On the Inforrm Blog, today's post, Privacy and the Right to Oblivion, was extremely thought-provoking.
I've left a comment against that post, but what I wanted to say here was that I really do like the imagery which Jeffrey Rosen conjures of a digital trail. We live in an era where our trails are recorded digitally and my view of that is that we're fortunate to do so. We have the ability to leave our mark. We are digital trailblazers!
Yes, we have the right to manage those trails carefully, but not necessarily retrospectively. Online or offline, not all mistakes can be erased. So, choose the trail which you wish to leave carefully, before you make it.
Social media gives us all the opportunity to create, manage and promote our own trail but, as they say, with power comes responsibility...to yourself. With many things in life, over-regulating tends to hinder not help; common-sense is usually the only rule required.
Showing posts with label digital law. Show all posts
Showing posts with label digital law. Show all posts
Tuesday, 16 November 2010
Wednesday, 7 April 2010
Are you talking my language?
08:55
The need to use the right communication method to keep in touch with your audience was never better exemplified than in yesterday’s parliamentary wash-up process for the Digital Economy Bill which enticed very few MPs to engage in debate on the subject in the Commons; juxtapositioned against the tirade of simultaneous Twitter debate at #debill from the outraged constituents of those MPs who will be looking for their votes at the general election in just over 4 weeks time.
Here’s another example of an organisation failing to hit the mark with the right communication method for the subject matter. A couple of weeks ago there was a landmark judgement on a case in my industry (digital marketing) and a big player was involved (Google). The law has always struggled to keep pace with technology, and so we love legal developments which do affect us and this was news we’d all been waiting for. Twitter alerted me to the result of the case. I used Twitter to convey the information I had received myself about the judgement, and to find out the information which everybody else had. I had a blog up and running for my company on the subject just after lunch time and, fair dues, several law firms, legal and industry bloggers achieved the same.
On the day, Twitter was invaluable for exchanging information and more importantly current thinking attaching to the issues which were raised in the case. Given the case related to the digital marketing industry, the real time communication was all the more appropriate.
Two days later, I received an e-mail from a law firm with the heading “Breaking News”. “How exciting” I thought “What a busy week this is turning out to be for new legal developments...
Oh the disappointment! The e-mail contained a briefing of the judgement from 2 days prior. It contained no insight or new angles on the case, and was clearly not in touch with the comments about this judgement case which were circulating on Twitter, the blogosphere and the industry generally.
In my view this was not breaking news. Technically, it was not even yesterday’s news. It would have been hard-pressed to be that day’s fish and chips paper.
Law firms, take note! and engage more actively with your target audience, use the tools which we use to communicate your message and you’ll have our attention. We may even talk back to you. It could be the start of a beautiful relationship.
Here’s another example of an organisation failing to hit the mark with the right communication method for the subject matter. A couple of weeks ago there was a landmark judgement on a case in my industry (digital marketing) and a big player was involved (Google). The law has always struggled to keep pace with technology, and so we love legal developments which do affect us and this was news we’d all been waiting for. Twitter alerted me to the result of the case. I used Twitter to convey the information I had received myself about the judgement, and to find out the information which everybody else had. I had a blog up and running for my company on the subject just after lunch time and, fair dues, several law firms, legal and industry bloggers achieved the same.
On the day, Twitter was invaluable for exchanging information and more importantly current thinking attaching to the issues which were raised in the case. Given the case related to the digital marketing industry, the real time communication was all the more appropriate.
Two days later, I received an e-mail from a law firm with the heading “Breaking News”. “How exciting” I thought “What a busy week this is turning out to be for new legal developments...
Oh the disappointment! The e-mail contained a briefing of the judgement from 2 days prior. It contained no insight or new angles on the case, and was clearly not in touch with the comments about this judgement case which were circulating on Twitter, the blogosphere and the industry generally.
