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My Product is Better Than Yours…but Can I Say That?

Posted by admin in December 18th 2009  


My Product is Better Than Yours…But Can I Say That?

(Friday, March 28, 2008 ) – James Katz

Comparative advertising continues to be one of the most popular forms of promoting consumer products in the marketplace. According to Advertising Standards Canada, this type of advertising consists of comparing the advertiser’s products or services with those of another, with regard to their characteristics, performance, consumer preference or value. If properly set out, the typical comparative advertisement will instantly convey to consumers that your product is simply better than that of the competition, without the public having to go through the time and expense of making this comparison themselves. This type of advertising does, however, have its pitfalls, and an improperly conceived comparative advertisement could result in civil liability for trade slander.

An action for trade slander is one of several legal remedies that can be used to combat anti-competitive activity in the marketplace. Other related legal remedies include the tort of passing off (sometimes referred to as common law trade-mark infringement), as well as statutory provisions under both the Competition Act and the Trade-Marks Act which protect against false advertising and unfair competition. In fact, it is not uncommon to see all of these causes of action lumped together in one claim.

Trade slander occurs when untrue information about a competitor’s products or services is conveyed to the public with the intent to harm the competitor, and which results in the competitor suffering economic damage. Also known as injurious falsehood or trade libel, this tort is designed to protect the reputation and goodwill a business has established in its goods and services.

At the outset, is it important to note that not all technically “untrue” statements made in comparative advertising will give rise to an action in trade slander: it has long been held by the courts that the promoting of goods by comparing them to those of others is acceptable, as long as such comparisons do not bring the goods of the latter into disrepute. This type of statement is referred to in the case law as “puffing,” the most common form of which are statements that simply claim in various forms that “my product is the best.” Such general statements, which amount to an indirect statement that the product of a competitor is inferior, will not attract liability. This is because such statements are commonly employed by traders, are not taken too seriously by the buying public, and rarely result in economic damage to the competitor.

However, specific statements disparaging your competitor’s product which are untrue will constitute trade slander. These statements include ones that point out that the goods of a competitor are defective or substandard in some way. If the court is satisfied that a “reasonable person” would believe that such claims made in the course of comparative advertising are true, then they may be actionable.

In order to succeed in an action for trade slander, each element of the tort as outlined about must be proven by the plaintiff to the court’s satisfaction. Thus, as an initial first step, it is up to the plaintiff to prove that the statements complained of are in fact false. This is in marked contrast to actions for defamation of character, where the falsity of the defamatory statements is presumed to be true in the first instance. In either case, however, if the defendant is able to prove that the impugned statements made by it are in fact true, then the plaintiff’s action will fail: this is known as the defence of justification.

Having established the falsity of the defendant’s statement, the plaintiff in a trade slander action must next show that the defendant either made the untrue statements maliciously, or made them with a lack of bona fide intention. This element of the tort is notoriously hard to prove, as it involves showing to the court’s satisfaction what the motive behind the making of the false statements was. In some cases, however, the overarching facts of the particular case can give rise to a finding of malice sufficient to support the cause of action. Because proving malice is difficult, prospective plaintiffs should therefore always consider if they can also bring a claim under Section 7(a) of the Trade-Marks Act, which is essentially a codified form of an action for trade slander that has removed the requirement of proving malice.

The final element that must be established in making out a successful claim for trade slander is proof of resulting economic damage. At common law, the plaintiff is required to prove it has suffered special damages, which typically consist of lost sales, contracts or customers which can be directly or reasonably attributed to the defendant’s false statements. Proof of such damages, like proof of malice, is also a major stumbling block in trade slander actions. In Ontario, however, provisions of the Libel and Slander Act have removed the requirement to prove special damages in situations where the trade slander occurred in print form.

Finally, it is important to note that, as a creature of the common law, the tort of trade slander continues to evolve. Recent Canadian court decisions, for example, indicate that some judges are willing to allow actions for trade slander even in cases where the competitor or its product are not directly identified in the defendant’s advertisement. This is especially true in cases where the participants in the relevant market are all well known by the public, such that the identity of the targeted competitor can be garnered by implication.

It is therefore clear that the law of trade slander continues to expand and to apply to new scenarios, such that the line between acceptable and unlawful advertising is now more blurry than ever. In light of this, obtaining the proper legal advice prior to publishing any comparative advertisement is vitally important for the protection of your business and its reputation.

