Laurence Kaye on Digital Media Law

Tips and Hints for Website Operators

Although the festive season seems a distant memory now to most of us, there are some retail website operators who are still feeling the effects of a Yuletide clampdown by the Office of Fair Trading ("OFT"). This got me thinking about how many website operators are not making the most of their websites and so I put together a few tips and hints on how to ensure your website complies with all relevant laws and maximises its potential. You can find these below. But first, a bit about how the OFT highlighted this issue:

OFT Survey

Over the busy Christmas shopping period, the OFT carred out a "web sweep" of UK retail websites to ensure their compliance with online shopping laws with the aim of identifying websites ""who need help bringing their practices up to scratch".

The OFT chose to take this action in response to the results of its survey of internet shopping, published in June, which found (amongst other things) that:

• 28% of online traders surveyed had limited awareness or were completely unaware of internet shoppping laws;
• 66% of online traders surveyed had never sought advice on internet shopping laws;
• 16% did not inform online shoppers of their legal right to cancel; and
• 59% imposed conditions which impeded online shoppers' right to cancel.

This cross-section suggests that there is an alarming amount of UK retail websites which do not comply with online shopping laws.

We must remember that it is not only retail websites who must comply with online legislation - there is a raft of online laws which apply to various websites, from the most basic, information-only sites to the more complicated forums allowing UGC upload. If the retail websites are not bothering to ensure compliance, it is likely that there are a large number of non-retail websites that are similarly gung-ho.

As there is a variety of legislation to cover websites, so there is a variety of potential penalties for the non-compliant. These could range from users suing a retail website for breach of consumer protection laws to third parties suing a website forum operator for defamation or copyright infringement.

Tips and Hints

With all of the above in mind, here are some tips and hints I have thought up. They are by no means comprehensive and as always, they do not constitute legal advice. In fact, the best tip of all - well we would say that! - is to seek specialist legal advice:   

1. Ensure compliance with relevant laws and reduce the risk of being penalised by ensuring you have a comprehensive set of terms and conditions and privacy policy which are tailored to your particular website. These will help to shield you from liability for such matters as copyright infringement, defamation, and data protection.
      
2. Protect your business assets and increase the value of your website, again by ensuring you have a comprehensive set of terms and conditions and privacy policy written in plain English. They'll vary from site to site, depending on whether you're selling goods or services or just providing information only. If you're hosting user generated content, you need to think about liability issues and how that UGC can be used and re-used by other users and possibly by you as well as the site operator.For example, if your website allows users to contribute and upload UGC, you need a licence from users to display their content. You can either create a bespoke licence or you can use the Creative Commons Licence. CC licences work well for non-commercial use but care needs to be taken if content may move from non-commercial to commercial re-use. So take advice first.
      
3. Once you have the terms and conditions, display a link to them on every relevant page of the website. In particular, refer users to the privacy policy on every page in which they are invited to submit personal information.
      
4. If you change the terms and conditions, email notification of such change to users where possible. Simply posting changes to the site may not be enough.
      
5. Ensure you have the right to use the relevant intellectual property from anybody who has worked for the website. Under English copyright law, the copyright owner is the person who created the work in question (unless an employee creates the work in the course of his employment, in which case the work is owned by the employer). Even where a person is commissioned to create a work, it will not be owned by the commissioner until a valid written agreement is in place. For example, if you engage a web developer to create a website, he will be the owner of all design and software he creates unless a valid written agreement transfers ownership to you. And if a third party registered your domain name, have this transferred as well.
      
6. Ensure any advertising on your website complies with all applicable legislation and the CAP Code (which is the industry code applicable to online advertising). For example, do not display a banner advertisement for an online poker company if access to your website is not restricted to over 18s. The position regarding services such as those provided by Google's Adsense is complicated as you do not have the same level of control. You may want to seek specialist legal advice.
      
7. If you send a newsletter to users, include an "unsubscribe" link in the email (or an alternative method of unsubscribing if by post) and always offer users ways in which they can amend any personal details you may hold.
      
8. If your website allows users to upload UGC, include a function whereby users can report offensive or objectionable content to you and act promptly to remove any such content. However, do not actively or regularly monitor your website for such content because by doing so, you could deny yourself of certain exemptions from liability available to you for content which you merely host (but over which you exercise no editorial control.
      
9. If your website sells goods or services, there are more layers of legislation with which it is important you comply. Unless you want the OFT knocking at your door...or worse...legal action from a disgruntled consumer...or bad publicity. 

