Data Protection In 2016 And Beyond – Less Velvet Glove, More Iron Fist

A Protection Data Protection Law in 2016 and beyond – More Iron Fist, Less Velvet Glove

For some time now, commentators on online privacy and data protection have predicted a “tipping point”, where the public would finally realise the impact of sharing so much of their most private information online and grow tired of the endless trade in that information, leading to the spam texts and e-mails with which we’ve all become sadly familiar. After all, in the information age where businesses, platforms and brands are built and targeted around the habits and demographics of their users, knowledge truly is power. For some time, the EU has taken the use of that knowledge and the data which underpins it very seriously, which led to the original Data Protection Directive in 1995, subsequently implemented by all EU member states and reflected in UK Law by the Data Protection Act 1998.

The basic concepts set out in the Directive were all very noble and (comparatively) straightforward, imposing standards and restrictions upon any entity which collects and controls the use of personal data (defined very widely, and including photographs and even IP addresses) relating to identifiable and living individuals to control the manner in which that data is collected, used and distributed. The other side of that coin saw the grant of certain specific rights to individual “data subjects”, including access to any personal data (to a certain extent) held about them by a “controller”, details as to how and to who, that data was being used and disclosed, to object to that use in certain circumstances and to obtain compensation where damage was suffered as a result of data being processed unlawfully, i.e. not in line with eight “data protection principles”.

Still with me? For a long time, Data Protection was seen as the new Health & Safety, with many businesses dismissing their compliance obligations as something that they intended to get around to eventually, or worse, ignoring them completely. That ignorance aside, the Information Commissioner’s Office has been increasingly willing to take steps to bring the various sanctions at its disposal to bear against businesses who misuse personal data, or alternatively don’t take proper steps to ensure that it remains secure. Against this backdrop, and the rise of big data, social media, targeted marketing and the personalised consumer experience, we’ve seen Monetary Penalties levied against the likes of Sony after the Playstation Network was hacked in 2011 to the tune of £250,000.

Although questions remain as to whether or not the UK is a more secure place after five years’ worth of enforcement of Data Protection Law by the ICO, the 66 monetary penalties it has issued since 2010 (which can, for the time being, issue a penalty of up to £500,000 for breaches of the Data Protection Act 1998, Privacy Regulations 2003 and other legislation which were either deliberate or reckless and cause substantial damage or distress) show that it’s far from the “toothless tiger” many though it to be at the start of the decade. It’s been particularly hard on data breaches in the public sector but also seen as relatively lenient on the likes of Google, who escaped serious censure after its “Street View” project saw a vast amount of personal data collected from open wi-fi networks across the UK.

There has been a marked improvement in the profile and importance of data protection issues in the minds of the public after high-profile hacks involving Ashley Madison, Talk Talk and others, as well as the introduction of the hugely controversial “right to be forgotten” (even though the terminology’s probably wrong) which came out of a Spanish case whose ruling allows individuals to ask Google to remove search results which link to outdated, incorrect or irrelevant data in which there’s no real public interest. That “right” has already been used as a blunt instrument to remove data from the public eye where defamation or other reputation management tools are no longer an option, although the EU’s Article 29 Working Party has since provided guidance which has allowed Google to refuse more and more of the thousands of requests they receive to remove elements of an individual’s online presence on a daily basis.

All that said, however, we’ve only just begun. Whilst many businesses complain that compliance with data protection law is simply too complex for them, and based on a “one size fits all” counsel of protection, the issue is about to move significantly higher up the corporate and legal risk agenda with the recent publication of the new EU General Data Protection Regulation during December last year. Some four years in the making, the GDRP itself is supplemented by the new Data Protection Directive, and aims to strengthen the existing legal framework across member states’ 500 million citizens. With the concepts such as the digital single market and the new and improved “right to be forgotten” at its core, the existing patchwork of laws across the continent will eventually be swept away – I say eventually, as the chances are that the new legislation won’t come into effect until the back end of 2017. That delay notwithstanding, however, it’s worth thinking now about how to plan for the impending changes and planning to recruit for a Data Protection or Privacy Officer – you’re about to need one.

The GDPR raises a number of issues for businesses, the headline being the concept of “privacy by design”, which should be the guiding principle for any use of “processing” of personal data and shored up by policies (and in some cases the mandatory appointment of a Data Protection Officer) which demonstrate that commitment, alongside better processes to allow individuals (who should increasingly be referred to by pseudonyms and not their true names, which will be mandatory in some industries) to more easily obtain access to information about how their personal data is used in a concise, transparent, straightforward and user-friendly manner.

Consent to the processing of personal data has long been a key concept in data protection law, and although in some circumstances (usually relating to marketing to either existing customers or individuals who’ve made enquiries of a business) it can be “implied”, when the GDPR is fully introduced businesses will be expected to use methods of obtaining consent which is “unambiguous”. This reflects and strengthens the current position that consent must be specific, informed and active, and “opt-in” rather than “opt-out” consent (including in relation to receiving marketing materials) will be the only acceptable standard.