James Katz is an associate lawyer with BrazeauSeller.LLP. He practices in the areas of intellectual property and litigation matters.


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Law Enforcement Consultant – a New and Expanding Career Field

Posted by admin in December 16th 2009  




Law Enforcement Consultant – A New and Expanding Career Field

How many times have you turned on the news and heard stories about another far flung country such as Iraq, who’s police force was undergoing training in modern policing methods? Its happening more and more and who do you think is doing the training? What you may not know is that it is private contracting firms that are  employing law enforcement consultants to do the ground work and now you too can get on this new modern day gold rush.

An Expanding Need

As American and other western countries become more involved politically with so many of these undeveloped countries, one of their tasks is to insure that their police forces function in accordance with modern standards. This is because, with countries like the U.S. and England working in conjunction with these police forces, they must be sure that the citizenry that they come in contact with are treated in accordance with western policing standards.

More Employment Opportunities

With police departments across the U.S. now struggling to keep their own ranks filled, these private contractors are now having to offer extremely enticing wage and benefit packages to lure in law enforcement consultants to work for them. What this means for men and women across the U.S. that have completed their law enforcement training, is that they now have more employment options to chose from when deciding on where to work.

More Money and Better Jobs

Why should you choose to work for one of these private contractors rather than a U.S. police department upon completion of your law enforcement training? To begin with, they pay substantially more and thats not all. They also house you, feed you and provide plenty of vacation time as well. Also, the experience that is garnered by doing overseas law enforcement consulting work makes excellent resume material. This in turn gives you priority status, when you do finally return to the U.S. and begin to approach domestic police agencies for employment.


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Expungement of Criminal Records in Washington State -7 Steps to Clearing Your Record

Posted by admin in December 8th 2009  


You don’t have to be stuck with a criminal conviction on your record.  Your Washington State criminal conviction can be expunged if you meet the criteria.  And after your conviction is expunged, Washington State law permits you to state you have not been convicted for employment purposes.

 

Expungement is an often misunderstood term and process.  In Washington State expungement of a criminal record or criminal conviction is accomplished by Vacating the Criminal Conviction.  The terms Expungement and Vacating are largely interchangeable, the difference being that Vacating is the legal term.

 

Expungement of a criminal record by vacating the conviction does not destroy or seal the file.  However, it is possible to destroy, or expunge, an arrest record if the eligibility requirements are met.  When an arrest record is expunged, the booking photos and fingerprints are destroyed and removed from the police record.

 

In Washington State, the expungement process differs between felony and misdemeanor convictions.  The following 7 steps are an overview of what is involved.

 

1.  The Required Time Period has Passed Since the Case Completed.

The first eligibility requirement to expunge your conviction in Washington State is passage of the required time period.  For a misdemeanor, the time period begins to run on the date the case is Closed.  For a felony conviction, the time period begins to run on the date a document called a Certificate of Discharge is filed with the court.  In both instances, a case is Closed or a Certificate of Discharge is filed after all the sentence conditions are completed as required.

 

2.  The Conviction is Eligible for Expungement.

Certain convictions, and classifications of convictions, are not eligible for Expungement in Washington State.  Generally, class A felonies (the most serious), sex crimes, and violent crimes cannot be expunged in Washington State.  Among misdemeanors, Washington State does not permit a DUI conviction to be expunged.

 

3.  You Meet the Clean Behavior Requirement.

Two situations will make your conviction ineligible for expungement.  For a misdemeanor, if you were convicted of another crime on a later date then you would not be eligible to have the misdemeanor expunged.  For example, if you were convicted of a misdemeanor in 1995, and another crime in 1997, then the 1995 crime would not be eligible to be expunged.  For a felony, if you were convicted of another crime after the date the Certificate of Discharge was filed then you cannot expunge the felony.

 

4.  Special Rule for Misdemeanors.

Washington State has an interesting rule that applies only to misdemeanor convictions.  To expunge a misdemeanor, you cannot have had any other conviction expunged (vacated).  What this means is if a person has a felony conviction and a misdemeanor conviction, and the person expunged the felony conviction first, then the misdemeanor could no longer be expunged.  However, if the misdemeanor was expunged first, and if the misdemeanor conviction occurred before the felony conviction, then the felony could still be expunged.

 

5.  Preparation.

An expungement, or vacation of a criminal conviction, requires a judge to sign a court Order.  The court process is begun by filing a Motion to Vacate Conviction with the court.  Prior to filing the Motion, you should get copies of the Docket and the Judgment & Sentence from the court clerk.  You should also obtain a criminal history report, called a WATCH Report, from the Washington State Patrol website.

