Global Media and Communications Watch

Posted on June 17th, 2013 By Winston Maxwell, David Taylor and Christine Gateau Posted in Advertising, Data Protection & Privacy, E-Commerce, Internet, Networks

Internal and External Social Networks: New Risks, New Rules

On May 30, 2013, the Hogan Lovells Paris office hosted a seminar on internal and external social networks. While the informal nature of social networks, whether they are public or internallydeveloped by companies, is at the origin of their success, we still need to be aware that these platforms of self-expression are regulated. From labour law to personal data through consumer law to rules concerning payment terms, they raise innumerable topics of interest.

The seminar was introduced by David Taylor and Winston Maxwell who head up the Paris Office TMT practice. After an overview given by Paul Hébert, Head of the legal department of the French National Commission on Information Technology and Freedom (CNIL), Jean-Marc Albiol talked about the issues arising under labour law from the use of social networks and which affect human resources. Lionel de Souza focused his speech on the difficult balance that must be found between social networks, privacy and the protection of intellectual property rights. Christine Gateau and Christelle Coslin provided an overview of French and European case law regarding advertising and the conditions under which one can use social networks. Finally, Sébastien Gros discussed the regulatory issues associated with social networks. All the presentations can be found here.

You can also check the live tweet of the seminar on our Twitter account @HL_TMT_FR.

Posted on June 13th, 2013 By Christian Tinnefeld Posted in Defamation, Internet

Germany: Federal Court of Justice took a view on Google’s autocomplete function

In the decision of 14 May 2013 (Docket no. VI ZR 269/12) the Federal Court of Justice (“FCJ”) held that predictions in Google’s autocomplete function could lead to an infringement of personality rights and secondary liability of the search engine operator. FCJ lifted the prior decision of the Appellate Court of Cologne of 10 May 2012 (Docket no. 15 U 199/11) that took a different view and rejected the claims of the plaintiff by denying any personality right impairment a priori.

Predictions – Statement of the search engine operator?

In the case at issue, the plaintiff claimed infringement of his personality right when his name was associated with the terms “fraud” and “scientology” by autocomplete predictions. Predictions made by autocomplete are a reflection of the search activity of all web users and consider e.g. keywords frequently used by others. They are guided by algorithms that take different parameters into account.

The Appellate Court did not consider the predictions as being a statement of the internet service provider (“ISP”) and outright refused negative connotations and infringement of personality right of the plaintiff. According to the Appellate Court the average user understands that predictions are the outcome of an algorithm based software process without implying any personal statement of the ISP.

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Posted on June 3rd, 2013 By Pierre de Montalembert and Sabrina Camand Posted in Internet

French Supreme Court: Google did not abuse dominant position

On 16 April 2013, the French Supreme Court upheld the Paris Court of Appeals decision of 16 November 2011, thus confirming that Google did not abuse its dominant position.

E-Kanopi is a French company that runs a search engine as well as thematic sites providing information on various topics: weather, companies’ financial data, phone listings and pensions. E-Kanopi subscribed to a Google AdSense account in January 2007 for its websites iadah.com and iadah.net and a Google AdWords account in January 2010 for its other websites.

In May 2010, Google suspended the two accounts, claiming that E-Kanopi had set up a fraudulent scheme violating AdWords and AdSense terms of use regarding traffic sources, malicious software and sale of free articles. Continue Reading

Posted on May 29th, 2013 By Mark Taylor Posted in Internet, Networks, Policy & Regulation

Draft EU Cyber Security Directive – UK call for evidence

In February 2013, the European Union published the EU Cyber Security Strategy and accompanying Directive (covered in previous posts, and available here). Now, in anticipation of the implementation of the Directive, the UK’s Department for Business, Innovation and Skills (BIS) has published a call for evidence to look at the impact of the Directive upon businesses in the UK. Continue Reading

Posted on May 29th, 2013 By Charles Brasted Posted in Defamation, Internet

UK: High court rules that Bercow’s Lord McAlpine tweet was libellous

On Friday, 24 May the High Court ruled that Sally Bercow’s tweet “Why is Lord McAlpine trending? *innocent face*” (the “Tweet“) was defamatory. The ruling followed a preliminary hearing on the meaning of the Tweet. The background to the case is that Lord McAlpine pursued a number of Twitter users, including Sally Bercow, who had re-tweeted false accusations linking him to the Saville child-abuse scandal.

