IT Law Recently - Bytes Ahead (14-05-03)
This is not an actual tut but its usefull information which doesn't seem to fit many other categories.
Working at a solicitors and within the IT sector I keep up to date with changes in the law and usefull cases. I will keep you guys posted to.
OPT-IN’ RULES FOR SMS AND
E-MAIL MARKETING
A new advertising Code has been introduced obliging businesses to obtain the ‘explicit consent’ of consumers before the business can send them e-mails and text messages.
‘Explicit consent’ is deemed to be given only where the individual has consented freely and specifically, and has been informed as to his/her options. If these conditions are met, a ‘tick box’ option could be used.
Where a business has obtained customer’s details as part of the sale of a product or service, then the business may use that information to directly market other similar products or services offered by the business, provided the customer is given the opportunity to ‘opt out’ of such use, both when the data is initially collected, and on each occasion direct mail is sent out.
The Code is enforced by the Advertising Standards Authority, and reflects what is presumed will be similar provisions in the long overdue Directive on processing of personal data (2002/58/EC).
This represents yet another piece of European driven privacy regulation, tightening the reign on businesses. Companies are accordingly advised to take steps to ensure that they have a current Data Protection Statement in place, together with a Data Protection Policy and detailed guidance for staff, as well as ensuring that they operate procedures to ensure compliance with their policies and guidance.
It is expected that investigations by the Information Commissioner will increase in forthcoming years.
ISPs LIABLE FOR CHAT PAGES?
It was reported last month that George Robertson, secretary general to NATO, was considering taking legal action against a prominent media company after allegations appeared concerning his connections with Thomas Hamilton, who was responsible for the deaths of a number of school children in Dunblane.
The allegations were posted on a discussion page operated by the media company by a member of the public.
Following the ‘Dr Godfrey’ case in 2000, ISPs took comfort that, as a mere conduit, they would not be held liable for offensive or illegal content on web pages, provided the ISP had the offending material removed within a reasonable period of being alerted to its presence on their sites.
More recently, the BBC was forced to review its editorial procedures after one of their websites named a footballer who had taken out an injunction preventing publication of a kiss and tell story, which could lead to both a libel and contempt of court action against them.
ISPs and web page managers argue that they are no different from a telephone operator or a post office in that they are simply carrying or displaying messages on behalf of others. The ISPs position is further challenged by the fact that subscribers to their services are paying for the right to use the full ISP services, including the right to post messages via e-mail or on websites. As such, they require to act as adjudicator on the merits of any complaint received about content, in order to determine whether or not content is offensive or illegal and should be removed. In many cases, the ISP will not have sufficient knowledge of the facts to enable such a decision to be made.
In the event that action is taken against the media company or the BBC, the outcome will have important implications for online communication, ISPs, web content managers and freedom of speech. In the meantime, ISPs and web page managers should ensure that the terms and conditions for sign-up leave appropriate rights to remove material at their discretion.
NEW CONSUMER PROTECTION RULES
The recently implemented Sale and Supply of Goods to Consumers Regulations 2002, which
apply to all forms of trade, including on-line trade, have further strengthened consumer protection by providing that:-
· A right to the consumer is entitled to have goods repaired or replaced or to have a price reduction, in the jurisdiction where the goods are faulty;
· That guarantees must provide clear details on how to claim;
· That e-tailers will require to prove that goods are not faulty when the consumer claims that the goods are faulty, within 6 months of purchase (ie. the burden of proof shifts to the e-tailer);
· That public statements made by e-tailers about the goods must form part of the contract.
The Regulations relate to all B2C transactions, and e-tailers should be aware that businesses buying goods for non-business purposes may also be considered to be ‘consumers’ for these purposes.
These regulations have implications for e-tailers trading generally, but particular consideration must be given to the implications of trading in foreign jurisdictions.
As the EC attempts to tighten consumer protection and harmonise governing legislation throughout Europe, e-tailers are well advised to carefully consider their online terms and conditions, their online ordering processes, and generally, the information which they make available to consumers.
DOMAIN NAMES SUCK
Following a recent ruling by the World Intellectual Property Organization under their Uniform Domain Name Dispute Resolution Policy, it appears that brand owners may have to resort to more traditional and expensive legal remedies to prevent the use of ‘sucks’ domain names.
In this case, Asda complained to WIPO that the domain name ‘asdasucks.net’ was confusingly similar to their own ‘asda’ trade mark. The WIPO panel disagreed however with Asda’s claim that "a substantial number of people are likely to be confused about the potential association of the domain name” with Asda, declaring instead that the vast majority of people accessing the site would now be aware of the ‘sucks’ concept, and know not to associate such a site with the official business web sites.
Asda did not put forward any evidence to substantiate their claim that confusion was likely, but even if they had, the Panel stated that such evidence would support a claim that the domain name owner had used the domain name in a confusing manner, rather than that the domain name was confusingly similar to Asda’s trade mark.
The Panel did suggest that Asda’s claim may have been upheld if they could establish that the Asda web sites were designed for use by foreign users, who may not be familiar with the ‘sucks’ phenomenon.
Trade mark owners are therefore faced with the prospect of raising defamation actions through the courts, rather than the more streamlined arbitration process operated by WIPO if they are to improve their prospects of success, unless a contrary finding, or a change in the Policy, is made by WIPO.
snIP/ITs
· Telecoms regulator Oftel has been asked by the courts to reconsider its decision to clear BT of predatory pricing for its high speed broadband internet service. If Oftel reverses its decision, ISPs may claim damages from BT.
· Nominet has announced new ‘positive renewal’ procedures for renewing domain name registrations, which will be implemented later this year.
