When Mr Patel complained to Unite about the postings, Unite took the forum offline and released a statement that the allegations against Mr Patel were unfounded; but Unite failed to respond to Mr Patel’s request for the identification of those responsible.

The BASSA website was subject to terms of use, which warned users that their personal data might be disclosed subject to data protection and privacy law.

Mr Patel successfully applied to the High Court for a “Norwich Pharmacal” order, which required Unite to provide the identities, addresses and Internet Protocol addresses of the users responsible. Instead, Unite provided an expert’s report to show that the information requested had in fact been deleted. Mr Patel and his solicitors pushed Unite to make further efforts to recover the information, without success. Mr Patel therefore sought a further Norwich Pharmacal order for an independent expert to be given access to Unite’s database on the grounds that the continued failure to provide the information must be, at best, as a result of incompetence or technical ignorance. Unite objected to a further order on data protection grounds.

The High Court ruled that Unite had not provided sufficient evidence that it had carried out the reasonable search required by the first Norwich Pharmacal order, and Unite had not shown that it had actually followed up the information provided by Mr Patel in order to carry out that search. The High Court noted that the additional order that Mr Patel was asking for was intrusive, but that it was proportionate and necessary to give the order so that Unite would comply with Mr Patel’s information request. The High Court considered the fact that the website terms of use warned users that Unite might disclose a user’s identity, subject to data protection and privacy law, and that, without the order, those responsible would not be identified. Whilst the order was given by the High Court, it was strictly limited to an expert appointed jointly by both parties and only to the disclosure of the information which would identify those responsible, or which explained why identification was not possible.

The Court of Appeal has rejected an appeal against the decision of the High Court, on the grounds that the High Court’s findings were not based on any error of principle or perversity in factual findings, leaving no scope for a fresh evaluation by the Court of Appeal.

However, the Court of Appeal allowed a cross-appeal against the finding that the UK trade mark for the number 32 had not been infringed. The Court of Appeal ruled that the High Court had incorrectly assumed that, where a separate reputation had not been established by use of the trade mark, there could be no infringement under section 10(2) of the Trade Marks Act 1994; rather, the number 32 was a significant part of the trade marks that the High Court had ruled had been infringed, such that there was no basis for saying that the trade mark for the number 32 had not been infringed as well.

In a press release, the EC outlined the main changes that will be made to the data protection regime in the EU::

-          There will be one set of rules across the EU, rather than each EU Member State having its own rules.

-          The scope of the people caught by the data protection law will be increased. The rules will apply to data controllers who are not established within the EU if the data processing relates to offers of goods or services to data subjects within the EU or a monitoring of EU data subjects’ behaviour. Clearly, this is intended to cover large online players from the US such as Google.

-          In addition, what counts as personal data is being widened. Data will be personal data if it is not just data held by the data controller that can identify the individual but also data held by a third party which, in combination with the data held by the data controller, could identify. This could catch rights holders that hand over Internet Protocol addresses to Internet service providers for enforcement of copyright infringement under the Digital Economy Act 2010.

-          There will no longer be an obligation for organisations to notify (or register) all data protection activities to data protection regulators (such as the Information Commissioner’s Office (ICO) in the UK), but only data breaches will need to be notified; however, that will need to take place within 24 hours of becoming aware of the breach. Organisations will need to have continuous monitoring and reporting systems in place at all times. Security breaches must also be notified to data subjects “without undue delay”.

-          In place of general notification obligations, organisations will have to maintain documentation and records showing their processing activities, and be subject to strict audit requirements and produce that to the authorities on demand.

-          Data controllers will also have to comply with training requirements.

-          People will be able to access and transfer their own data more easily. They will have a right to be given their data in a convenient portable format such as a disk or MP3 file. They will also have a right to be told how long their data will be kept for.

-          Data subjects will have a right to be told where the data controller got their data from.

-          There will be a “right to be forgotten” where people will be able to delete their data if there are no grounds for it being retained. This will put a huge burden on Internet businesses in particular, which will have to do what they can to ensure links to the data is deleted by others even after they have deleted it.

