Law JournalFeeds » Int J Law Info Tech

User-generated marketing – legal implications when word-of-mouth goes viral

admin — Wed, 09 Nov 2011 01:03:22 +0000

This article discusses legal implications for businesses which engage in viral marketing. In the wake of the adoption of social media such as Facebook and YouTube, viral marketing has become much cheaper, which in combination with an increased trust in other people’s opinions makes viral marketing very efficient and widespread. The article focuses on EU legislation concerning identification of marketing, unsolicited commercial messages, and marketing buzz. The nature and quality of the business’ encouragement of private individuals to spread its marketing material is essential in determining whether the business is liable for activities carried out by private individuals. The Unfair Commercial Practices Directive adopts a tradition of applying an average-consumer-test, which in the light of the low-cost communication platforms utilised for viral marketing is likely to lead to lawful deception of a large amount of consumers.

Approximation and DRM: can digital locks respect copyright exceptions?

admin — Wed, 09 Nov 2011 01:03:22 +0000

Technological protection measures (TPMs) are the hard core of digital rights management (DRM) systems, which enforce the rights of the copyright owner in the digital environment. Copyright scholars expressed concerns that TPMs do not comply with copyright exceptions and limits (Hugenholtz 2000; Koelman 2000; Dusollier 2003; Westkamp 2004). A few solutions to this problem have been proposed in the field of internet services (Mulligan and Burstein 2002; Erickson 2003; Cohen and Burk 2001; Sobel 2003). However, none of these proposals is tailored to optical disks (CDs and DVDs). Yet, the report ‘Digital Broadband Content: Music’ of the OECD (2005) states that TPMs implemented on optical disks hinder copyright exceptions more often than those applied to internet services. Moreover, in Europe the Copyright Directive exempts TPMs implemented on internet services from compliance with copyright exceptions. This paper therefore outlines possible ways to implement TPMs on optical disks in Europe, in order to achieve their compliance with a list of fundamental copyright exceptions, as identified by previous research (Favale 2008).

When is a contract formed by the browse-wrap process?

admin — Wed, 09 Nov 2011 01:03:22 +0000

The purpose of this article is to consider the approach that should be taken to determine whether a browse-wrap contract has been formed. As acceptance of such contracts is by an action, which could occur without reference to the offer, the fundamental question must be considered as to whether an acceptance can take place without subjective knowledge or intention. However, the rules that should be applied in principle in implementing an ‘objective approach’ to such contracts will be considered. They will be seen to be restrictive of when a contract will be found and it will be contended that the objective line can therefore be maintained.

The Unimportance of being "electronic" or – popular misconceptions about "Internet contracting"

admin — Wed, 09 Nov 2011 01:03:22 +0000

Existing e-commerce literature abounds with misconceptions regarding both technology and contract law. Long-standing legal concepts are adorned with “e-” or “cyber-” to appear more exciting. The traditional contractual regime is supplanted with new principles instead of being supplemented with technological considerations. It is one thing, to include technology in legal analyses, it is another to create separate, technology-specific categories. Separate categories justify the departure from traditional principles. Most, if not all, alleged “challenges” created by new communication scenarios fit within the existing legal framework, technological complexity and novelty of the Internet notwithstanding. Most “challenges” are also unrelated to the fact that transactions are concluded on the Internet or with electronic means. The new transacting environment frequently exacerbates pre-existing difficulties, but does not necessarily create them. It is probably too late to abandon popular terminology. It is not too late, however, to recognize its limited implications.

The Law of Virtual Worlds and Internet Social Networks

admin — Wed, 09 Nov 2011 01:03:22 +0000

A legal method for solving issues of Internet regulation

admin — Tue, 09 Aug 2011 09:17:37 +0000

This article presents a legal method that can be used to find solutions to the challenge of regulating Internet technology. The method consists of ten steps and the reader is guided through the application of these steps.

As the method can easily be transferred to other areas of regulation, the article should benefit anyone with an interest in research methodology.

Contracts for clouds: comparison and analysis of the Terms and Conditions of cloud computing services

admin — Tue, 09 Aug 2011 09:17:37 +0000

Cloud computing offers an attractive solution to customers keen to acquire computing infrastructure without large up-front investment, particularly in cases where their demand may be variable and unpredictable. But the greater flexibility of a Cloud computing service as compared with a traditional outsourcing contract is balanced by less certainty for the customer in terms of the location of data placed into the cloud and the legal foundations of any contract with the provider. This paper reports on a detailed survey and analysis of the Terms and Conditions offered by cloud computing providers.

Restricting access to the internet by sex offenders

admin — Tue, 09 Aug 2011 09:17:37 +0000

In recent years there has been a debate as to whether access to the internet can now be considered a human right. If internet access is a human right then this would raise the question as to whether it is possible to ever restrict an individual’s internet access or make it subject to limitations. One area where individuals are currently the subject of limitations is child sex offences where some internet offenders have access to the internet either prohibited or subject to significant limitations. This article considers the approach and legality of such restrictions by focusing on two jurisdictions; England and Wales and the United States of America.