Equally significant is a shift away from the lion’s share of compliance falling on the shoulders of Data Controllers (who obtain personal data and direct how it can be processed) to placing more responsibility on Data Processors, to whom the Controller outsources either the storage or processing of data. Although currently Processors are bound to comply with the existing law and instructions of their processor (with their responsibilities set out by law in a written contract), in future they’ll be subject to stricter controls, not least relating to the transfer of data or appointment of any “sub-processors”.

Turning to what happens when data security is breached, the GDPR requires businesses to notify their Data Protection Authority within 72 hours, a significant change to the current position, where there is no legal obligation to report breaches but there is strong encouragement to report serious breaches which could have a detrimental effect on data subjects, and a higher presumption of clemency or at least assistance in any ICO enforcement action as a result. Not only that, but if the breach is likely to lead to a high risk to the rights and freedoms of individuals, consumers and data subjects should also be notified without delay. Against the backdrop of the recent Vidal-Hall decision which saw the Court confirm that damages could be recovered for distress caused as a result of a data breach rather than pure monetary losses, it’s likely that data protection claims by consumers will become permanent fixtures of court lists and potentially a major source of growth for law firms looking for the next wave in large-scale or high-volume litigation.

As noted above, the “right to be forgotten” tilted at in the Google Spain case from May 2014 will become a matter of legislation and national law (eventually), with obligations on businesses to delete personal data which they no longer need or in relation to which consent to processing has been withdrawn without undue delay. Again, this is a shift away from the current obligations to ensure that data processed is only held for as long as necessary and kept updated, with which many businesses already struggle, especially where dealing with huge customer databases.

What didn’t survive the negotiation and wrangling across the EU was the introduction of a “digital age of consent”, raised from 13 to 16, against a huge backlash from tech giants and commentators over a resultant ban on social media use and ultimately left in the hands of member states – notably, the UK has already stated that the UK’s age of digital consent will not be raised. However, the new high watermark for monetary penalties of up to 4% of global turnover in the event of the most serious breaches has made the cut, and this alone should focus the attention of businesses across the continent on their commitments and obligations relating to their use and exploitation of personal data.

So, is it time to panic? Not yet – helpfully, the ICO has made 5 key suggestions for businesses looking to skill up before the GDPR becomes law, focussing on assessing how and where consent for processing is obtained from individuals, accountability and record-keeping, staffing up to ensure that businesses have the right expertise to deal with new obligations and planning in peacetime for when, not if, a breach takes place.

In a time when even “safe harbour” and the assumption that the US was a “safe“ place to which personal data could be transferred (not any more, at least for the time being, following a case brought by privacy activist Max Schrems following the Ed Snowden revelations) is now a thing of the past, the huge, fundamental and permanent change which the GDPR introduces simply can’t be ignored. Consumers and individuals certainly won’t against recent high-profile breaches, and planning to manage if not mitigate its impact should be as important to every business as simply keeping the lights on. Brussels will expect nothing less.

Reputation Management In The Social Media World – Impossible Dream Or Comeback Kid?

In the social media world, where brands are made and broken overnight, more ethical consumers search for the slightest excuse to turn against the establishment for lapses in moral judgment and anyone’s opinion and snap judgment, it may be easy to think that the days of managing, let alone defending your reputation are long gone.

After all, recent reports show that, since the Defamation Act 2013 came into force, defamation as a legal discipline may be on the decline – Thomson Reuters recently found that only 20 defamation cases reached a hearing in 2012 to 2013, down 58% on 2008-2009’s high watermark of 48. In fact, the total number of defamation cases fell from 86 to 63. As much as the new requirement of serious harm has done much to discourage and weed out claims with tenuous merit (replacing the more active approach to case management and strike-outs led by the Jameel line of cases some years ago), it may be fair to think that both the media and potential claimants are becoming more cautious and less eager to have the details of their dispute and any potential vindication undone by crowdsourced opinion, potentially creating a Streisand Effect of massive proportions and undoing the whole objective.

You may think that, but I think you may be wrong. Buried in these figures, alongside the drop in claims brought by businesses of 45%, was an increase in defamation cases linked to social media activity, which is increasingly becoming the new battleground in the war of public perception. We’re starting to see a line of cases such as Cooke. Lachaux and Brett Wilson, all of which have begun to fill in the blanks of the 2013 Act’s “plain English” approach to a traditionally obtuse and esoteric legal discipline We may yet be starting to see the new frontier and a move back towards a more equal realignment of the interests of business against the occasionally ill-informed individual.

That said, defamation is only a part of the online conversation prism. As it has struggled to re-establish its relevance in the information age, data protection has well and truly come out swinging, with the recent ground-breaking Vidal-Hall decision potentially opening up a whole new era of claims for non-pecuniary damage arising from breaches of the Data Protection Act 1998. The first few claims relating to data breaches are only now starting to make their way into court lists, and the next few years are going to be fascinating as Judges get to grips with the true worth of privacy, both before and after it’s compromised. Not only that, but the line between citizen “journalism” and the private purposes exemption from the 1998 act’s stringent requirement may being data privacy to the fore of public consciousness like never before, with the IP address replacing the PI litigator as the next wave of volume litigation.

