Archive for the 'web law' Category

Equality Act – new obligations on ISPs and content-sharing sites?

Published September 10, 2010 Disability discrimination , eCommerce , web law Leave a Comment

I have previously blogged about the new Equality Act, which largely comes into force on 1 October 2010.

However, the new Act also includes a section that might worry ISPs and web hosts.

Section 206 and Schedule 25 broadly mirror the provisions that implement the e-Commerce Directive in the UK (the Electronic Commerce (EC Directive) Regulations 2002) in respect of the liability of so-called information society service providers (ie ISPs and website hosts). The effect of that wording is that hosts are not liable for breaches of the Equality Act by websites hosted on their systems, until that website is brought to their attention.

This means that if an ISP hosts a website that contains material which is discriminatory against a person on the grounds of sex, race or sexuality etc, then if that ISP fails to remove the content it could itself become liable for the content.

In other words, the “innocent dissemination” defence flies off.

To the extent that hosts already have similar obligations in respect of material that is defamatory or otherwise illegal, these obligations are not unexpected.

The sting in the tail
However, a consequence of the drafting is that these provsions may also force a hosting provider to consider complaints that third party websites hosted on its servers are inaccessible. If a website is inaccessible, then that may cause discrimination under the Act, in which case once aware the host may be liable for that discrimination unless it “expeditiously removed the information or disabled access to it.”

In order to ensure that the host is not liable under the Equality Act for any alleged discrimination, the host may have to investigate that complaint and take down the site. But it is unlikely that the host will have the information (or resources) to be able to determine whether a site hosted on its servers discriminates against the individual in question. For one, the host won’t know through what other channels the service in question is provided.

To avoid potential liability, the only option is to suspend access to the site and tell the client to resolve the dispute with the complainant.

And another…
And it’s not just traditional website hosts that have to beware. For example, social networking sites and other sites that host user-generated content have, in my view, generally been able to argue that they are not liable under the DDA for content posted in an inaccessible format by their users, on the basis that the content is not provided by the website operator. They simply provide the infrastructure within which to post that content. It is up to the user to make sure that what he or she posts is accessible.

But does the new Act allow a deaf person to contact Youtube and complain that as the content published by a commercial organisation through its Youtube channel does not contain subtitles (and is therefore inaccessible), Youtube should remove the content or be liable for it?

I’m don’t think it should (for one, Youtube’s archives would be decimated overnight), but that’s what the new law appears to say.

Will any ISP pull a site or content on the grounds of its inaccessibility, rather than risk becoming liable? That remains to be seen. But it certainly gives web accessibility campaigners a potentially powerful tool, albeit I don’t think that’s what parliament intended.

Equality Act – one month to go for service providers and employers

Published September 2, 2010 Disability discrimination , web law 1 Comment

For me, 1 October 2010 is my last day as an unmarried man. For service providers, employers and educational institutions in the UK, however, 1 October is the day on which the Equality Act 2010 largely comes into force.

What is it about?
The Equality Act attempts to consolidate into a single piece of legislation, the laws relating to race, disability, sex, age and other forms of discrimination. This is an ambitious project, and has led to some slightly odd drafting with the drafter attempting to shoehorn the anti-discrimination principles into single sections covering all forms of discrimination – using the obtuse term of “a protected characteristic”.

It is ironic that an act of parliament aimed at improving accessibility is in itself less accessible than its predecessor, the DDA. Whilst some have criticised the DDA for not expressly saying “websites must be accessible”, I think the DDA’s principles approach to drafting was actually one of its strengths. The Equality Act has, however, taken this a step too far.

