Well, there you have it. Today's 'Financial Times' cites a recent report from the Boston Consulting Group telling us that we are now a nation of "digital shopkeepers". Domestic online shopping, broadband access and net exports of digital goods and services made up 7.2% of UK GDP, making the 'Internet Industries' the fifth-largest contributor to GDP, ahead of the construction, education and transport industries. About half represents e-commerce.
But as the digital store grows bigger, so managing brand reputation oline gets more important. Social media like Blogs and Tweets are where the public voice is heard - witness the online response to the new 'Gap' logo which consigned it to instant oblivion.
There's no doubt that online free speech is part of the Internet's DNA. But there's an inevitable tension between that and protecting corporate reputation online.The IHATERYANAIR.CO.UK decision was interesting in this context. Nominet is the Internet registry for .uk domain names. Ryanair brought a complaint under Nominet's Dispute Resolution Service, seeking a cancellation of the 'ihateryanair.co.uk' domain name from the owner of the criticism website. For sure, ryanair is not without its critics and this site is certainly one. This complaint was successful on the sole ground that it generated income through sponsorship on the site and that, as the domain name used the Ryanair trade mark to draw people to it, the site was unfairly benefiting from Ryanair’s rights.
It was ruled that there was undoubtedly a link between the respondent's financial advantage and the respondent's use of the complainant's trade mark in (specifically) the domain name (rather than in the content of the website). The respondent only earned money because of the traffic to the website, and such traffic must have been influenced by the domain name.
Their advertising revenue from the site was about £350! The Expert’s opinion in Ryanair was that “commercial links have no place on a criticism website”.
What's also interesting is that the derogatory content of the website had no bearing on the decision. In other words, the question of whether the criticism website was defamatory was not relevant to the decision.
Legal liability for UGC
These days, building a strong e-commerce business means engaging with the business' online community. So user generated content is now at the heart of online business. The law (E-Commerce Regulations) gives websites owners a defence against defamation claims regarding content posted by third parties which they host. However, that immunity is forfeited if the website owner monitors the site because the defence does not apply if the owner exercises editorial control.
In Kasche v. Gray decided in July this year, the Court had to decide whether the immunity was lost if a website operator monitored some but not all of the posted content. Was the immunity lost for the whole site if the owner monitored some posts only? The Court decided "no". A online business is regarded in e-commerce law as an "information society service" and the Court decided that a single blog post could be treated as an "information society service" in isolation, so that if that post was monitored, it did not mean that the legal immunity for non-monitored content elsewhere on the site was lost.
Well, happy shopping and have a good weekend.