Another Facebook row...

The Facebook row this week has been a very well documented one. Facebook changed its terms of service earlier this week. The new terms in essence gave to Facebook wider control over its use, storage and dissemination of the personal data of its users. The change was met with a general outcry from its users (who formed a group on Facebook called "People against the new terms of service" which had over 90, 000 members within a day) and privacy watchdogs (e.g. Electronic Private Information Centre). Facebook initially resisted the complaints but eventually reverted to its old terms of service, whislt considering the nature of the complaints raised.

The danger with online communities being regulated by such contractual arrangements as terms of service is that such system of governance does not have the usual checks (e.g. fairness, proportionality, transparency etc) which are present in centralised governance system (e.g. law). However, most online communities are regulated by such contracts to which the user has to agree before being able to become a member of the community. In most cases, the user agrees to these terms without being aware of the nature of the terms they are agreeing to. The rapid upsurge in such systems of decentralised governance in online communities raises significant issues of legality (e.g. unfair terms, lack of notice etc) and privacy (e.g. user agreeing terms authorising data processors to process their personal data in any way they see fit). It is vital for the survival of online communities for such concerns to be addressed by a system of governance which follows the principle of the rule of law and due process.

A case against Google Street Map? Or a case of DIY?

Many avid followers and readers of CyberPanda have complained about the lack of posts recently. So after a period of (unwanted and involuntary!) silence due to having only 12 hours in a day (how is a doctoral student suppose to stumble on a good idea with only 12 hours in a day!!), CyberPanda is back and will try to maintain more regular posts!

Some breaking news all the way from the Silicon Valley, where the US Courts have dismissed a case against Google Street View. The Plaintiffs sued Google Street View on various grounds including breach privacy and tresspass, following the publication of photos of their home by the mapping program. The Courts took the view that the Plaintiffs did not successfully prove their case in this instance. A factor that weighed heavily against the Plaintiffs was the fact that they did not take advantage of the self-help remedy that was available to them, namely, removing the photos from Google Street View. This is an interesting ruling which seems to judicial endorse the use of technological measures (as removal tools) as self-help measures for the protection of privacy interests in cyberspace. Hence it may be the case that net users will not have actionable causes of actions if they fail to use available self-help remedies. It would be interesting to see what the position would have been, had the Claimants availed themselves of the self-help remedy and still claimed damages for invasion of privacy.

Facebook: a new way to serve court notices?

The Times newspaper has reported a recent Australian case which has been making legal history in Australia on the issue of methods of service of court notices. The supreme court judge of the Australia Capital Territory has ruled that court notices served via Facebook are binding. The case is in stark contrast to a previous Australian ruling (by a district judge in Queensland) that service of legal documents via Facebook was not effective service as the Claimant failed to attempt to serve the documents via the methods provided by law (e.g. post).

This surprising ruling seems to turn very much on the facts of the case: the lawyers of the Claimant attempted to serve the court notice to the Defendants personally on several occasions, in compliance with the provisions of the law. However, they were unable to physically locate the Defendants.

The lawyer of the Claimant tracked down the Defendants on Facebook by searching for their email addresses (which the Defendants communicated to the Claimants earlier on) and date of birth. The judge accepted the argument advanced by the Claimant that this was indeed a lawful method of service despite not being the conventional one.

CyberPanda thinks that this is a very controversial ruling which raises a number of questions including privacy and legitimacy of notices served via online social communities as Facebook. CyberPanda is very doubtful that this ruling will have an impact in the UK: the Civil Procedures Rules in the UK have strict provisions as to the acceptable methods of serving legal documents on parties to a case and it is very difficult to see the rationale for expanding the scope of the existing rules to include online social communities. This case is setting a very dangerous precedent and CyberPanda will not be surprised if this ruling is distinguished (factually) in subsequent cases.

Guess which games made it to the Top 10 piracy charts.

TorrentFreak has released the much awaited piracy chart which list the ten most pirated video games in 2008. CyberPanda is not very surprised that Spore tops the piracy charts. The number of illegal dowloads of game is reported to be in the region of 1.7 million. The high level of piracy has been linked by many commentators to the DRM associated with Spore: initially users of Spore could only activate the game three times after its installation. Although the DRM associated with Spore has now been amended to allow users to install the game as much as they like, this has not reduced the level of piracy.

This is a very interesting point and one wonders whether the lack of correlation between the new DRM and the level of piracy is due to customer alienation (due to original DRM) or whether it is symptomatic of a bigger phenomenon, namely that the technology on its own is not enough to combat piracy. CyberPanda leans more towards the latter. Many cyber-regulatory scholars have also toll the bells of the demise of law as a tool of control online and have argued that the 'code' or technology is the key to controlling values traditionally protected by law (e.g. intellectual property right). As this case shows, the situation is hardly as simple as that and one is very far from a cyber-landscape where code is key to control.

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Sequel to Wilson v Yahoo UK Ltd & Anor.

The attention of CyberPanda has been caught by the recent lawsuit filed by Interflora against Marks & Spencer and Flowers Direct Online. Interflora has filed the lawsuit against the two defendants on the ground on trademark infringement. The two defendants have purchased certain keywords from Google AdWords including 'interflora' which means that each time a user searches for the term 'interflora', it is directed to the sponsored links to the website of Marks and Spencer and Flowers Direct.

The lawsuit is reminiscent of the recent case of Wilson v. Yahoo! UK Ltd & Anor [2008] EWHC 361 (Ch) which was dimissed by the High Court earlier this year on the grounds that pruchase of the keywords 'Mr Spicy' by Yahoo! did not infringe the rights of the owner of the trademark 'Mr Spicy.' This case was covered in detail by CyberPanda in an earlier publication.

