Technology law - a blog from computing.co.uk

Wednesday, 30 January 2008

File sharing rows rumble on

Any record industry executive would have been weeping into his cornflakes today as he perused the newspapers. The European Court of Justice (ECJ) was reported everywhere as having handed victory in a battle to privacy activists and file-sharers by ruling that ISPs do not have to hand over subscriber details in file sharing or any other civil cases.

The problem is that these reports have missed the point. What the ECJ actually said was that national governments can, effectively, do what they like on the issue.

Therefore, if Spain wants to rule that file-sharer details can only be revealed in criminal cases, it can. However, if UK courts want to hold, as they do, that file-sharer details can be revealed in all cases, then that's fine too.

It all boils down to the slightly complicated question that the ECJ was asked. Telecoms firm Telefónica argued that Spanish law prevented it revealing user details except in criminal cases. Music rights-holders' group Promusicae, though, said that law was inconsistent with the EU directive protecting copyright.

The Spanish court asked the ECJ whether Spain was allowed to have a rule preventing disclosure in civil cases. The ECJ said that such a rule was okay. The ECJ did not say that all member States had to prevent disclosure in civil cases to protect privacy rights as has been reported.

The court, very even-handedly, said that the issue put two crucial rights in fundamental opposition: an internet user's right to privacy and a music producer's right to protect its copyright.

Each side in the argument had an entire EU directive on its side, and the ECJ was asked to choose between them. It didn't, instead telling EU nations that they could create their own laws provided they balanced the two rights properly.

Spain, then, was allowed to keep a law that said names can only be revealed in civil cases, as long as its law overall kept a proportional balance between the right to privacy and protection for copyright holders. And here's the nub of the issue, it is a criminal offence to host copyright-infringing material in Spain for profit or on a commercial scale, even if not for profit.

The music industry executive should be marginally happier now, but the one industry it could unsettle is the telecoms business. What practical effect will the ruling have in the hard world of commerce?

One potential effect is forum shopping.

UK music fans generally can't subscribe to ISPs in Spain, because Spanish ISPs don't lay cables along the streets of Britain or install kit in British telephone exchanges (and satellite broadband is an expensive solution for free downloads). But they might use a Spanish web host to store copyright-infringing files. Entire companies could relocate to countries that would not order names to be revealed in civil cases, to pick up this business, and countries that do reveal names, such as the UK, might find their ISP businesses suffering.

So what might be relief for the record industry executive might well become a headache for his counterpart in a telecoms firm. But probably only a minor headache.

Posted at 05:59 PM in ecommerce, Europe, government, internet, law | Permalink | Comments (0) | TrackBack (0)

Monday, 03 December 2007

The semantics of web advertising

For the first time in my life I feel sorry for insurance salesmen. The Financial Services Authority has taken a big red pen to their use of the words "save up to £200 with our insurance" in the text of their sponsored links. That's because the FSA is concerned that these advertisers fail to substantiate the percentage of people actually receiving the savings. So the FSA says these ads are misleading.

There are two things I don't get. First, is anyone actually misled by such ads? If I see the words "save up to £200," I have enough shopping experience to know that I'm unlikely to save the full £200 but that some people will (or should). I don't object to the ad when I learn that I won't save the full £200. (I'm carrying 3 points on my licence; I don't expect the ad to know that). It's surely just a ubiquitous advertising puff. Second, how do you write compelling copy while also substantiating that £200 saving in two lines of text, each with a maximum of 35 characters? "Four per cent of customers saved £200" won't make me click.

Posted at 09:42 AM in communications, internet, law, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Thursday, 31 May 2007

is there a blogger in your staff?

It seems that the only people who read blogs are hackers. How else to explain the dire warnings that a third of bloggers risk the sack because they have posted sensitive or revealing work information on their blogs?

Of course as we all know, personal blogs are as widely read as the nutritional information on a deep fried Mars bar, and if I discovered a fourth secret of Fatima and wanted it hidden from human view forever, an 'all about me' blog filled with posts about my cat's hurt paw and how annoying unsolicited marketing calls are would be the perfect place.

The vast lonely tundra of the blogosphere is untouched by the hordes of readers that bloggers crave, but the information is nonetheless out there, and it seems that hackers, and employers, are taking it seriously.