 

6.  Your Day In Court.

Most Washington State courts require a hearing to Expunge, or Vacate, a criminal conviction.  Most courts do not require you to attend if you have a lawyer appearing at the hearing on your behalf.  If the preparation has been done properly, then the hearing should go very smoothly and the judge will sign the Court Order Vacating your criminal conviction.

 

7.  Your Criminal Record is Cleared.

The court clerk processes the Order and sends a certified copy to the Washington State Patrol, which removes the conviction from the public database.  The FBI record is updated based on the Washington State record.  And, if the Order was prepared correctly, a copy will also be sent to the police department that handled the case and your record will also be cleared in their file.  Your conviction has now been expunged (vacated), and your criminal record is cleared.

 

As you can see, you don’t have to be stuck with a criminal conviction on your record.  It is not difficult to expunge a conviction in Washington State if you meet the straightforward criteria.  In most cases, these 7 steps take only a few weeks to complete.

 

Copyright ©2008 Douglas Stratemeyer.  All Rights reserved.


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Attracting Wealth and Abundance by Shedding Limiting Beliefs

Posted by admin in December 8th 2009  


Wealth attraction begins with a firm intention to reject limiting, destructive, lack-focused beliefs from your consciousness. Unfortunately, many people skip this all-important step. They don’t realize how vital it is, or they simply don’t know that they have a black hole of negative beliefs that are holding back their wealth.

Instead they launch into determined attempts to draw forth wealth from outside of themselves. They spend a few minutes a day visualizing, creating vision boards of their dream mansions and cars, they recite a few affirmations – but they don’t realize that they are trying to plant seeds in unfertile ground.

Wealth cannot enter an incompatible environment, vibrationally. It’s like trying to grow plants in a frozen climate. The very atmosphere is hostile to the plant, so the plant will not survive. You can water it as much as you like, place it directly in sunlight, give it vitamins and supplements – but despite these things the temperature will remain too cold and the plant will simply die.

Similarly, wealth cannot flourish in a cloud of limitations and restrictions – all of which we create ourselves.

What kind of limitations?

* I must work hard to obtain money.

* I do not deserve to be wealthy.

* I don’t have enough money.

* Life is a struggle.

* There are no simple ways for me to become wealthy.

* I’m not talented enough to be wealthy.

* Wealthy people are bad, evil, greedy, selfish . . .

And many more beliefs like these will make it impossible for wealth to flourish within you.

Notice I said flourish WITHIN YOU.

Wealth does not come from outside of you. It is not given to you by someone else. It is not a result of being in the right place at the right time, or “doing” the right things – although action can help bring it into physical form.

Before that can happen, however, you must reject your limiting beliefs and consistently replace them with wealth-affirming beliefs, like these:

* Wealth flows easily to me.

* I deserve to be happy, healthy and wealthy.

* I always have enough money for everything I need.

* Life is a beautiful, inspiring gift.

* The universe can find endless ways to deliver my wealth.

* I am talented in ways that are unique to me.

* I choose to be a loving, compassionate, generous wealthy person.

As you consistently transform your beliefs in this way, wealth is automatically drawn toward you. You begin to “attune” to the very essence of wealth, and you are able to realize the expansion of wealth in your life. This includes money obviously, but also many, many other forms of wealth, such as vibrant well-being, enriching relationships, career success, inner peace, and more.

To begin your journey toward wealth, you need only to take a stand against your limiting beliefs and persistently replace them with wealth-friendly beliefs. You will not do it all at once; but work on it moment by moment, day by day, and you will begin to see the evidence of wealth increasing all around you.
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Introduction to Storm Chasing

Posted by admin in December 6th 2009  


Being a storm chaser is as easy as saying you’re a storm chaser, but to really be one, you need to first chase a storm. I mean what kind of storm chaser are you if you never chase? A common mistake people seem to pin with chasers is that we JUST chase tornadoes. This is not true. We chase all sorts of weather and storm activity including severe thunderstorms, tornadoes, derechoes, flood producing storms, hurricanes and even winter storms. You don’t have to chase just tornadoes to be a storm chaser and whoever says you do is just plain ignorant. Before venturing out into severe weather, you really need to consider all the safety awareness and even training for you out in the world you can participate in.