In my view this was not breaking news. Technically, it was not even yesterday’s news. It would have been hard-pressed to be that day’s fish and chips paper.
Law firms, take note! and engage more actively with your target audience, use the tools which we use to communicate your message and you’ll have our attention. We may even talk back to you. It could be the start of a beautiful relationship.
Thursday, 25 March 2010
Shameless Plug & Follow-up
06:03
A shameless plug for the blog post which I wrote for Latitude earlier this week, Google off the hook, but is anyone else left on it? following the judgement from the ECJ on the 3 Google Adwords cases referred to it from the French courts. Please click on the link, because if I'm the employee with the most clicks on the Latitude blog this month I could win the monthly blogging competition :-)
Plug over.
Now for the follow-up:
Obviously this isn't the result which trademark proprietors were hoping for, and since writing that post I've seen a number of reports in the blogosphere suggesting that enforcement costs for protecting brands online will rocket (see in particular this post from World Trademark Review). We'll just have to wait and see if the price per click of branded keywords does increase, but I think to say that the costs of enforcement will rocket is perhaps a knee-jerk reaction because:
(a) What this judgement does is further clarify what type of activity does and doesn't constitute trademark infringement, and clarity can only be a good thing for all parties concerned, and so there should be, per se, less infringement. When we have the ruling in M&S v Interflora, we'll have even more clarity.
(b) Doubtless there will be some advertisers who take advantge of the ruling, but likewise there will be those who don't. For instance, in terms of online advertising, some sectors are more sensitive to searches against generic keywords rather than branded keywords (eg "car insurance"). Indeed, individual advertisers also take their own ethical stance in whether or not they use competitor's trademarked terms as keywords in their own advertising campaigns.
(c) What trademark owners should consider are the other ways in which they can boost their online presence, such as through improved content (price per click is not the only factor which affects the placement of a sponsored ad) and organic search results.
Lots of analysis and views to digest still, I particularly enjoyed reading Eric Goldman's analysis of the ruling Google gets favourable ECJ opinion, but will it prove a hollow victory? and IPKat's summary of comments on the 3 cases.
Plug over.
Now for the follow-up:
Obviously this isn't the result which trademark proprietors were hoping for, and since writing that post I've seen a number of reports in the blogosphere suggesting that enforcement costs for protecting brands online will rocket (see in particular this post from World Trademark Review). We'll just have to wait and see if the price per click of branded keywords does increase, but I think to say that the costs of enforcement will rocket is perhaps a knee-jerk reaction because:
(a) What this judgement does is further clarify what type of activity does and doesn't constitute trademark infringement, and clarity can only be a good thing for all parties concerned, and so there should be, per se, less infringement. When we have the ruling in M&S v Interflora, we'll have even more clarity.
(b) Doubtless there will be some advertisers who take advantge of the ruling, but likewise there will be those who don't. For instance, in terms of online advertising, some sectors are more sensitive to searches against generic keywords rather than branded keywords (eg "car insurance"). Indeed, individual advertisers also take their own ethical stance in whether or not they use competitor's trademarked terms as keywords in their own advertising campaigns.
(c) What trademark owners should consider are the other ways in which they can boost their online presence, such as through improved content (price per click is not the only factor which affects the placement of a sponsored ad) and organic search results.
Lots of analysis and views to digest still, I particularly enjoyed reading Eric Goldman's analysis of the ruling Google gets favourable ECJ opinion, but will it prove a hollow victory? and IPKat's summary of comments on the 3 cases.
Thursday, 18 March 2010
CAPping it off: The digital remit extension
03:39
This week the Advertising Association announced that the advertising industry recommends the remit of the CAP Code be extended to cover all online marketing communications including social media.
It’s anticipated that this will be achieved by Autumn 2010, but the move needs to be ratified by CAP and will be subject to appropriate consultation with the industry first.
