Welcome to iTech: Technology news updates from WJM.
We hope you’ll enjoy this issue. We’ll be back in May with more news and opinion on technology related topics.
- Force India wins F1 copyright battle, but loses the war
- Unpaid Bloggers in a Huff
- Richard Dawkins and Amazon defenders in ground-breaking defamation case
- Scotland wins independence…….in cyberspace!
- ‘As seen on TV' – or is it?
- New cookie laws come into force
Formula One team Force India has won a High Court battle over an alleged breach of confidence and copyright involving rival team Lotus, but has still been ordered to pay damages.
Design company Aerolab designed parts for Force India’s cars in 2008 and 2009. Under the terms of their agreement with Aerolab, Force India owned the rights in anything Aerolab created for them under the agreement, and Aerolab could not share the details of their designs with any other F1 teams.
However, in 2010 Force India failed to pay all the monies due to Aerolab under their agreement and Aerolab terminated the agreement and sued Force India for the outstanding monies.
At this time Aerolab began working with rival F1 team Lotus. Aerolab’s designers recycled some of the designs they had developed when working for Force India as a “shortcut” in producing new designs for Lotus.
As a result, Force India countersued Aerolab, arguing that the re-use of the original designs was a misuse of confidential information and a breach of copyright. Force India also sued Mike Gascoigne, technical director of Lotus, for breach of confidence.
The High Court judge agreed with Force India and held that the recycling of the designs was indeed a misuse of confidential information. This was because the designs constituted valuable information that could not be considered part of the general knowledge, skill, and experience of Aerolab’s employees. This was despite the fact that the new designs had not been “copied” from the old designs as such - the old designs had only been used as a short-cut to fill in the gaps in the new designs for Force India.
The High Court also found Aerolab guilty of copyright infringement, as they had made electronic copies of the designs.
The High Court however held that there was no liability on the part of Lotus or Mike Gascoigne because they had only participated in an agreement with Aerolab to design new products for them, and not in any agreement to secure the use of the particular designs in question.
The judge decided the infringements went no further than this. Force India had argued Aerolab had simply copied the designs and modified them to suit Lotus’ specification, but the judgement said they had come “nowhere near” showing this was the case.
The Court ordered Aerolab to pay £20,904 in damages.
Force India’s joy was short-lived, however, as the Court held that Force India’s failure to pay Aerolab under the original agreement was a fundamental breach of their agreement, and ordered Force India to pay to Aerolab the outstanding sums due under the agreement – amounting to over £700,000.
If you wish further advice on copyright or intellectual property rights in general, please contact a member of the iTech team.
Bloggers who contributed for free to the US news website “The Huffington Post” have had their claim for a share of the $315 million purchase price paid by internet giant AOL for the site rejected by a New York court.
Launched in 2005, the site was originally an “online community” where people could discuss topics from politics and current affairs to celebrity gossip and entertainment. It quickly became a more prominent and reputable news source before becoming the first commercially run digital media enterprise to win a Pulitzer Prize.
Despite its growth in profile and success, The Huffington Post stayed true to its roots and featured various blogs by unpaid, and often unknown, writers. When AOL purchased the site last March, almost 9,000 bloggers joined forces to argue they should receive a third of the sale price for their contribution to its value.
The Judge rejected their claim, stating that “no one forced” the bloggers to repeatedly provide their work. He explained that “they never expected to be paid, repeatedly agreed to the same bargain, and went into the arrangement with eyes wide open” so they got what they bargained for.
A recent decision of the English High Court has suggested that the operator of a website, which itself contains no defamatory postings, might be liable for defamatory content posted on a separate website accessible via a hyperlink.
Hyperlinks are a one-click connection between one page on a website to another page or website and are used on almost all major websites as an easy and convenient way to navigate around webpages.
The claimant in the English High Court case was the author of “The Attempted Murder of God: Hidden Science You Really Need To Know”, which claimed not to refute the existence of God, but to prove it.
The book was available for purchase on the Amazon UK website, which provides users with a forum platform to post comment and review. One of the defenders in the complaint, Mr Jones, posted several allegedly defamatory comments about the author, including calling him a “phoney” and a “fraud”.
The dispute spilled over from the Amazon forum to another public forum, on the US hosted site http://www.richarddawkins.net where, Mr Jones posted further allegedly defamatory comments about the author.
Richard Dawkins is a well-known scientist and through his charity, the Richard Dawkins Foundation for Reason and Science (the Foundation), operates the website http://www.richardhawkinsfoundation.org Unli.ke the richarddawkins.net site, the richarddawkins.org site does not provide an online forum for user discussion. Dawkins is an administrator of the US .net site, one of four responsible for approving and reviewing content of the online discussion forum.
The claimant sued Amazon UK, the Foundation, Professor Dawkins and Mr Jones for defamation in respect of the forum comments made on the .net website.
The hyperlink issue arose as it was shown that clicking on the ‘Home’ button on the .org site (which would normally take the user to the home page of the current site) took the user directly to the discussion forum of the .net site, without notifying the user of the change of website. This meant the Foundation and Professor Dawkins were potentially liable as operators of the .org site.
