Monthly Archives: December 2009

The Tiger Woods Injunction – “The Best A Man Can Get”

The last two weeks have seen a huge number of press stories on the very public downfall of Tiger Woods, but it looks as if at least some of the more salacious reports may come to a grinding halt in the UK, thanks to an injunction granted last week in London’s High Court.
 
In a move which has drawn fierce criticism from media commentators and lawyers alike, Woods has taken action through Schillings in London to restrain the publication of new details on his private life and alleged infidelity, which may have included nude pictures of the world’s highest-paid sportsman obtained via Playgirl Magazine.
 
At first glance, the theory behind granting this injunction is fairly sound, but when the surrounding circumstances are taken into account it starts to look less sensible and will do nothing to change a growing number of opinions that the UK’s privacy and libel laws are in need of an overhaul – if for no other reason than in this case, the genie is in fact already out of the bottle.
 
The UK’s Libel laws in particular have been the target of very loud calls for reform over the course of the past year or so, partly due to the prevailing view that our awards for damages (especially in cases involving the internet) are too high and have the effect of stifling the media – even going so far as to put some local newspapers out of business. This charge has been led by Paul Dacre, editor of the Daily Mail and outspoken critic of the current system, with much of his ire directed at Mr. Justice Eady, the leading judicial exponent of libel and privacy law on the UK bench.
 
Eady first came under major fire after his decision in a case which has defined the scope of UK privacy law – Max Mosley v the News Of The World. Although there is still no free-standing “right” to privacy under UK law, the Court had been looking at the interaction between two specific causes of action for some time to create a pretty close approximation – the law of confidential information and the right to respect for privacy in his private and family life as enshrined by both the European Convention on Human Rights (ECHR) and later the Human Rights Act 1998.
 
Mosley’s case involved the publication of video footage, still photographs and detailed reports on the more salacious details of the private life of Max Mosley, son of the right-wing politician Oswald Mosley and one of the most influential figures in Formula 1. The coverage dealt mainly with his involvement in what was described as a “Nazi Orgy” which, in the eyes of the News Of The World, made him unfit to hold that Office. Mosley claimed damages for a breach of his privacy as well as misuse of confidential information and went on to win damages of £60,000.
 
The press saw this as a major blow to their freedom to report, but Judge Eady went to great lengths to set out his reasoning for ruling in Mosley’s favour – once the information in question can be shown to give the claimant a “reasonable expectation of privacy”, the individual’s right to privacy in their family life under Article 8 of the ECHR must be weighed against the Press’ right to Freedom of Expression under Article 10. If that balancing act is going to come down on the side of the press, there must be a real public interest or other justification for publishing the details, even if the behaviour in question is morally questionable. The cases following Mosley have all expanded on this point, with the general rule being that the more private the activity, the easier it is to show the “reasonable expectation” – reports on sexual habits will almost always qualify, no matter how unconventional, as long as that activity is not illegal. Photographs in particular will attract a higher level of protection.  
 
Mosley’s case led to a flood of similar claims, notably involving Sienna Miller and JK Rowling, each adding weight to a growing opinion in the media that the new Privacy law was going too far. But what about libel?
 
The English Libel system has faced heavy criticism since the landmark case of Don King v Lennox Lewis in 2004, also decided by Eady, in which he ruled that the boxing promoter could bring a case against the former world champion and his Lawyer in the UK Court over a comment made on a boxing website based in the United States – as the website could be viewed in the UK, the remarks were “published” here and could be the subject of a libel claim if a Claimant has a reputation to protect in this country. UK Libel law is less restrained by principles of press freedom and free speech, unlike the case in the USA, where the First Amendment to the Constitution prohibits the passing of laws which damage these rights.
 
This has led to a considerable amount of cases being brought in the UK as the “libel capital of the world” by foreign celebrities looking for a greater award of damages than they would receive at home where the law tend to be less draconian and damages tend to be higher, leading to Arnold Schwarzenegger introducing a law which bans the enforcement of UK libel judgments in California in an effort to stamp out “libel tourism”.
 