The existing Code covers paid for marketing communications online (such as PPC, display banner advertisements, preferential rankings on price comparison sites etc), and so the proposed extension to all online marketing will require a change in the mindset and awareness of online publishers of any marketing communication to ensure their communications do not fall foul of the Code.
This is great news (albeit a perfect example of how the law takes a little while to catch up with how consumers and businesses use technology). Some initial thoughts and questions from me:
• What will constitute an “online marketing communication”? It’s easy to identify a stand-alone PPC or display banner advertisement as a piece of advertising, but the line can become blurred when the format changes. For instance, an online “infommercial”, which presumably will be caught as similar are caught in the offline environment. But where will the line be drawn? Or will a line be drawn at all? Arguably a company’s entire website could be classified as a marketing communication as the primary purpose it serves is to promote a business and its brand.
• Articles and “press releases” are regularly submitted to search engines and online directories for the purposes of search engine optimisation and are prepared with the expectation that the content will only be “viewed” by the search engines for the purpose of increasing the organic search ranking of the website in question, rather than be viewed by individual consumers. That expectation won’t change, but these documents will potentially fall under the extended remit.
• The inclusion of social media is the most important proposed change to the Code as there is a clear engagement and influence between consumer and marketer with this type of online marketing communication. A company’s marketing activity on sites such as Facebook, MySpace, YouTube, Twitter and all manner of blogs and interactive communication portals will need to be managed more carefully to ensure content does not fall foul of the Code. This will be a challenge to the mindset of marketers using social media which is per se a more informal and laissez-faire type of communication.
• Social media marketing communications thrive on interaction and user generated content. Will user-generated content be captured by the Code? My initial reaction is no but that’s based on the assumption that user generated content is generated by consumers (whom the Code is aimed to protect) and not the company doing the marketing; but what about where user generated content is generated by representatives of the company posing as consumers or persons recommending that company’s products or services? How will this type of undercover online marketing be dealt with?
• In terms of twitter: Will a company’s entire Twitter stream be captured by the new remit, or just those tweets comprising a branded marketing communication? What about the Twitter stream of an individual associated with a company but who tweets for themselves, albeit their association with the company influences their tweets? If a marketing communication is tweeted, and is non-compliant with the Code, will any re-tweets of that original tweet be treated as non-compliant also?
I'm on consultation watch, and look forward to hearing other thoughts on how the extension of the CAP Code will potentially affect online marketing practices.
It’s anticipated that this will be achieved by Autumn 2010, but the move needs to be ratified by CAP and will be subject to appropriate consultation with the industry first.
The existing Code covers paid for marketing communications online (such as PPC, display banner advertisements, preferential rankings on price comparison sites etc), and so the proposed extension to all online marketing will require a change in the mindset and awareness of online publishers of any marketing communication to ensure their communications do not fall foul of the Code.
This is great news (albeit a perfect example of how the law takes a little while to catch up with how consumers and businesses use technology). Some initial thoughts and questions from me:
• What will constitute an “online marketing communication”? It’s easy to identify a stand-alone PPC or display banner advertisement as a piece of advertising, but the line can become blurred when the format changes. For instance, an online “infommercial”, which presumably will be caught as similar are caught in the offline environment. But where will the line be drawn? Or will a line be drawn at all? Arguably a company’s entire website could be classified as a marketing communication as the primary purpose it serves is to promote a business and its brand.
• Articles and “press releases” are regularly submitted to search engines and online directories for the purposes of search engine optimisation and are prepared with the expectation that the content will only be “viewed” by the search engines for the purpose of increasing the organic search ranking of the website in question, rather than be viewed by individual consumers. That expectation won’t change, but these documents will potentially fall under the extended remit.
• The inclusion of social media is the most important proposed change to the Code as there is a clear engagement and influence between consumer and marketer with this type of online marketing communication. A company’s marketing activity on sites such as Facebook, MySpace, YouTube, Twitter and all manner of blogs and interactive communication portals will need to be managed more carefully to ensure content does not fall foul of the Code. This will be a challenge to the mindset of marketers using social media which is per se a more informal and laissez-faire type of communication.