Become a Skywarn Storm Spotter

One word of advice that I strongly recommend to beginning storm chasers is becoming a Skywarn Storm Spotter. A skywarn spotter is a trained and certified volunteer storm spotter with the National Weather Service. Spotters take annual free training classes which usually last anywhere from 4 to 8 hours and for only 1-2 days. These classes are free to anyone of any age. Spotters are not chasers however, sure some spotters do chase but the spotter program was not made to be a storm chasing group. Storm spotters get out in their city or local/county and observe and report severe weather and tornadoes. They don’t do this for the rush, they do it to save lives. Spotters are the backbone of the warning system. Radar and detection equipment can not see what human eyes can see, so spotters are a very important function when it comes to severe weather awareness.

The Unofficial Rules

The following rules are unofficial and are more like tips to help you start your chasing adventures. These tips will keep you out of harm’s way and out of jail. Please read them and follow them very closely as they are very important and most chasers live by them:

1. Always think of SAFETY FIRST! Never put yourself in a situation where you or another can be serious injured or even killed. Remember to think SAFETY FIRST for the other people on the roads in the storm area. People may be trying to get away from the storm and not realize your a storm chase and could accidentally wreck into you. Some people will also be curious to what you are doing and that could put them in harm’s way in they do not know what they are doing.

2. Don’t pull over unless you can do so in a safe manner. Interstates and freeways are not a good place to pull over when storm chasing. There is too much traffic on these forms of roadways and accidents can be very deadly. If your going to pull over, do it somewhere on a road that is not used as much and make sure you are not breaking the law as some roads have signs that ask people not to park on the side of the road and that means YOU TOO!

3. Obey the laws! Being a storm chaser or spotter does not give you extra rights or permission to violate traffic laws. You can not speed over the posted speed limits and you can not park in areas where parking is not allowed. You also can not trespass on other peoples property including fields and private roads. If law enforcement has you turn around or take a detour, abide by their orders and do as they tell you or you can go to jail. Too many bad chasers out there are arguing with police officers and giving us sane chasers a bad name. Don’t do it!

4. Watch your speed! Remember some people may be trying to get away from the storm and driving badly. Some people can’t drive as good anyways and may be all nervous and scared as they flee putting them and everyone around them in possible danger, including you. You should also take rain in to mind and hydroplaning where you drive across water and basically lose control of everything.

5. Core punching in dangerous. Driving through a storm to get on a different side of it is a form of core punching. Many chasers do it but its extremely dangerous as tornadoes can form where you are or already be on the ground and just invisible because they are rain-wrapped. Try to keep a safe distance from the storm at all costs. I have seen very nice vehicles core punch and by the time, they got out of the storm, their nice vehicle was destroyed from all the softball size hail that hit it.

6. Don’t chase alone. I chase alone most of the time, I have over 10 years experience in storm chasing and many years being the actual driver but it is still a bad idea to chase alone. If I were to break down or get hurt, there is no one there to help me. I would be alone (maybe not even conscious) with the tornado or severe weather. Especially when you are a beginner, you should take someone with you. A suggestion if you have the money is doing one of these storm chasing tours. They are expensive but they will take you on a chase and they are very safe and experienced chasers.

7. Don’t be a emergency vehicle! You can put fancy storm chaser and spotter decals all over and even a warning light on your car (if your laws allow it!) but it’s a good idea to put less stuff like that on your vehicle. For one thing, people may mistaken you as law enforcement and cops may pull you over and even cite you for such activities. Another thing is that is draws attention to you and people may come over to talk about it getting themselves right in the middle of harm’s way.

8. Supplies! Supplies! Supplies! Make sure you have everything including a full tank of gas, emergency cash, food and water, first aid and your other needed equipment. I would also make sure you have oil, power steering fluid and a spare tire or two because you may need to use this stuff at some point. Come prepared and be safe prepared!

9. Be cautious of the severe weather itself! Lightning is a big threat as people get struck by it all the time. Your getting close to these storms which are producing a lot of cloud to ground lightning most of the time and now you have a bigger chance of getting struck. You also need to make sure your not in the path of the storm but rather behind it and within a safe distance of it.