The reason for looking at the background in this detail is that it sets out exactly why the Tiger Woods Injunction is attracting such a huge amount of criticism – the information which the Injunction has been granted to protect is apparently already in the public domain through a number of US websites. Many are asking, with good reason – “What’s the point?” Woods can quite lawfully stop publication of the kind of images we’re talking about and protect his reputation, but surely the genie is already out of the bottle and all this will do is drive curious web users to these websites, who will be the real winners when visitor rates go up along with advertising revenues – ironically the reverse of Woods’ own situation.
 
What’s really made the media angry, along with many lawyers, is that this is a classic example of a foreign celebrity suing here, where he has more of a “right to privacy” than in the US, where every development in the story is being reported in minute detail; US websites will not be affected by the injunction. Though this is the right decision on a strict legal basis, real-world considerations, such as the global and pervasive nature of the internet have been ignored, ironic given Eady’s previous judgment in King v Lewis, where US websites printing an allegation was enough to justify a libel claim. Even though the injunction will put a stop to not only the publishing of the images in question but also any reports of their details, it won’t stop any number of blogs and international websites poring over every gory detail.
 
Also complicating matters is the fact that much of the criticism against Woods has been that he is a hypocrite by holding himself up as a role model, only to be painted as anything but. Naomi Campbell faced similar accusations in her own precedent-setting case against the Mirror a few years ago, and won mainly on the basis that the paper when too far by publishing details of where she was being treated for a drug addiction rather than being exposed as less than truthful following frequent denials of a narcotics habit.
 
Woods has been admirably straightforward and open in dealing with his failings in the US over the past few weeks and has drawn praise for his “reputation management” strategy. His action in the UK, however, may undo much of this tenuous goodwill and leave the public asking what else he has to hide. Lawyers can be valuable both in taking action through the court when privacy is threatened, as well as advising when it may be wise not to.
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Ron Livingston, I Presume? – “Sex And The City” Actor Sues Wikipedia Hacker

In what could be a landmark case, actor Ron Livingston – known mainly for his starring roles in “Sex And The City”, “Swingers” and “Office Space” has issued proceedings against a “Hacker” who has created false Facebook and Wikipedia entries which suggest that the 42-year old star is, in fact gay and in a relationship with a man named Lee Dennison.
 
Livingston married actress Rosemarie DeWitt in November and issued proceedings in Los Angeles Superior Court on 6 December against the unknown individual, claiming that he had committed “despicable acts and seeking damages for libel, invasion of privacy and use of his image without permission.
 
Livingston’s publicists have altered postings on the sites previously, but the Hacker has almost immediately replaced them, according to Court papers.
 
Celebrities suing websites is nothing new. The last few years have seen an exponential growth in the numbers of claims against both the print and online press as well as other sites brought by Celebrities who either take issue with the way they are portrayed or how their comments are “spun” by journalists through defamation claims, or object to details of their personal lives being exposed through privacy claims; the most well-known example being the infamous case of Max Mosley – the Formula 1 tycoon who saw details of his participation in an alleged “Nazi Sex Orgy” reported in the News Of The World and the video leaked online.
 
Being “the libel capital of the world”, the British Press are used to this sort of thing, especially given the perceived problem of “libel tourism” – where public figures based outside the UK convince our Courts to hear cases on the basis that, if an article can be read online in the UK then our judicial system should have jurisdiction to deal with the dispute and award damages, which tend to be higher than those awarded in the US or elsewhere. Even Arnold Schwarzenegger, who himself was involved in one of the leading cases on internet libel over an allegation that he had behaved inappropriately towards an English reporter, is taking steps to stop English libel judgments being enforced in California whilst Jack Straw and Judge Eady, one of the country’s leading libel and privacy Judges argue over whether there really is a problem and how to reinvent libel for the 21st century.
 
America, however, is no stranger to this kind of case. Libel claims are a daily hazard for many gossip websites such as TMZ, who are often willing to take a commercial risk in publishing edgy material that may open them up to liability in return for a spike in visitors to their site and the generation of advertising revenue. However, we’re not talking about a gossip website here. The easy headline would be that Livingston is suing Wikipedia, but that’s not true. He is taking action against a third party who is using Wikipedia and Facebook to disseminate rumours as to his sexuality.
 