• Social media marketing communications thrive on interaction and user generated content. Will user-generated content be captured by the Code? My initial reaction is no but that’s based on the assumption that user generated content is generated by consumers (whom the Code is aimed to protect) and not the company doing the marketing; but what about where user generated content is generated by representatives of the company posing as consumers or persons recommending that company’s products or services? How will this type of undercover online marketing be dealt with?
• In terms of twitter: Will a company’s entire Twitter stream be captured by the new remit, or just those tweets comprising a branded marketing communication? What about the Twitter stream of an individual associated with a company but who tweets for themselves, albeit their association with the company influences their tweets? If a marketing communication is tweeted, and is non-compliant with the Code, will any re-tweets of that original tweet be treated as non-compliant also?
I'm on consultation watch, and look forward to hearing other thoughts on how the extension of the CAP Code will potentially affect online marketing practices.
Tuesday, 9 March 2010
AdWords, Links & a Ticking Clock
06:55
I’ve been expecting 2010 to be a busy year for developments with the pending litigations relating to online infringement of brands when used as keywords to deliver sponsored search results, and yesterday I posted a blog for Latitude about it. The purpose of that post was to bring non-lawyers up to speed with the topic but do feel free to comment there on any of the legal implications of these cases should the mood take you. Meanwhile, here are a few useful legal links on the subject for the lawyers amongst you:
Eric Goldman’s Technology & Marketing Law Blog continues to be a first class source of updates on the US Google Adwords litigation; he is meticulously in backing up his blogs with a raft of legal sources and links and his comments are insightful both in terms of the legal ramifications and also in terms of well-spotted human-error and oddities (see his commentary on the Flowbee litigation linked below for a case in point).
Eric has recently blogged on the decision by Rescue.com to drop its lawsuit against Google (seemingly because of the duplicitous position which the plaintiff found itself in by arguing both sides of the coin in parallel lawsuits, and also because of the sheer length of time the dispute has now been dragging on for), the Jurin case (in which the keyword seller v advertising seller argument surfaces), and the transfer of the Flowbee litigation (by invoking the venue selection/governing jurisdiction provisions in its Adwords contract); and on top of all of that he also helpfully maintains a running record of all Adwords cases on the books in the US.
Moving to Europe, back in September 2009 the Attorney General gave his opinion on the 3 French Google Adwords cases which had been referred to the ECJ for judgement. The AG comes down on the side of the search-engines, a position which some commentators have referred to as a mistake, so we will have to wait and see how the ECJ ultimately rules. In addition, we’re expecting judgement on Interflora v M&S and L’Oreal v eBay from the ECJ. We are tantalisingly promised opinions in “early 2010”....tick tock tick tock...
Eric Goldman’s Technology & Marketing Law Blog continues to be a first class source of updates on the US Google Adwords litigation; he is meticulously in backing up his blogs with a raft of legal sources and links and his comments are insightful both in terms of the legal ramifications and also in terms of well-spotted human-error and oddities (see his commentary on the Flowbee litigation linked below for a case in point).
Eric has recently blogged on the decision by Rescue.com to drop its lawsuit against Google (seemingly because of the duplicitous position which the plaintiff found itself in by arguing both sides of the coin in parallel lawsuits, and also because of the sheer length of time the dispute has now been dragging on for), the Jurin case (in which the keyword seller v advertising seller argument surfaces), and the transfer of the Flowbee litigation (by invoking the venue selection/governing jurisdiction provisions in its Adwords contract); and on top of all of that he also helpfully maintains a running record of all Adwords cases on the books in the US.