10. A final tip and a very important one is morality. People may lose their homes, lives and love ones lives after a tornado or severe weather event strikes. You should not go around video tapping these people after one has been through their area, be moral and have a heart. Not everyone likes storms as much as we do. And for the record, I don’t want to see anyone die, get injured or have their property destroyed by severe weather! It would be better if you stayed out of damage areas so you can avoid this and be out of the way of emergency personnel trying to do their jobs!
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How to Become A Successful Leader

Posted by admin in November 28th 2009  




When you are at work, do you get frustrated because things don’t seem to be happening the way they’re supposed to be? You see people milling around but nothing gets accomplished. And in the daily hustle and bustle, do you feel that your goals remain just that – goals. Then maybe its time for you to stand up and do something about it.

Most people are content just to stand around listening for orders. And it isn’t unusual to adopt a follow-the-leader mentality. But maybe, somewhere inside of you, you feel the desire to make things happen – to be the head, not the tail. Then maybe leadership just suits you fine.

Some people believe that great leaders are made, not born. Yes, it may be true that some people are born with natural talents. However, without practice, without drive, without enthusiasm, and without experience, there can be no true development in leadership.

You must also remember that good leaders are continually working and studying to improve their natural skills. This takes a commitment to constantly improve in whatever endeavor a person chooses.

First of all, let’s define leadership. To be a leader, one must be able to influence others to accomplish a goal, or an objective. He contributes to the organization and cohesion of a group.

Contrary to what most people believe, leadership is not about power. It is not about harassing people or driving them using fear. It is about encouraging others towards the goal of the organization. It is putting everyone on the same page and helping them see the big picture of the organization. You must be a leader not a boss.

First of all, you have to get people to follow you. How is this accomplished?

People follow others when they see a clear sense of purpose. People will only follow you if they see that you know where you are going. Remember that bumper sticker? The one that says, don’t follow me, I’m lost too? The same holds true for leadership. If you yourself do not know where you’re headed to, chances are people will not follow you at all.

You yourself must know the vision of the organization. Having a clear sense of hierarchy, knowing who the bosses are, who to talk to, the organization’s goals and objectives, and how the organization works is the only way to show others you know what you are doing.

Being a leader is not about what you make others do. It’s about who you are, what you know, and what you do. You are a reflection of what you’re subordinates must be.

Studies have shown that one other bases of good leadership is the trust and confidence your subordinates have of you. If they trust you they will go through hell and high water for you and for the organization.

Trust and confidence is built on good relationships, trustworthiness, and high ethics.

The way you deal with your people, and the relationships you build will lay the foundation for the strength of your group. The stronger your relationship, the stronger their trust and confidence is in your capabilities.

Once you have their trust and confidence, you may now proceed to communicate the goals and objectives you are to undertake.

Communication is a very important key to good leadership. Without this you can not be a good leader. The knowledge and technical expertise you have must be clearly imparted to other people.

Also, you can not be a good leader and unless you have good judgment. You must be able to assess situations, weigh the pros and cons of any decision, and actively seek out a solution.

It is this judgment that your subordinates will come to rely upon. Therefore, good decision-making is vital to the success of your organization.

Leaders are not do-it-all heroes. You should not claim to know everything, and you should not rely upon your skills alone.

You should recognize and take advantage of the skills and talents your subordinates have. Only when you come to this realization will you be able to work as one cohesive unit.

Remember being a leader takes a good deal of work and time. It is not learned overnight. Remember, also, that it is not about just you. It is about you and the people around you.

So, do you have the drive and the desire to serve required of leaders? Do you have the desire to work cooperatively with other people? Then start now. Take your stand and be leader today.


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Wills and Probate UK

Posted by admin in November 17th 2009  


When we talk about probate, as in “wills and probate”, we are talking about the process of dealing with and distributing the estate of someone in the event of their passing. In England and Wales, one must appoint two executors. These are the people who deal with the distribution of your estate when you die.

It is important that you inform anyone who you would like to act as an executor in your will because they are within their rights to refuse the responsibility. The executor of your will applies for “grant of probate” from the probate registry.

Grant of Probate is a legal document confirming that the executor has been officially given the authority to deal with the dead person’s assets. This document can be used by the executor as proof that they have the necessary authority to deal with the deceased person’s estate. If no will is left, or if the executors are, for any reason, invalid, a close relative can apply for probate.

In England and Wales, a grant of probate is needed when someone passes away leaving one or more of the following: GBP5000, stocks, shares, property or land held in their own name or as tenants in common. Even so, wills ensure that there are no nasty surprises for the benefactors.

If the deceased’s estate is small (typically under GBP5000) some organisations, such as insurance companies and many building societies, may not need to see grant of probate to release the funds. Equally if you own everything jointly with someone, your possessions automatically pass to the surviving joint owner.