HR firm Croner commissioned a survey which found that 39 per cent of the bloggers asked had at one time posted sensitive or damaging information about their work or a colleague.

Now the sensible thing for companies to do is to have a clear policy on such matters. How much trouble a company can get you into is unclear. A couple of high-profile cases have been lost by companies seeking to punish workers for blog content written in their own time.

There is no reason in principle, though, why a company shouldn't be able to take action against an employee even for behaviour outside of working hours and premises.

The sensible thing for workers to do is to have a think for just one second about what they are saying and how idiotic it is to spill the beans online. Just because it's only you and your mum reading the blog, anyone trawling for dirt could easily come across the information and you are utterly traceable, and could end up being utterly sackable for it.

Posted at 12:51 PM in internet, security | Permalink | Comments (0) | TrackBack (0)

Monday, 26 February 2007

Safeguarding the internet

Three men were jailed recently for plotting to rape two young sisters. The BBC reported that it was the first time that internet chat logs had been used to prove a charge of conspiracy to rape a child. Detective Constable Dave Adams told the BBC: "This case should act as a really stark warning that the internet is not a hiding place to plan and participate in criminal acts." He's right: a pub would better suit their ends because the conversation is unlikely to be recorded.

The intentions of David Beavan, Alan Hedgcock and Robert Myers only came to light because Beavan changed his mind and ratted on the other two. Had Beavan not walked into Bournemouth police station, a terrible crime may have followed. DC Adams's comments implied that the internet played some part in the detection and prevention of a terrible act. It didn't. It just made it easy to prove the intent of Beaven and the two men he named.

Meanwhile, Home Secretary John Reid said he may make paedophiles list their online identities on the Sex Offenders Register as part of his effort to "protect our children". Unlike moving house, a username or email address can be changed in about two minutes, so, again, it's difficult to see how this can make a real difference to detection and prevention of a crime.

Reid proposed that mechanisms would flag up anyone using a blacklisted identity on popular web sites used by kids. His plans risk giving misplaced comfort to parents who worry about their own children's use of the internet. There are established mechanisms for keeping kids out of web sites that prohibit under-18s, like credit card checks. These mechanisms are not infallible but it is far more difficult to keep adults out of sites for kids. That's a more important message for Reid to convey to parents.

Posted at 09:02 AM in government, internet, security | Permalink | Comments (0) | TrackBack (0)

Thursday, 25 January 2007

Has Yahoo! got news for you? Maybe not for much longer…

Not content with taking action against Google, Belgium's French language newspapers have targeted search engine Yahoo! for copyright infringement. The Copiepresse group, which represents French-language newspapers in Belgium, claims that Yahoo! is violating copyright laws by giving internet users access to archived newspaper articles. It is demanding that Yahoo! stops publishing articles from Belgian newspapers, without first obtaining authorisation.

The challenge to Yahoo! comes hot on the heels of Copiepresse's initial success running the same arguments against Google. In September 2006 Copiepresse obtained a judgment imposing a daily fine of €500,000 against Google unless it removed links to the offending articles. Interestingly, however, Google did not defend the original action, so we now are awaiting the decision from its subsequent appeal.

If Google's appeal fails and Copiepresse succeed against Yahoo! we may see a number of other news groups taking similar action which could potentially change the way network communications provides us with access to the news.

Posted at 10:12 AM in internet, legal | Permalink | Comments (0) | TrackBack (0)

Wednesday, 17 January 2007

Government web sites: simply super for citizens, but what about the IT sector?

Central government's transformational strategy has marked its first birthday with an annual report that says a cull of government web sites is taking place. Of the multitude of 951 web sites originally available, nearly 100 have already been closed down and hundreds more are set to meet the same fate, to the extent that only 26 main sites have a guaranteed future alongside Whitehall's two 'super web sites': Directgov and Business Link which channel government information for individuals and businesses respectively.

The minister in charge of the transformational strategy is Pat McFadden whose responsibilities include eGovernment and the Central Office of Information (which runs the super sites). There is a reallocation of information taking place due to the closure of sites with the two super sites taking on relevant information and transactions from the closed web sites, whilst redundant information will be deleted. In this way, individuals and businesses can increasingly rely on a single gateway through which to access the web pages they need to use.