Defences to a defamation action (known as libel or slander in English law) relating to online content are available under both UK and European law.
The Defamation Act 1996 provides a defence to a person in an action for defamation if they can show that they were not the author of the statement, took reasonable care in its publication, or did not know they had contributed to publication of a defamatory statement.
Under European E-Commerce Regulations information service providers like Amazon have a defence against a defamation claim if they did not have knowledge of the unlawful activity.
Amazon successfully argued that they should be struck out from the action under the E-Commerce defence as the claimant failed to bring the matter to their attention using Amazon’s online pro forma notifying it of defamatory content. The judge agreed that Amazon had not been made aware of the facts or circumstances that would have made it apparent that the postings were unlawful.
The judge accepted that the Foundation did not operate richarddawkins.net, which was operated by a US company, but observed that the law on liability for hyperlinks was currently uncertain.
The judge held that the operator of a website could be liable for allegedly defamatory postings on a website that it had hyperlinks to even though it carried no defamatory postings itself. It was important that the two websites were closely associated, the link was hidden and the point of contact was the ‘Home’ button.
In the case of Professor Dawkins, whilst an individual would not normally be liable for comments published by a company with which he was connected, the result would be different where the individual played a sufficient role in the publication to render themselves personally liable.
The judge’s decision has not resolved the case, which will now proceed to trial on these issues. The case has not provided definitive guidance, but does highlight the uncertainty surrounding liability for hyperlinks. Having clear terms and conditions of use can help website operators ensure that they are not liable for the content of external websites. The iTech team will keep you updated of the progress of this case.
The debate over Scottish independence debate continues to rage and dominate headlines, but the Coalition government has already given its support for Scottish independence of a kind – on the Internet.
It has reportedly indicated that it is “relaxed” about plans for Dot Scot Registry, a non-profit company, to apply for .scot domain name registration. The company was created in 2008 specifically to try to establish and operate a new generic top-level domain (gTLD) to represent an online identity for the Scottish people. A gTLD is the suffix that appears at the end of a web address, for example .net or .org, that allows web traffic to navigate the internet. Dot Scot Registry is in the process of applying to the Internet Corporation for Assigned Names and Numbers (ICANN) to register .scot domains. ICANN is the umbrella body that controls the registration of domain names. The domain name is not expected to be available until the middle of 2013 even if the application is successful.
While some have labelled the introduction of .scot domains as a ‘propaganda coup’ for the SNP, a spokesperson for the First Minister stated that this would be a huge boost to Scottish businesses and tourism by promoting Scotland worldwide.
There are also plans to introduce further regional domain names, such as .wales and .cymru, and there has even been a bid to introduce .london as a domain name.
For more information on domain name registration, please contact a member of the iTech team.
The Committee of Advertising Practice (CAP), one of the two bodies which publishes Codes of Practice for the advertising industry, has stated that a recent decision by the Advertising Standards Authority (ASA) has tightened the rules on when advertisers can state that a product is ‘as seen on TV’ or ‘…as seen in’ certain publications.
The decision came after an unbranded and unidentified prop (a bed mattress) was used in a home make-over programme and advertised in several national newspapers as “as seen on TV” and “as seen in…” the newspapers.
The ASA decided that the claim couldn’t be made just because a product was featured as an unbranded prop in a programme, and that a paid-for advert in a publication does not justify an ‘as seen…’ claim.
The ASA decided that the claim was misleading because it was thought that consumers would mistakenly believe from the ‘as seen’ advertising that the product had somehow been editorially evaluated or independently reviewed in programmes or publications when in reality it had merely been a prop or part of an advert.
The CAP code prohibits marketing communications that ‘materially mislead’ consumers or are ‘likely to do so’. This decision means that any company wishing to advertise that their product has been ‘seen on TV’ should make sure they have objective documentary evidence to prove their claims.
If you wish any further information on your obligations when advertising and marketing, please contact a member of the iTech team.
In December 2011, the iTech team reported on new EU laws governing internet cookies. These new rules were incorporated into UK law in May 2011, but the Information Commissioner’s Office (“ICO”), the body responsible for policing the new law, allowed a one-year phase-in period during which websites must become compliant.
The end of this phase-in period is fast approaching and the new rules will be enforced from 26 May 2012. Website operators should therefore endevour to make sure they are complying with the rules before that date. A copy of the explanatory guidance note on the new rules issued by the ICO is available from here
Cookies are small files downloaded from a website to a user’s computer, mobile phone, games console or other hardware when they access a website. Cookies allow a website to recognise a user’s device and to store and access information on that device. When you visit a sites such as eBay or Amazon and they greet you with your name, this is a cookie recognising your device.
Cookies have historically been set on devices entirely without the knowledge or consent of the user and raise questions of internet privacy. However, under the new rules users must consent before a cookie is sent to their device.
The ICO can impose monetary penalites of up to £500,000 for serious breaches of the new rules and as they will be enforcing them from 26 May, all website operators should make sure they are now compliant.
For more information on the new rules please see the cookie article in our April 2012 edition of Business & Life, or contact a member of the iTech team.
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