What is the impact on web and IT accessibility?
In general, the duties remain. Whilst the new Act essentially replicates the previous law, there are some changes to be aware of in respect of the laws applying to the accessibility of IT and web-based services. Here are some of the key changes:

  • there is a new concept of indirect discrimination. Indirect discrimination does not require knowledge. This means that an inaccessible website will likely breach the Equality Act, even if the operator of that website did not know that the design feature in question caused it to be inaccessible to a person with a disability. The obligation is, however, subject to the justification defence (see below)
  • There is now a single justification test, for those limited situations where discrimination can be justified. Discrimination can now be justified where it is considered a “proportionate means of achieving a legitimate aim.” In my example above, this might give a service provider a defence if, for example, it introduced a new security measure for the website that was aimed at reducing fraud, but had the effect of making the website inaccessible to disabled users. This could apply even if the service provider knew about that consequence.
  • the threshold for the obligation to make “reasonable adjustments” is lower. Previously, reasonable adjustments were required only where the service provider had a practice, policy or procedure “which makes it impossible or unreasonably difficult for disabled persons to make use of a service”. Now the test is simply that the provision, criterion or practice placed the disabled person at “a substantial [more than minor or trivial] disadvantage”. This means that service providers, employers, and educational institutions are more likely to be obliged to make reasonable adjustments. There is also no justification defence to this obligation (on the grounds that this should already be covered by the “reasonableness” test).

Specific obligation to provide information in accessible formats
The new Act also includes a specific section dealing with the obligation to make reasonable adjustments to the manner in which information is provided. Whilst undoubtedly aimed at those with “print disability”, it also ensures that service providers and employers have a duty to take reasonable steps to provide information in accessible electronic formats. This covers not just websites, but also information on intranets or that is issued by email:

Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the information is provided in an accessible format.

See what I mean about the inaccessible drafting?!

New guidance
To accompany the new Act, the EHRC will be publishing new codes of practice. These codes will replace the current codes issued by the EHRC’s predecessor, the DRC, under the DDA.

In the meantime, you can access the draft code of practices from the EHRC’s website.

Digital Economy Act – Part 1 – Impact on Site Owners (and ISPs)

Published April 14, 2010 IT Law , eCommerce , web law 1 Comment

The Digital Economy Act is one of the final Acts of the present Parliament, and if you are interested in web technology and the knowledge economy, then it’s easily one of the most controversial.   Rather worryingly, despite the controversy,  it was rushed through during the so-called “wash-up” period without meaningful debate. 

Why the controversy?  Well the Act contains fairly vague powers to shut down web-sites and cut-off internet access. This post deals with the former.  I will blog about cutting off internet access later. 

 Under Section 17, the Secretary of State can put in place regulations permitting rights holders (effectively record companies, movie producers and newspapers) to obtain Court orders that require an Internet Service Provider (“ISP”) to shut down “locations on the internet which the court is satisfied has been, is being or is likely to be used for or in connection with an activity that infringes copyright”.  

Section 17 is currently so vaguely worded that you could make a case for its’ application to Google, YouTube, Facebook, or pretty much any other site .  Of course, its hard to say what this means in practice because the regulations, i.e. the detail,  have not been written yet.  

However, I suspect a lot of the “pain” will fall on ISPs. This is an increasing trend. 

Overall, one of the most concerning things about the Act (besides the drafting) is that it has exposed an apparent lack of expertise within government as to how web technology and the knowledge economy actually operates.  In a recent lapse, Stephen Timms, Minister for Digital Britain, referred to an IP address as an “Intellectual Property address”. Given the Act that Mr Timms has just helped to introduce, this is either deeply amusing or deeply concerning – probably both.  

I have discussed the law, but it’s another matter entirely as to whether websites can actually be blocked.   In my experience the people who run the sort of sites that the rights holders hate tend to be 2 steps ahead of the game. 

I will rant about the risk of my internet connection being throttled or cut in a couple of days.  

 

Adwords and the Election – Labour bids for “David Cameron”

Published April 9, 2010 Intellectual Property , Trade Marks , web law 1 Comment

As a follow up to my blog on adwords where I talked about bidding for a competitor’s brand, I thought you might like this article from the BBC

http://www.bbc.co.uk/blogs/thereporters/rorycellanjones/2010/04/the_google_political_ad_war.html

So both Labour and Anne Summers appear to be bidding for the search term “David Cameron”.

I have thought of about 10 Anne Summers jokes to use here – but I am self censoring. Feel free to add your own in the comments (although I reserve the right not to publish these).

This also reminds me of the huge part Google and Youtube played in the last US presidential election.  No doubt each party will  have its own team search engine optimisers and web spinners (spiders?) working on this election.

