The Defamation Act 2013 – Evolution, Revolution or Something Else Entirely?

Libel Lawyers have traditionally taken no small comfort (and secured their mortgages) from the fact that the UK was the “Libel Capital Of The World”. We developed that reputation from having particularly claimant-friendly defamation laws and from our Courts being willing to hear cases which saw those laws often being brought to bear by individuals based outside the UK but who claimed a reputation here which could be, and was, fiercely protected.

Something had to change, not least because of what was seen as the unfair pressure and “chilling effect” upon investigative (and sometimes less worthy) journalism exerted by the deployment of CFAs (or “no-win, no-fee” for the uninitiated) which allowed for uplifts on costs recoverable from the losing party in the event of a claim being successful. The Jackson reforms cut a swathe through CFA arrangements, and many expected the new Defamation Act 2013 to have a similar effect upon libel and slander claims in the UK when it came into force on January 1st, 2014.

So, is the 2013 Act the end of Defamation as we know it? No. Does it completely overhaul defamation law for the social media generation? No. The 2013 Act is effectively a “re-skinning” of Defamation Law that for the most part leaves the nuts and bolts of defamation law unchanged, but which also contains some significant new concepts designed to protect free speech and robust opinion. Here’s a whistle-stop tour:

Section 1 of the Act introduces a new requirement of “serious harm” in defamation claims. Now, not only does a statement have to have a negative effect upon a reputation in the minds of the average person in the street or expose the complainant to hatred or ridicule, it also has to be at least likely to cause “serious harm” to that reputation. For corporate claimants which trade for profit, that harm must be at least likely to cause serious financial loss. So far so good, but as with many sections in the new Act, this new element is in fact only a reflection of the fact that the Court have increasingly (mainly as a result of the Jackson reforms but also as a result of several key cases) struck out trivial defamation claims more readily.

The real devil, of course, lies in the detail – “serious harm” is not defined. This won’t be much of a problem for individuals as most claimants who take defamation cases to trial would only do so over the most serious of allegations, but it’s fair to say that the lack of clarity on what serious harm actually is will lead to satellite litigation for the foreseeable future and find many potential claimants opting to wait for some interpretative judgments before taking action to protect their reputation.

As for Corporate Claimants, the issue over what constitutes “serious financial loss” is likely to be even more complex. Are we talking about a drop in share price, diminution of goodwill, loss of profits or loss of trade? Remember that the usual rules of causation and remoteness will continue to apply, and that being able to blame an appreciable financial downturn on one statement will be very rare. Many businesses may be forced to let a defamatory accusation go unchallenged in an attempt to be able to show serious financial damage or retain forensic accountants to make the loss out, thereby only increasing the cost of dealing with the issue. However, it will be very interesting to see if “financial loss” proves means-tested, with smaller businesses finding it easier to take action over smaller amounts which to them are proportionately much more significant than to their richer counterparts.

Businesses may also (until the Court makes a particularly critical judgment) be well advised where possible to launch their defamation claim in conjunction with a personal claim made by any of their executives who is clearly identified by the statement and tarred with the same imputation.  In practice, it’s unlikely that the issue of “serious harm” will discourage the issue of a claim, but it will at least give corporate claimants a forced but valuable pause for thought and focus their attention upon issues around quantum which they’d probably only have to deal with after issue in any event.

Another major change is the introduction of a “single publication” rule, which finds the one-year limitation period in defamation claims running from when the statement in question is published. This is of huge significance to online publishers, who previously had to cope with a potentially perpetually-running clock that began ticking from a year after an aggrieved user clicked on a link to the post in question. However, this new rule does not apply to any “materially different” publication, and the issue of whether republishing on a different social network will count, or stop claimants from pursuing any other website or publication which repeats the original allegation. Archive collections may be safer, but anyone lending credibility to an allegation by repeating it won’t be.

Several defences have also been simplified, such as “truth”, “honest opinion” and “public interest”, but in ways which leave much of the existing case law largely every bit as valuable as before January 1st. The main concession to the online world comes from the new Section 5 defence, which completely protects Website Operators provided that they can show that they were not responsible for posting the allegedly defamatory statement. However, the defence can be defeated if, after giving the website notice of a potential claim, the poster cannot be identified and the site itself odes not follow the procedurally-complex procedure set out in the new Defamation (Operators Of Websites) Regulations.

In reality, unless website operators are willing to stand firmer on issues around free speech and train up their staff to recognise and deal with complaints before complying with the strict timescales that the new regulations prescribe, many may feel safer in relying on stern and well-enforced terms of use along with the complete defence available under Regulation 19 of the E-Commerce Regulations 2002 which protects them from liability if, once put on notice of defamatory or otherwise unlawful content being present on their site or servers provided that the offending article is removed “expeditiously”, i.e. pretty much immediately. For the time being, at least, we’ll probably continue to see a “take down culture”. At least, where Deloitte rates reputational risk as much higher up the ladder of corporate risk than ever before, many sites may remove first and question later.

The Courts will now also only have jurisdiction to hear claims from claimants who do not reside within the EU or a Lugano Convention state if the UK is the “most appropriate forum” for that claim. Again, this is merely a statutory re-statement of the current law rather than the breaking of any new ground. Finally, the abolition of Jury Trials in defamation claims will most likely only help in front-loading risk and costs by an increase in rulings on meaning in the early stages of the litigation process.

So, is the Act a missed opportunity? No, and at the same time yes. Much of the existing body of defamation case law will still continue to apply, albeit Claimants will have more hurdles to overcome. Free speech may be the ultimate winner, but in the short term and until some of the clear English of the Act is tested in Court, it looks like lawyers will be the only true winners as we help our clients get used to the treatment of their reputation in the new (old) world.

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Content Warning : Social Media, Ethics and the Law

For those that don’t know me, social media is a big part of my working and personal life; those that do know me are probably sick of hearing me talk about it. Either way, the fact that social media has now become part of our mainstream media mix is impossible to ignore.

Think back to even five years ago and ask yourselves how many times you were watching a TV programme and noticed a hashtag in the corner of the screen to encourage you to tweet about it – now they’re pervasive and many broadcasters are looking enviously towards the elusive “second screen” of viewers who have one eye on their TV and the other glued to a tablet or smartphone.

Social media is built around the principle of engagement, but what happens when that engagement moves beyond anodyne commentary into something approaching banter, or worse, abuse?

As social media has infiltrated our consciousness, we’ve seen countless newsworthy stories dealing with what happens when commentary via social media oversteps the mark of acceptability. Of course it’s hard to draw such a line in the sand, as anyone who’s ever spent any amount of time on forums or social networks will tell you – the web has long been a haven for “trolls”, users who (in the appropriate words of Wikipedia, a long-standing bridge under which they gather) “sow(s) discord on the internet by starting arguments or upsetting people”.

It’s easy to argue that coming across a Troll simply goes with the territory of frequenting social media platforms; in fact to many it’s almost a badge of honour. Recent psychological studies have suggested that teens and younger children simply can’t appreciate that their trolling may well have real consequences over and above their being “blocked” – if you need any evidence to support that theory, I suggest (but don’t necessarily advise) mentioning either Justin Bieber or One Direction in a negative light and waiting for a response.

GQ ran a cover story on each member of One Direction to mark them edging into adulthood, leading to them receiving tweets such as “DO YOU REALIZE HOW MANY PEOPLE WANT TO CASTRATE THE PEOPLE WHO WORK FOR THIS S****Y MAGAZINE” and “GO PUNCH THOSE S***S AT GQ AND ALL THEIR BS ABOUT YOU ALL UNACCEPTABLE HARRY THEY TALK S**T ABOUT Y’ALL”. I can only apologise for the blatant abuse of caps lock and the redacted language, but you get the idea.