There is also new legislation scheduled to come into force in April this year implementing the Unfair Commercial Practices Directive which will make it illegal for businesses (and websites) to represent themselves falsely to consumers. This will cover the situation, for example, where a restaurant posts glowing but falsified reviews of itself on its website. More on this, however, in April.

Laurie Kaye/Yasmin Joomraty

 

The Government's warning to ISP's

The Government today published a strategies paper for the creative industry, 'Creative Britain: New Talents for the New Economy,' which signals a shift in the way the Government will approach the fostering and protecting of intellectual property - and in particular the role of ISPs in relation to copyright infringement. We've summarised some of its key provisions at the end of this post.

The paper as a whole is wide ranging and details the Government's proactive plans to foster creative talent with the aim of "enhancing the international competitive position of the UK's creative industries." The Government intends to achieve this with a two-pronged approach of:

1. fostering creative growth through proposed initiatives such as creative apprenticeships and 'find your talent' and talent pathways' schemes;
2. safeguarding the resulting creative content by stamping out online copyright infringement.

The Government has made it clear that it sees the current liability-free position of ISP's as a threat to this creative content. It is seeking to reposition ISP's as potential guardians of this creative content instead, and has issued the ultimatum that if the ISP's fail to self-regulate adequately, the Government will step in and legislate.   

Culture Secretary, Andy Burnham, has stated that "the Government has no burning desire to legislate" but that the paper signals a "change of tone from the Government." In other words, the Government is happy for ISP's to agree industry self-regulatory measures but this must be done sooner rather than later, and must be effective enough to obviate the need for legislation. If not, the Government is likely to include provisions for ISP's assuming greater responsibility in the anti-piracy legislation which is proposed for consultation in Spring 2008 and implementation in April 2009.

Commitment 15 of the paper clearly sets out the Government's stance:

"We will consult on legislation that would require internet service providers and rights holders to co-operate in taking action on illegal file sharing - with a view to implementing legislation by April 2009.The Government recognises the value of the current discussions between internet service providers (ISPs) and rights-holders; we would encourage the adoption of voluntary or commercial agreements between the ISPs and all relevant sectors. While a voluntary industry agreement remains our preferred option, we have made clear that we will not hesitate to legislate in this area if required. To that end, we will consult on the form and content of regulatory arrangements in 2008 with a view to implementing legislation by April 2009."

As we have noted in previous posts, the question of whether ISPs should assume greater responsibility for the content they provide raises complex issues concerning potentially conflicting legislation, such as data protection laws (see Promusicae v Telefonica), and technological measures, such as filtering technology (see SABAM v Scarlet). But the bottom line is that data protection law will not be an insuperable barrier to ISP's taking greater responsibility for carrying or hosting infringing content. 

It looks like, one way or another, the debate over ISP liability will be resolved by the end of next year.

Meanwhile, back to a summary of the key provisions of the Government's action plan for a more 'Creative Britain', which include:

• 5,000 apprenticeships to help people from all backgrounds make the most of their creative skills (the Government is looking to trial wage subsidies for small employers and financial incentives for larger employers)
• an annual event - the World Creative Business Conference - to bring together world leaders in the creative and financial sectors
• the development of 5 new 'Centres of Excellence' in creative skills
• exploring the creation of a 14-25 academic hub for the creative industries to bring schools, art colleges and universities together.

Laurie Kaye and Yasmin Joomraty

Practice Pointers: Guidance for Website Operators

With online Christmas shopping in full swing, we thought a quick, albeit 'Scrooge like' comment about online legal compliance might be appropriate.

We're often asked for guidance on what information must be displayed on a website to ensure it is legally compliant. The answer will vary depending on the type of website concerned. Needless to say, a website selling goods or services will have significantly more legal requirements than an information-only website.

If any personal data is collected via a website, it must display a privacy policy in order to avoid falling foul of data protection laws. This will include an information-only website which gathers email addresses in order to offer a newsletter or e-brief.

We have put together a few pointers on the legal requirements for various websites, which you can access here: Download uk_website_guidance.pdf and on our website. Of course, this is no substitute for legal advice and is intended as non-comprehensive, general guidance only. If you require assurance that your website is legally compliant, please contact us and we will be happy to help.

Laurie Kaye

Responsible use of content - it's all the rage!