Also as an aside one of my contacts from the pub (cutmustard.tv) tells me that your Google ranking shoots up if you have a link to a properly tagged youtube video. I don’t know if this is true but given that Google owns Youtube it sounds credible.

Have a good weekend.

Mucking Around with Adwords and Using a Competitor’s Brand as an Adword

Published March 31, 2010 Intellectual Property , On Line Defamation , Trade Marks , web law 1 Comment

Google Adwords is a system where you can buy a good screen position for your advert in the results of a Google search for a word or a phrase you choose.  So for example I could bid up to £2 for a Brodies’ advert to be displayed when a user Googles “Outsourcing Law Scotland”.  (Actually you only pay Google if someone clicks-through on your advert.)

I have been mucking around with Adwords in order to drive traffic to this Blog site partly because I got a free £50 credit from Google in a magazine flyer, partly because it’s something I need to understand in order to advise clients, and partly because there are interesting legal aspects to it.

Here is an example of my advert (click on the image to see it in a better resolution)

The words/phrases I bid for were all fairly dull –  ”technology law”, “intellectual property law”. But imagine I had bid for a competitor’s brand name. I might get more traffic but I don’t think my competitors would be that impressed. 

This is what happened in Interflora v. Marks and Spencer. M&S bid for its flower delivery advert to be displayed if anyone Googled “Interflora”.  Interflora are going after M&S for trade mark infringement and passing off. The case is working its way through the Courts. Watch this space for the result.

In a parallel series of cases in the European Court of Justice (the highest court in Europe), the brand owners, including Luis Vuitton, sued Google (as opposed to the person who purchased the Adword).  Last week the ECJ held that Google was not liable because it was just a conduit for the infringement and not the author of the infringement.  While I think that decision is questionable, the upshot is clear – if you are the brand owner you have to go against the person who purchases the Adword, and not Google.

Hmmm!

Based on this I thought it would be funny for my advert to be displayed whenever anyone searched  for “Google” or  “Adword”. Surprisingly, Google seemed prepared to let me do this. However, in the end I got cold feet. (I had visions of trying to explain to the Brodies’ managing partner why Google was suing Brodies.)

Court ruling on “reasonable adjustments” under the DDA

Published November 23, 2009 In the Media , eCommerce , web law Leave a Comment
Tags: ,

I read at the weekend that an appeal by RBS to over-turn a court order ordering RBS to carry out £200,000 worth of remedial works to a branch in Sheffield has failed.

The case involves a successful claim by a customer that, as a service provider, RBS had breached its obligations under the Disability Discrimination Act 1995 (the “DDA”) – in particular that it had failed to make “reasonable adjustments” (as required under section 21 of the DDA) to make the branch accessible to wheelchair users. The case is signifcant because it is the first time (as far as I am aware) that, in addition to a finding that discrimination had taken place, a court has ordered a defendant to incur capital costs to prevent discrimination from re-occuring.

Whilst this case relates to access to a physical building, it is also relevant for the purposes of considering the DDA and the accessibility of websites by users with disabilities. In particular, it confirms that the courts are prepared to order a defendant to incur substantial costs and carry out remedial work (whether to a bricks and mortar site or a clicks and mortar website). That doesn’t mean to say that costs of £200,000 fixing an inaccessible website will automatically be deemed “reasonable” (RBS did not appear to challenge the reasonableness of that figure), but it does set a precedent in respect of the use of court orders under the DDA.

It’s also interesting to note that the court rejected RBS’s argument that the claimant could access the same services through RBS’s Internet banking website, and therefore that RBS had discharged its duties under the DDA. The court differentiated the channels through which services are offered to customers on the basis that there are certain things that can be done in a branch that cannot be done online. This may make it harder for operators of inaccessible websites to say that other, alternative, channels offer the same functionality as the website.

Global harmonisation of data storage rules

Published October 21, 2009 Data Protection , In the Media , web law Leave a Comment

On the train* and I’ve just read this story on the BBC website, which reports on calls from Microsoft for data storage rules to be harmonised across the world.

Microsoft’s argument is that operators of worldwide online services such as email and social networking sites tend, for obvious economic reasons, to cluster their data in a couple of data centres around the world and, for operational reasons, will often tend to want to bounce data from one data centre to another, regardless of where the end user is.