The false sense that what you say online has no real consequence doesn’t end there. Despite telling anyone who’ll listen that what you say and do online can be (and now frequently is) punishable in the same manner as if you said it offline, every other day brings a new example of my favourite legal cliché at work – the one witness who’ll never let a court down or fold under cross-examination (unless it’s a printout…) is a copy of your online profile.

For those of you who don’t follow the impact of the rule of law on social media, here’s a brief timeline of the major cases in which users have either been prosecuted or sued as a result of their online activity:

May 2010 When Robin Hood Airport was closed due to heavy snow, Paul Chambers tweeted 140 characters which will haunt him forever: “you’ve got a week and a bit to get your sh*t together, otherwise I’m blowing the place sky high!” Chambers meant this as a joke, but he wasn’t laughing when he was arrested for making a bomb threat and eventually charged then convicted for sending a “menacing electronic communication”. In a case which engaged free speech campaigners such as Stephen Fry, Chambers’ conviction was eventually overturned by the High Court.

March 2011 The UK’s first Twitter Libel (or “Twibel”) case saw Welsh Councillor Colin Elsbury ordered to pay £53,000 in damages and costs to a rival after wrongly suggesting that he had been removed by police from a polling station.

May 2011 Ryan Giggs’ superinjunction banning any discussion or linking of his name to an alleged affair with Imogen Thomas was spectacularly shattered by Twitter users, with MP John Hemming eventually using parliamentary privilege to name Giggs and prompting the serious debate over how social media could be effectively policed and reputations managed in a world where allegations go viral at the speed of a click.

June 2011 Joanne Fraill is convicted of contempt of court for contacting the Defendant in a trial on which she was a juror via Facebook.

March 2012 Cricketer Chris Cairns wins £90,000 in libel damages over a tweet which accused him of match-fixing.

April 2012 Twitter users name the victim of Ched Evans after his conviction of the rape of a 19-year-old girl, accusing her of “crying rape”, leading to convictions under the Sexual Offences Act 1992 despite claims that the defendants didn’t realise that they were committing an offence.

July 2012 Tom Daley receives a tweet telling him that he “let his dad down” by missing out on a medal during London 2012, leading to a 17-year old being charged with harassment despite his attempts to apologise.

April 2013 Facebook users who published photographs showing James Bulger’s killers receive suspended sentences for contempt of court by breaching the High Court injunction banning publication of any information claiming to identify Venables and Thompson.

May 2013 After allegations via Twitter linking him obliquely to child sex abuse, Lord McAlpine takes action against Sally Bercow, who is found to have libelled the Tory peer despite including *innocent face* as an apparent disclaimer within her 140 characters.

July 2013 Feminist campaigner Caroline Criado-Perez received rape and death threats over Twitter after successfully campaigning to have Jane Austen replace Charles Darwin on the £10 note, with Stella Creasey, Mary Beard and others drawing similar fire after coming out in support. Various men are charged on suspicion of harassment and other offences.

This rogue’s gallery shows that, whatever your own view may be over what is acceptable and the bounds of good taste, there are social media users behaving in a completely unconscionable manner, ostensibly oblivious to the fact that the long arm of the law reaches into cyberspace.

Perhaps an even better cautionary tale was the Manchester and London Riots of 2011, organised and incited by social media and marked by the sheer stupidity of some, who went as far as setting up Facebook groups and posting photographs of themselves holding the spoils of looting, in one case a huge bag of basmati rice. The social networks which Louise Mensch and David Cameron advocated shutting down led directly to the convictions of those responsible.

So, the consequences of a tweet or post sent in haste are all too clear – they can be defamatory, infringe copyright or other intellectual property rights, breach privacy, cost you your job (dependent on social media policies and terms of employment contracts), constitute harassment, malicious communication or improper use of an electronic communications network, incite riot or terrorism or leave you in contempt of Court. And yet, the Trolls continue to multiply.

Wary of stretching the already depleted resources of the Police and stifling free speech (even where offensive or unpopular), the DPP issued guidelines for the prosecution of criminal offences involving social media earlier this year, usefully confirming that only credible threats should lead to arrests and that prosecutions over content which is in bad taste, controversial, satirical, iconoclastic, unpopular or offensive will not usually be in the public interest, especially where the defendant has shown denying remorse and taken action to remove it.

The main consideration now is the effect on victims, and rightly so. If every objectionable message were prosecuted, we’d be in an Orwellian police state. So where do we go from here and how do we resolve the classic battle between freedom of speech and freedom from abuse?

It’s easy to blame the medium, but it’s also unfair to do so. A week or so ago, the media reported on two suicides of teenagers over abuse received over the Latvian social network Ask.FM. As much as the businesses behind social media platforms owe a clear moral duty to police them to at least some extent and protect their more vulnerable users, the global nature of the internet, sheer cost involved in pursuing a civil claim and unawareness of the Police in how to deal with an evolving medium all point to an effect that’s more difficult to manage than the cause.

And the cause is what makes a troll a troll. The obligation here has to be to educate the social media community as to the legal framework governing their environment and to understand what drives this behaviour. Not all trolling constitutes a criminal offence or gives rise to civil liability, but freedom of speech doesn’t equate to freedom to make death threats. How to respond to this kind of abuse is going to take some time to determine, but it may well be that recent scandals have put doing so firmly in the centre of our attention.

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Hashtag To Hell – ASA Upholds complaint against (and “bans”) Nike Twitter Campaign

In the wake of any number of surveys telling us how engaged consumers are becoming with the social web and the rise of brand-centric hastagging, it was only ever a matter of time before the marketing community took to Twitter in an effort to build visibility and engagement in their brands in ways that, whilst not necessarily new in that they have been part of the black art for years now, skewed more towards subtlety than the average tweet asking you to follow an account or straight out buy a product. In what’s fairly often referred to as the “Hashtag Economy”, campaigns that draw Tweeters into and around a faux-motivational or comedy hashtag have become more and more common, especially when the tag is picked up by celebrity advocate.

There’s nothing better at drawing in an audience than involving a celebrity. Endorsement of a product or service is nothing new, but on Twitter (at least in the UK) it’s a relatively new way for the rich and famous to make themselves and their commercial partners even richer. In the US, Tweeting for sale is already an industry in itself, and it’s a big business – reality TV Star Kim Kardashian and rapper Snoop Dogg are amongst Twitter’s top celebrity earners, with Kardashian reportedly earning up to $10,000 for sending a single Tweet to endorse a product.

UK law around Celebrity Tweeting has not (until recently) been as clear as in the US, where the Federal Trade Commission developed guidelines stating that a celebrity endorsement Tweet must contain the words “ad” or “spon” to show that it’s been paid for. “Spon” has seen some takeup in the UK, less because celebrity tweeps wanted to make it clear that their opinions were paid for but more because on 11 March last year, the Adertising Standards Agency’s remit changed dramatically from only being able to deal with complaints relating to – and adjudicate on – advertisements and marketing communications in traditional media and paid- for (i.e. Banner and Pop-Up) online campaigns to cover a whole new range of content.

In their words, their new remit extended to: “Advertisers’ own marketing messages on their own websites, Marketing communications in other non-paid-for space under the advertiser’s control, such as social networking sites like Facebook and Twitter and Marketing communications on all UK websites, regardless of sector, type of businesses or size of organisation.”

So, what you say about a brand or business online would be dealt with in exactly the same way as it would offline. Some responded with a resounding “so what”, with many falling back on the usual stance that the ASA has few real powers to take action against what they refer to as “misleading advertising”, falling foul of their stated aims of keeping adviertising in the UK “Legal, Decent, Honest and Truthful”. The most cynical may have said something along the lines of “what are they going to do, adjudicate”?