-          Member State regulators, such as the ICO, will be strengthened to allow them to better enforce the rules, with possible fines of up to £1m or 2% of a company’s global turnover. The amount of the fine will depend on the nature, gravity and duration of the breach; whether the breach was deliberate or negligent; previous history of breaches; what security measures had been put in place; and the level of co-operation with the authorities.

-          All organisations will have to appoint data protection officers unless they have fewer than 250 employees, in which case they will be exempt from this requirement.

-          Clearer rules for the transfer of data across borders within multi-national organisations will be introduced. In addition, national data protection authorities will need to approve bespoke agreed clauses as an alternative to the standard contractual clauses for transfers between an organisation in one EU country and another organisation outside of the EU.

-          Any consent from a data subject will have to be explicit rather than implied. Any written consent such as a tick-box will need to be distinguishable from other consents. This would mark a change from current online acceptance practice.

-          Data access policies will have to be not only fair but also transparent.

-          The law will move from data being permitted if “not excessive” to effectively minimising the data as it will only be legitimate if the purpose cannot be fulfilled by processing non-personal data.

-          Data processors (people who process data on behalf of data controllers and do not take any decisions in respect of the data) are currently not subject to the data protection requirements. They are only caught under contract law when data controllers (as they are required to do) enter into a written agreement with the data processor to contain certain safeguards. That will change. Under the new regime, data processors will have specific direct obligations to maintain security of data under the law.

-          Data controllers will generally not be able to charge data subjects for data subject access requests.

The proposals will be sent to the European Parliament and the Council of Ministers for discussion, and will take effect two years after they have eventually been adopted.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP, comments: “This proposed law makes depressing reading. The Commission has trumpeted the ease of cost to business, but such a statement totally ignores all the other increases in regulation that this law would introduce. On balance, this will involve much more red tape for business to have to comply with. At a time when SMEs need a helping hand to grow and help to rescue the EU’s economy, this development is not going to be welcomed. Instead of considering SMEs’s legitimate interests, the Commission seems to have been too focused on protecting EU citizens against big US Internet businesses.

“The one plus side is that the new data protection law will be implemented in one consistent way across the whole EU; the major downside, though, is that it will involve much stricter obligations than businesses currently face, including tougher internal programmes and records and quick reports to the regulators and data subjects of data breaches. And there will now be much bigger fines for breaches. Let’s hope some of the provisions are softened before the law is passed.”

The Government’s actions are intended to take effect later this year, and will implement the Consumer Rights Directive, which was approved by the European Union in October last year.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This case shows the need for organisations to have clear IT and Internet usage policies. Organisations should also make sure that those policies have been updated since the increased use of business and personal social networking sites.”

The changes to the guidance largely reflect the revisions made to the Privacy and Electronic Communications Regulations in May 2011, under which electronic communications providers must inform the ICO about all data protection breaches. The main difference is the recommendation to provide a monthly report rather than simply to maintain a record of breaches which can be audited by the ICO for compliance.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This result is interesting in light of recent court orders that the MPA has obtained against ISPs in the UK such as BT and Sky, under which the ISPs have had to block access to infringing content. The law needs to be clearer or at least applied in a more clear way across the European Union.”

There are two totally independent Merck companies. This arose out of the Treaty of Versailles at the end of World War I, under which the two different Merck companies were each given exclusive rights to the brand in different territories.

German Merck claims that it held the rights to material on the web page at www.facebook.com/merck, but it has recently discovered that those rights were now being allocated to the US company. German Merck has no argument with US Merck – its complaint is with the social networking site, which it claims has been less than helpful over the issue.

This case shows the issues that can arise with owners of parallel brands existing in an ever-smaller global market.

1. the meaning of a “communication to the public” for the purposes of the Copyright Designs and Patents Act 1988 (the “Act”); and
2. the meaning of “reproduction in part” (whether individual frames amounted to a substantial part of the copyright work and whether the display of a broadcast on screen amounted to reproduction) for the purposes of the Act.