In a defamation claim, words may have a natural and ordinary meaning or an innuendo meaning. The natural and ordinary meaning does not require the support of any additional facts, whilst an innuendo meaning implies more than is apparent on the face of the words and requires a reader to know other, external facts. To make out its case the Claimant has to prove that these extra facts were known by readers.

The Claimant’s case was that the Tweet was defamatory on either meaning. On a natural reading, the Defendant’s use of the phrase “innocent face” indicated that the words should be read as having the opposite of their literal meaning. On the “innuendo meaning” a substantial number of Twitter users could identify the Claimant given that a Newsnight report two days earlier had implicated a senior Conservative politician from the “Thatcher era”. The Claimant also pointed out that a reasonable reader would ask themselves what the Tweet was about “if it was not pointing the finger of blame at the Claimant”.

The Defendant’s case was that her Tweet was genuinely questioning why Lord McAlpine was “trending” on Twitter (i.e. showing up on screen in a list of most popular topics). Given that Lord McAlpine’s political career had ended many years earlier, this was a reasonable question and as she wrote the Tweet before the “blanket coverage” of the issue, the words were “consistent with her having noticed he was trending, but not having investigated the reason.” The Defendant also pointed out that the Newsnight report and media coverage had not identified the Claimant. The Defendant did not run any other defences.

In its judgment, the Court restated the well-known test for defamation namely that words are defamatory if they refer to the person and “substantially affect, in an adverse manner the attitude of other people towards the claimant, or have a tendency so to do.”

The Court held that followers of the Defendant’s blog would largely be people interested in politics and current affairs and so would be aware of the Newsnight report. However, such knowledge was unnecessary given that the Tweet asked why a named Lord was trending when he was not in the public eye and there was speculation about the identity of a child abuser who fitted the Claimant’s profile. The Court found that the reader “would reasonably infer that the Defendant had provided the last piece in the jigsaw” in explicitly naming the Defendant. The Court also agreed that the words “innocent face” would not be included if they simply meant that the Defendant wanted an answer to the question posed. The Court found that, on its natural and ordinary meaning, the Tweet meant that the Claimant “was a paedophile who was guilty of sexually abusing boys” and was an “allegation of guilt”. It was, therefore, plainly defamatory. The Court’s judgment made it very clear that the Defendant had accepted, as had the public, that the Claimant was entirely innocent.

Ms Bercow has stated that she is “surprised and disappointed” by the ruling, but has confirmed that she will now settle the claim. This is the latest in a string of cases involving individuals being sued for statements made on social media sites and highlights that extreme caution is needed when making public statements in any forum. Under the new Defamation Act, operators of websites may also find themselves being sued if defamatory statements are posted on their sites. It may, therefore, be that an increasing number of libel cases will be brought in the social media context. Ms Bercow herself has issued a word of caution: “Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way.”

For a cross-border look at defamation law and social media, see the Global Media & Communications Quarterly

Posted on May 8th, 2013 By Tony Basich Posted in Broadcasting, Copyright, Entertainment & Content, Internet, Licensing

Aereo/Aereokiller Update: The Ongoing Battle Over What Constitutes a Public Performance Under the Copyright Act

Recap

When we last checked in on our combatants, federal district courts in New York and California had come to contrary conclusions as to whether the unlicensed delivery of copyrighted content to subscribers over the Internet by companies that used virtually identical technologies constituted a public performance under the Transmit Clause of the Copyright Act.[1] In both cases, the companies (Aereo and Aereokiller) devised retransmission systems that employed individual, dime-sized antennas to create a separate, unique copy of copyrighted broadcast programming for each of their subscribers who wanted to watch the programming.
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Posted on May 2nd, 2013 By Penelope Thornton Posted in Copyright, E-Commerce, Internet

UK: Supreme Court refers question of whether internet browsing amounts to copyright infringement to the CJEU

In the case of the PRCA v the NLA, relating to the Meltwater online media monitoring service, the Supreme Court has referred to the CJEU the question of whether normal internet use can amount to copyright infringement by a user. The Supreme Court’s preliminary view is that internet browsing should not give rise to liability of a web-user.