Adjudication is actually a pretty effective deterrent, with the vast majority of advertisers who have complaints upheld against them choosing to comply. If they don’t then the ASA has other sanctions it can bring to bear, such as “Ad Alerts” which advise its members to withhold services such as access to advertising space, withdrawal of trading privileges (such as the Royal Mail bulk mail discount, which can make a direct campaign way more expensive), demanding that persistent or serious offenders have their marketing material vetted before publication or specific digital sanctions such as removal of paid-for search ads and the ASA placing their own banner ads online to highlight non-compliance. All in all, the digital sanctions can bite much harder.

And then there’s the ultimate sanction – referral to the Office of Fair Trading for legal action, including an injunction. As well as being a breach of the ASA Code, misleading advertising is a criminal offence under the Business Protection From Misleading Marketing Regulations 2008 or Consumer Protection From Unfair Trading Regulations 2008 (“CPRs”). The CPRs are the most worrying – Regulation 3 refers to “unfair commercial practices”, which it describes as any which “contravene the requirements of professional diligence; and materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.”

One practice that’s explicitly listed as being unfair is “falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.” The statutory maximum fine is £5,000, but in more serious cases of a breach of the regulations the maximum sentence is two years’ imprisonment. However, prosecutions can only usually be brought within three years of the date of the offence.

So, how does all this square with an innocent celebrity Twitter campaign? Advertising is tightly controlled by the ASA and the CPRs, with the main objective of both being to prevent misleading campaigns that “distort the economic behaviour of consumers”. Whilst ASA itself isn’t able to fine or award damages, it is backed up by the OFT, who can take action against campaigns either by applying for an injunction to have them removed or by mounting a prosecution under the CPRs. Last year, the OFT took action against the agency Handpicked Media, who agreed not to “engage in promotional activity unless bloggers within its network prominently disclose that the promotion has been paid for”.

Bloggers and other Users of Social Networks are increasingly Tweeting about brands and businesses to make their opinions known. If it’s favourable then it’s potentially worth a fortune as genuine and very quantifiable “word of mouth”, which tends to travel very far and very fast. That is, of course, if it is genuine. Sony was one of the first to experience a backlash from a viral campaign at the end of 2006, when the ‘All I Want For Christmas Is A PSP’ mashup strand was exposed as the product of a ‘consumer activation’ firm. Gamers were not impressed, and took to YouTube to post their own negative video messages in response. As yet, there have been no actual prosecutions under the CPRs and it’s important to note that the Handpicked Media case didn’t lead to a conviction – so far there haven’t been any convictions against advertisers under the CPRs, but the OFT is not afraid to step in where it needs to.

Fake blogs almost certainly don’t generate a real return on investment, but a celebrity Tweet can be priceless. Last year, Range Rover enlisted 40 celebrities (including Daisy Lowe and Ben Shepherd) to drive a new model and then Tweet about the experience. Fashion designer Henry Holland seemed pretty unequivocal: “CAN’T WAIT FOR MY NEW RANGE ROVER..!!!”. Lily Allen and Peter Andre have also jumped on the bandwagon and Estee Lauder’s products have regularly tweeted about by Liz Hurley, who has been the “face” of the company since the mid-90s, a fact strangely missing from her profile.

The first major case that forced the ASA to deal with “tweeting for hire” came to light in January this year, when the ASA confirmed that it had launched an investigation into tweets by celebrities such as Katie Price and Rio Ferdinand promoting Snickers as part of its ‘you’re not you when you’re hungry’ campaign. Ferdinand had sent out tweets about knitting and Katie Price discussed Eurozone economic policy, with many assuming that both accounts, as well as the feeds of other celebrities such as Ian Botham, had been hacked. How wrong we were – later in the day, the celebrities involved tweeted ‘You’re not you when you’re hungry@snickersUk#hungry#spon’ with a picture on them holding a Snickers. Since they got paid for sending the tweets, the ASA investigated but ultimately didn’t uphold complaints against Mars as the eventual “reveal tweets”, which featured a photo of the celebrity in question holding a Snickers Bar were clearly identifiable as marketing communications, including the #spon hashtag.

So, those who thought that the ASA would make an example of Mars (and by implication, Katie Price, Rio Ferdinand and others) were wrong and celebrity Tweets were here to stay. They are, but we’ve now seen the first case in which the ASA has taken action to “ban” a campaign which features them. In the first case of its kind, the Advertising Standards Authority has “banned” a Twitter Campaign by Nike UK which made use of the personal Twitter accounts of footballers Wayne Rooney and Jack Wilshere on the grounds that their tweets were not obviously identifiable as “marketing communications”.

These were the tweets in question:

Wayne Rooney – “My resolution – to start the year as a champion, and finish it as a champion…#makeitcount gonike.me/makeitcount”.

Jack Wilshere – “In 2012, I will come back for my club – and be ready for my country. #makeitcount.gonike.me/Makeitcount”.

Nike was running the “Make it Count” campaign as part of a wider marketing push, and pulled in Rooney and Wilshere as part of their sponsorship deals with the Company. A complaint was made that the Tweets were not clearly identified as advertising and the ASA Investigation began. Nike claimed that both players were well-known for being sponsored by the retailer and argued that Twitter “followers” would not be misled about its relationship with the players, who they said were free as part of the campaign to independently reply or retweet consumer tweets “at their own discretion” about their “goals for 2012″ and that the web address in the tweet was clearly branded as Nike, and carried the company’s ad strapline, making it clear which tweets by the players were personal and which were ads.

The ASA disagreed, finding that the reference to Nike was not prominent and could be missed, making the Tweets not obviously identifiable as advertising and in breach of the ASA’s CAP Code. Not all Twitter users would know about the Players’ Sponsorship deals with Nike and in the absence of either a #spon or #ad hashtag, the Tweets “must no longer appear”.

Unless a celebrity brand advocate makes it clear that they’re being sponsored to express an opinion of a product or service, there’s every chance that they may well be seen to be misleading the public by covertly endorsing it. Although the vast majority of Twitter users will be perfectly able to tell when they’re being sold to, protecting vulnerable consumers is something the ASA and OFT take very seriously. Marketers may now have to factor in the cost of dealing with an adjudication (and the publicity fallout) or even being drawn into defending a prosecution over a riskier or more “subliminal” campaign or stunt into their ROI, and you can bet that the average Celebrity Tweeter won’t be willing to fund it for them. The industry will be keeping an future cases, and this one could set a very important precedent. For now, adding #SPON or #AD to a celebrity tweet is very advisable, even it uses up to 5 characters from your 140…

The Jubilee and Royal Pains – How to advertise around it and not get into trouble

Given that many marketers will probably (depending upon whether or not you think it’s worth it) be about to launch (or have already launched) a campaign around the Diamond Jubilee over the course of the next couple of weeks, it seems like a good time to set out what the rules are around doing so. As much we may all like to think that the event’s relatively “fair game”, the Department for Culture Media & Sport and Lord Chamberlain’s Office (“LCO”) have issued specific guidance on the point – this post is meant to give you some background on the general law around using “royal elements” in campaigns as well as an overview on the specifics for this particular event.

You may have heard that the Lord Chamberlain’s Office (“LCO”) has relaxed the rules around the use of Royal Symbols and emblems and he has, but only for souvenirs and community events. The basic position is that the rules concerning the Royal Family and advertising have NOT been relaxed. They’re set out below.