The executor or administrator of the will should write to each relevant institution giving them notice of the death and passing on a photocopy of the will, when possible, and death certificate. Only when these conditions have been appropriately met will funds be released.

Making a will is the only way to ensure that your possessions are passed on exactly as you wish in the event of your death. There are a number of ways to make a will, with online wills being an increasingly popular option.

Another popular option is employing a qualified wills and probate solicitor to draw up the document. For as little as GBP30 you can buy peace of mind and know that your estate is divided as you wish upon your death.


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Internet Based Guerilla Armies Attacking National Internet Services and Grind Systems to a Halt

Posted by admin in November 16th 2009  


Internet based guerilla armies attacking national internet services and grind systems to a halt.

Latest attack is Kirgisistan which became isolated from the internet by hackers in January 2009.



An internet based guerilla army of hackers makes sure that Kirgistan is having problems with their internet access outside the country.



Since January 18th 2009 the two largest internet providers in Kirgistan has been exposed to massive attacks towards their services. Don Jackson, the director of threat intelligence company Secureworks Inc. says his company has observed this happening now.



The former Soviet republic is therefore without internet access. The attacks lasted for a period of time and could be tracked back to the same Russian guerilla army hackers that performed a military style operation towards Georgia in August 2008, when there were a conflict in northern parts of Georgia with two regions and Russia.



All traffic collected during these attacks has the same signature as the tools used in the Georgia attacks.



Speculations as to why these massive DDOS attacks happened is ongoing, but an investment agreement seems to be central to the whole matter says Jackson.



Russia has indicated that they want Kirgistan to protect against air forces from other countries, including the military airbase like Manas Airbase, as an exchange agreement that Russia borrows Kirgistan 300 million USD and invest 1.7 billion USD in the energy network of Kirgistan.



Jackson goes as far to say that he thinks former KGB employees in one way or another is behind the attacks. But experts looking into the matter can not find any proofs that can confirm this.



What is bothering the internet security society is the speed of the attack. To put it in perspective it has been an escalating pattern from the attacks towards Estland and Georgia in 2007 and 2008.



There seems to be routines in place to make a response and mobilization very fast and effective.



Previously it took days and maybe weeks to launch an attack of this size, now it only takes hours.



There seems to be a network by mouth that works before these attacks are enabled, as the attacks is launched with the help of so called botnets, which are large clones of Trojan infected machines around the world, in addition to dubious servers that also are involved in spam and phishing activities on the internet.


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High Court of Delhi quashes FIR against Biplab Saha & others in BPO data theft case

Posted by admin in November 15th 2009  


In a major move against business issues being camouflaged as criminal complaints under Cyber Law provisions, the High Court of Delhi, India, recently quashed an FIR (First Information Report) in a BPO data theft case. The FIR No. 370/2005 was registered under the provisions of Section 66 of the Information Technology Act, combined with sections of the IPC by the Delhi Police in July 2005 and was based on a complaint by M/s Parsec Technologies Ltd against Biplab Saha and three other ex-employees who had started their own offshore outsourcing business  after leaving the company.

During the pendancy of the trial in District Court of the ACMM, Karkardooma, Delhi, Biplab Saha and the other accused approached the High Court of Delhi for quashing of the FIR.

Advocates of R.M TUFAIL & CO., including R.M. Tufail, Anwar A Khan and Vishal Sejpal, represented Biplab Saha & the other petitioners in the Delhi High Court, and successfully argued their case for quashing the FIR in hearings that spread over 2 months between March & April of 2009.

In her ruling Hon’ble Justice Ms. Reva Kethrapal of the High Court of Delhi, commented that continuance of criminal proceedings against the petitioners would be an exercise in futility, which could only result in wastage of the time of the Court and expense to the public exchequer, and ordered the FIR bearing no. 370/2005 and all proceedings emanating therefrom be quashed.

Complete text of the order is available online on the Delhi High court website at the link below

http://courtnic.nic.in/dhcorder/dhcqrydisp_O.asp?pn=69416&yr=2009


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Business Risks Associated With Data Breaches

Posted by admin in November 9th 2009  




The EU Data Protection Supervisor – the independent EU supervisory authority responsible for protecting personal data within the EU – recently pushed for the EU ePrivacy directive to be amended to provide for a pan-European data breach notification requirement. In parallel, the UK Information Commissioner, who is charged with enforcing the Act in the UK, has been given powers to levy ‘substantial’ fines in cases where the UK’s Data Protection Act has been ‘recklessly’ disregarded.