Towards new recognition of liability in the digital world: should we be more creative?

admin — Tue, 09 Aug 2011 09:17:37 +0000

The emergence of intelligent software, which operates autonomously and not only automatically, may give rise to many difficulties especially with regard to the attribution of liability for the actions of such software. This paper thus explores some of these difficulties and examines how intelligent software agents differ from other software applications, and how liability should be attributed in light of such differences. Furthermore, this paper briefly addresses the issue of what the law ought to be in order to successfully handle intelligent software agents and their potential effects in the digital world.

New but not improved: a critical examination of revisions to the Regulation of Investigatory Powers Act 2000 encryption provisions

admin — Tue, 09 Aug 2011 09:17:37 +0000

Considering the criminal uses of encryption, it has been asserted that national security and law enforcement endeavours must not be frustrated by potential evidence being hidden through digital encryption while the encryption key is withheld. The facilitation of state access to encryption keys through the Regulation of Investigatory Powers Act 2000 (‘RIPA 2000’) was intended to address precisely such a danger. However, since this statute’s enactment there have been significant shifts in law and policy relating to terrorism and child pornography as well as important technological developments. This article critically examines changes to the RIPA 2000 encryption provisions made by the Terrorism Act 2006 and the Policing and Crime Act 2009. It also considers emerging statistical data and cases including R v S(F) [2008]. It concludes that the underlying premises of the revised provisions are flawed, the provisions themselves ineffectual in practice and in the longer term potentially open to ‘mission creep’ to cover lesser offences.

Communications Data Retention in an Evolving Internet

admin — Thu, 12 May 2011 05:52:47 +0000

The 2006 Data Retention Directive requires EU-based Internet Service Providers to store information on customers and their online communications. The Directive is being reviewed by the European Commission, and has been criticised in a number of recent national constitutional court judgments due to its impact on privacy. Its compatibility with the Charter of Fundamental Rights is now being considered by the European Court of Justice. This article describes the likely impact on data retention of further developments in Internet usage, technology and law. It outlines the increasing use of private networks and member community sites that are not subject to the Directive, and the changes in surveillance technology and practice that some member states have proposed in response. It concludes by analysing the key factors to be taken into account in the EC and ECJ reviews, and suggests more proportionate and effective mechanisms for preserving appropriate law enforcement access to communications data.

Online Social Networking and the Right to Privacy: The Conflicting Rights of Privacy and Expression

admin — Thu, 12 May 2011 05:52:47 +0000

The advancement of Information Technology has hastened the ability to disseminate information across the globe. In particular, the recent trends in ‘Social Networking’ have led to a spark in personally sensitive information being published on the World Wide Web. While such socially active websites are creative tools for expressing one’s personality it also entails serious privacy concerns. Thus, Social Networking websites could be termed a double edged sword. It is important for the law to keep abreast of these developments in technology. The purpose of this paper is to demonstrate the limits of extending existing laws to battle privacy intrusions in the Internet especially in the context of social networking. It is suggested that privacy specific legislation is the most appropriate means of protecting online privacy. In doing so it is important to maintain a balance between the competing right of expression, the failure of which may hinder the reaping of benefits offered by Internet technology.

Internet Disputes, Fairness in Arbitration and Transnationalism: A Reply to Julia Hornle

admin — Thu, 12 May 2011 05:52:47 +0000

Stuck in the Thicket? Social Research under the First Data Protection Principle

admin — Thu, 12 May 2011 05:52:47 +0000

Through a systematic analysis of the UK’s Data Protection Act’s first data protection principle, this article demonstrates that the EU data protection regime seriously threatens research into social (including political and historical) affairs. The rules for registering processing with the data protection authority, providing the data subject with information notification and the severe limitations on the processing of sensitive personal data are all in serious tension with certain types of important social research including that which is covert, deceptive, identifiable or critical. Additionally, the complexity of the law inevitably leads ‘risk-averse’ universities to further restrict research activity. This not only curtails academic freedom but also suppresses knowledge production in ways which damage society generally. The article concludes by contrasting the onerous regulation of ‘research’ with the significantly more liberal regime for ‘journalism literature and art’. It argues that data protection authorities and others should consider whether social research might benefit from this more liberal regime. Even if that proves unachievable, these issues should be addressed in the review of the law now underway.

IP Addresses – Just a Number?

admin — Wed, 09 Feb 2011 15:24:09 +0000

Should IP addresses be regulated as personal data under the European Union’s Data Protection Directive? Where do we draw the line separating personal from anonymous data, and which means of identification should be taken into account when we make decisions about whether or not IP addresses can be related to an identifiable natural person? These are the questions raised and discussed in this article.

After first having examined the arguments presented by European courts for classifying IP addresses either as personal or anonymous data, we then propose a method for determining the legal status of IP addresses. This method consist of two separate but interrelated steps: the legality test and the likely resonable test. It is our contention is that this method is not only applicable to IP addresses, but should be regarded as a general way of evaluating the relationship between natural persons, identifiability and information.