However, the rules that apply to data storage and retention vary from country to country – both at the customer/user level (eg data protection legislation) and the wider corporate/regulatory level (eg accounting and audit rules). In other words, the laws in some countries are stricter than others, and all that different red tape makes things more complicated for operators of snazzy Web 2.0 services.

Facebook’s recent experiences in Canada also show that even a single country can sometimes demand that global service providers follow that country’s rules.

So what is the answer? I suspect that the European Commission’s view is that the rest of the world should step up to the data protection and privacy rules that apply in Europe. Indeed, the effect of EU data protection legislation is such that those offering a service to consumers in Europe already have to do that if they wish to store data outside the EEA. Certainly, I can’t see the EU accepting a lower global standard than that set out in the Data Protection Directive.

For that reason, I’m not sure that globally harmonised data retention and privacy rules are achievable – at least in the short term. But pehaps the lobbying might of Microsft, IBM, Yahoo! et al will prove me wrong.

Martin Sloan

*typing this on my iPod Touch using Safari and the courtesy wifi. As a proof of concept it works (even inserting the links), but it’s a bit fiddly to do regularly. Next time I’ll try the WordPress app.

Twitter ye not

Published October 6, 2009 In the Media , Intellectual Property , On Line Defamation , web law Leave a Comment

As a Scottish litigator and lover of the very specific and detailed rules relating to service and intimation in the Court of Session I was shocked when I saw that the English High Court had allowed service of an injunction via Twitter. My initial reaction was that there was no way that such a thing would be allowed in Scotland.

However, upon further research, it appears that this could also be attempted north of the border. The Scots equivalent of an injunction is an interdict and when one is seeking an interdict it is usual to seek an order for interim interdict pending a full hearing. In reality most IP actions tend to come to an end at this stage.

If one succesfully obtains an order for interim interdict normal practice is to rush to the court offices and obtain a certified copy of the court order which is then served by Messengers-at-Arms (process servers). It was this level of formality which led me to my shock at the suggestion that an order for interim interdict could possibly be served informally.

However, having looked more closely at the Court Rules and some older authorities, it appears that the position in Scots Law is that an order for interim interdict is valid as soon as it is granted by a judge. It then becomes operative when the respondent or defender becomes sufficiently aware of its contents (Clark v Stirling (1839) 1 D 955 and Burn-Murdoch on Interdict at para 447). Strictly speaking then, there is no formal requirement for service in order for the interim interdict to become operative.

Theoretically then, one could argue in proceedings for breach of interdict that the defender had been made sufficiently aware of the contents of the order as a result of service by Twitter. It is likely though that the bigger problem in Scots law would be obtaining an interim interdict against an unknown defender (the general rule being that interdict cannot affect unnamed persons (Lord Advocate v Scotsman Publications Ltd 1989 SC (HL) 122).)

There are options here as well though. If contacting the site moderator and ISP prove unsuccesful, it would also be possible to seek an order from the Court under s1(1A) of the Administration of Justice (Scotland) Act 1972 compelling the host site or ISP to disclose such information as they may have regarding the identity of the blogger. I feel another blog coming on…..

Iain Rutherford

Update: Google Books, Pimm’s and Pitcher’s

Published October 5, 2009 Intellectual Property , Trade Marks , web law Leave a Comment

In an exciting TechBlog update, we can report the latest development in the Google Books dispute which we originally reported on last week. The Department of Justice was scheduled to consider Google’s proposed Settlement Agreement at a “Fairness Hearing” on October 7th. However the plaintiffs in the dispute, the US Authors Guild, moved last week for an adjournment of the Hearing. Google did not oppose. This adjournment is a clear admission that the parties need to redraft the Agreement.

It’s thought that the parties took this step in response to a recent announcement by the Department of Justice to the effect that the Agreement in its present form probably violated antitrust law. In passing the motion, Federal Judge Chin’s Court Order noted: “the current settlement agreement raises significant issues, as demonstrated not only by the number of objections, but also by the fact that the objectors include countries, states, non-profit organizations and prominent authors and law professors.” Nobody important then.