Moving to Europe, back in September 2009 the Attorney General gave his opinion on the 3 French Google Adwords cases which had been referred to the ECJ for judgement. The AG comes down on the side of the search-engines, a position which some commentators have referred to as a mistake, so we will have to wait and see how the ECJ ultimately rules. In addition, we’re expecting judgement on Interflora v M&S and L’Oreal v eBay from the ECJ. We are tantalisingly promised opinions in “early 2010”....tick tock tick tock...
Thursday, 25 February 2010
Your Google Needs You!
05:03
Google is recruiting. It needs in-house counsel, and lots of them. Fast! Just look at this selection of in-house legal jobs currently available at Mountain View, Google UK, and Google Zurich.
The reason for this recruitment drive? Well, not only does Google have the day-to-day legal demands of any international business its size (are there any others?), its also facing legal challenges left, right and centre. Here’s a quick run-down of some of the more high-profile ones:
1. Digital Books
Google is seeking to build the world’s biggest online library by digitising millions of out-of-print books. This move has come up against much criticism concerned with breach of copyright (resulting in many authors opting out of the proposed settlement), potential invasion of privacy (the project has the potential to make user’s personal data and online habits public) and unfair competition (is Google obtaining a monopoly on the world’s information?). The “fairness hearing”, as it is being referred to, had its day in court last week and Judge Chin has expressed his concerns but made clear that there will not be an immediate ruling.
2. Personal liability of 3 Google Execs in Italy
In Italy 3 Google executives have been convicted of invasion of privacy as a result of a short film being uploaded onto Google Video which showed a 17 year old boy with Down’s Syndrome being bullied by 4 other children. Although Google removed the video in less than 24 hours of receiving complaints after it had been uploaded, this was not enough for the Italian Court, whose position was that Google should never have allowed the video to reach the internet in the first place.
It’s a concerning precedent on two counts. Firstly, in terms of exposure to liability of executives working at content providers and potentially other platform or service providers. Secondly, in terms of the potential changes to process required for those content, platform and service providers to pre-screen content to minimise this new risk.
More on this story can be found on BBC, Google’s reaction and Peter Fleischer’s view (one of the Google executive’s in question) .
3. Potential EC Competition Investigation
The European commission has received 3 complaints (from price comparison site Foundem, French legal search engine ejustice.fr, and Microsoft's Ciao) that Google’s online search and digital advertising activity is potentially anti-competitive. Copies of the complaints are not available but according to The Guardian “The complaints centre on the way in which Google's search results are compiled and on the terms and conditions the company attaches to deals with advertisers.”
The EC has issued a statement advising that it has not opened a formal investigation but that it has asked Google to comment on the complaints. Google states it is “committed to competing fairly”, but with such a strong hold in the market-place and so much at stake, I suspect its in-house legal team will be pouring over the detail of the complaints and the company’s response with a fine tooth-comb to stave off a full investigation by the EC.
4. Buzz Off
The controversial social networking tool attaching to Google’s email brought with it a host of privacy concerns, Channel Webb documents them well. Google responded promptly to the criticisms and concerns, but was it too late? In the US, the Electronic Privacy Information Centre has urged the Federal Trade Commission to open an investigation into Buzz with a detailed complaint which seeks to:
• Compel Google to make Google Buzz a fully opt-in service for Gmail users
• Compel Google to cease using Gmail users’ private address book contacts to compile social networking lists
• Compel Google to give Google Buzz users more control over their information, by allowing users to accept or reject followers from the outset
• Provide such other relief as the Commission finds necessary and appropriate
5. Streetview
After successfully fighting off Mr & Mrs Boring who issued a federal claim against Google in relation to Streetview invading their privacy (see Eric Goldman’s summary) in the US, the Google lawyer assigned to Streetview is now having to fight a battle in Europe. Strong objections by the German government have been voiced by Germany’s Consumer Protection Minister (comments here) who is looking for Google to potentially obtain the consent of each and every person photographed on Stretview before uploading their image or other identifying locational data onto the service.
