Data protection has, at least in western Europe, been seen as a key element of the legal response to the issue of information surveillance. Dating back to the 1970s and 1980s, many data protection laws are, as is the case in the UK, in their 3rd generation of statutes. The scope (and length) of these statutes has expanded significantly although the core data protection principles have remained essentially unaltered. In addition to developments within the EU there have been data protection initiatives within international fora such as the Council of Europe, the Organisation for Economic Cooperation and Development (OECD), the UN, and the Asia-Pacific Privacy Charter initiative. As with early UK developments where commercial pressure driven by the need to guarantee the free movement of data to and from the UK played a major role in the introduction of the first statute – the Data Protection Act 1984 – so commercial factors are once again at play with multi-national companies tending to argue that it is easier for them to comply with a global set of data protection rules – even though restrictive of their commercial freedom, than to have to comply with different rules in every country in which they do business.
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2. The beginnings of data protection
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15. Brand identities, search engines, and secondary markets
This chapter examines brand identities, search engines, and secondary markets and their operation in the information society. It considers jurisdiction and online trademark disputes, as well as search engine optimization and the role of Google and the impact of its search engine services on brand profile and market presence. The chapter goes on to examine secondary markets and the liability of sellers of counterfeit products for the abuse of trademarks. The chapter concludes with a summary of the changing nature of online branding and the diminishing impact of domain names to cement brand identity, as well as the growing influence of developments to web browser functionality on consumer behaviour.
Chapter
15. Brand identities, search engines, and secondary markets
This chapter examines brand identities, search engines, and secondary markets and their operation in the information society. It considers jurisdiction and online trade mark disputes, as well as search engine optimization and the role of Google and the impact of its search engine services on brand profile and market presence. The chapter goes on to examine secondary markets and the liability of sellers of counterfeit products for the abuse of trade marks. The chapter concludes with a summary of the changing nature of online branding and the diminishing impact of domain names to cement brand identity, as well as the growing influence of developments to web browser functionality on consumer behaviour.
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14. Branding, trade marks, and domain names
This chapter examines the role of trade marks in the creation of brand portfolios online, including internet addresses or domain names. It first provides an overview of branding and trade marks in the global business environment, trade mark characteristics, and the distinction between registered and unregistered trade marks, and then looks at domain names as address tools and brand identifiers. The chapter also considers early disputes over rightful ownership of trade marks and domain names, examining the development of cybersquatting case law before the UK and US courts. It discusses the allocation of new generic top-level domains under the New gTLD procedure and examines the legal safeguards for trade mark holders under the procedure. The primary focus of the chapter is the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Domain Name Dispute Resolution Policy and its domestic counterpart in the UK, the Nominet Dispute Resolution Service.
Chapter
14. Branding, trademarks, and domain names
This chapter examines the role of trademarks in the creation of brand portfolios online, including internet addresses or domain names. It first provides an overview of branding and trademarks in the global business environment, trademark characteristics, and the distinction between registered and unregistered trademarks, and then looks at domain names as address tools and brand identifiers. The chapter also considers early disputes over rightful ownership of trademarks and domain names, examining the development of cybersquatting case law before the UK and US courts. It discusses the allocation of new generic top-level domains under the New gTLD procedure and examines the legal safeguards for trademark holders under the procedure. The primary focus of the chapter is the Internet Corporation for Assigned Names and Numbers (ICANN) Uniform Domain Name Dispute Resolution Policy and its domestic counterpart in the UK, the Nominet Dispute Resolution Service.
Chapter
19. Computer misuse
This chapter examines computer misuse, a collective term for a number of criminal offences committed by means of a computer, often through access to the internet, including computer hacking (unauthorized access), denial-of-service attacks, and the creation and distribution of computer viruses and other malware. It first discusses hacking, focusing on employee hackers and external hackers, and then looks at the political debate surrounding the UK’s Computer Misuse Act 1990, and extradition centred on the cases of hackers Gary McKinnon and Laurie Love. The chapter also considers ‘digital criminal damage’ associated with the creation and distribution of computer viruses, along with cases of web defacement and mail-bombing.
Chapter
19. Computer misuse
This chapter examines computer misuse, a collective term for a number of criminal offences committed by means of a computer, often through access to the internet, including computer hacking (unauthorized access), denial of service attacks, and the creation and distribution of computer viruses and other malware. It first discusses hacking, focusing on employee hackers and external hackers, and then looks at the political debate surrounding the UK’s Computer Misuse Act 1990, and extradition centred on the cases of hackers Gary McKinnon and Laurie Love. The chapter also considers ‘digital criminal damage’ associated with the creation and distribution of computer viruses, along with cases of web defacement and mail-bombing.
