Legal Advice Information

Defamation over the Internet

Wed, 26 Jan 2011 00:00:00 0000

How do you deal with defamation over the internet?

With the expanse and increase in popularity of social networking site, blogs and other internet platforms, defamation over the internet is becoming increasingly common. So how do you tackle comments made about you by another that are untrue?

There are two options available when tackling the issue of defamation.

The first option in the legal option. If you can establish that a) the comments are defamatory; b) you are identified in the statements and c) have been published to a third party then we can strongly request that postings are removed.

A Defamatory statement is one that lowers the claimant in the estimation of right-thinking members of society.

In doing so you can go after a) the author of the comments (probably not practical) or b) the I.S.P who are under an obligation to remove the postings.

The second option is the commercial one. Hitting authors of defamatory statements with 'legals' may encourage further worse comments on other sites and you may be constantly chasing your tail trying to shut various forums down.

Try joining the forums and talking to disgruntled customer. Explain your business and your goals and try to get them on side. If this works and they do get on board you could actually turn the negative comments in your favour and show any future readers what you are all about and that you actually take time to comfort the doubters rather than silencing them.

Government Announces New Communications Act

Thu, 20 Jan 2011 00:00:00 0000

The UK's Culture Secretary Jeremy Hunt has announced plans to rewrite the UK's regulation of media.

The minister confirmed that the Government intends to overhaul the way UK media companies are regulated with the introduction of a new Communications Act, "to create regulatory certainty".

Hunt said that that law needed to be updated to regulate the rapid advances in the media world, in particular where traditional broadcasting and internet-distributed content are converging. It is hoped that better regulation will allow this area to develop.

At the recent Oxford Media Convention, the Culture Secretaryannounced "a thorough review of media and communications that will lead to a new Communications Act. It is now seven years since the last act - a long time in today's fast-paced environment".

The Government plans to seek industry feedback and produce a green paper by the end of 2011, which will set out the contents of the proposed Communications Bill.

The plans also include the introduction of a new network of local television stations in at least 15 of the UK's cities, with the slackening of regulatory controls that force Independent Television companies to produce regional news. The intention of the plans is to give more control to public service broadcasters.

Hunt also launched an action plan for local television, including a channel to be launched on the digital terrestrial network. It will have guaranteed local 'opt outs', where locally produced content will be allowed to be shown at certain times in the programme schedule.

Dot Com Domain Increases Your Exposure to Foreign Claims

Fri, 14 Jan 2011 00:00:00 0000

The ECJ has ruled that companies using .com or .eu domain names or displaying international codes for phone numbers are more likely to be 'directing' their activities at foreign consumers.

Under EU law consumers can demand that contractuall disputes are heard in the courts of their own country if a company in another member state has directed their activities to that state. It is trite law that merely operating a website that is accessible to those in other member states is not enough to qualify as directing activities to other countries. The ruling itself stated: "It does not follow ... that the words ‘directs such activities to’ must be interpreted as relating to a website’s merely being accessible in Member States other than that in which the trader concerned is established,"

In this ruling (a joint ruling) the ECJ referred to the Brussels Regulations stating:

"This change, which strengthens consumer protection, was made because of the development of internet communication, which makes it more difficult to determine the place where the steps necessary for the conclusion of the contract are taken and at the same time increases the vulnerability of consumers with regard to traders’ offers,"

The ruling continued: "The following features ... would, subject to the relevant national court ascertaining that they are present, constitute evidence of an activity ‘directed to’ one or more other Member States," it said. "The international nature of the activity at issue, such as certain tourist activities; mention of telephone numbers with the international code; use of a top-level domain name other than that of the Member State in which the trader is established, for example ‘.de’, or use of neutral top-level domain names such as ‘.com’ or ‘.eu’; the description of itineraries from one or more other Member States to the place where the service is provided; and mention of an international clientele composed of customers domiciled in various Member States, in particular by presentation of accounts written by such customers...If ... the website permits consumers to use a different language or a different currency, the language and/or currency can be taken into consideration and constitute evidence from which it may be concluded that the trader’s activity is directed to other Member States,"

Therefore if a company operates a website at an address using another country's top level domain then it indicates a directing of activity towards that country. As a result of this ruling it is important to review your internet presence, the domains that you use and whether or not you include international diling codes with your telephone number.