Back to the thorny subject of the liability of social networks, ISPs and other intermediaries for hosting or carrying illegal content. When the E-Commerce Directive introduced exemptions for hosting content, it specifically said that there was no obligation on hosts to monitor their sites for illegal content.

But industry pracctice is beginning to move in the opposite direction through the the use of filtering technology. Take, for example, YouTube's recently introduced video identification software for vetting its content for copyright infringement.

YouTube is keen to be seen to be acting responsibly: ("Like our other content policies and tools, YouTube Video Identification goes well above and beyond our legal responsibilities.") No doubt prompted in part by Viacon's proceedings, YouTube wants to send out a strong message that it doesn't condone or facilitate copyright infringement .

The software checks newly uploaded videos against a database of copyright protected content. As such, it is only as good as the database and the thoroughness of the checks. It is still in beta version at present, so will be bound to encounter teething troubles. It will be interesting to see if this builds bridges between YouTube and content providers, and how the courts will interpret its efforts.

At the same time, a group of big name media and internet companies have published a set of user generated content principles, as a set of good practice guidelines to serve as a benchmark for how to behave responsibly in the world of Web 2.0 (mentioned en passant in a previous post). But Google is notable by its absence as a signatory to these guidelines. Is it because the sands of legal liability for user generated content are shifting and it doesn't want to commit itself yet to a particular position?

Another type of industry standard has also been introduced recently: the Automated Content Access Protocol, or ACAP. This will enable internet content publishers to communicate permissions for access to and use of content on their sites to online intermediaries (such as search engine crawlers). Again, this represents another industry-led initiative setting standards to fill in the gaps where out-of-date legislation has proved inadequate.

Have a good week!

Laurie Kaye

Online Practice Pointers: (1) changes to Online T&Cs

I thought I'd intersperse posts on the 'big issues' of the digital media world with the occasional 'practice pointer' about being a good digital business citizen.

So I'll start that particular ball rolling with the subject of Online Terms and Conditions. You've probably noticed that almost all online T&C's state that changes may be made to them at any time without notice. Furthermore, they usually state that it's up to users to check the T&Cs for any such changes.

So here's Practice Pointer no. 1: take positive action to notify users of changes to online T&C's, by posting an alert on the website and/or by emailing your users. Although this is probably of most importance to 'e-commerce' sites where users transact with you, the point holds good for all sites.

There is little case law on the subject. However, a recent US decision held that changes to online T&Cs made 4 years previously were not valid against the consumer and the consumer was bound only by the original, unamended T&Cs. This provides an insight to the decision likely to be made in a UK court on the same facts.

Here's a bit more legal details for you legal geeks out there. The Unfair Terms in Consumer Contract Regulations 1999 apply where a website is being used for non-commercial purposes by a consumer. These Regulations provide that a term included in the T&Cs (and a wider scope of all standard business>consumer contracts) of such a website is not binding on the consumer if it is unfair. A term is unfair if it "creates a significant imbalance in the parties' rights and obligations...to the detriment of the consumer...contrary to the requirement of good faith." OFT Guidance further explores circumstances in which terms may be deemed to be unfair: ultimately, it depends on the facts of each case, but Schedule 3 of the Regulations provide a list of terms which may be regarded as unfair, including those which have the effect of:

"(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

(j) enabling the seller or supplier to alter the terms of the contract unilaterally without a valid reason which is specified in the contract."

As usual, let me add my legal disclaimer: this post doesn't constitute legal advice - let's face it, it's free! So consult a good e-commerce lawyer if you need legal advice. On that point, you know where to find Laurence Kaye Solicitors!

Have a good day.

Laurie Kaye

Law 2.0 - old wine in new bottles?

'Law 2.0', 'digital media law'. Great tag lines but is it all 'sound and fury, signifying nothing' new'? After all, there are plenty of examples of how existing laws are being applied to the online world. In a recent case concerning 'Second Life', a case was brought under US trademark and copyright laws for the unauthorised sale of digital beds with animated sex positions!

In future posts, I want to explore -and get your feedback - on whether the law and new media (or Web 2.0 - take your pick) are an odd couple fated to be forever out of sync. Alternatively, are we moving slowly but inexorably to a position where the law will move seamlessly between the digital and physical worlds?  ("Can you be serious?!). I'll be looking at cases, proposals for new laws, opinion pieces and anything else that seems relevant. 