Trade Marks

It’s unlikely that you’ll be pursued for any kind of Trade Mark Infringement in respect of a Jubilee campaign, although there are quite a few Trade Marks registered in respect of “Diamond Jubilee”. If you did face a claim, whoever threatened to sue you would probably have to show confusion in the minds of the public as well as that you’d taken unfair advantage of the Mark in question. For similar reasons, you probably wouldn’t face a passing-off claim – it’s harder to prove than a Trade Mark Infringement claim in any event and you’d need to be shown to be confusing the public or implying that you were endorsed by the Royal Family.

The bigger risk here comes from the fact that it’s a criminal offence (punishable by a fine) for a person to use, without the consent of Her Majesty or a member of the Royal Family, Royal insignia or titles in connection with any business so as to lead to the belief that that person is authorised to do so, or is employed by, or supplies goods or services to, the Royal Family (section 99 Trade Marks Act 1994). If you did face prosecution over a campaign, it’d probably either be for this or some of the more specific regulations set out below.

Copyright

If you use any footage, logos or photographs taken from third party sources, you’ll need a copyright licence to do so – otherwise you’ll be infringing.

Advertising Standards Authority

The CAP Code Copy Advice service has put out some guidance on advertising around the Jubilee. The basic position is that any advertising campaign shouldn’t claim or imply that a product is endorsed by the Royal Family or affiliated with a Royal Event if it isn’t.

Rule 6.1 of the CAP Code prohibits any portrayal or reference to anyone in an adverse or offensive way without their written permission – this includes any implication of personal approval or endorsement, and counts for the Queen as much as anyone else.

Rule 6.2 says that the Royal Family should not normally be shown in an advertisement or other marketing communication without permission, even if incidental references are acceptable.

Rule 3.52 prohibits use of the Royal Arms or emblems without prior permission from the LCO.

The ASA have previously upheld complaints and adjudicated against businesses over suggestions of a Royal Endorsement. The risk is that “Royal Enthusiasts” will complain more than anyone else. The ASA has various sanctions open to it, including a reference to OFCOM (in the case of TV Adverts) issuing Ad Alerts to its members and the media, adjudicating against you (leading to bad publicity) and potentially withdrawal of your content from search engines. In more serious cases, you could also be referred to the OFT for action under the Consumer Protection from Unfair Trading Regulations 2008 (see below).

Trade Descriptions Act 1968 & Consumer Protection From Unfair Trading Regulations 2008

Most of the 1968 Act was repealed by the 2008 regulations, however there are some sections left which provide the Royal Family with specific legal protection:

Section 12 says that it is an offence to give by whatever means, in the course of any trade or business, any false indication that goods or services are of a kind supplied to or approved of by any member of the Royal Family. It’s also an offence to use any device or emblem signifying the Queen’s Award to Industry or anything “deceptively similar to” or resembling it.

To be guilty of the offence, you’d need to be involved in an “unfair commercial practice”. This is defined as “any commercial communication by a trader connected with the promotion, sale, or supply of a product to consumers in a way which is misleading, aggressive” or blacklisted.

This offence is punishable by a maximum of 2 years in prison or a potentially unlimited fine, and alone gives good reasons from staying as far away as you can from the wrong side of using of references to the Jubilee.

Lord Chamberlain’s Office Guidance

The phrase “Diamond Jubilee” and “Queen’s Diamond Jubilee” can be used for non-commercial purposes if permission is applied for. The LCO has indicated that “illegitimate use” of the name will be referred to Action Fraud, although this will probably only be in serious cases.

What can you use?

You should probably stay away from the following words and phrases:

• Diamond Jubilee
• Queen Elizabeth II Diamond Jubilee
• Queen’s Diamond Jubilee
• Royal
• Queen Elizabeth II
• Queen
• Her Majesty

The ASA and LCO have said that references to “Parties” or “60 Ways To Celebrate….” are fine. “Diamond” is probably also OK in certain contexts. If you have a particular campaign in mind, you can try and get it cleared by the ASA in advance.

So in summary, it’s actually pretty tough to advertise around the Jubilee (if you’re a thick Lawyer rather than a gifted Marketer) and stay on the right side of the law. Many I spoke to actually weren’t even aware that there were laws around the area. Consider your day well and truly ruined. Still, at least you hopefully won’t be prosecuted….

UPDATE – Having looked into this a bit further with the ASA, use of the word “Jubilee” should be ok in respect of the CAP Codes, but having spent most of the day arguing about it with fellow Lawyers (typical), Marketers and three different people at the LCO – even use of the word “Jubilee” in isolation may fall foul of the other legislation. An invitation to “Celebrate the Jubilee” with us as part of the marketing mix might be OK, but it’s certainly not something you can base a campaign on.

Special thanks to my good friend and trusted adviser Melanie McGuirk at Pannone for her help with this. You can (and should) look her up at: http://www.pannone.com/people-profiles/melanie.mcguirk@pannone.co.uk

Public Pinterest – Why The Latest Social Network May Be A Copyright Timebomb

Another week, seemingly yet another Social Network to sign up to, share content over and get excited about. Whether or not you believe that Facebook may well have topped out and grown as big as it ever will, many are (as usual) keeping a weather eye on the horizon for the next big thing; the “Facebook Killer”. Those in the know may already be telling you that Google+ is the natural successor to Zuckerberg’s monster, but given the fact that it’s still a little unwieldy for the luddites amongst us (guilty as charged), it seems as if there’s plenty of room left for other new platforms to muscle in on what remains of our attention spans as the user market inevitably fragments.

Eighteen months or so ago, social network devotees got very excited about Quora; you couldn’t look at your Twitter timeline without seeing a smattering of serious and not-so-serious questions posed on the site. My own geek-related attempts at Quora jokes received an alarming number of serious responses; even I don’t think too seriously about whether or not Batman would actually win a fight with Wolverine – but it looks now as if the site is now only going to find a certain niche (if devoted) audience. Those who love it seem to swear by it and it’s still very much alive and kicking, but the initial hype surrounding Quora seemed to die down pretty quickly, with only the heavy adopters still hanging around to pose their own big questions.

So, it may be easy to feel slightly cynical about the latest new and shiny social network – Pinterest. For those that haven’t come across it yet, Pinterest is an online notice board where users share ideas on chosen topics by “pinning” content onto their boards for their followers to see and comment on. So far, so ethereal. If the naysayers are right, then it’s yet another quirky platform vying for our time. The naysayers will, however, have a problem getting past the fact that Pinterest is well on its way to 12 million users since launching a couple of years ago and is one of the US’ fastest growing sites. You may wonder why, and may be surprised to learn that the majority of new users are Women. The answer seems to be that it’s easy to use and is generating a massive amount of publicity after something of a “breakout” performance around the NFL Superbowl. Even Mark Zuckerberg has a profile.

Like so many of the big social networks, however, the elephant in the room which may see Pinterest hit an early (if theoretical) stumbling block is one of the usual suspects – copyright. Unless you’re only pinning your own content to your profile, you’re using someone else’s and in the vast majority of cases doing so without permission or paying a licence fee. Right now, Pinterest’s users are happily posting photos and other content without the spectre of rights owners casting too much of a shadow over the party, and even though some are already claiming that the site’s whole model is built on massive copyright infringement, it’s continuing to grow like topsy.

Of course, Pinterest’s terms of use do their best to deal with the issue, with users being told on signup that they can’t and shouldn’t pin anything to which they don’t own the rights. This may well be enough to stop a large-scale infringement claim (at least under UK/EU law, where they can fall back on the “hosting defence” in the E-Commerce Regulations and simply immediately remove content when put on notice to avoid liability) and the site itself is now rolling out a metatag which allows website owners to restrict their content from being “pinned” on user profiles.