The High Court has now ruled that the first question should be amended for reference to the ECJ, as to whether the right to authorise or prohibit broadcasts extends to broadcasters of free-to-air programmes online to users who could lawfully receive those broadcasts on their televisions.

The High Court has also stated that the second question above has been answered by the ruling of the ECJ in the case of the FA Premier League v QC Leisure & Karen Murphy, which stated that copyright owners do have the “exclusive right to authorise or prohibit direct or indirect” reproduction of their content in the form of “transient fragments of the works within the memory of a satellite decoder and on a television screen, provided that those fragments contain elements which are the expression of the authors’ own intellectual creation, and the unit composed of the fragments reproduced simultaneously must be examined in order to determine whether it contains such elements”.

The Court dismissed Folly’s arguments that “STALKER” had been used in conjunction with “tackle” as that was not always the case on its website. It also did not agree that “STALKER” was used in a descriptive sense, as that was not how Folly had used it. The Court also had no time for the arguments that “STALKER” was generic or had no distinctiveness.

All in all, the case brought was pure folly and the defendant should have found a better angle to win.

The EU has proposed several changes to the current data protection regime, including granting individuals a “right to be forgotten” by allowing them to force organisations to delete personal data they hold and making non-EU based organisations subject to EU data protection law if they store personal data of EU citizens in the “cloud” (i.e. storing the data on an Internet-based network rather than on local servers).

The Culture Minister responded that:

-          A “right to be forgotten” would give the public false expectations. His argument was based on the ease and speed with which data can be copied and circulated on the Internet, to the extent that the Government would be unlikely to pass a law into force that it was impossible to enforce.  After all, how could one organisation promise that someone’s photos had been permanently deleted when someone else may have copied them from that original site?

-          It was questionable how feasible it would be to enforce EU law against non-EU organisations and there was the possibility that the law would stifle innovation and economic growth in the sector.

The full text of the speech can be found here.

ENISA also expressed concern in relation to security and privacy risks from such practices. The report suggests that users are becoming increasingly dependent on websites storing their personal information to make their future visits quicker and easier; whilst this is a benefit to a user, it makes fraud and unauthorised access easier, with the potential for not only financial loss but also possible reputational harm, discrimination and even exclusion from websites altogether.

The report suggests that the other effect of the practice is that website operators are being put under increasing pressure to store and protect personal information in a legally compliant way, which they may not have the knowledge or financial means to undertake.

ENISA suggested that privacy-friendly mechanisms should be incorporated into new websites and software, with clear instructions for users explaining the risks involved in a personalised service.

The World Wide Web Consortium (W3C) has published two draft standards to allow users to express privacy preferences in relation to cookies.  W3C released details of:

1. the “Tracking Preference Expression”, which defines mechanisms for users to express cross-site tracking preferences, and for websites to indicate whether these preferences are complied with; and
2. the “Tracking Compliance and Scope Specification”, which defines the meaning of a “Do Not Track” mechanism for notifying websites of a preference and set out best practice for website compliance.

It is hoped that the documents will culminate in the development of software that can be used and developed further by browser operators to protect users from cookies and tracking mechanisms. It is intended that the new standards will allow a user to express a preference for how their data is collected for tracking purposes and alert users as to whether a website honours their preferences or not.

The documents have been developed by a working group within W3C which includes representatives of Apple, Facebook, Google, IBM, Microsoft and Yahoo.

W3C is hopeful that the standards will be in operation in 2012.

In her statement, Reding said consumers should be more “empowered”. She also issued a warning that cloud computing service providers would face stricter provisions. Cloud computing refers to the making available of software and data on a network such as the Internet rather than on the user’s own servers.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of Upload-IT, comments: “This statement will send shockwaves through businesses. Currently, there are a number of grounds on which organisations can process data. They include if it is for their legitimate interests and it does not cause the data subject unwarranted harm. The statement is short so something may be lost in the translation, but at face value it suggests that the only grounds for processing data will be with explicit consent and that consent must be given in advance. That could prevent many businesses from functioning efficiently if they need to obtain explicit consent first every time.

