiple acts (or parts of act) into a single one. Because Law Commission bills do not create or change the law, they typically have an expedited passage through Parliament.
For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle.
Social media platforms are not publishers under UK law (at present), as such, they are not legally responsible for the content they host providing that there is a mechanism for alerting them to infringing material and that, when alerted, they remove it. As to "why", that is a political question.
Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company.
Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions &amp; language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws).
Here be dragons Financial services regulation is very complicated. Non-compliance can have severe consequences. Professional legal counsel could assist in navigating the complex web of law, regulation, and precedent. It may seem unfair that things are so difficult - that's a result of financial services being inherently complicated topics, ones which are fought over by wealthy people/firms, and where there has been a long history of dodgy dealings of many kinds. As an example of the difficulties involved, the law in general would like to distinguish between Investment advice given to a specific individual, taking all their personal circumstances and wishes into account, and Newspaper reports giving dispassionate information to the general public about the movement of share prices, but not telling them what to do in response; or completely generic advice like &quot;it's good when the wiggly line goes up&quot;. The second is &quot;meant&quot; to be basically OK and not the concern of the regulators; the first one is where all kinds of legal duties and protections come into play, since people might be disadvantaged by advisors who are inept or unscrupulous. Intuitively, D's app is somewhere between these, because it's not as if users are sitting down with a financial advisor and making trades, but they're also not just consuming generic data like a stock ticker. There is an element of prediction, expressing a range of envisaged outcomes, and potentially with &quot;extra filters&quot; that add some more personalization. So what does the law say about this? Just looking at the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, Part II Chapter 12 and its form after two decades of tweaking tells us that there is a lot of complicated detail just in this regulation. We don't have to read or understand the words to see that there are a lot more of them, taking the apparently simple distinction above and trying to capture or carve out a range of activities not originally envisaged. If we do start looking at the actual words, we can see several concepts that become relevant - &quot;advice on the merits&quot;, &quot;leading or enabling persons to buy or sell&quot;, and so on. These, and their predecessor words in older laws, have been thrashed out in the courts in ways that are not completely obvious. A recent case in the Court of Appeal, Adams v Options Personal Pensions UK LLP [2021] EWCA Civ 474, looks at some of this territory in paragraphs 69-82. We see here some phrases about whether the context of the information presented includes elements of comparison, evaluation, or persuasion; influencing the decision of the recipient as a result of a value judgement; giving purely factual information as opposed to matters such as a characterization of risk; and others. But, as quoted here from another decision, Rubenstein v HSBC Bank plc [2011] EWHC 2304 (QB), &quot;To attempt any greater definition of the giving of advice in an investment context would be unwise and is probably impossible&quot;, which tells us that it's not easy to decide whether developer D's app is in or out. You say &quot;the app won't instruct users whether to buy or not&quot; but courts have found a concept of &quot;implied advice&quot;, where the context of the giving of information means that the customer will take it as advice. In Australia, the Federal Court recently found an implied recommendation, amounting to personal advice, had been given in a certain situation when customers were told supposedly general advice - even though there was an up-front disclaimer (ASIC v Westpac [2019] FCAFC 187). The specific law and facts are not the same as in this question, but the observation holds that disclaimers may not help if the surrounding marketing is communicating something else. Similar remarks apply to the predictive model, where there is also plenty of regulation. In the FCA's Conduct of Business Sourcebook 4.5A.14, for example, there are binding rules about information on future performance. Whether these rules apply to what D is doing, and how they can comply, are hard questions. There is an entire publication, the Perimeter Guidance Manual, about how to know whether someone is covered by the regulator, but even that is full of maybes. Aside from concerns with the regulators themselves, users may be very upset with D from time to time, and their anger might spill over into a legal claim. There is, again, a large body of law to do with such topics as negligence in giving investment advice. All of the above is evidence that the question of compliance for a particular app or business is not completely simple. Professional advice can look at the whole context, as well as relevant law, and assist D in understanding their options.