But, copying any content without permission is still an infringement and still illegal. Whether or not anyone will sue for the damages which they’re recover under UK law (a licence fee) or take on the site itself in another jurisdicition remains to be seen but as of right now the position is the same as with Facebook, Twitter and any other platform – using content without permission or falling under a defence or exemption to UK copyright law (such as fair dealing or educational use, but even then those defences only work with an acknowledgement to the copyright owner) is infringement and could lead to your profile or its contents being pulled.

Of course, in the new digital economy it may be that may rights owners simply let the situation lie and become content with their work simply finding a new audience through sharing and reduce their P.R/Marketing budget. For now, however, the risk is still very much live that big content reacts in the same way it has in the music, games and film industries and threatens action left, right and centre. The platform has massive potential, and with a fair wind it could continue to generate an engaged following but as with any other social media platform, users still need to be aware that they use third party images or other content at their own risk. Trust a Lawyer to spoil the party..

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Shut Up Photoshop – Digital alterations and compositions of Photographs now protected by Copyright

IP Lawyers, like all other professionals, are used to hearing certain phrases over and over again – for example: “How do I copyright this?” “If I make five changes, is that enough?” and the undisputed champion of heavyweight client indignation: “But they stole my idea!!”. It’s at this point that the Lawyer (usually the villain of the piece, occasionally through no fault of their own-they’re usually only seen as getting in the way of something or being the bearer of bad news) has to look their client square in the eye and explain one of the most fundamental (and misunderstood) principles of copyright and pretty much all other UK IP law; IP law doesn’t protect ideas; it protects how those ideas are expressed. If you really want to keep an idea confidential, write it down before labelling it as “confidential” and asking anyone you want to tell about it to sign an NDA.

So far, so good-there’s nothing to stop two different copyright “works” from being inspired by the same idea as long as one doesn’t slavishly copy the other: “The Da Vinci Code” was based on very similar themes to “The Holy Blood And The Holy Grail” and despite a very high-profile copyright infringement case which showed that over ten elements of “Holy Blood” made their way into Dan Brown’s book, that wasn’t enough for its authors and their publishers to win at trial.

It’s often said that there are very few original ideas left, at least in the creative world. Ask the older, more cynical members of the public whether or not Jamiroquai would have had a career if not for the influence of Stevie Wonder or whether Oasis would have been as successful without a record collection made up of the Who, the Stones and the Beatles and they’d probably agree.

So, what is it that makes a work of creativity something that can be protected by copyright if not the general idea? The answer’s actually fairly simple, and explains the whole point of copyright law-it allows creators to make money out of their creativity; it protects intellectual creation. Two songs can sound very similar, say “Born This Way” and “Express Yourself”, without one infringing on the copyright in the other – if the latter only shares a similar melody or chord changes then it can be protected in its own right. What the Court has to decide is whether or not a “substantial part” of the “intellectual creation” in the original has been used without the permission of its author/creator, who is usually the owner of any copyright in it.

So it stayed for a very long time – until late last month, when the goalposts may have been not so much moved but put in separate postcodes by the judgment in the case of Temple Island Collections Limited v New English Teas and John Houghton. Surely such an innocuous-sounding case couldn’t redefine the boundaries of copyright law? It remains to be seen, but the answer as of right now is a qualified “yes”.

Why should you care? Because in this case, the Court found that the basic idea behind a photograph which had been edited in Photoshop was protectable-a shot of a Red London Routemaster Bus travelling in front of a monochrome background containing the Houses Of Parliament was re-created by the Defendant and shot from a different angle, but was still found to infringe. What this means in practice is that the way in which a photograph is composed by its Photographer and subsequently altered can now be protected by copyright, even if the infringing photograph is a different image.

Copyright Lawyers are very excited and/or disturbed by this judgment. Photographs are protected by copyright under English Law as “artistic works” and photography infringement cases usually involve images that have simply been taken wholesale and used without permission, leading to the award of a fairly low sum in damages to compensate their creator by forcing the defendant to pay what they would have made had the image been used under licence (subject to a small increase for flagrant use) or hand over the profits generated through its use. They can also involve situations where an original image has been altered, provided that the Claimant can show that their original work was copied.

For years, though, Photographers haven’t really been able to do a great about a competitor that sets up a similar (not identical) shot and takes their own photo, because the idea behind that shot couldn’t usually be protected.

The last case before Temple Island that dealt with the issue involved, ironically enough, Oasis. Creation Records (their label), Noel Gallagher and others sued News Group Newspapers (no, NOT News International) in 1997 after The Sun began selling a poster which featured a photograph of the set of the album cover of “Be Here Now”taken at the same time as the final image, although not the actual photograph used on the cover. If you’re one of the many who bought it (and the few that still own it save for use as a coaster) then you may appreciate why-it features a Rolls-Royce emerging from a swimming pool and various members of the band in suitably moody poses surrounded by apparently “symbolic” objects.

Creation and the other claimants argued in this case that the scene and composition of the photograph was a separate copyright work and protectable in its own right. The Judge disagreed, finding that assembling disparate objects together could not be protected by copyright, and reinforcing the theory that two works created from a common source don’t always involve the other being copied.

The decision made sense fifteen years ago, and despite the emergence of Photoshop and the rise of airbrushing, it’s always seemed to make sense since. However, in the Temple Island case, the Claimant sued when New English Teas asked a design agency to digitally alter photographs taken by one of its directors of a London Bus crossing Westminster abridge with the Houses of Parliament in the background.

You’d think that there wouldn’t be a problem in taking a photograph of an admittedly iconic London scene. Normally you’d be right, but in this case the parties had crossed swords before, when New English Teas had previously entered into a licence agreement to use a photograph taken of a very similar scene by one of Temple Island’s directors (Mr. Fielder) and then photoshopped to make the Bus seem redder (inspired by Schindler’s List) against a monochrome backdrop with the sky removed in favour of a white background. The image became famous in its own right and has since made Temple a significant amount of money through licensed use on souvenirs.

New English tried to get around the problem of copyright infringement by talking four of their own versions of the photograph and combining them, as well as inserting a stock image of a red London bus. According to the Court, they didn’t go far enough.Judge Birss ran through the different aspects of photography that could be protected by copyright in his judgment, including the angle of the shot, lighting, exposure and effects, creation of the scene and simply standing in the right place, before coming up with a whole new category-digital manipulation.

Even though Fielder used Photoshop to create the image and despite the fact that New English used a stock photograph of the Bus and pointed to several similar images to the original which were already in the public domain before the Temple Island image was created (although they didn’t argue that the image had been “influenced” by them), the fact that they had come into contact with the Temple Island image meant that they had not created their version independently, even if they also drew from other sources-it had guided the creative process behind their version, and New English’s image would not have been created if they hadn’t seen the original.

Although the second photograph was found to be original and the techniques used to create the first image commonplace, the composition and visual contrasts in the Temple Island image amounted to “intellectual creation”. The choices made by photographers lead to different visual effects, and those choices can apparently be protected by copyright on the basis that they are “original”. A substantial part of the composition of the original image had been used, so infringement had taken place. Part of what made the composition original was how it had been altered.

It’s been argued before and since that is decision or a similar one would give claimants like Temple Island a monopoly in a common image, but that may have missed the point here-that monopoly is limited, but the scope of the application of this case may not be. It’s possible that this could lead to a rash of similar claims, and the line between copying an original idea and how that idea is expressed is going to blurred even further. Inspiration is valuable, but here perspiration was priceless.

Photoshopped images may now be protected in the same way as the original photograph,but anodyne and everyday images without any real distinctive elements will be tougher to sue on. That won’t stop people from trying however, and the Courts may soon be full of photographers for reasons other than snapping a photo of celebrity claimants. In the meantime, if you’re asked to recreate an iconic image, take more care than ever to steer as far away as possible or risk being crushed by the same red bus as New English.