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18. Consumer protection
This chapter examines how consumers are protected when they go online. It examines the extensive protections offered by the Consumer Rights Directive to distance agreements (including online agreements). The rules on jurisdiction, choice of law, and enforcement are examined alongside what rights the consumer has to receive information and to cancel contracts agreed at a distance. In addition, this chapter examines the suite of rights created by the Consumer Rights Act 2015 and, in particular, the new provisions therein which digital content (including software, apps, and in-game content among others). The chapter continues with a discussion of the regulation of unsolicited commercial communications or spam, including a discussion of the Directive on Privacy and Electronic Communications, GDPr, and the proposed ePrivacy Regulation. The chapter concludes with a discussion of the proposed online sales and Digital Content Directives.
Chapter
18. Consumer protection
This chapter examines how consumers are protected when they go online. It examines the extensive protections offered by the Consumer Rights Directive to distance agreements (including online agreements). The rules on jurisdiction, choice of law, and enforcement are examined alongside what rights the consumer has to receive information and to cancel contracts agreed at a distance. In addition, this chapter examines the suite of rights created by the Consumer Rights Act 2015 and in particular the new provisions therein which digital content (including software, apps, and in-game content among others). The chapter continues with a discussion of the regulation of unsolicited commercial communications or spam including a discussion of the Directive on Privacy and Electronic Communications, GDPR, and the proposed ePrivacy Regulation. The chapter accounts for changes in the legal framework caused by Brexit.
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24. Contractual issues
Any product can have defects – or at least fail to meet the expectations of a purchaser. A range of statutory provisions confer rights on a party acquiring goods if these are not of satisfactory quality. Software and what is referred to as “digital content” is covered by these provisions although their application gives rise to a number of difficulties. Unlike most physical products where defects will be found in one or a small number of the items, every digital work will be an exact copy of the original. If one product is considered faulty, the same fate may await all of the others. In most instances software is licenced rather than sold. It is commonplace for a licence to seek to restrict or exclude liabilities that might otherwise arise. The question may then be whether the terms of the licence are enforceable. In many instances they may be brought to the customer’s attention after the contract for supply has been concluded. The use of “click-wrap” licences where a user has to click on a box indication acceptance of contractual terms prior to using the software may assist but questions of time will again be very significant.
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11. Copyright in the digital environment
This chapter examines copyright issues from copying and distributing information from the internet. It considers the discussion focuses on how the internet has challenged the application and development of copyright law, considering web-copyright concerns such as linking, caching, and aggregating, citing Google Inc. v Copiepresse SCRL. It spends considerable time discussing the operation of the temporary eproduction right though key cases Infopaq International, and Public Relations Consultants Association v Newspaper Licensing Agency. The analysis then moves on to examine the communication to the public right created by the Copyright and Related Rights in the Information Society Directive, examining the application of the right through key cases such as Nils Svensson v Retriever Sverige, GS Media v Sanoma Media, and Stichting Brein v Ziggo BV.
Chapter
11. Copyright in the digital environment
This chapter examines copyright issues arising from copying and distributing information on the internet. The discussion focuses on how the internet has challenged the application and development of copyright law, considering web-copyright concerns such as linking, caching, and aggregating, citing Google Inc. v Copiepresse SCRL. It spends considerable time discussing the operation of the temporary reproduction right through key cases Infopaq International and Public Relations Consultants Association v Newspaper Licensing Agency. The analysis then moves on to examine the communication to the public right created by the Copyright and Related Rights in the Information Society Directive examining the application of the right through key cases such as Nils Svensson v Retriever Sverige, Stichting Brein v Ziggo BV, VG Bild-Kunst v Stiftung and Tunein Inc. v Warner Music. It concludes with a discussion of the newly enacted Copyright in the Digital Single Market Directive.
Chapter
12. Copyright infringement in the digital environment
This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (the Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s. 97A website blocking orders. It examines the recent Supreme Court decision in Cartier International v British Sky Broadcasting which will have substantial implications for costs in these orders. Finally, it describes the slightly controversial process known as speculative invoicing.
Chapter
12. Copyright infringement in the digital environment
This chapter analyses cases of copyright infringement in the online environment. It begins by analysing some early cases regarding file-sharing technologies, including A&M Records, Inc. v Napster, Inc., MGM Studios, Inc. v Grokster, Ltd, and Sweden v Neij et al. (The Pirate Bay case). It assesses new techniques for fighting illegal file-sharing, such as blocking access to websites offering file-sharing technology or indexes with a focus on the operation of s.97A website blocking orders. It examines the Supreme Court decision in Cartier International v British Sky Broadcasting and its application in the Nintendo cases Nintendo Co Ltd v Sky UK Ltd and Nintendo Co Ltd v British Telecommunications Plc. Finally, it describes the slightly controversial process known as speculative invoicing and examines the recent case of Mircom International v Virgin Media.