6. Alleged Search Patent Infringement
Hot off the press this morning, we hear that Xerox is alleging that Google’s search algorithms allegedly infringe its patents. Yahoo is also on the receiving end of the allegation and breaks the news here.
7. Adwords
And we haven’t even started on the long list of Adwords lawsuits lining up. Expertly summarised on Eric Goldman’s blog.
And that’s only the legal news in the public domain. Interesting times for GOOG’s in-house counsel.
The reason for this recruitment drive? Well, not only does Google have the day-to-day legal demands of any international business its size (are there any others?), its also facing legal challenges left, right and centre. Here’s a quick run-down of some of the more high-profile ones:
1. Digital Books
Google is seeking to build the world’s biggest online library by digitising millions of out-of-print books. This move has come up against much criticism concerned with breach of copyright (resulting in many authors opting out of the proposed settlement), potential invasion of privacy (the project has the potential to make user’s personal data and online habits public) and unfair competition (is Google obtaining a monopoly on the world’s information?). The “fairness hearing”, as it is being referred to, had its day in court last week and Judge Chin has expressed his concerns but made clear that there will not be an immediate ruling.
2. Personal liability of 3 Google Execs in Italy
In Italy 3 Google executives have been convicted of invasion of privacy as a result of a short film being uploaded onto Google Video which showed a 17 year old boy with Down’s Syndrome being bullied by 4 other children. Although Google removed the video in less than 24 hours of receiving complaints after it had been uploaded, this was not enough for the Italian Court, whose position was that Google should never have allowed the video to reach the internet in the first place.
It’s a concerning precedent on two counts. Firstly, in terms of exposure to liability of executives working at content providers and potentially other platform or service providers. Secondly, in terms of the potential changes to process required for those content, platform and service providers to pre-screen content to minimise this new risk.
More on this story can be found on BBC, Google’s reaction and Peter Fleischer’s view (one of the Google executive’s in question) .
3. Potential EC Competition Investigation
The European commission has received 3 complaints (from price comparison site Foundem, French legal search engine ejustice.fr, and Microsoft's Ciao) that Google’s online search and digital advertising activity is potentially anti-competitive. Copies of the complaints are not available but according to The Guardian “The complaints centre on the way in which Google's search results are compiled and on the terms and conditions the company attaches to deals with advertisers.”
The EC has issued a statement advising that it has not opened a formal investigation but that it has asked Google to comment on the complaints. Google states it is “committed to competing fairly”, but with such a strong hold in the market-place and so much at stake, I suspect its in-house legal team will be pouring over the detail of the complaints and the company’s response with a fine tooth-comb to stave off a full investigation by the EC.
4. Buzz Off
The controversial social networking tool attaching to Google’s email brought with it a host of privacy concerns, Channel Webb documents them well. Google responded promptly to the criticisms and concerns, but was it too late? In the US, the Electronic Privacy Information Centre has urged the Federal Trade Commission to open an investigation into Buzz with a detailed complaint which seeks to:
• Compel Google to make Google Buzz a fully opt-in service for Gmail users
• Compel Google to cease using Gmail users’ private address book contacts to compile social networking lists
• Compel Google to give Google Buzz users more control over their information, by allowing users to accept or reject followers from the outset
• Provide such other relief as the Commission finds necessary and appropriate
5. Streetview
After successfully fighting off Mr & Mrs Boring who issued a federal claim against Google in relation to Streetview invading their privacy (see Eric Goldman’s summary) in the US, the Google lawyer assigned to Streetview is now having to fight a battle in Europe. Strong objections by the German government have been voiced by Germany’s Consumer Protection Minister (comments here) who is looking for Google to potentially obtain the consent of each and every person photographed on Stretview before uploading their image or other identifying locational data onto the service.
6. Alleged Search Patent Infringement
Hot off the press this morning, we hear that Xerox is alleging that Google’s search algorithms allegedly infringe its patents. Yahoo is also on the receiving end of the allegation and breaks the news here.