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Snickers, The ASA and a kick in the Nuts?

Celebrity endorsement of a product or service is nothing new, but on Twitter it’s a brand new way for the rich and famous to make themselves and their commercial partners even richer. In the US, Tweeting for sale is already an industry in itself, and it’s a big business – reality TV Star Kim Kardashian and rapper Snoop Dogg are amongst Twitter’s top celebrity earners, with Kardashian reportedly earning up to $10,000 for sending a single Tweet to endorse a product.

Although the law in the UK on Celebrity Tweeting is not as clear as in the US, where the Federal Trade Commission developed guidelines which state that a celebrity Tweet endorsement must contain the words “ad” or “spon” to show that it’s been paid for, this may all be about to change after the Advertising Standards Authority confirmed yesterday that it has launched an investigation into tweets by celebrities such as Katie Price and Rio Ferdinand promoting Snickers as part of its ‘you’re not you when you’re hungry’ campaign.

Ferdinand had sent out tweets about knitting and Katie Price discussed Eurozone economic policy, with many assuming that both accounts, as well as the feeds of other celebrities such as Ian Botham, had been hacked. How wrong we were – later in the day, the celebrities involved tweeted ‘You’re not you when you’re hungry@snickersUk#hungry#spon’ with a picture on them holding a Snickers. Since they got paid for sending the tweets, the ASA is now investigating whether the initial ‘teaser’ tweets should have indicated that they were part of a stunt or campaign, and if the ‘#spon’ in the last message made it clear enough that this was the case.

It didn’t take long for Twitter to become a very effective advertising platform, or for Celebrities to embrace the commercial possibilities of lending their name to products in less than 140 characters. Given that Twitter in particular creates a very direct connection between the “Twitterati” and their fans, it can, when used properly, be a very powerful advertising platform. Advertising is tightly controlled in the UK by the ASA, whose main aim under the CAP code is to prevent misleading campaigns that “distort the economic behaviour of consumers”. The ASA itself isn’t able to fine or award damages but it is backed up by the OFT, who can take action against campaigns either by applying for an injunction to have them removed or by mounting a prosecution under the Consumer Protection From Unfair Trading Regulations 2008. Last year, the OFT took action against the agency Handpicked Media, who agreed not to “engage in promotional activity unless bloggers within its network prominently disclose that the promotion has been paid for”.

The idea of “Flogs” – fake Blogs or Tweets written from the Consumer’s point of view but either created or paid for by marketers has been around for a few years now. Research shows that Bloggers and Users of Social Networks are increasingly Tweeting about brands and businesses to make their opinions known. If the opinion’s favourable then it’s potentially worth a fortune as genuine and very quantifiable “word of mouth”, which tends to travel very far and very fast.

That is, of course, if it is genuine. Sony was one of the first to experience a backlash at the end of 2006, when the ‘All I Want For Christmas Is A PSP’ viral campaign was exposed as the product of a ‘consumer activation’ firm. Gamers were not impressed, and took to YouTube to post their own negative video messages in response. “Flogging” and by implication sending Tweets designed to “mislead” the public, is criminal offence under the Consumer Protection Regulations. Regulation 3 refers to “unfair commercial practices”, which it describes as any which “contravene the requirements of professional diligence; and materially distorts or is likely to materially distort the economic behaviour of the average consumer with regard to the product.”

One practice that’s explicitly listed as being unfair is “falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.” The statutory maximum fine is £5,000, but in more serious cases of a breach of the regulations the maximum sentence is two years’ imprisonment. However, prosecutions can only usually be brought within three years of the date of the offence.

As yet, there have been no actual prosecutions under the Regulations and it’s important to note that the Handpicked Media case didn’t lead to a conviction – as yet there haven’t been any convictions against advertisers under the 2008 regulations, but the OFT is not afraid to step in where it needs to.

The industry may be learning that fake blogs don’t generate a real return on investment, but a celebrity Tweet can be priceless. Last year, Range Rover enlisted 40 celebrities (including Daisy Lowe and Ben Shepherd) to drive a new model and then Tweet about the experience. Fashion designer Henry Holland seemed pretty unequivocal: “CAN’T WAIT FOR MY NEW RANGE ROVER..!!!”. Lily Allen and Peter Andre have also jumped on the bandwagon and Estee Lauder’s products have regularly tweeted about by Liz Hurley, who has been the “face” of the company since the mid-90s. That fact is strangely missing from her profile.

The ASA and OFT’s next step will be very interesting to watch. Although the CAP Code, which now applies to online advertising, website content and Social Media comments adopted as “marketing messages” as well as print and press, states that advertising must be truthful, not misleading and capable of being substantiated, the penalties for non-compliance are nowhere near as severe as those under the Consumer Protection from Unfair Trading Regulations, which include a fine or even imprisonment. Defences are available, but work best when there’s a careful compliance process already in place and when campaigns are put together with the CAP code and its outer limits in mind.

Unless a celebrity brand advocate makes it clear that they’re being sponsored to express an opinion of a product or service, there’s every chance that they may well be seen to be misleading the public by covertly endorsing it. Although the vast majority of Twitter users will be perfectly able to tell when they’re being sold to, protecting vulnerable consumers is something the ASA and OFT take very seriously. Marketers may now have to factor in the cost of defending a prosecution over a riskier or more “subliminal” campaign or stunt into their ROI, and you can bet that the average Celebrity Tweeter won’t be willing to fund it for them. The industry will be keeping an eye on this case, and it could set a very important precedent. For now, adding #SPON to a celebrity tweet is very advisable, even it uses up 5 characters…

Land Of The Free? Not so much – UK Tweeters deported from USA

Picture the scene – you’re planning a holiday in Los Angeles as a getaway from Coventry. Understandably excited (you’re escaping the UK, after all), you want to share your plans with your friends if for no other reason than to make them jealous and, as you’re one of the “Twitterati”, you send out this tweet to one of your followers:

“Free this week, for quick gossip/prep before I go and destroy America.”

Not long after, you send another tweet talking about “digging up Marilyn Monroe”. Then you think nothing more of it, charge up your iPod (other generic MP3 players are available) for the flight and get ready to arrive at Los Angeles International Airport. Touching down and meandering through immigration with your Visas filled out correctly, it soon becomes clear that you’re not in Kansas any more (although, for the purposes of this post, you COULD be) and that they take this kind of thing pretty seriously around here – imagine the look on my face in 1992 when my Dad was stopped during our first family holiday to Florida and questioned for a good hour or so over both the Iraqi and Libyan visas stamped in his Passport. (He’s an engineer, by the way, and NOT an Arms Dealer.) To put it bluntly, US Immigration has no sense of humour.

Still, if you’ve done nothing wrong, then you have nothing to hide and surely you’ll breeze through Visa Control with the usual sense of incredulity at the sheer amount of information held in your Biometric Passport. Then, you’re arrested and held under armed guard for twelve hours before being put on the first flight back to the UK, having been denied entry to the Land Of The Free after being identified as a possible “threat” by Homeland Security. It sounds like the script for a particularly low-budget episode of “24″, but this happened to Leigh Van Bryan and Emily Bunting around two weeks ago. Explanations as to the fact that his second tweet referred to a joke from “Family Guy” and that “destroy” was UK slang for partying fell on very deaf ears and, after an overnight stay in the cells, both Bunting and Van Bryan were heading back to the sunny Midlands.

You’d like to think that something similar would never happen here, but anyone familiar with the “Twitter Joke Trial” would tell you otherwise. Currently under appeal in the High Court, this case saw Paul Chambers convicted of the offence of “misuse of a public electronic communications system” under the Communications Act 2003 after sending this tweet:

“Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!”