As straight privacy cases also continue to make headlines and set the criteria for “reasonable expectation” and genuine public interests, with social media playing an increasingly important role both as a source and distribution channel of the most intimate information and the “right to be forgotten” continues to be defined through Google’s own imperfect implementation of the Spanish decision against them which gave birth to the very concept, the fact is that in the digital environment the defence of reputation and privacy is increasingly complex and involves more ingenuity than ever before. As technology has outpaced the legal framework which (tries) to regulate it, the next few years may well see a much clearer picture emerge of what businesses and individuals can be expected to tolerate in a 24-hour news cycle, often driven by contributors without any formal journalism training. The lawyers who can evolve to meet that challenge may yet truly help their clients continue to prosper in the unflinching gaze of a crowd which is sometimes not as wise as we wish it to be.

We are fortunate to live in interesting times, and what comes next may yet remind us that the basic rights to defend unwarranted attacks and the pre-eminence of privacy could make the enlightened even more lucky. Reputational risk is at the top of many agendas, and defending it may be see the playing out of what we as human beings love more than anything else – a comeback story.

The Defamation Act – One Year On (or Changes & Strange Fascinations)

I recently spoke at the Social Media And The Law 2014 Conference in London, and besides learning what platform I and my clients should be afraid of the most this week, what interested me above all else was the fact that, whilst reputational risk was still very much on the agenda in the wake of a clear line of cases which made it plain to anyone who cared to ask that the Courts treat online conduct just as seriously as offline conduct, defamation was only one of an evolving set of risks which we as lawyers have to manage in the online world, where bad news and ill-informed speculation move at the speed of thought.

In fact, some of the most recent developments in internet and social media law suggest that data protection and privacy, partly as a result of the extremely divisive “right to be forgotten” established in the Google Spain case (which some claim still doesn’t actually exist and which the UK Judiciary and Parliament would love to be “forgotten”, even as Google is being urged to make their EU-compliant method of removing out of date, excessive or incorrect information in which there’s no real public interest part of their global business model), are the real “undiscovered country” to be adopted by those looking to effectively manage their online profile in the face of anonymous or more brazen criticism.

We’re no longer, as much as we may still be in mourning for that fact, the libel capital of the world. If the reform of CFAs didn’t go some way towards stunting the growth of the reputation management industry, the ostensibly sweeping changes to defamation law introduced by the Defamation Act 2013, which became law on January 1st 2014 were certainly intended to keep it confined to a metaphorical playpen by making it harder to fight and win a libel case, to introduce new and amended defences and the brand new “serious harm” test which was expected to do much of the case management for Judges in advance, making strike-out applications and spurious claims a thing of the past. Right? Right?

Maybe not. Defamation is still very much alive and kicking. Recent research by Thomson Reuters (as reported in the Independent during October this year) showed that the number of defamation claims brought over derogatory comments on social media has gone up by over 300% in the last year alone, attributed to the fact that the general public still doesn’t quite get the fact that what you say and do online can be punishable if it has an appreciable effect on a reputation offline. Not only that, but online feuds leave easily reproduced paper trails which can provide key insight into one of the most important considerations in any defamation claim – context. Not only that, but defamation cases involving mainstream media have also increased in number. Reputation is easy to build in the online world, but is as fragile as its owners can be agile when developing it, who are increasingly seeking our legal redress when “the conversation that’s happening without you” doesn’t stay that way.

The Defamation Act 2013 was expected to drastically reduce the number of Defamation claims, but as many pointed out when it finally became law, it gave birth to a new line in satellite litigation over what some of its clear English terms actually meant. The “serious harm” test was clear enough for corporate claimants in that they’d now have to show financial damage (or at least that it’s likely) as a result of a statement (which is no bad thing, as evidence of real damage to reputation is a key component of any defamation claim) but what that means to individuals is still unclear, despite the ruling in Cooke v MGN earlier this year which established that “serious” was an ordinary and unambiguous English word, that in proving serious harm, all but the most severe cases would require actual evidence and that an early apology may eradicate or minimise any unfavourable impression caused.

It’s now very hard to tell whether a statement is defamatory in light of the new serious harm test until the extent of publication and the identity of its recipients is known, leaving the issue of the meaning of the statement in question an afterthought and changing the emphasis of a well-established body of case law. Cases where serious harm is “likely” are almost certainly going to come in for serious judicial scrutiny.

We still have some way to go before we know whether or not the 2013 Act has well and truly put defamation further down the agenda, especially given that we don’t have much clear guidance on the revised defences and any clear guidance upon how widely the section 5 intermediary defence is being used when taking down content in accordance with the E-Commerce Regulations 2002 is far easier and less risky.

The point of all this? Defamation is very much alive and kicking, but it’s in the middle of a growth spurt whilst pushing the boundaries of what it can get away with. Like any unruly child, we need to keep a close eye on it as it develops; the defence and management of reputation is still very big business in the social media age. It’s all to play for; we just need some clearer rules.

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…

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