In exploring these themes, I want to examine whether there is anything really new and whether the world of 'Law 2.0' has distinctive features and, if so, what the messages are for the media industries and business generally.

To do this, I'd like to suggest some overall themes. So here's my list of 'Top 10' issues and features of digital media law which I will be exploring over time in this blog.

1. Liability for 3rd party content, including user generated content, has to be top of the list. Search engines (CopiePresse v. Google), social network sites (Viacom v. YouTube), Forum operators (Gina Ford v. Mumsnet). Let's face it, the law is a mess here. We have different legal regimes in Europe and the EU which create limited service provider immunities from legal liability, both of which were created at a time when the online world was much simpler. It was all about ISP's. Definitely one to watch.
2. Privacy - Search engines and social network sites (see Times Online - "Facebook opens profiles to all comers") have become aggregators and users of terabytes of personal information. The law is struggling to hit the right balance. Data protection laws vary across jurisdictions and often seem over-complex and too focused on a 'tick the box' approach. But privacy is much broader than protecting personal data. It is also about personal reputation and identity.  Who am I on the Internet or, more precisely, how can you know (and authenticate) who I am?
3. Jurisdiction - where are you? What does jurisdiction mean where there are no geographic boundaries nor divisions between the real and virtual worlds?  The answer is - quite a lot. Think of legal jurisdiction as a function of State power and you'll readily see its significance. There are several international legal instruments that apply to cross border disputes. Brussels I (to work out which country's courts have jurisdiction; Rome I (contractual disputes) and Rome 2 (non contractual disputes e.g. copyright infringement), to decide which country's laws apply to the dispute.
4. Old wine, new bottles - inevitably, the starting point for any legal issue in digital media world is the existing framework of laws and regulations. Linden Lab, the owners of Second Life, use good old contract law in the form of their Terms and Service to deny service to participants who don't play by the rules. And when Courts of law deal with issues of copyright infringement, defamation or any other illegal activity, they can only apply the law as it is. Of course, that legal framework is as often as bad as London roads - always under construction. This leads us neatly to......
5. Asynchronous Law - a permanent state suffered by the law (and lawyers!) whereby the the law is always behind - and even occasionally ahead - but never in sync with the online world. Typically, it takes about 5 to 10 years for new legislation to move from initial idea to adoption as law and for the Courts to work out what it means. The European Union's database right introduced by the Database Directive is an excellent case in point. Check out my article on the subject. The unfortunate condition of 'asynchronous law'. leads directly to the next ingredient...
6. Softlaw - this could also be called 'fastlaw'. These are ways of shaping policy without introducing formal legislation. Examples are Codes of Conduct and Recommendations introduced by the European Commission e.g. its Recommendation on management of online rights in musical works. These give a clear message - in this case to the collecting societies - on how they should respond to market changes without a legilslative 'big stick'. These are also useful in a rapidly changing and uncertain world where legislation will either be too slow or plain wrong.
7. De facto law - in the digital world, technical standards play a major role in determining how digital goods and services are exchanged. The ACAP ('Automated Content Access Protocol') project is an ambitious project to develop a standard for 'machine to machine' permissions readable by search engines giving website owners much more control over what search engines can and can't do. Although the law (e.g. copyright law) may provide the overall legal framework for what can and can't be done with copyright content, standards controls what happens. In that sense, they are a kind of 'de facto' law.
8. Regulation - we'll be looking at regulation at the infrastructure level (e.g. the 'Net Neutrality' issue) and at the content level. The European Union's upcoming Audiovisual Media Services Directive distinguishes between revised,'traditional style' regulation of television broadcasting ('linear services') and a so-called 'light touch' approach for on-demand services ('non-linear services'). Getting the right approach to infrastructure and content regulation is, needless to say, a major challenge.
9. New business models - copyright law in particular is often the whipping boy for the lack of new business models for the delivery of entertainment and information services that consumers want and are willing to pay for. We'll keep an eye on how the commercial and non-commercial sector are responding.
10. 'It's the content, silly' - it's no so much that content (or, for that matter, the consumer) is king. If 'paradigm shift' means anything in the context of the Web, it's that content is no longer tied to a specific method or platform of delivery. Digital audio, podcast, e-book, CD, print on paper, mobile music, TV etc. What this does is place the need for a strategic approach to the creation, protection and management of intellectual property assets at the top of the business agenda. In the work we're doing for clients, this message has really hit home.

I don't think that we're going to be short of topics to discuss!

Laurie Kaye