Surely we can take a joke, regardless of how high tensions may be over terrorism? Surely anyone monitoring Chambers’ feed would realise that this post wasn’t meant to be taken seriously? You’d think so, but not long after the now-infamous Tweet, Chambers was arrested in late 2009 for offences under Section 51 of the Criminal Law Act 1977 – making a hoax bomb threat. It’s a serious offence that, as in any criminal case, has to be proven beyond reasonable doubt, but it also requires the Prosecution to show that the defendant intended to cause at least one other person to believe that a bomb was about to go off. in the end, Chambers was bailed and eventually charged under section 127 of the Communications Act 2003 for using a public electronic communications network (a definition which includes Twitter, Facebook and any other Social Network) to send a message of “indecent, obscene or menacing character”. This offence does not need to relate to any specific threat and the prosecution does not need to show that anyone even received the message – a far easier conviction to secure.

Chambers was convicted and fined after a Judge found his tweet to be “menacing” and his life has since changed in ways he couldn’t imagine. As well as the sheer waste of tax payers’ money in bringing a prosecution that seems to have not been so much about the public interest but more about heavy-handed and baffling deterrence, Chambers now has a criminal record and a career that’s been set back to square one. You may say that he deserves it, but surely the Police could have just cautioned him and sent him on his way? Many agreed, and the #iamspartacus hashtag was born – thousands retweeted his message to make the point that this case simply went too far and that civil liberty is as important on the web as it is to the Occupy London tent protesters.

The point of all this? Big brother is watching you, now more than ever. The Police are actively monitoring social media. We are seeing more criminal cases involving web use (or misuse) than ever – recently a Manchester woman was jailed after “friending” the Defendant in a trial on which she was a Juror and only last week an academic was jailed for using the web to research a defendant in a case in which she sat on the Jury. Rioters using Facebook, Twitter or BBM to organise civil disobedience have been jailed, and appeals against their sentence dismissed. As much as the US has the Patriot Act and a number of other exceptions to civil liberties which we may see as Orwellian, criminal activity online is now more than ever being treated in the same way as it would offline, and common sense over what you Tweet is going to become far more important than your Avatar.

The Government (specifically Theresa May) have wrung their hands publicly about how to deal with the problem of criminal activity online, and there’s only one answer – education. Thoughtcrime is still fictional, and the Terrorism Act 2006 is better placed to deal with real terror threats made over the web than the Communications Act, which was introduced to deal with threatening telephone calls. As much as you shouldn’t probably say anything on Twitter that you wouldn’t say in person, isn’t the point that you have the right to say it? Simply “switching off Twitter”, as suggested during the 2011 riots, makes tracking those responsible for using it to incite or threaten even more difficult. The Tweets must still flow, but that doesn’t mean the Web is a free-for-all. It never has been, and it’s probably fair to say that someone who’s experienced that wake up call more than most is Leigh Van Bryan. The moral of the story – the law is an ass (at least in this case) and for the meantime, a Tweet in haste may give you an ample opportunity to repent at leisure, maybe even at Her Majesty’s Pleasure.

Who’s Wendi?

It’s fair to say that it was a rough 2011 for Rupert Murdoch. Not only has he had to deal with all that pesky phone-hacking business (and make a public apology to the victims) and any number of expose documentaries over how he’s (allegedly) exercised autocratic control over the British media for at least the last few decades, he’s now been convinced to come down to the level of the average attention-seeking celebrity and join Twitter.

It’s an interesting move. As you might expect, some of the messages which he’s received haven’t been completely complimentary, especially the responses to his fabulously well-thought out observation on the fact that “Brits get too many Bank Holidays for a broke country”. This alone lends weight to the idea that either he’s determined to annihilate whatever reputation he had left, or that the account is fake and he’s being impersonated.

Personally, I went for the second option until I found out that he’d been plugging Fox’s movies (has he SEEN half of them??), Fox News’ evening broadcasts and op-ed pieces in the Wall Street Journal. Surely, this had to be too specific and too worryingly close to what we imagine Murdoch’s train of thought to be for the account to actually be run by one of the Dark Lord’s minions? No – it’s real; News International have put out a statement to confirm it. They could probably understand our skepticism – fake Murdoch accounts (many of them painfully well-observed, especially when dealing with his testimony at the Leveson Inquiry) are legion and have thousands of followers, many of whom probably wondered whether Murdoch’s own tweets could ever measure up to what we thought they may say if he ever signed up.

So why has he? Is it, as many think, because he’s about to invest in Twitter? Is it as a result of a personal introduction by the site’s founders? Murdoch himself hasn’t gone into any real detail on his motives, but thankfully we’ve had someone else to shed some light on what he may be up to.

Shortly after Murdoch’s profile appeared on the site, so did one for his wife – @Wendi_Deng. Posting her first message on New Year’s Day, “Wendi” gave her husband real-time tips on which tweets he should delete (!), swapped motivational tips for the year ahead, flirted with Ricky Gervais, looked into an appearance on Piers Morgan’s CNN chat show and contacted one of the best Murdoch parody sites – @RupertMurdochPR.

The media followed her every word, each tweet looking more and more like a PR car crash in progress, safe in the knowledge that this account was also real. It had to be – it was verified by Google as “Official”. That is, until yesterday when News International announced that the account was, in fact, a fake. To be fair, it was a very good one – whoever was behind it (thought to be a British male twitter user) had a genuine grasp on when to mis-spell updates and the actual diary of Wendi Deng. as well as dripfeeding just enough fictional information on the Murdochs’ private lives to fool much of the press into thinking that this really was the simultaneous arrival of one of the world’s great power couples on social media.

It turned out that, rather than being an attempt to publicly embarrass either News International or the Murdochs, the profile was set up out of boredom and as a joke in response to the hype surrounding Rupert joining the network. Everything simply got out of hand after the profile was verified and a News International employee apparently confirmed that @Wendi_Deng was real, and the actual user took to pointing the finger at Twitter for giving it the blue tick of approval in the first place.

So what now? Will the real Wendi Deng stand up and take back her Twitter profile? Will she sue? Can she sue? Many Lawyers will tell you that there’s no such thing as a freestanding “image right” just as much as there’s no freestanding right to privacy – they’re protected by a patchwork of different laws governing confidential & private information, data protection and passing off.

If the profile used a photograph which was genuinely private and or confidential in nature, breached Deng’s Article human right to respect for her private and family life or otherwise gave rise to a “reasonable expectation of privacy” then she may be able to force it and/or the account down either under UK law generally or Twitter’s own terms of use. From memory, the photo was taken in a public place by a photojournalist and so having it removed on the grounds of privacy will be difficult. More to the point, whoever took the photograph will be the actual owner of the copyright in it (if not his employer) and so he or she may want to think about taking action to have it removed, although this is doubtful as it’s taking on a life of its own and may be handy to refer to in a portfolio – “Oh, you took THAT photo”..

But surely Wendi can take action over the use of her name without permission? Celebrities have been signing up to endorsement deals for years, so isn’t this the same thing? Eddie Irvine set the precedent on “false endorsement” cases in 2002 as part of a dispute with Talksport which saw them altering an image of him to look as if he was holding a branded Talksport radio and used it in an advertising campaign. This case found that, if the celebrity in question can show either goodwill or a sufficient reputation at the time in question and that the conduct in dispute would create a false message that they did endorse the produce or service among a significant number of users or customers then they could claim either damages or an injunction. This case changed the commercial protection of a celebrity’s image through the Court, but it’s of little use here as the profile isn’t endorsing anything in particular apart from her “husband”. She can’t sue for Trade Mark infringement either, as she hasn’t registered one in relation to her name (although she now might….).