“The new laws will also look to address the problem of social media site users saying something embarrassing and then never being able to remove it later, leaving them in an awkward position when a prospective interviewer checks them out on the web before a job interview. There has not yet been any clarity over users’ position when someone else posts a comment, photo or video clip about them on the web without their consent – if someone is featured in someone else’s posted content, will the subject be able to pull it?

“Further, the statement issues a warning for cloud computing service providers, but does not give any indication about how exactly their businesses may be affected.

“Overall, the statement leaves more questions than answers and is not particularly helpful for businesses looking to plan ahead to the new regime. They will have to watch this space over the next few weeks to see what the impact will be.”

The statement can be found here: http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/762&type=HTML.

BT’s initial response has been that it would need to be ordered by a court before taking action, in the same way that a court order was needed before Newzbin2 was blocked. Those downloading copyright content illegally may not be paying for the service they receive, but it is certainly costing the ISPs and industry bodies huge amounts in legal fees to try to prevent it.

BT estimated that the cost of implementing the court order was approximately £5,000, so it is unlikely that it would be worth the ISPs putting up a legal fight against any forthcoming court order. Indeed, the ISPs seem to have indicated that they would comply with any court order they receive. However, there is some doubt as to whether they have agreed to the width of the MPA’s requests for their consent to a court order. The move will only add fuel to the fire stoked up by critics of website blocking – the speed with which the pressure to block Newzbin2 has spread to other ISPs may also spread to other websites (such as The Pirate Bay) and lead to more argument, perhaps in court.

UK patent applications can be refused on various grounds, one of which is if the patent subject matter falls within an excluded type, such as pure business methods, a method for performing a mental act or computer programs that do not have a technical effect.

The High Court has allowed the appeal, and has referred the application back to the IPO for reconsideration.  The ruling was made on the basis that the application made a significant contribution with a relevant technical effect, such that the software should not be considered wholly within the computer program exclusion from patentability.

This ruling is further evidence of the alleged ‘over strict’ interpretation of the exclusions from patentability by the IPO.

It took 18 months for the fake review to be removed by Google, despite the fact that Google had been contacted several times to remove the post. Google’s only comment was that it had rules against impersonation and hate posts, but could not be an ‘arbitrator’ and that the best way to respond to a fake post was by posting a follow up review to share both sides of the story. The police agreed that the post had no foundation but said they were powerless to act.

The individual concerned estimated that he had lost 80% of his local business and said that he intended to sue Google for defamation. In reality, though, he would have an uphill David against Goliath battle to win to beat Google. Critics are calling for Google to introduce a verification process for posts, despite the man-power that such a policy would require.

The announcement follows a series of measures put in place by credit card companies to prevent the use of credit cards to pay for pirated music, meaning that premium rate payment services could soon be used as a quick and easy form of payment.

The City of London Police and The International Federation of the Phonographic Industry (which represents the recording industry worldwide) will supply PhonepayPlus with on-going information updates about copyright infringing websites, which the regulator will then pass on to service providers. If the regulator then discovers evidence of payment services being used by those websites, it will report back to The City of London Police and The International Federation of the Phonographic Industry and notify the provider that the service they offer is illegal. The overarching aim of the announcement is to ensure that pirated music is not used as a way of laundering money, or otherwise generating income, which is then used to fund organised crime or terrorist activity.

The ECJ ruled that those individuals that were the subject of stories published online not only had the choice of suing the publisher either in the country where the publisher is based or in the country where the individual had their “centre of interests”, but they also had the choice of bringing the claim in a country where the story or content was accessible (although only for the damage suffered in that country). In such an instance, the ECJ ruled that the relevant national courts could not apply a stricter law to the case than that applied by the courts in the country where the publisher was actually based.

In an age where content spreads so easily on the Internet, the waters have suddenly become more muddied for a publisher – it is now much easier than previously thought for a person who is the subject of a story to take action.