Some websites and blogs who’ve picked up on this story are already asking whether or not this case will set a precedent on how to deal with anonymous Hackers. Fewer are looking at the issue of why Livingston didn’t simply sue Wikipedia. In the UK, that would be fairly logical. Libel claimants have the option here of suing both the person who made the defamatory statement about them (i.e. one which damages their reputation in the view of “right-thinking” members of the public who are not overly sensitive or overly dismissive) and any third party who “publishes” or repeats the statement – hence why many claims are made against the maker of the statement and a larger publication who could afford to pay costs and damages in the event that the original comment came from someone who couldn’t. This is the subject of intense debate at the moment, with campaigners arguing that costs in libel cases should be capped and a “single publication rule” introduced whereby accessing an online version of an article would not count as “republication”.
 
While that debate rumbles on, the US position is clearer – Livingston didn’t sue Wikipedia due to the fact that section 230 of the Communications Decency Act 1996 prevents him from doing so. It reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” – such as blogs, comments, or contributions to social media and collaborative sites such as Facebook and Wikipedia. Taking on the sites directly is clearly not a viable option for Livingston’s legal team.
 
What Livingston can do, however, is try to force Wikipedia to reveal the identity of the Hacker via subpoena and then seek an injunction against him to stop any further objectionable commentary. The situation in the UK is similar in many ways. Although UK claimants would probably sue the site as well as the Hacker, to be able to do both you will need details of the Defendant’s identity.  Websites would normally resist doing so to comply with the Data Protection Act 1998, as it would mean disclosing personal information without authorisation.
 
This would leave another option – to apply for a “Norwich Pharmacal” or “Motley Fool” Order, which would force the site to provide you with the details provided that such disclosure is in the interests of justice and the anonymous Defendant is part of the “wrongdoing” and likely to be made a Defendant to any subsequent claim.
 
You could also look to take action against the site’s ISP under the terms of the Electronic Communications Regulations 2002. ISPs provide the means to disseminate commentary (including defamatory statements) around the web, and as such would be theoretically open to a claim for libel on a site which they host or provide access to. That is, as long as they don’t know about it and aren’t acting as a “mere conduit” – if a request is made to remove the comments which the ISP ignores, then they may well be liable.
 
The fact is, though, that this kind of action then becomes an exercise in reputation management as much as a legal claim. It may be straightforward to shut down one blog containing negative commentary, but the nature of the internet means that the comments may well then appear on other sites. What starts out as an action against one can turn into a war on many fronts, and one which isn’t easy to win. Not only that, but accusations such as those at the heart of Livingston’s claim may draw criticism that he is trying to stifle public commentary on his sexuality and lead to accusations of homophobia. US courts have recently ruled, in a case brought by Howard Stern and despite a 2003 lawsuit which saw Tom Cruise win $10 Million after an allegation that he had been involved in a relationship with a male porn star, that being accused of being gay is not necessarily defamatory. UK courts have previously awarded damages to Celebrities who have been accused of being gay on a number of occasions, notably in 2005 to Robbie Williams after reports in Star Magazine.
 
The moral would appear to be that, in the UK, clamping down on unfavourable (and defamatory) comment on the web is much more straightforward – although not before careful consideration. It may be if you’re going after a Journalist or publication, but if it’s a user of a social networking site or a contributor to a Wiki, then you may need to dig a lot deeper and spend a lot more to find out who you actually need to sue in the first place. Reputation Management in the world of Social Media and instant commentary may well be the next major battleground for UK lawyers and it’s going to be interesting to see how this case plays out.

Hamleys Toys With The Public Domain….

It’s that time of year again – Advertising Campaigns have already begun in earnest to ensure retailers’ share of the Christmas market with the usual heavy emphasis on Electronics and Toys. If the thought of taking on the Christmas rush at your local Shopping Centre fills you with dread, then there’s always the online option – in fact, online shopping (despite the postal strike) is a significant and growing part of the retail industry, with lower prices and a growth in confidence in making safe card payments online in the wake of the introduction of new security technologies.