7. Adwords
And we haven’t even started on the long list of Adwords lawsuits lining up. Expertly summarised on Eric Goldman’s blog.
And that’s only the legal news in the public domain. Interesting times for GOOG’s in-house counsel.
Thursday, 28 January 2010
Waiting for the cookies to crumble
08:07
During 2009 behavioural advertising stealthily crept onto my legal radar. Behavioural advertising on the internet involves a search engine or website operator displaying advertisements to a user based on that user’s previous internet browsing history. This process is made possible by cookies which track a user’s journey through the world wide web and send data to a search engine or website operator which in turn then determines the content to display to that user based on their journey so far. The purpose is to serve more relevant ads to a user and of course to increase conversion.
My article for Latitude Group, Taking the Biscuit: Cookie Law Gets Tough, back in November explains how some recent legislative changes will now challenge the manner in which a website operator will have to provide a user with information about how their cookies will monitor that user’s journey on that website and it will also require the operator to obtain the user’s consent for that activity. The general purpose of the change would seem to be that users are fully informed and maintain some control over who uses their browsing history and how.
To date, I’m pleased to see that the industry’s approach to behavioural advertising more widely has been responsible and transparent. The Internet Advertising Bureau collaborates with industry players to promote transparency, user choice and education. The body has established a Code of Good Practice which is well subscribed to (see here for the IAB’s Your Online Choices website). Google is also particularly keen to show transparency; it recently improved the way it serves Gmail behavioural and contextual advertising so that the ads which it displays are not only reflective of the content of the email in current view, but also of the content of recent messages received in the same in-box. Credit to Google, they provide detailed information and strong assurances that the new practice requires no human involvement and that all ads are both entirely computer generated and family-safe (see here for How Gmail Ads Work). Google’s commitment to both privacy (for its customers) and transparency (of its practices) is underlined in its response to International Data Privacy Day today in its Google’s Privacy Principles blogpost.
However, with an OFT market study into online behavioural advertising and customised pricing already well under way and an awareness of legal and ethical challenges growing in this area, the lawyers amongst us will feel a lot better once we’ve got some “official guidance” to get our teeth into in terms of both the wider issues raised in behavioural advertising and, of course, our tasty cookies.
My article for Latitude Group, Taking the Biscuit: Cookie Law Gets Tough, back in November explains how some recent legislative changes will now challenge the manner in which a website operator will have to provide a user with information about how their cookies will monitor that user’s journey on that website and it will also require the operator to obtain the user’s consent for that activity. The general purpose of the change would seem to be that users are fully informed and maintain some control over who uses their browsing history and how.
To date, I’m pleased to see that the industry’s approach to behavioural advertising more widely has been responsible and transparent. The Internet Advertising Bureau collaborates with industry players to promote transparency, user choice and education. The body has established a Code of Good Practice which is well subscribed to (see here for the IAB’s Your Online Choices website). Google is also particularly keen to show transparency; it recently improved the way it serves Gmail behavioural and contextual advertising so that the ads which it displays are not only reflective of the content of the email in current view, but also of the content of recent messages received in the same in-box. Credit to Google, they provide detailed information and strong assurances that the new practice requires no human involvement and that all ads are both entirely computer generated and family-safe (see here for How Gmail Ads Work). Google’s commitment to both privacy (for its customers) and transparency (of its practices) is underlined in its response to International Data Privacy Day today in its Google’s Privacy Principles blogpost.
However, with an OFT market study into online behavioural advertising and customised pricing already well under way and an awareness of legal and ethical challenges growing in this area, the lawyers amongst us will feel a lot better once we’ve got some “official guidance” to get our teeth into in terms of both the wider issues raised in behavioural advertising and, of course, our tasty cookies.
