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.

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.

I am not saying that the legal profession should be above genuine criticism, but it has to be true. Policing a site like this and establishing its truth cannot be easy. And who better to take on and see whether they will sue for defamation than a lawyer.

The site has already had defamation claims before. But now it is facing the full might of the profession as The Law Society – the body representing solicitors in England and Wales – has announced that it is suing for defamation. It claims that the site has no system for substantiating any of the negative comments.

• Continued push for a single European Union patent system.
• Modernisation of the European Community Trade Mark system. This would include speeding up the registration procedure and increasing certainty over what constitutes a registrable trade mark.
• Creating a comprehensive framework for copyright in the digital single market. That would include multi-territorial collective management of copyright so that there would be online copyright licensing. There would also be a consultation on user-generated content to see if there should be more freedom for amateur producers of non-commercial film to be exempt when incorporating other copyright works. In addition, the Commission said it would propose a Directive on permitted uses of orphan works, and it actually proposed the Directive this at the same time as the strategy document.
• Replacement of the Customs Regulation to strengthen enforcement of intellectual property rights. As with the orphan works proposal, this was also introduced at the same time as the publication of the strategy.

For more on the strategy, click here: http://ec.europa.eu/commission_2010-2014/barnier/headlines/news/2011/05/20110524_en.htm.

In a statement, the OFT said that similar action would be taken against other websites, blogs and microblogs such as Twitter users. Consumers must ultimately be protected from misleading practices, and it must be clear when online content and advertising has been paid for. Online promotional activity would not be treated differently to other marketing.

It should also be noted that the OFT considers non-monetary payment in kind (such as free products) to be treated in the same way as payments. Further, traders who pretend to be consumers when writing website reviews would also be considered to be acting unfairly.

The OFT’s press release can be found here: http://www.oft.gov.uk/news-and-updates/press/2010/134-10.

The US District Court for the Southern District of New York disagreed with Viacom. District Judge Louis Stanton said: ‘Mere knowledge of prevalence of such activity in general is not enough. The provider need not monitor or seek out facts indicating such activity.’ As such, Google was entitled to the safe harbour protection as it had had insufficient notice of any particular infringements. The ruling said that the case showed how well Google’s take-down facility worked, because Viacom had accumulated 100,000 videos over several months and nearly all of them were disabled the day after Viacom had notified Google of them. Responsibility to find and identify infringing material was the copyright holder’s and not the online service provider’s.

Google has described the victory as important not just for itself but also its millions of users around the world who want to enjoy the benefits that Web 2.0 brings.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘Although this ruling is not binding on English courts, it is of great concern that any court anywhere in the European Union could have come to this decision. If not successfully appealed, it could change the Web 2.0 as we know it and make anyone more cautious if they are involved with acting as a mere host or intermediary of content supplied by other people. The fact that there is criminal liability is even more concerning – it’s one thing risking being sued; it’s another if people at a responsible business risk jail terms.’