Whilst online retail hasn’t overtaken the experience of physical shopping just yet (and won’t do for some time), the amount of money spent on “virtual” shopping increases each year and increasingly, many businesses value their website just as much as their shop front to the point where they’re virtually one and the same; the recent online re-launch of Woolworths will see the brand continue to generate goodwill (and hopefully some profit) long after its high street stores were sold, and brands such as Argos even allow stock-checking over the web.

However, just like paying rent on premises, the need to keep an eye on the registration of your website’s domain name and ensure it’s renewed means that the price of freedom to trade on the web is eternal vigilance. This was flagged up in news reports last month concerning world-renowned toy store and British retail institution Hamleys, who saw their website become inaccessible to customers and a holding page containing competitor advertisements go up in place of their own fully-functional shopping site after failing to renew the domain name “Hamleys.com”.

As it turns out, Hamleys.com was only inaccessible for a few hours on November 3rd, but this story serves as a very useful and practical reminder for any business, retail or otherwise, that has a valuable presence and who generates a significant amount of turnover through doing business online.

Hamleys.com as a domain name expired on 29th October, and thousands of shoppers were greeted by a holding page from Network Solutions LLC., a Virginia-based domain name, hosting and website design agency who had apparently originally sold the URL to Hamleys and bought it back just after its registration lapsed. Hamleys had recently reduced its headcount in IT to concentrate on sales and other parts of the business, but it’s hard to see how this deadline passed them by without raising any alarm bells.

According to Network Solutions, up to six reminders of registration dates are sent to Domain Name owners and a five-day grace period after the actual cut-off date is in place, so either the post wasn’t reaching the right recipient or Hamleys may have simply just had a major oversight.

Any business with a significant online presence will normally have a comprehensive and watertight policy and contingency plan in place when it comes to domain name renewal and the majority will more than likely hold as many domain names as possible which are relevant to their business. In this case, Hamleys also own Hamleys.co.uk, and many other online retailers will not only defensively register interntational domain names with prefixes such as .eu, .net, .biz and .tv, but many of the common mis-spellings of their business name to avoid the problem of “typosquatting”, where competitors use domains which are almost identical to the site in question but spelt incorrectly (such as the example in www.kjkrowling.co.uk).

Typosquatting will almost certainly involve, if the dispute gets that far, a claim for Trade Mark infringement (if the brand is a registered trade mark) or passing-off, on the basis that a competitor is unfairly trading upon the reputation of an existing brand. However, as far as domain names are concerned, the web operates on a “first come, first served” basis. Hamleys also own their .co.uk domain, but that address simply links back to the .com site. As and when domain names expire they’re open to anyone for registration, and in this case the Hamleys.co.uk website led customers to the Network Solutions holding page. The web rumour mill went into overdrive, with the “Blogosphere” and “Twitterverse” finding no small amount of humour in the situation.

If Network Solutions had played hardball, then there were options for Hamleys – either go to Court and seek an injunction to transfer the domain name on the basis of a Trade Mark Infringement or Passing-Off claim or go through the ICANN Uniform Dispute Resolution Policy (UDRP). The UDRP’s terms provide that ICANN will transfer a domain name if a third party can show either that the domain in question is identical or confusingly similar to the name of an existing business and/or website, if the owner has no legitimate rights or interests in the domain and if it has been registered in bad faith. That said, although it’s cheaper and can be carried out partly via E-Mail, the wheels of the UDRP can turn very slowly and do not allow you to recover any legal costs spent on resolving the dispute. Bad faith can also be complex to demonstrate and the third party who has registered the name in question can normally continue to use it in the meantime.

If you need a business-critical website back online quickly, there may simply be no alternative to going through the Court and obtaining an emergency injunction, which is extremely expensive and requires very strong supporting evidence. In this case, There are a number of lessions to take away from this situation:

1 – Register defensively – get as many domains in as many combinations and in as many different suffixes as you can.

2 – Reputation is fragile, especially in the current climate, and visitors to the site in question may have their confidence in shopping with you dented if a holding page appears.

3 – Keep on top of your registration and renewal dates and be ready to take action where necessary.

Not renewing their domain may have cost Hamleys hundreds of thousands of pounds in lost sales, as well as damage to their reputation and a loss of management time whilst they deal with the problem. Domain names tend to be relatively inexpensive to obtain, but problems with them can be very expensive to fix.