The High Court rejected Plentyoffish’s argument under section 5(4)(a) of the Trade Marks Act 1994, on the basis that Plentyoffish had no goodwill in the UK at the time when the application was made and had not shown that any UK residents had become members of its website. As it had no UK customers, the registration of the trade mark in the UK did not constitute passing off. There was a difference between having a reputation and acquiring goodwill. It may be that people in the UK knew of Plentyoffish because UK users had visited the site and so it had a reputation; however, goodwill required it to have customers, which was not the case here. Customers would mean that they actually received the goods or services (whether or not it was provided for free).

It may not be much consolation for the loser, but at least there are plenty more fish in the sea.

The initial ruling was given in favour of the film studios (whose copyright material had been copied) under section 97A of the Copyright, Designs and Patents Act 1988 (the Act), which provides that an injunction may be granted against an Internet service provider (ISP) that has “actual knowledge” of the use of its service to infringe copyright. The case will be of interest to ISPs and rights-holders, particularly since this is believed to be the first time that an order under section 97A has been made against an ISP.

BT has been ordered to use its Cleanfeed filtering system, which is currently used to block access to websites featuring images of child abuse, to block the website. Controversially, BT was also told to pay for the cost of implementing the court order. The judge said that since BT made money out of its users, it was right that it should foot the bill as part of the cost of doing business, and in any event the costs were proportionate. It left open the possibility of whether the costs would always be paid for by the ISP but in this case it would make sense.

BT and the film studios agreed that as software had been developed and was likely to be circulated by copyright infringers that could circumvent BT’s Cleanfeed system, BT’s blocking measures may have limited effect. However, the High Court judge said that the court order would still be justified if it meant that access to Newzbin 2 was prevented for only a minority of users.

This is the first time an order has been granted against an ISP under section 97A of the Act, but it is also interesting to note that the judge stated that he thought it unlikely that, following the implementation of the block, a BT user would be able to bring a claim against BT for breach of their Internet service contract with the ISP. However, that might be little consolation for BT, which merely thanked the High Court for providing ‘clarity’ on the issue.

No doubt, BT would have felt a bit aggrieved that the Court had refused to accept its argument that the order should be set aside or varied if the film studios did not apply within a reasonable time for the same injunction against other UK ISPs. The Court said that there was nothing in the law that made the injunction conditional on this action being taken. It was for the studios to decide on which remedies they would pursue and against whom.

BT would also no doubt have been unhappy at the refusal of the judge to give it permission to shut down Cleanfeed temporarily if it needed to. The judge said that it would only do that if the studios consented or BT obtained a court order.

So, all in all, a great result for the creative industries, but not a particularly good day in court for innocent ISPs.

The 65 requests received in that period covered more than 300 individual items, and came from the UK government and courts. Six of the requests related to videos that raised national security concerns on YouTube, and several other were court orders relating to defamation and privacy.

Details of the requests can be found here.

The draft guidelines require that certain information should be provided to end users by:

-      national regulatory authorities (Ofcom in the UK), which are required by law to ensure that the relevant information is provided;

-      Internet services providers (ISPs), which are required at law to provide the relevant information; and

-      other third parties such as price comparison websites.

The information provided by the above entities should be formed on the basis of a common terminology to avoid end user confusion. The information provided relates to download and upload speeds (that are both actual and advertised), service availability, service quality, usage limitation (including data caps, download limits and fair use policies) and any traffic-management techniques used by ISPs to avoid network congestion.

The guidance is draft only – BEREC has invited comments from interested parties by 2^nd November 2011 – but, once finalised, will be a foundation block for ISPs in relation to how they provide their services.

The ISPs have now been granted permission to appeal by the Court of Appeal. It seemed that the Digital Economy Act was safe following the Court of Appeal’s initial decision to refuse permission to appeal, but this long-running saga now seems to have some more time left to run.

The complaint was that the website had been misleading as it had not set out that the surcharges were not optional in order to make a purchase from the website. It was also argued that the website was misleading in the way it set out VAT on purchases, as the price quoted was with the figure excluding of VAT, whereas in all cases VAT would apply.

The ASA upheld both parts of the complaint, ruling that there had been a breach of the CAP Code in terms of misleading advertising and pricing. The CAP Code is the code of practice aimed at ensuring adverts, including material written on businesses’ own websites and social networking websites, are fair and not misleading. The ASA is a regulator in charge of enforcing the CAP Code.