Chapter
16. Copyright protection
This chapter discusses protection under the law of copyright. Topics covered include copyright basics; obtaining copyright; forms of protected work; the requirement of originality; copyright ownership; copyright infringement; the nature of copying; other rights belonging to the copyright owner; the development of software copyright; and literal and non-literal copying. The law of copyright is perhaps the major branch of intellectual property law relevant to computer software. Virtually every piece of software will be protected by copyright. The main issue concerns the extent of the protection that is offered. Computer programs are generally protected as literary works. This was appropriate in the early days where computers performed essentially functional tasks – often associated with mathematical calculations. It is arguable that modern software, which often makes extensive use of graphical images, is more akin to an artistic work than a literary one. Regardless of categorization, the courts in the United Kingdom have applied a narrow interpretation of the scope of copyright. Reproduction of the underlying code will be unlawful but replication through independent work of the effects produced by the code (often referred to a non-literal copying) will not.
Chapter
21. Crime and law enforcement in the information society
This chapter examines cybercrimes, cyberattacks such as denial-of-service attacks, and law enforcement in the information society. It looks at advance fee fraud, internationally known as ‘419 Fraud’ with reference to Nigeria; as well as the ‘Russian Scam’ that targets the users of online dating sites. It also examines other criminal activities common on the internet, such as privacy attacks, including phishing which illegally appropriates personal data; harassment; cyberstalking; and grooming, and also considers identity theft and identity fraud, as well as cyberterrorism. The chapter presents case studies dealing with cybercrimes, and, finally, it discusses the efforts of the Council of Europe Convention on Cybercrime to harmonize international cybercrime laws.
Chapter
21. Crime and law enforcement in the information society
This chapter examines cybercrimes, cyber-attacks such as denial of service attacks, and law enforcement in the information society. It looks at advance-fee fraud, internationally known as ‘419 Fraud’ with reference to Nigeria; as well as the ‘Russian Scam’ that targets the users of online dating sites. It also examines other criminal activities common on the internet, such as privacy attacks including phishing which illegally appropriates personal data, harassment, cyber-stalking, and grooming, and also considers identity theft and identity fraud, as well as cyberterrorism. The chapter presents case studies dealing with cybercrimes, and, finally, it discusses the efforts of the Council of Europe Convention on Cybercrime to harmonize international cybercrime laws.
Chapter
5. Cyber-speech
This chapter examines cyber-speech and its implications for free expression. It first provides an overview of the technologies involved, from simple systems such as web pages and internet forums to social media platforms (SMPs) such as blogs, social media platforms, and media-sharing sites. The chapter then highlights the social implications of the shift in power from centralized media organizations to decentralized ‘citizen journalism’. It also considers the responsibilities that citizens owe to each other in this environment and how regulators may balance freedom of expression with social responsibility. To determine whose values predominate when regulating a global media tool which does not recognize traditional borders, the chapter presents three particular case studies: political speech, hate speech, and commercial speech.
Chapter
5. Cyber-speech
This chapter examines cyber-speech and its implications for free expression. It first provides an overview of the technologies involved, from simple systems such as web pages, blogs, and internet fora to social media platforms (SMPs), and media-sharing sites. The chapter then highlights the social implications of the shift in power from centralized media organizations to users. It also considers the responsibilities that users owe to each other in this environment and how regulators may balance freedom of expression with social responsibility. To determine whose values predominate when regulating a global media tool which does not recognize traditional borders, the chapter presents two case studies: political speech and hate speech.
Chapter
5. The data protection principles
The notion that data controllers should comply with a set of general data protection principles has been a feature of data protection statutes from the earliest days. As well as imposing obligations on controllers, the principles also confer rights – most notably relating to subject access on data subjects. This chapter will consider the scope and extent of the principles paying particular attention to the requirement that personal data be processed fairly and lawfully. A topic of more recent interest relates to the length of time for which data may be held and made available to third parties. Often referred to as involving the “right to be forgotten”, this is especially relevant to the operation of search engines which make it easy for users to find news stories what would have passed into obscurity in previous eras. The chapter considers also at the operation of the principle requiring users to adopt appropriate security measures against unauthorized access, a topic which is of particular relevance given recent and well publicised large-scale cyber-attacks.