Monday, 25 January 2010
Bloggers Beware
03:23
I was in two minds as to whether I should author this blog under a pseudonym or reveal my true identity. As I’m looking to increase my profile in the digital law world and not planning to stir the pot of outrage and controversy, it made sense to opt to be me, but for others the blogosphere is the venue to let loose their alter-ego and to critique the world in which they routinely operate.
Enter "Night Jack", an under-cover blogger sharing his experiences of front-line policing, criticising policing strategies and politicians, using real-life and traceable examples of police investigations and prosecutions. This successful blog attracted almost 500,000 readers at its peak and lead to a prize for political writing for its anonymous author. Ironically Night Jack had not covered his own tracks well enough and a Times journalist worked out the blogger’s true identity by his own process of deduction and detective work mainly using information available on the internet. Night Jack sought an injunction to prevent the Times from revealing this information and his actual identity.
Unfortunately the rein of Detective Constable Richard Horton’s alter-ego, Night Jack, was to be cut-short. In a landmark ruling, the Court took the view that "blogging is essentially a public rather than a private activity" lacking the quality of confidence needed to gain legal protection.
In arriving at its decision the Court asked if DC Horton had a reasonable expectation of privacy? And, if he did, would any public interest argument override that right? In the analysis of the first question, it was found that claimants who relied successfully upon this recently developed cause of action, had a pre-existing relationship of confidence, or the information in question was of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. There was no successful case analogous to that of DC Horton where there was such a significant public interest element to the information in question. The analysis of the second question was therefore academic.
As with the majority of cases this one turns on the facts, and a different blogger with a different subject-matter at a different time will no doubt yield the chance of a different judgement. But for now, bloggers beware, if your alter-ego crosses the line from personal to political/public interest commentary, writing under a pseudonym is no guarantee of your anonymity.
DC Horton received a written warning for breaching his contract of employment. With such a readily-accessible and tempting array of social media tools now available, many of which can be used to both social and business effect, employers are advised of the value in having a clear policy identifying the extent to and manner in which business information should be broadcast across them.
The link to the full script of the Night Jack case can be found here: http://alpha.bailii.org/ew/cases/EWHC/QB/2009/1358.html
Enter "Night Jack", an under-cover blogger sharing his experiences of front-line policing, criticising policing strategies and politicians, using real-life and traceable examples of police investigations and prosecutions. This successful blog attracted almost 500,000 readers at its peak and lead to a prize for political writing for its anonymous author. Ironically Night Jack had not covered his own tracks well enough and a Times journalist worked out the blogger’s true identity by his own process of deduction and detective work mainly using information available on the internet. Night Jack sought an injunction to prevent the Times from revealing this information and his actual identity.
Unfortunately the rein of Detective Constable Richard Horton’s alter-ego, Night Jack, was to be cut-short. In a landmark ruling, the Court took the view that "blogging is essentially a public rather than a private activity" lacking the quality of confidence needed to gain legal protection.
In arriving at its decision the Court asked if DC Horton had a reasonable expectation of privacy? And, if he did, would any public interest argument override that right? In the analysis of the first question, it was found that claimants who relied successfully upon this recently developed cause of action, had a pre-existing relationship of confidence, or the information in question was of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. There was no successful case analogous to that of DC Horton where there was such a significant public interest element to the information in question. The analysis of the second question was therefore academic.
As with the majority of cases this one turns on the facts, and a different blogger with a different subject-matter at a different time will no doubt yield the chance of a different judgement. But for now, bloggers beware, if your alter-ego crosses the line from personal to political/public interest commentary, writing under a pseudonym is no guarantee of your anonymity.
DC Horton received a written warning for breaching his contract of employment. With such a readily-accessible and tempting array of social media tools now available, many of which can be used to both social and business effect, employers are advised of the value in having a clear policy identifying the extent to and manner in which business information should be broadcast across them.
The link to the full script of the Night Jack case can be found here: http://alpha.bailii.org/ew/cases/EWHC/QB/2009/1358.html
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