By Ben Evans

Bezpeènostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury, Case C-393/09

Tue, 11 Jan 2011 00:00:00 0000

By Paul Bicknell

This article provides a note on the ECJ's ruling on whether copyright subsists in a graphical user interface (GUI) under the provisions of the Software Directive (91/250/EEC) or the Copyright Directive (2001/29/EC). The ECJ also the ECJ ruled on whether a television broadcasting of a GUI constitutes communication to the public of a work.

Background

BSA appealed against a decision of the Ministerstvo Kultury that copyright protection extended to object and source code. The Supreme Administrative Court stayed the proceedings on the outcome of a reference as to whether:

The GUI if a form of expression and protected by Copyright.

Broadcasting a GUI falls within communicating the work to the public.

Result

The court found that the Software Directive is not capable of protecting a computer's GUI as this was neither source nor object code. The court found that copyright could protect a GUI however under the Information Society Directive provided that the interface was a species of the author's creation. The court found that there was no communication of the work to the public.

Judicial Review on the Digital Economy Act 2010

Tue, 21 Dec 2010 00:00:00 0000

Earlier this year the highly controversial Digital Economy Bill was rushed through parliament during the pre-election 'wash-up' period. Only 6% of MPs had been present for the debate on the Bill. Among those present, many had voiced their concerns about the complex nature of the Bill and had suggested that further debate would be required on this matter. Nonetheless, the Bill was passed through.

TalkTalk and BT, as Internet Service Providers, were unhappy with the provisions relating to Internet Service Providers and the requirements that would be imposed on them to take action against those that are infringing on copyright through illegal file-sharing.

Both providers felt that the Act was 'illegal and disproportionate' and they applied for Judicial Review under four grounds. TalkTalk and BT had claimed:

the Government failed to notify the European Commission as required by the Technical Standards Directive;

the provisions outlined in the Act were not compatible with the E-Commerce Directive which states that the Internet Service Providers cannot be liable for the traffic through their networks;

there is also no compatibility with the Privacy and Electronic Communications Directive which states that the nature of the data handled by Internet Service Providers does not allow them to disclose this data and will contravene this directive if they do so; and

the companies also claimed that the impact of the provisions in the Act will have a disproportionate effect on consumers.

Judicial Review was granted on the first three grounds, with the last ground of disproportionality still yet to be decided. The High Court is expected to reach its decisions on the matter in February 2011.

TalkTalk's director of strategy and regulation, Andrew Heaney, stated their central concern "that the obligations will not work in reducing illegal file sharing...will be hugely expensive...and most of all will be grossly unfair (...since the subscriber of a connection is effectively held responsible for the activities of other users of their connection and if they want to challenge rights holders claims the subscriber will be presumed guilty unless they can prove themselves innocent)." (). The Director remains confident that they will succeed with their case at full hearing.

This new development has come at a time that Ofcom was due to publish its final code of practice, in relation to the process of the monitoring of file sharing. It will be interesting to see how this will affect the code in the future in the event that TalkTalk and BT are able to succeed in their case.

Section 3 of the Computer Misuse Act 1990

Tue, 14 Dec 2010 00:00:00 0000

The 'Anonymous' group behind the recent wiki leaks revenge attacks will be subject to Section 3 of the Computer Misuse Act 1990 for any unauthorised act in relation to a computer which includes impairing the operation of any computer.

Section 3

Unauthorised acts with intent to impair, or with recklessness as to impairing, operation of computer, etc.

(1) A person is guilty of an offence if-

(a)he does any unauthorised act in relation to a computer;

(b)at the time when he does the act he knows that it is unauthorised; and

(c)either subsection (2) or subsection (3) below applies.

(2) This subsection applies if the person intends by doing the act-

(a)to impair the operation of any computer;

(b)to prevent or hinder access to any program or data held in any computer;

(c)to impair the operation of any such program or the reliability of any such data; or

(d)to enable any of the things mentioned in paragraphs (a) to (c) above to be done.

(3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) of subsection (2) above.

Section 36 of the Police and Justice Act 2006 states that section 3 of the Computer Misuse Act 1990 makes an unauthorised modification of computer material an offence, for which the penalty for conviction is imprisonment for a maximum of five years or a fine or both.

In R v David Lennon 2006, s.3 of the Computer Misuse Act 1990 was enforced when a teenager was convicted of having bombarded his ex-employer's mail server with 5,000,000 emails. Defendant pleaded guilty and sentenced to a two month curfew and electronic tagging.

Regardless of the number of individuals involved in these types of attacks, where there is a positive identification, under UK jurisdiction then they can be prosecuted under the Computer Misuse Act 1990.