The background to the case is that, in 2010, the NLA took action against Meltwater and the PRCA relating to Meltwater’s news monitoring service. Meltwater monitors a wide range of news websites. It uses special software to “read” the sites and create an index of words appearing in the articles. It then creates customised reports for customers linking to recent articles in which certain key words appear. The High Court held that the reports (including the newspaper headlines and opening text of the articles) were protected by copyright and that copyright was infringed by the end-users when they received the reports by email or accessed the report on Meltwater’s website, because a copy would be made on the user’s computer.

Meltwater argued that end users should be able to rely on the exception for making temporary copies, which are an ‘integral and essential part of the technological process’. However Proudman J decided that the copy generated by the user was a result of the user’s own voluntary decision to access the web-page and therefore it wasn’t an ‘essential and integral part of the technological process’. The Court of Appeal agreed. Meltwater and PRCA then appealed to the Supreme Court on the question of whether it was right that end-users require a licence to view the report on Meltwater’s website.

The Supreme Court has referred the question to the CJEU of whether temporary copies of works created when browsing the internet satisfy the requirements of the temporary copying exception, that is, whether they are temporary, transient or incidental and an essential part of the technological process. The Supreme Court’s provisional view is that it cannot be right that merely viewing, rather than downloading a copy could amount to copyright infringement, otherwise millions of users of the internet could be liable. However, given the appeal’s transnational dimension and potential implications for internet users across Europe it has referred the question to the CJEU.

It is not surprising that the Supreme Court holds this view, given that it is not copyright infringement simply to view or read an infringing copy of a film or book. However, customers of Meltwater will still require an end user licence to receive reports and hyper-links by email. The question for the CJEU is simply whether customers need a licence to view the material on Meltwater’s website. It seems likely, particularly following the CJEU’s findings in Murphy v Media Protection Services Limited (where the CJEU found that temporary acts of reproduction of works within the memory of a satellite decoder fell within the exception) that the CJEU will take the same view.

Posted on April 26th, 2013 By Winston Maxwell Posted in Broadcasting, Cable & Broadband, Copyright, Entertainment & Content, Internet, Policy & Regulation, Spectrum

European Commission proposes co-regulatory solutions for connected TV

The European Commission’s Green Paper “Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values” asks stakeholders to comment on some of the most difficult policy questions of the decade, such as how to preserve European audiovisual policy objectives in a borderless Internet environment. Here are highlights:

Copyright. The Commission refers to its ongoing work on copyright reform, including questions related to portability of content and access to audiovisual works, territoriality of copyright licences in the internal market (Murphy v. Premier League), limitations and exceptions to copyright in the digital age, and copyright enforcement that is both effective and viewed by citizens as legitimate. The Commission reminded readers of its interpretation of the Premier League decision, careful to limit its conclusions to sporting events:

a right holder cannot prohibit the exclusive licensee from effecting any cross-border provision of services that relate [to] the broadcasting of such a sporting event. Continue Reading

Posted on April 11th, 2013 By Xavier Buffet Delmas and Camille Pecnard Posted in Mobile Telecoms & Broadband, Telecommunications

Proposals for Amendments by the European Commission of the European Trade Mark Law

The European Commission published a press release announcing a reform of the European trade mark regime, amending both the European directive n°2008/95/EC to approximate the laws of the Member States relating to trade marks and the regulation n°207/2009 on the Community trade mark (I). One of the key issues dealt by these proposals relates to goods in transit (II).