What Wendi could do is to fall back on Twitter’s own terms of use. Its general terms of use are clear enough: “You may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse, or deceive others.” Look into it further and you’ll come across the “Impersonation Policy” – “Impersonation is pretending to be another person or entity in order to deceive. Impersonation is a violation of the Twitter Rules and may result in permanent account suspension.” Again, pretty clear..at least until you read the next sentence: “Twitter users are allowed to create parody, commentary, or fan accounts. Please refer to Twitter’s Parody Policy for more information about these accounts. Accounts with the clear intent to confuse or mislead may be permanently suspended.”

The account wasn’t a parody or fan account (and anyway, Twitter has a reputation for standing up for them and anything else covered by US first amendment rights)- it was a very accurate impersonation. You’d imagine that Twitter may take action off their own bat to shut down the profile (especially if Murdoch really is looking to invest) and as of this afternoon it looks as if it has as the username @Wendi_Deng “does not exist”. Her creator may simply have had enough of the attention. He got that attention at least partly because the profile had been verified by Twitter, who should be the most embarrassed by the whole episode, which although relatively harmless has shown up serious flaws in the “Verified Profile” system – if it worked properly then how was the profile ever created?

This probably won’t scare celebrities away from Twitter, and I’d imagine that the scramble for some kind of digital watermark for high-profile users is already underway. Many will take comfort from the fact that the UK Courts aren’t shy from awarding damages in defamation and/or privacy cases when Tweets go too far, and libel may have been a very useful fallback for the Murdochs if the profile had stayed up.

For now, though, the whole episode is a case study in gullibility and proof that for your average public figure, building a new audience on social media even if your traditional media career is winding down is easy if you know how and what to tweet – the revitalising effect of Twitter on Stephen Fry’s public image (despite several hissy fits) should be proof enough. Now, if you’ll excuse me, I’m off to register my name on every single social network I can think of before someone squats on it. It may be worth something one day. And, if you’re thinking that you may not get fooled by this kind of fakery, check back in with Uncle Rupert, who was having a Twitter conversation with a fake profile for Larry Page (CEO of Google) over whether or not he should give Google+ a try…

“Half Of Twitter Users Risk Jail Every Day” and other Fairy Stories

The Christmas break’s a wonderful time to get a little perspective on any number of subjects – the meaning of life, your place in the world, what it all means and any other number of issues that won’t seem anywhere near as important when you’re back at your desk in the New Year.

Take, for example, the Daily Mail. Much-maligned as it may be amongst those of us who may like to think we know better than to believe some of its more Bill Hicks-baiting headlines, such as the classic which suggested that striking teachers were indirectly responsible for the death of a student who had the branch of a tree fall on her when she should have been in school last summer, it still commands a pretty large (if shrinking, along with most other print newspapers) circulation.

That circulation brings responsibility – you’d think that now would be as good a time as any to get some (enforced) perspective on that responsibility and redefine it where necessary in the light of the phone-hacking scandal and the Leveson enquiry, but this kind of thinking didn’t seem to be bothering Paul Dacre’s staff too much yesterday when it ran a typically carefully-balanced thoughtpiece under the headline:

“More than half of Twitter and Facebook users risk jail EVERY DAY”.

Now, this isn’t a piece that may attract any attention from Leveson as it doesn’t deal directly with the main issues making headlines during his enquiry such as phone hacking and the routine harassment of celebrities or public figures, neither of which the Mail has yet faced any substantiated allegations of, but what it does drag to the front of your mind is the issue of press ethics and the accuracy of stories.

I’m not talking about stories which deal in celebrity tittle-tattle or mindless trivia here. This story ran with a headline that’s substantiated with the following bullet points before the main text of its article:

“More than two-thirds would upload copyrighted material to the internet.

More than half couldn’t identify a defamatory statement.

A third were unaware that organising looting via Facebook or Twitter was illegal.”

Taking each in turn, copyright infringement doesn’t usually lead to a criminal offence unless it involves “making or dealing in an infringing article” or “making an article designed for making copies of a copyright work” and even then only tends to end in prosecution in instances of commercial-scale DVD piracy.

Uploading copyright content is usually dealt with by way of a threat of civil copyright infringement proceedings and as of yet we haven’t seen many cases against individual uploaders in the UK save for MediaCAT’s disastrous attempts to pursue members of the public on the basis that their IP address may have been used to download Cascada songs or porn earlier this year. The Courts were not impressed. No-one went to or risked jail. Some users of Twitter might do if they really are involved in copying on a large scale and yes, file-sharing does constitute infringement and is a bad thing, but I don’t see your average student ducking to avoid an armed team of Police swinging into his hall of residence any time soon for file-sharing one or even ten songs from any Band, even if they’re one of Simon Cowell’s.

Illegal downloading is a problem – it does make it hard to make money from music in the amounts that the industry used to, but much of the problems come down to advances in technology and an old business model in need of updating. Education of the downloading public will help to solve it, NOT scaremongering – that went out with the old “Video Piracy Is A Crime” trailers appearing on VHS Cassettes. It CAN be a crime, but your average Twitter user is not a criminal or at risk of becoming one.

Onto defamation, then. Yes, it’s a problem. Yes, defamatory statements, i.e. statements which “lower the reputation of the subject in the eyes of the ordinary reader” are made every day on Twitter and potentially to a much wider audience than may read them if made in the printed press. Yes, we have seen the first “Twibel” case fought between two MPs earlier this year which led to an award of damages at trial. Cricketer Chris Cairns brought a case over a Tweet which contained allegations of match-fixing this year which the Defendant failed to have thrown out on the basis that so few people saw it – he had enough followers for the case to proceed.

Reputation is made and destroyed over the social web in a matter of moments and the number of defamation claims involving social media is rising all the time. None of these cases have involved anyone going to Jail.

Finally, let’s look at the most serious issue – many Twitter users didn’t realise that criminal offences committed using social media would be punished in the same way as offline content or even that the use of a social network could constitute a criminal offence.

Bingo. Referring back to the Riots and the sentences handed out (and confirmed at appeal) over incitement to riot using Facebook to organise looting and anti-social behaviour and the risk of Contempt of Court over reporting the details of a superinjunction (possible in theory if the user can be shown to have known the terms of the Court Order involved and breached it), this is where the piece comes dangerously close to being factual.

There are a raft of criminal offences which involve the use of Social Media, such as misuse of an electronic communication system to send messages of a menacing or threatening nature, harassment, incitement to racial hatred, sending a “malicious communication” and transmitting obscene material.

Some of those responsible for such offences have gone to Jail, and many have been convicted. They are a minority, and they have been traced through their online footprint. Many didn’t realise what they were doing was illegal. These are good points, and made in both the article and in the research to which it refers. The public does need to get to grips with the fact that what they do online is punished in the same way as it is offline. What they don’t need is to read this kind of inaccurate headline. They may not know that what they’re doing is wrong, but even if half of Twitter’s users behaved in an illegal way, can the Mail really claim that they’d all risk Jail? What if it was a first offence? What about the actual offence which they commit?

Generating an audience through fear is nothing new, but in an atmosphere where the Press is asking itself some pretty searching questions about how it deals with the Public, this kind of headline is irresponsible at best. Yes, there is a risk here and yes, some Twitter users could go to Jail. Educating them as to the limits of acceptable and legal behaviour is one thing, but trying to “scare them straight” doesn’t work and is in any event the Government’s responsibility, not the Mail’s. Even if it were, the Mail would also still have an equal responsibility to run headlines which put across a balanced comment on this kind of issue. In this case, they’ve ignored it in the same way as the Twitter users they claim are at risk of incarceration.

Just like the Twitter users they refer to a “risking jail”, they should know better.

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