The Web Content Accessibility Guidelines 2.0: An Analysis of Industry Self-regulation

admin — Wed, 09 Feb 2011 15:24:09 +0000

While national and international disability-discrimination provisions lay down a duty to design accessible websites, the actual standards by which accessibility is gauged is an area in which self-regulation and the lack of a definitive international standard prevails. This article presents an analysis of a key self-regulatory standardisation body, the World Wide Web Consortium, in order to determine how its composition, processes and standards themselves impact upon this international, technical arena. This analysis is placed in the context of increased calls for the participation of disabled people in the creation of provisions and the difficulty in reaching a consensus in areas such as access to technology for people with cognitive difficulties.

Developing Online Dispute Resolution for Consumers in the EU: A Proposal for the Regulation of Accredited Providers

admin — Wed, 09 Feb 2011 15:24:08 +0000

This paper evaluates the development of online dispute resolution (ODR) methods in resolving small value disputes arising out of e-commerce transactions and the need for designing a regulatory model to realise its full potential in the EU. The paper proposes the drafting of a European Regulation in the field of ODR that would set legal standards for mandatory ODR. The proposed Regulation would create a pan-European trustmark that would be granted to those ODR providers that comply with its legal provisions. Compliance would be monitored by the co-operation between national and regional authorities through the European Consumer Centres Network (ECC-Net). The ECC-Net national offices and online businesses would refer national and cross-border disputes to accredited ODR providers. The proposed Regulation would encourage the use of consensual ODR processes as a step previous to the adjudicative processes for all accredited and mandatory ODR. Decisions will be legally binding but appealable, when appropriate, through an online procedure akin to the European Small Claims Procedure.

Mobile Commerce and ISP Liability in the EU

admin — Wed, 09 Feb 2011 15:24:08 +0000

The article analyses the E-Commerce Directives’ provisions regarding intermediary services liability when applied to mobile operators. Further, it explores whether the lack of clarity which in several respects characterizes the ISP liability rules with regard to the conventional internet, also exists when the issues are “transferred” to the mobile platform.

The Italian Google-Case: Privacy, Freedom of Speech and Responsibility of Providers for User-Generated Contents

admin — Thu, 04 Nov 2010 21:14:51 +0000

In a recent decision of the Tribunal of Milan three Google executives were convicted for violating data protection law, in connection with the online posting of a video showing a disabled person being bullied and insulted. This paper, after illustrating the facts of the case and the reasoning of the judge, discusses the main issue at stake, namely, the role and responsibilities of providers of platforms for user-created contents with regard to violations of data privacy.

Interoperability-Centric Problems: New Challenges and Legal Solutions

admin — Thu, 04 Nov 2010 21:14:51 +0000

Interoperability, having the potential to be leverage for spurring follow-on innovation and competitive impulses in the network environment, is attributed to a number of mandatory solutions under EU Directives as well as standardisation efforts. While generally interoperability requirements are determined in a disjunctive and pro-competitive manner in separate industries, convergence turns interoperability into a common problem against the development of ICTs, and renders policy-making a critical venture-point on antitrust and IPR policy. Simply mandating the incumbents, who enjoy economies of scale or creating formally-set standards for each controversial and specific case, would not yield the intended results in terms of a self-sustaining marketplace with a high-level innovation. To create such an environment, both intra- and inter-platform interoperability should be encouraged with a macro and long-term ICT perspective, called the ‘holistic approach’ within the context of this study. In the study, the individual policy choices pertaining to specific industries are discussed primarily, and a set of notorious cases, e.g. Microsoft, for interoperability treatment are given, aiming to elaborate on the emerging concerns surrounding innovation, IPRs and standardisation including NGN-related challenges. It is resulted from the discussions that market players would not be able to cope with the IP-based threats and possible bottlenecks of an NGN environment without the responsive solutions that emerge out of consortias, neo-traditional SSOs near EU-wide recommendations and atypical interventions. Ultimately it is concluded that, without the diagnosis and cure of service-level interoperability challenges as well as network-level threats in a timely and co-operative manner that is crystallised in the “holistic approach” embodying all the three ICT industries, neither newly-built NGNs nor IP-based convergence would bring out the intended level of innovative end-to-end services.

An International Comparison of ISP’s Liabilities for Unlawful Third Party Content

admin — Thu, 04 Nov 2010 21:14:51 +0000

Since the commercial introduction of the internet the question of legal liability for internet service providers (ISPs) for unlawful content which is disseminated by third parties has been a fundamental issue. Content on the internet can be illegal for numerous reasons. In the past, main reasons for governments to impose duties on access providers were to fight objectionable content. Objectionable content usually affects matters of general public interest and interferes with general standards, norms, morality, and conventions. In respect of this definition, material like e.g. pornography without age verification, child pornography, hate speech, or extreme violence has mostly been subject to regulatory measures. This essay will compare different approaches regarding ISP liability. It will outline the regulatory framework of the EU, will exemplify how this is applied and interpreted in the UK and Germany, and will expose governance in North America, Australia, and New Zealand.

Outsourcing Agreements: A practical guide

admin — Thu, 04 Nov 2010 21:14:51 +0000

Online and Offline Equivalence: Aspiration and Achievement