This issue is increasingly in the public eye. The Office of Fair Trading recently told travel companies to make credit and debit card surcharges clearer on their websites. In addition, the Consumer Rights Directive recently adopted by the European Union requires pricing to be more clearly set out.

Many people may be under the misapprehension that they have until the Consumer Rights Directive is brought into force under English law (likely to be about two years from now) before they have to make all charges clear up front in an online order process. In fact, as this ruling shows, failure to be up front and clear on pricing is already a breach of the CAP Code and the ASA enforces the CAP Code even for something said on an organisation’s own website. Although a breach of the Code does not have legal effect, it can result in bad publicity and an inability to obtain advertising space in the future.

The first report considered how 14 social networking websites had implemented the 2009 agreement. This second report considered nine social networking websites, which included a range of blogging, gaming, file-sharing and personal social-networking functionality, and found that only two of the websites had default settings which made a child’s information visible only to approved contacts; the other websites shared a large amount of that information beyond a child’s approved contacts.

The EC has said that it will take into account the two reports when it undertakes a comprehensive initiative to empower and protect children when using new technologies, which is set to take place later this year.

The European Court of Justice has backed up the French Competition Board’s decision. The ECJ looked specifically at the question of selective distribution networks. It said that establishing those networks are not prohibited by Article 101 if resellers are chosen based on objective criteria, where those criteria are applied uniformly and non-discriminately, where the characteristics of the products need to preserve the quality and ensure proper use, and the criteria only go as far as is necessary. However, provisions within those networks may still end up offending against competition law. The ECJ has not accepted arguments relating to the need to provide individual advice to customers and to ensure their protection against incorrect use of products in the context of non-prescription based products to justify an Internet sales ban. Contract provisions that effectively prohibited Internet sales meant that the benefit of the block exemption did not apply. That said, it would still be for the national court to ascertain whether the contract had an individual exemption, as the failure of an agreement to fall within block exemption parameters does not automatically mean that it will not be found to be individually exempt on other criteria.

It sounds like there’s music left to write on this one.

The CAP Code is a code of practice that seeks to ensure that adverts comply with certain minimum standards. Although the CAP Code does not have legal force, it is best practice to comply with it, as failure to do so can result in bad publicity and ultimately an inability to obtain advertising space.

The ASA’s ruling can be found here: http://www.asa.org.uk/ASA-action/Adjudications/2011/10/DMC-Digital-Ltd/SHP_ADJ_162815.aspx.

The only surprise with these figures is that the increase is not even greater. We have a number of clients who have come to us for advice on compliance with the new rules, and we also know from some instances that the ASA has been pleased to receive and investigate complaints from competitors and customers.

When an ISP advertises “unlimited” services, that term must only be used where a user will not incur an additional charge (or a suspension) for exceeding a specific usage limit. In addition, limitations that affect speed or usage of a service must be “moderate” and clearly explained in the advert.

When advertising the speed of services, ISPs must be able to demonstrate that a particular speed is achievable for a minimum of 10% of customers, and provide sufficient information to ensure that an average user is not misled. In particular, this information should state, where relevant, that a large number of users will not receive the speed advertised.

The guidance comes fully into effect on 1 April 2012 and advertisers should produce any new material with the guidance in mind.

The paper states that the principles of cloud computing, where file and programs are stored effectively on the Internet, must comply with the strictest principles of data protection and privacy. It goes on to argue that a watchdog body should be formed to regulate cloud computing services, with an emphasis on transparency of cloud computing operations.

Interflora, a flower delivery network, operated under CTM and UK-registered trade marks of “INTERFLORA”. Marks & Spencer sold products online, including flowers. Marks & Spencer bought a number of keywords containing the word “INTERFLORA”, and other variations, on Google AdWords – a service provided by the search engine operator Google, where specific adverts appear against certain search terms. When users searched for “INTERFLORA”, a link to Marks & Spencer’s online flower delivery network appeared. Interflora issued proceedings in the High Court against Marks & Spencer for infringement of the Trade Marks Directive.