It is complicated to answer why a law is what it is. Judge Frank Esterbrook writes (in the forward to Reading Law by Scalia and Garner): Every legislator has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislature is a collective body that does not have a mind; it "intends" only that the text be adopted, and statutory texts usually are compromises that match no one's first preference. If some legislators say one thing and others something else, if some interest groups favor one outcome and others something different; how does the interpreter choose which path to follow? I will provide the historical background leading to the current fair use statute and case law, but take from it what you will as to why it is what it is. Fair use is a statutory defence provided by 17 USC 107. Its application is clearly demonstrated in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994). Fair use was an "exclusively judge-made doctrine until the passage of the 1976 Copyright Act". (Campbell) Courts had been finding exceptions for "fair abridgements" and other precursors to fair use as far back as under the Statute of Anne of 1710. (Campbell, citing William Patry's "The Fair Use Privilege in Copyright Law".) This doctrine worked its way into US case law in the nineteenth century. In Folsom v. Marsh, 9 F. Cas. 342 (No. 4,901) (CCD Mass. 1841)1, Justice Story distilled the essence of law and methodology from the earlier cases: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." (Campbell) Folsom states: There must be real, substantial condensation of the materials, and intellectual labor and judgment bestowed thereon; and not merely the facile use of the scissors; or extracts of the essential parts, constituting the chief value of the original work. This early incorporation of fair use focused on whether something new was being created, or whether the "chief value" of the original work was being taken. This primary focus on transformativeness has stuck with with fair use doctrine until today. Campbell said (internal citations removed): The central purpose of this investigation is to see, in Justice Story's words, whether the new work merely supersedes the objects of the original creation ("supplanting" the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is "transformative". Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine's guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. Campbell also includes the following statement of rationale for why Congress included section 107: Congress meant § 107 "to restate the present judicial doctrine of fair use, not to change, narrow, or enlarge it in any way" and intended that courts continue the common-law tradition of fair use adjudication. H. R. Rep. No. 94-1476, p. 66 (1976) (hereinafter House Report); S. Rep. No. 94-473, p. 62 (1975) (hereinafter Senate Report). There is no support for your separation of "parody, comment, and criticism " from "teaching, research, and news reporting", or that there are differing amounts of commercial use allowed for these types of work. The statute lists together "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" as examples purposes. The statute requires that "whether such use is of a commercial nature or is for nonprofit educational purposes" be considered in all fair use cases. There is also very little if any First Amendment rationale expressed for the fair use doctrine. The intersection of the First Amendment and copyright law is more clearly found in the idea/expression dichotomy. 1. Folsom v. Marsh full opinion text
In Bacon's time, common law countries had a greater proportion of legal rules articulated in case law precedents, and a small proportion of legal rules articulated in statutes passed by the legislature than it does today. Further, meaningful access to case law resources for litigants was much more difficult in Bacon's time than it is today. There were fewer secondary sources, few of those were comprehensive and organized at the top level by subject matter, you couldn't do word searches or key note searches, and even primary sources, consisting of statute books and case reporters, were limited in number, expensive, and hard to use. The private sector working together with civil society institutions would subsequently produce in American law, the digests and the &quot;restatements&quot; of the common law rules that Bacon sought (neither of which are themselves binding precedent). Characterizing the distinction as between a &quot;rule based&quot; system and a &quot;formless&quot; one is in my opinion not a description that furthers understanding. In many respects, the common law of Bacon's era has more black and white &quot;rules of law&quot; that could be applied umpire-like by judges arising out of an already substantial collection of case law precedents, than civil law countries whose statutory laws often stated &quot;standards&quot; that set for vague general principles without little guidance regarding how they are applied in particular circumstances (as opposed to more specific and unambiguous &quot;rules&quot;). Precedents provided clear guidance in common law systems in a lot of specific fact patterns (e.g. the working of the &quot;mailbox rule&quot; for contact formation), but civil codes lacked the same level of nitty gritty detail. In Europe, in contrast, lawyers had whatever late Roman Empire legal digests had considered, in summary form, but there was no elaboration or development of this in fact patterns present at the time the court was making decisions but not in Roman times. The Napoleonic Code and other major civil codes of Continental Europe hadn't been drafted at the time that Bacon lived. But what it did have what a subject-matter organized digest of the holdings of legal cases decided in the Roman Empire during Emperor Justinian's reign which were functionally treated as binding statutory authorities by the Latin speaking educated elite starting in the Renaissance and &quot;early modern&quot; period in European history which is known in legal circles as the process of the &quot;reception&quot; of Roman law after it had been dormant for centuries, a process that Britain did not participate in itself. The issue was not that the common law system of Bacon's time lacked legal rules, or that it was formless in the sense that there was not a clear, albeit, somewhat latent structure to those rules, although few people had access to the whole of the relevant authorities. Instead, what was missing in Bacon's time was a compact, comprehensive, statute-like, widely available authoritative statement of private law (the law governing the interaction of non-governmental parties) and criminal law, that could fit easily in a hefty volume or three (written in Latin) on a library bookshelf. This meant, in practice, in common law systems, that it was much harder to deal with legal questions (both transactional and litigation issues) without the assistance of a highly trained specialist lawyer who had spent years learning the system, while in civil law countries, an educated individual who was literate in Latin without other formal legal training had much more of a fighting chance of figuring out what the law required and said, reducing (but not eliminating by any means) the benefits associated with having highly trained legal counsel.