Diageo and Sainsbury’s, meanwhile, have managed to put down their handbags and have ended the Pimm’s/Pitcher’s dispute which we reported on  last month. The specifics of the deal are under wraps but we understand that Sainsbury’s can maintain the “Pitcher’s” brand but will have to add “Sainsbury’s” to the label and also change the colour of the label from gold to orange. The practical impact of these changes is pretty unclear and they might not make much difference to the consumer. It reminds me a bit of the time I went to see the Golden Gate Bridge in San Francisco and reckoned it was far more “red” than “golden”, only to be told by a tour guide that the colour of paint actually used on it was “international orange”. I think Sainsbury’s have got a good deal here (provided that Pitcher’s isn’t a dud product which will tarnish their brand).

John McGonagle

Paperback Fighters

Published September 27, 2009 Intellectual Property , web law 1 Comment

You may be aware that since 2004 Google has been digitising books.   You may also be aware that not everybody is delighted about it.

It’s pretty hard to find a decent, snappy round-up of the Google Books story, and some bright spark somewhere is probably writing a dreary tome entitled “The Google Books book” right now. However, just to prove how efficient and clever we are here at Brodies, I’m going to sum up the whole saga in under 500 words.

Starting now.

Google claims that since 2004 it has scanned at least 7 million books. These books are variously out of copyright, still under copyright, commercially unavailable or, in many cases, “orphan works” with no known copyright holder. Despite Google employing a variety of access restrictions, and only showing snippets from the copyright works (with a few pages around a searched-for term or phrase), the project has been very unpopular with writers and publishers who believe that it infringes their rights.

In the US the Authors Guild and the Association of American Publishers  filed a class copyright infringement suit in 2005.  At the end of last year Google proposed a settlement which is currently under consideration by the US court. Under the settlement Google has offered to pay 125 million dollars to resolve outstanding claims and establish an independent “Book Rights Registry” which will provide revenue from sales and advertising to authors and publishers who agree to digitise their books. Thanks to the peculiarities of US class action law, if this settlement receives US court approval it will apply automatically to the entire US books industry.

However the objections are numerous! Some authors want an opt-in system, rather than an opt-out (the problem being this would leave the “orphan works” in limbo). Publishers are concerned that Google will have a monopoly over the index and over commercially unavailable works. Civil liberties campaigners highlight the privacy risks of Google being able to monitor your reading. Other objections have come from Google’s competitors in the search business, including Microsoft. And Germany has recently announced its opposition, arguing that the settlement violates international treaties on authors’ rights because it would be easy to get round restrictions on non-US access to the index.

In Europe, Google is facing a different set of copyright laws in each country, with little harmonisation. Differing rules at national level are hampering co-operation. What is out of copyright in Germany may still be protected in France. The European Commission has started hearings on how it should respond to the deal. The Commissioners are attempting to formulate a response and will report to the European Parliament and the Council with their findings.

Supporters of the single market would like the EU to formally back the US deal and devise a similar pan-European legal instrument to promote the digitisation of its cultural heritage. Opponents point out that harmonisation of EU copyright laws could take decades, that a single US company should not be trusted as a repository of European culture, and that a deal with Google would cut European companies out of this emerging market.

On 7th September European Commissioners held an open meeting to discuss the effects of the Google Book settlement agreement on the European publishing sector, European authors and European consumers. The result was that Google proposed to offer scanned books to Europe’s publicly funded digitisation initiative “Europeana”, and also offered two positions on its proposed Books Rights Registry to European representatives.

(For the record, that was 492 words. At Brodies we always like to come in a bit under our quote – and crucially, with the job also done.)

So that’s all the reporting, but what is my personal opinion?

Firstly I don’t believe that Google is doing all this for the greater good, no matter how cuddly its marketing makes the company appear.

Secondly I think the EU has to take some sort of action regarding book digitisation or we’re going to end up with a dearth of online European knowledge.

Thirdly, Europeana is hugely underfunded.

All of which leads me to the conclusion that the EU is going to have to do some sort of deal with Google. A check on what might rapidly become a digital books cartel will have to be agreed. It may be that Google’s business model is the most effective check of all. Google’s business is fundamentally based around search and it’s going to be in Google’s best interests to make sure books are available to be searched.

John-McGonagle-signoff

 

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