The High Court adjourned proceedings and referred a number of questions to the European Court of Justice (ECJ). These questions covered what constituted “use” of a registered trade mark by a competitor, what goods and services were considered “identical” for the purposes of the Trade Marks Directive and the Community Trade Mark Regulation, whether such use might lead a consumer to believe the trade mark owner and competitor are part of the same commercial network, and whether Google’s lack of restriction on the use of the trade mark by the competitor affected the application of the Trade Marks Director and the Community Trade Mark Regulation.

The ECJ has now ruled that:

-      A trade mark owner can prevent competitors using the registered mark as a keyword for goods and services identical with those covered by the registration if that use might adversely affect one of the functions of the mark. The ECJ identified three functions. In terms of the original function, use of the registered mark will have an adverse affect on the trade mark’s function of indicating origin if the keyword does not enable a reasonably well-informed and observant Internet user to recognise the identity of the service provider as against the trade mark owner’s identity. As regards the advertising function, the ECJ said that use of the keyword by a third party would not be relevant, even if it caused the trade mark owner to have to spend more advertising money in enhancing its exposure in response to search requests for the trade mark term. The third function was the investment function, which allowed trade mark owners to acquire and preserve a reputation to attract consumers and retain their loyalty; the ECJ ruled that the mere fact that a keyword leads consumers to switch to a competitor does not mean that the investment function is adversely affected.

-      A trade mark owner that has a particular reputation can prevent competitors using the registered mark as a keyword if such use takes unfair advantage of the character or reputation of the mark (known as “free-riding”) or causes detriment to the character (“dilution”) or reputation (“tarnishment”) of the mark. Use of the registered mark as a keyword cannot be prevented by the owner where the advertising offers an alternative to the owner’s goods or services, provided that the alternative is not an imitation of the owner’s goods or services, does not cause dilution or tarnishment and does not adversely affect the functions of the trade mark.

The ECJ’s ruling has added little to the existing jurisprudence. However, one aspect of the ruling might offer new hope to those seeking to prove infringement – the ECJ ruled that a “substantial interference” with the “investment function” of a trade mark (which is seen as the purpose of acquiring and preserving a commercial reputation) is an infringement of that trade mark.

The proceedings will now move back to the High Court for judgment, and it will not be until that judgment is issued that the full effect of the ECJ’s ruling will be seen. The “investment function” aspect may give Interflora an additional argument when the proceedings come back before High Court. However, it seems that the national courts will have to consider the ECJ’s ruling on a case by case basis based on the facts. In addition, given how widespread the use of keywords has become, it may become harder for a trade mark owner to argue that infringement has taken place through use of keywords – most Internet users are aware of the process and know what product they are looking for when they perform a search.

We await the ruling of the High Court to pollenate our thoughts…

It was also reported that the UK came in the top ten, out of 152 countries, for improved broadband access between 2008 and 2010, and that global prices for fixed-line broadband have dropped by 50% globally since 2009. This may come as a surprise to UK customers, who have seen increasingly bad press on broadband speeds and advertising by Internet service providers (see here and here).

In response to the claims, TripAdvisor gave a strong denial and said it would fight. It said it spent thousands of hours each year in combating fraud and improving fraud detection to ensure the integrity of its site and stop “astroturfing” – the practice of falsely creating the impression of strong customer support for a product or service.

According to Acas, almost six out of 10 workers now use social media at work, either on their computers or their mobile phones. However, whilst some employers encourage their employees to use social media for business development and marketing during work time (and others ban it altogether), many employers are naturally concerned that workers may be spending too much of their working day looking at personal-interest webpages, ‘tweeting’ or blogging; and it would appear that these concerns are well-founded, as Acas claims such behaviour costs the UK economy up to £14bn per year. However, despite these concerns, research has found that fewer than one in ten employers actually have a social media policy.