I. General comments on the proposals

The European Commission published on 27 March 2013 a press release announcing a reform of the trade mark regime, implying a revision of the system in force. The main target is to promote the innovation and the economic growth, by making the trade mark system more accessible, more efficient and less expensive.

The proposal for a directive of the European Parliament and of the Council n°2013/0089 (COD) of 27 March 2013 intends to recast Directive n°89/104/EEC of the Council of 21 December 1988, codified as Directive n°2008/95/EC to approximate the laws of the Member States relating to trade marks. This proposal intends to: (i) modernise and improve existing provisions, in particular regarding the definition of a trade mark and the issue of counterfeit products in transit, (ii) achieve greater approximation of substantive law, in particular regarding collective marks, (iii) achieve alignment of principal procedural rules, by notably obliging Member States to provide for an administrative procedure to challenge the validity of a trade mark registration before their offices, and (iv) facilitate cooperation between offices.

The proposal for a regulation of the European Parliament and of the Council n°2013/0088 (COD) of 27 March 2013 intends to amend Council Regulation (EC) n°207/2009 of 26 February 2009 on the Community trade mark. This proposal provides: (i) to adapt terminology, in particular by changing “Community trade mark” to “European trade mark”, and to have a Common approach on Union decentralised agencies, (ii) to streamline procedures, (iii) to increase legal certainty, by adopting the same rules as those provided within the proposal for a directive, (iv) to have a framework for cooperation between the Agencies and Member State offices.

The proposals for a directive and for a regulation will have to be adopted by the European Parliament and the Council according to the codecision procedure.

Finally, the project also implies an amendment of Regulation n°2869/95 regarding the taxes to be paid to the OHIM.

II. Specific comments on the issue of goods in transit

One of the keys issues dealt by the above mentioned proposals relates to goods in transit.

“goods in transit” means goods coming from countries outside the EU, and intended to be sold in countries outside the EU, without any suspicion that they are intended to be sold in the EU.

The issue of goods in transit is a hot topic across Europe for several years and in particular since the Philips/Nokia judgment (European Court of Justice (“ECJ”), Judgment of 1 December 2011, Cases C-446/09 Philips and C-495/09 Nokia). In this decision, the ECJ has ruled in particular that “goods coming from a non-member State which are imitations of goods protected in the European Union by a trade mark right or copies of goods protected in the European Union by copyright, a related right or a design cannot be classified as ‘counterfeit goods’ or ‘pirated goods’ within the meaning of those regulations merely on the basis of the fact that they are brought into the customs territory of the European Union under a suspensive procedure”.

It results from the position of the ECJ that the owner of trademark rights in the EU cannot take action against goods in-transit in the EU, unless it is shown that there are suspicions that these goods are intended to be sold on the EU market.

Therefore, many people now wonder whether it would be possible to amend European law in order to enable the proprietor of a trade mark registered within the European Union (“EU”) to prevent the use of goods in transit without authorization.

In this context, the above proposals tend to solve the issue by introducing the following provisions:

- Recital 22 of the proposed directive and Recital 18 of the proposed regulation: “With the aim of strengthening trade mark protection and combatting counterfeiting more effectively, the proprietor of a registered trade mark should be entitled to prevent third parties from bringing goods into the customs territory of the Member State without being released for free circulation there, where such goods come from third countries and bear without authorization a trade mark which is essentially identical to the trade mark registered in respect of such goods”.

- Article 10.5 of the proposed directive and 9.5 of the proposed regulation: “The proprietor of a registered trade mark shall also be entitled to prevent all third parties from bringing goods, in the context of commercial activity, into the customs territory of the Member State where the trade mark is registered without being released for free circulation there, where such goods, including packaging, come from third countries and bear without authorization a trade mark which is identical to the trade mark registered in respect of such goods, or which cannot be distinguished in its essential aspects from that trade mark”.

These provisions thus include a broad prohibition of third parties’ use of in-transit goods bearing a trade mark without authorization. It will thus be important to follow the adoption of the proposals by the European Parliament and the Council in order to see whether these provisions will be amended.

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