In the UK, in order to be convicted of an offence under the Computer Misuse Act 1990 you must be over 18 years old.
By Owen Ross

Abuse of a Dominant position – Investigation into Google

Mon, 13 Dec 2010 00:00:00 0000

Reports from various publications have been coming in fast with regards to the European Commission launching an anti-trust investigation into Google and whether Google has abused its dominant position in online search.

Allegations made earlier this year by two other rival search engines: Foundem and ejustice.fr, and also a German online shopping portal Ciao!, will now mean that the investigations will seek to uncover whether Google had used its position to provide "unfavourable treatment of their services in Google's unpaid and sponsored search results couples with alleged preferential placement of Google's own services." (Statement issued by the Commission).

In response to the investigation, Google issued a statement stating: "Since we started Google we have worked hard to do the right thing by our users and our industry - ensuring that ads are always clearly marked, making it easy for users and advertisers to take their data with them when they switch services, and investigating heavily in open source projects...But there's always going to be room for improvement, and so we'll be working with the Commission to address any concerns."

The relevant area of law can be seen in Article 82 of the EC Treaty, which provides:

"Any abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States."

This also reflects in UK legislation under the Competition Act 1998, section 18(1).

If the Commission find that Google are guilty of the accusation and in contravention of Article 82, then they may be heavily fined.

Electronic Signatures

Tue, 30 Nov 2010 00:00:00 0000

In business situations, contracts are in written form with the terms clearly expressed within the written document. The usual method of agreeing to the contract and ensuring its validity is by both parties providing a signature. When a business engages in e-commerce and electronic contracts, it will do so with the aim of ensuring that a valid and enforceable contract is present. A strong digital signature is important in the e-commerce environment as it ensures the authentication and integrity of the signatory and a valid contractual agreement.

Article 7 of the 'Model Law on Electronic Commerce' indicates that where a signature is required in relation to online activities then the condition will be met if a method is used to identify the person and to indicate that person's approval of the information contained in the agreement. Furthermore, the method used is reliable and appropriate for the purposes of the generation or communication of the agreement.

To fall in line with the above, Article 2 of the Electronic Signatures Directive 1999 introduced 'Standard Electronic Signatures' and 'Advanced Electronic Signatures'.

Standard Electronic Signatures is where data in an electronic form is attached to other electronic data, with the purpose of serving as a method of authentication, to ensure that the person sending the text is the holder of the electronic signature. However, although this is admissible in court, it is not reliable evidence as to whether the person sending the information is the person with the sole right to use the electronic signature. A judge would have to decide the value of the electronic signature within legal proceedings.

In order to provide more significant value and to guarantee the integrity of the text sent, as well as the authentication, it would be wise to set up the 'Advanced Electronic signature'.

Advanced Electronic Signatures is an electronic signature when it can be uniquely linked to the signatory, capable of identifying them, the method of creation enables the signatory to maintain sole control and it can be linked to the relating data in such a manner that any future changes to the data is detectable.

The above is achieved through a qualified certificate created by a secure-signature-creation device. The certificate must include: an indication that it is issued as a qualified certificate; the indication of the certification service provider; the name of the signatory; provision for a specific attribute of the signatory to be included if relevant, depending on the purpose for which the certificate is intended; signature-verification data corresponding to signature creation data under control of the signatory; and indication of the beginning and end of the period of validity of the certificate; the identity code of the certificate; the advanced electronic signature of the issuing certification service provider.

Section 17 of the Digital Economy Act 2010

Tue, 30 Nov 2010 00:00:00 0000

Section 17 is entitled "Power to make provision about injunctions preventing access to locations on the internet", and gives powers to the Secretary of State to make provisions to enable courts to grant a blocking injunction against any location on the internet which a court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright.

The effect of this injunction would be to compel the Internet Service Provider (ISP) to prevent its service being used to gain access to the location. The reference to 'any location' is a broad term and is open to interpretation by the courts. ISPs could potentially be looking at adopting measures that not only will block access to content of websites but also the entire website or addresses.

The use of the words "has been, is being or is likely to be" implies that the location does not have to be currently aiding in copyright infringement, it is enough that they once did or are likely to do in the future.

Although section 17 gives these powers, such provisions have not been made at present. Provisions can only be made if the Secretary of State is satisfied under section 17(3) that activities infringing copyright is having a serious adverse effect on businesses or consumers, and making the regulation would be the best way to address the effect and it will not prejudice national security of the prevention or detection of crime if made.