Directgov seems to be growing from strength to strength. The site provides access to 11 central government departments and all 388 local authorities. It was originally launched quietly in mid-2004 and did not attract much media attention, but the government spent a reported £1.8m on a marketing campaign last March to bring the site into the public eye once it was up and running, and it now attracts almost 2.75 million visitors each month.

Unsurprisingly the drivers behind the mass shut-down are cost savings and the need to make information easier to find. It has also been said that web site users are drawn to super sites in their search for information, which Directgov user statistics would seem to substantiate, and therefore this development is a logical step in web site evolution. Mr McFadden expects that decisions made to date will result in operational efficiency and savings of up to £9m a year.

The question remains whether this transformation brings any good news for the IT sector. In the short term, work may be available for developers as the transition takes place, but what about the long term? If indeed the theory of super sites taking over from smaller sites is proven to be true, it may be that less web site development work becomes available, albeit that super site work would probably be more lucrative. It seems it could be an increasingly competitive environment in which to win public sector work.

Posted at 05:47 PM in government, internet | Permalink | Comments (0) | TrackBack (0)

Tuesday, 19 December 2006

Court case highlights risks of message boards

Every element of a process designed to avoid expensive defamation trials must be followed otherwise it cannot take effect, the High Court in England has ruled. The ruling may result in a case of internet message board libel going to court. Angry posters beware!

The Defamation Act contains a process called the 'offer of amends' which is designed to encourage settlement of defamation cases without going through an expensive and unpredictable trial.

The case involved a message board posting by Craig Powell regarding a boat he purchased from SD Marine Ltd. The boat, called Artemis, needed some work done to it before delivery to Powell which SD Marine agreed to do. Powell claimed that the work had not been done satisfactorily and is pursuing a case in the county court system against the company. In the meantime, though, Powell posted messages on the Yachting & Boating World web site message board about his experiences.

Headed 'SD Marine – Honest Brokers or back street cowboys', the original post has been lost because it was deleted within 40 minutes of being posted. Powell said it detailed his experiences with the company and asked whether other boat owners had had similar experiences.

Powell then posted a second message which carried the same heading but made no direct reference to SD Marine.

On the day of the postings Powell was contacted by a solicitor acting for SD Marine and asked to remove the posting on the basis that it was false and defamatory. Powell asked the web site owners to take the posting down, which they did. In discussion with the solicitor, Powell, who acted for himself throughout the events, said that he would make an offer of amends under section 2 of the Defamation Act.

This is a formal process by which a case can be quickly settled. It has a number of strict conditions, including that an offer must involve a preparedness to pay any costs and damages agreed by the parties. The law says that an offer must represent a willingness to do all the things contained in it, including the payment of those sums, and not just some of them.

Eventually the solicitor for SD Marine accepted that offer. The case before the High Court was a dispute about whether or not an offer had been made. If it had then SD Marine would be able to enforce it. If not, Powell would be free to defend his words in court on the basis of justification.

Justice Eady found that an offer had not been made because not all of the conditions of the offer had been met by Powell, whose layman's understanding of the law meant that he had not made an offer that was technically sound.

The case hinged in part on Eady's interpretation of the email which first represented Powell's offer.

'[The email] is plainly rather confused in certain respects, and the question arises whether it can be interpreted as including an unequivocal offer of amends within the meaning of the statute,' said Eady in his judgement. 'It can be noted, first, that the offer appears to have been defined as being only "… to publish the retraction and apology in the terms drafted below which will be posted on the Yachting Monthly web site for three days". That is confusing.'

Eady said that he believed that even SD Marine's solicitor, a Mr Marsh, did not believe it was a binding offer. 'It seems clear that Mr Marsh was doubtful, despite the Defendant's express reference to s.2 of the Act, as to whether he truly was intending to make an unequivocal and unqualified offer in accordance with that regime.'

'The application has been decided on the footing that, objectively judged, there had at no stage been an offer which fell within the terms of the 1996 Act,' said Eady.

If venting your frustrations, then the lesson here is always seek (good) legal advice if you get into these types of situation. If the lawyer on the other side does not know the law, you probably do not either. Whilst this case suggests that ignorance of the law is a defence, it is more than likely that trying to go it alone could well leave you with a sinking feeling.

Posted at 10:13 AM in internet | Permalink | Comments (0) | TrackBack (0)