Through this new guide, Acas aims to provide guidance to employers about what they should be doing in regard to social media. The guide is split into the following areas:

1. Managing performance;

2. Recruitment;

3. Discipline and grievances;

4. Bullying; and

5. Defamation, data protection and privacy.

Acas recommends that employers should consult with staff and trade unions, and make it clear what employees can and can’t do when using the internet and social media (including the consequences of breaching its social media policy.)

The use of social media presents both risks and opportunities for companies. As well as a loss of productivity in the workplace, legal liabilities can arise from the use of social media – for example, discriminatory online comments made by one employee about another, leaks of confidential company information, the use of online information when recruiting new employees, data protection, and loss of company reputation.

With the use of social media still growing rapidly, employers must ensure that they act within the law and do not leave themselves open to a claim. An effective workplace social media policy is the first step.

If you would like any advice on this issue, or anything else employment-related, please contact our head of employment, Michael Delaney at michael.delaney@mablaw.com.

The ICO has now completed the audit and has said that Google has taken ‘reasonable steps’ to improve its privacy policies and that it has taken action in all the areas in which it had agreed to do so. The ICO has now asked Google to continue its improvements and to better inform its users of its privacy policies.

The Government commissioned Ofcom to produce a report on how effectively the website-blocking provisions of the DEA could be enforced. The report considered:

-          the technical means available of blocking websites, which it concluded could not be 100% effective and could be widely avoided; and

-          how effective the DEA could be when compared to section 97A of the Copyright Designs and Patents Act 1988 (CDPA), under which an ISP’s actual knowledge of copyright infringement using its network could be grounds for the granting of an injunction by the courts. The report concluded that the DEA method would be slow, expensive and uncertain when compared to the CDPA route.

The Ofcom report concludes that any DEA system would be ineffective, and that website blocking should be only one of a number of alternatives to reducing copyright infringement online. The Government’s announcement follows a recent case considered by the High Court in which BT was ordered to block a copyright infringing website known as Newzbin 2 under the provisions of section 97A of the CDPA. Following the ruling, some questioned whether the relevant sections of the DEA are actually necessary – the courts seem capable of dealing with the issue of blocking on a case-by-case basis under the CDPA.

Whilst the section 97A method can also be long and expensive, the Newzbin ruling shows that the method is a realistic option. When compared with the DEA, its requirements are also much easier to understand and invoke – the CDPA requires the demonstration of actual knowledge on the part of an ISP that its network is being used for copyright infringing activities. The DEA, on the other hand, has a number of requirements, including having evidence of the amount and type of material available, as well as the need to show that, before a website can be blocked, the operator of the website as well as the ISP has been warned of the possible consequences of the infringing activity.

The recommendations of the Hargreaves Report that have been accepted are:

-          to create a digital market place where copyright licences can be traded (a “Digital Copyright Exchange”);

-          to allow an exception from copyright infringement for limited private copying, such as copying from a legally purchased CD onto a computer or portable device;

-          to allow an exception from copyright infringement for parodies of other people’s work without first having to obtain the owner’s consent;

-          to allow an exception from copyright infringement for search and analysis techniques known as ‘text and data mining’, which is currently illegal despite its benefits to medical and other science and for which advanced technology exists;

-          to establish licensing and clearance procedures for orphan works (copyright works for which the owner is not known); and

-          to review the role of the Intellectual Property Office.

At the same time, the Government has announced:

-          a new enforcement programme to protect intellectual property rights, which will be further investigated before any specific legislative measures are taken;

-          a notification system to inform Internet users of copyright issues and how to avoid illegal and pirated content; and

-          a five year international strategy to improve the efficiency and effectiveness of the international intellectual property system.

The Government has accepted the Hargreaves Report almost in its entirety, which is a refreshing response for an industry that for so long seems to have been desperate for reform. The reforms to copyright are intended to ensure that the law reflects reality, and for a consumer wanting to move music they have legally bought in the form of a CD onto their iPod, this is a huge step. However, it is the package as a whole which impresses – a Digital Copyright Exchange, a licensing system for orphan works, and reviews of enforcement and international strategies – whilst giving the Government a lot to be getting on with, suggests that intellectual property law in the UK is getting the facelift that many have been demanding for a long time.