Digital content and media - a legal update

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Osborne Clarke will give an overview of how the upcoming Consumer Rights Directive and Consumer Rights Bill will impact on digital content businesses, and some of the practical implications of this. They look at recent legal cases in digital media involving Facebook, Twitter and Google; dealing with people who hide their identities online; removing offensive content and user generated content, liability of website operators and the new Defamation Act

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Digital content and media - a legal update

  1. 1. Digital Content and Media – A Legal Update Ben Holt, Associate Director Tom Harding, Senior Associate
  2. 2. osborneclarke.com The next 45 minutes • Digital content – key regulatory issues • Digital media – key issues and updates 1
  3. 3. osborneclarke.com • Consumer Rights Directive (CRD) – key issues vs • Consumer Rights Bill (CRB) – key issues 2
  4. 4. osborneclarke.com Digital Content – definition 'Data which are produced and supplied in digital form' 3
  5. 5. osborneclarke.com CRD – key issues 1. Digital content – the right of withdrawal Current position Position to be introduced by the Regulations Cooling off period is currently 7 working days (Regs. 11 and 12). Reg 29 – cooling off period is extended to 14 calendar days from the conclusion of the digital content contract. 4
  6. 6. osborneclarke.com CRD – key issues 2. Digital content – excluding the right of withdrawal Current position Position to be introduced by the Regulations Digital content not specifically addressed - typically regarded and treated as 'services' (OFT Guidance). • Reg 36 – trader must not supply digital content unless a consumer gives 'express consent' to performance during the withdrawal period, acknowledges that the right to withdraw will be lost, and the trader has confirmed this – if so, consumer ceases to have withdrawal right. • Reg 36 – a consumer bears no cost for digital content supplied in the withdrawal period if they then wish to cancel during that period if consent to performance and acknowledgement of loss of withdrawal right has not been obtained and/or confirmed to them on a durable medium. 5
  7. 7. osborneclarke.com CRD – key issues 3. Digital content – specific disclosure requirements Current position Position to be introduced by the Regulations Digital content not specifically addressed. Reg 13 and Schedule 2 - info requirements must be made available as to 'functionality', 'technical protection measures' and 'relevant compatibility'. 6
  8. 8. osborneclarke.com CRD – key issues 4. Additional disclosure before payment Current position Position to be introduced by the Regulations Not currently addressed. Reg 14 – for electronic distance contracts with an obligation to pay, the trader must make the consumer aware in a 'clear and prominent manner' and 'directly before' an order is placed the cost/main characteristics/delivery charges of the goods/services (amongst other info). 7
  9. 9. osborneclarke.com CRD – key issues 5. Express consent of any obligation to pay Current position Position to be introduced by the Regulations Express consent to pay is not currently a requirement. Reg 14 – the trader must ensure that the consumer 'explicitly acknowledges' any obligation to pay, and where there is an order button label this with 'order with obligation to pay''. Non-compliance means the consumer is 'not bound'. 8
  10. 10. osborneclarke.com CRB – key issues 6. CRB – how it applies to digital content • Rights and remedies apply to digital content which is: – paid for; or – free with paid for goods, services or digital content. • "Paid for" includes payment facilities (e.g. virtual currency which is paid for). • Exception: Device / content damage. • Bill reserves the right to extend the scope 9
  11. 11. osborneclarke.com CRB – key issues 7. Key consumer rights re digital content Position under CRB The content must be of satisfactory quality. The content must be fit for a particular purpose. The content must be as described by the trader to the consumer. Digital content must comply with pre-contractual information provided under CRD. Quality rights apply to upgrades and updates. The trader must have the right to provide the content. Goods will not conform to the contract if embedded digital content does not conform. In this situation goods remedies will apply. Interactive digital content must be available for a reasonable period of time. 10
  12. 12. osborneclarke.com CRB – key issues 8. Key consumers remedies re digital content • The following remedies are available to consumers: 11
  13. 13. osborneclarke.com CRB – key issues 9. The Bill addresses updates / upgrades • Modified content: – The Bill does not prevent traders from modifying content as long as this is provided for in ts & cs. – Modified content must meet the quality rights. 12
  14. 14. osborneclarke.com CRB – key issues 10. The Bill addresses device / content damage • Device / Content damage: • If digital content (free or paid for): – damages a consumer's device or digital content; and – damage would not have occurred if trader had exercised reasonable care and skill, the consumer is entitled to compensation. 13
  15. 15. osborneclarke.com What I'll be covering • Recent case law in digital media • Uncovering hidden identities • Getting offensive material removed • User generated content and liability of host 14
  16. 16. osborneclarke.com Brookes v Facebook •„Keep your chin up, Frankie, they‟ll move on to someone else soon.‟ •Norwich Pharmacal •“Lawyers, like vultures, have been waiting for this moment. Welcome to their beanfeast” •Nothing new? 15
  17. 17. osborneclarke.com McAlpine v Bercow [2013] EWHC 1342 (QB) • "[The] ruling should be seen as a warning to all social media users." • Tweet 1:"Why is Lord McAlpine trending? *Innocent face*" • Tweet 2: “Final on McAlpine: am VERY sorry for inadvertently fanning the flames. But I tweet as me, forgetting that to some of u I am Mrs bloody Speaker”. • Mr Justice Tugenhadt: "…insincere and ironical..."? • 16
  18. 18. osborneclarke.com Rugby Football Union v Consolidated Information Services Ltd (formerly Viagogo Ltd) [2012] UKSC 55 Lord Kerr: “An “intense focus” on the rights being claimed in individual cases does not lead to the conclusion that the individuals who will be affected by the grant of the order will have been unfairly or oppressively treated. On the contrary, all that will be revealed is the identity of those who have, apparently, engaged in the sale and purchase of tickets in stark breach of the terms on which those tickets have been supplied by the RFU.” 17
  19. 19. osborneclarke.com Tamiz v Google Inc [2013] EWCA Civ 68 •An "unassailable defence"? •Google = publisher? •The owner of a wall “festooned with defamatory graffiti” or of a golf club notice board? •Different outcome if served in jurisdiction? 18
  20. 20. osborneclarke.com Scenarios Issues • Defamation • Intellectual Property • Cyber-squatting • Unlawful Trading • Breach of Restrictive Covenants • Harassment • Impersonation / identity theft • Other breaches 19
  21. 21. osborneclarke.com Scenarios Common Media • Internet Forums • Social Networking Sites • Bespoke Websites • User Generated Content 20
  22. 22. osborneclarke.com Identifying the Author • The Website • Whois • Other footprints • Legal Options: – CPR 31.16: Pre-action disclosure – CPR 31.17: Third-party disclosure – CPR 31.18: Norwich Pharmacal Co. v Customs and Excise Commissioners [1974] AC 133 • Costs • Russian Dolls 21
  23. 23. osborneclarke.com Removing • Host / ISP / Website operator – Report abuse – Godfrey v Demon Internet Service [2001] QB 201 – Lawyer’s letter / Infringement or "take down" notice • Author – Injunction? • Nominet – Dispute resolution service 22
  24. 24. osborneclarke.com User Generated Content • Secondary publisher / innocent dissemination • "Pub Talk": Sheffield Wednesday v Hargreaves [2007] EWHC 2375 (QB) • Defamation Act 2013: new website operator’s defence • Supporting free speech or risk averse? 23
  25. 25. osborneclarke.com Any questions? Ben Holt Associate Director Commercial Litigation Tom Harding Senior Associate Media T +44 117 917 3596 ben.holt@osborneclarke.com T +44 117 917 3060 tom.harding@osborneclarke.com

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