Changes to data security regulation are inevitable after twelve months of increasingly dramatic press headlines about failures to safeguard personal data records, including the UK’s HMRC CD-Rom fiasco, the prolonged theft of TJX credit card records, and incidents such as the hacker infiltration of the customer database of a Berlin Best Western Hotel.  

In France, Germany, Spain the national data protection commissioners have been stepping up their enforcement activity, which includes increasingly substantial fines for non-compliance. Organisations now urgently need to assess the size of the issue, the potential impact on their organisation of a data breach, and the best practice steps for mitigating the data breach risk.  

Last Year’s IT Governance Data Breaches Report stated that spectacular data breaches are not caused by the misdemeanour of a junior employee but arise, rather, from systemically inadequate information security arrangements at the organizations where the incident occurs.        

A data breach is ‘the unauthorised disclosure by an organization of personally identifiable information, where that disclosure compromises the security, confidentiality, or integrity of the data that has been disclosed.’ which can come about via employee caused Data Leakage, Hacking caused by a lack of, or ineffective, penetration testing or ethical hacking activities, or deliberate theft or disclosure.

The Attritiondatabase shows a ten-fold increase in the number of reported data breaches – in the US, the UK and across Europe – since 2004. The peaks in reported data breaches following the disclosure of nationally significant breaches such as the UK’s HMRC data loss, suggests that there were – and probably still are – many data breaches that go unreported and research suggests that organizations are reluctant to officially report data breaches unless they have already been exposed. The evidence suggests that waiting to be found out is not the best strategy  

Data protection is receiving so much attention for three reasons:

Identify theft is a low-risk, high return option for organized crime.  Traditional crime, including violent robbery and theft, has clearly identifiable risks.  It is easy to be recorded on video by CCTV, seen by witnesses or caught by means of DNA, and the returns are relatively low.  High-tech crime, on the other hand, creates real problems for the police force[3] and is, conversely, relatively low-risk for the criminal. Contributing factors include the perpetrator’s anonymity, the speed at which crimes can be committed, the volatility or transience of evidence, the trans-jurisdictional nature of cybercrime and the high costs of investigation. Legal and regulatory compliance initiatives, such as the EU Data Protection directive and California’s data breach disclosure law, SB1386, have both formalised the concept that personal data must be legally protected, and introduced penalties for failing to do so. The recent amendments to the UK Data Protection Act (DPA), and changes to regulatory activity across the EU that are introducing significant financial penalties for non-compliance with the Directive, make this a particularly urgent issue for UK organisations. The proliferation of mobile data storage devices – laptops, USB sticks, PDAs – has changed the boundaries of where we store our data and effectively eliminated “fixed fortifications” as an effective tool for preventing data breaches.

The last Ponemonreport commented that “the investment required to prevent a data breach is dwarfed by the resulting costs of a breach” and ” the return on investment (ROI) and justification for preventative measures is clear”.

Costs of data breaches – legal costs, the costs of restitution, brand damage, lost customers and so on – are significant; for financial services organisations, it was about £55 per compromised record.  

Whilst not involving legal compliance, if an organisation has a credit card-related data breach and is found not in compliance with the Payment Card Industry Data Security Standard (PCI DSS), there are potentially severe contractual and financial penalties, including a bar on the business accepting payment cards.  

All these factors make the protection of personal data a key business and compliance responsibility. There are nine key steps that every organization should take:  

Encrypt all personal data on laptops; whole disk encryption is a more secure solution than folder or file level encryption, and FIPS 140-2 is the recognised standard for encryption engines. Encrypt all removable and portable media that might contain personal data, including USB drives, CD-Roms and magnetic backup tapes. Establish rigorous procedures to ensure the physical destruction of redundant computer drives, magnetic media and paper records prior to disposal, and ensure that disposals are made in line with a formal data retention timetable. Organizations that accept credit and other payment cards should also comply with the PCI DSS. Provide regular training and awareness on legal responsibilities for all staff that deal with personal data. Deploy outward-bound channel (email, instant messenger) filtering software with customised dictionaries for relevant legislation such as Data Protection Directive, PCI, etc Establish a vulnerability patching programme and implement anti-malware software. Implement a business-driven access control policy, combined with effective authentication. Develop an incident management plan that enables the organization to respond
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