It will be interesting to see whether the Courts will adopt a similar line taken by the High Court in Wilson v. Yahoo or whether this present case will be distinguished from Wilson. The present case has the potential of being a landmark hearing if it is distinguished from Wilson on either a factual or doctrinal ground.

The first 'cyber-bullying' hearing in the US.

BBC New Technology has reported the start of the much awaited MySpace 'cyber-bullying' hearing in the US. The facts of the case are very much well known to all by now and have been covered by CyberPanda in earlier posts. The Defendant has been charged with conspiracy and unlawful access to protected computers under the Computer Fraud and Abuse Act. The act has traditionally been used to prosecute computers hackers. It has been applied in this instance as it is the only statute which deals , in the broadest sense, with the alleged acts of the Defendant.

The case presents a strong element of biais on the part of members of the jury as the facts of the case have been widely publicised in the media in the US and overseas. The element of prejudice will have to be carefully dealt with by the judge so as to ensure that members of the jury are aware of the nature of the charge in this case, namely unlawful access to protected computer rather than the charge of unlawful killing.

Beyond the element of biais (and the balancing act needed to deal with it), this hearing is a significant one as it is the first time that this statute has been applied to acts committed on social networking sites. The case also forms part of the series of cases which are emerging across the globe (e.g. the virtual killing of a life partner covered in an earlier post, which demonstrate that online acts in virtual communities do have an impact (even if only in the shape of a legal consequence) in the offline world.

The trial has been acknowledged as the first time the federal statute on accessing protected computers has been used in a social networking case.

If you are a service provider, you better have a phone number!

Outlaw has recently commented on the ruling of the European Court of Justice ('ECJ') in the case of Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV v deutsche internet versicherung AG.

The Plaintiff sued the Defendants on the ground that the latter did not provide its phone number to its potential customers before the conclusion of a commercial transaction. DIV did give policy buyers the phone number, but only after the conclusion of a contract.

The case was refered to the ECJ for a preliminary ruling on the interpretation of Article 5(1) of the E-Commerce Directive which provides that:

‘1. In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information:
(a) the name of the service provider;
(b) the geographic address at which the service provider is established;
(c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner;
…’

The ECJ was asked to adjudicate on whether Article 5(1) required websites which fell within the ambit of the Directive to provide any other additional means of contact other than their postal and emal address.

The ECJ ruled that companies have a duty to provide a means of contact on their websites in addition to their postal and email addresses. The ECJ further ruled that an acceptable means of contact includes a telephone number or a contact form that is answered within an hour.

This ruling will have a wide ranging commercial impact as it will force service providers to put in place a more advanced system to communicate with their customers than they currently do. This will have considerable financial impact on the business model of those providers.

A possible sentence of 5 years for breaking, entering and killing a 'virtual' husband.

For those of us who still believe that actions on MMORPGs can never carry any repercussions in the offline world, the recent imprisonment of a Japanese woman who killed her 'virtual husband' online, should make us think twice.

The game in question, Maplestory, allows its players to participate in a number of games as well as social activities/relationships including marriage through avatars. The lady in question was virtually married to another player (who was not her husband in real life and lived 1000 km away from her). She was apparently angry when she discovered that her 'virtual' husband divorced her without informing her of the matter. She allegedly illegally accessed the log-in details of her 'virutal husband' and killed off his character.

According to BBC News, if the lady is charged and convicted, she is likely to face up to five years in prison and a fine of up to $5, 000. The BBC also reports that the lady has been imprisoned in a jail situated in the town of her 'virtual' husband.

On a technical plane, it would be interesting to find out how she was able to access his log-in details.

The legal issues posed by this case are even more interesting. Is the sentence in question proportionate to the crime? How is proportionality decided? Is the imposition of the sentence legitimate if the players are not aware of the possible consequences of their actions before / at the time they agree to take part in the game? Finally why does the town of the 'virtual' husband have jurisdiction over the matter? This case presents an interesting insight into the problems of legitimacy raised by the application of certain offline rules to virtual actions.

One step closer to an Orwellian world.

What is the Government`s answer to the growing and multifold use of internet and mobile phones: a central database of the traffic generated by both technologies!! The Government justifies its proposal on the premise of 'keeping up' with new technologies. CyberPanda is shocked at this very weak and unpersuasive rationale for such a drastic proposal which is very much reminiscent of Big Brother watching you. Under the current proposal, the information about internet/mobile traffic will be kept for two years and will very likely be held centrally on a searchable database.

The Home Secretary, who unveiled the new proposal today, used all the right terminology: terrorism, sex abuse, murder, drugs trafficking to justify this unprecedented step. The loaded terminology used should not detract one away from the fact that the proposal is very much a threat against the privacy and freedom of expression of net/mobile users. There will be an opportunity for consultation before these proposals are incorporated in the upcoming Communications Data Bill. It remains to be seen what is the aim and scope of the consultation and whether it will, in reality, amend the current proposals in a substantial manner.

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We give thanks for not blogging in the Italian waters.

The attention of CyberPanda has been caught by an interesting case from the Italian shores covered by The Register.

Mr Carlo Ruta has been found guilty by the courts of the offence of 'stampa clandestina' which means clandestine publication, in respect of publications of posts on his blog. In the judge`s view, given that the blog had a headline, it amounted to an 'online newspaper' and hence was regulated Law 62 (which regulates online clandestine publications). Mr Ruta was fined and ordered to take down the blog.

CyberPanda is surprised by the ruling of the italian courts and does not see how a blog can be compared to a newspaper. In addition, the argument used by the courts to reach this conclusion (namely that the blog was a newspaper because it had a headline) is logically flawed. It remains to be seen whether this very illogical and harsh ruling will be followed in the future or whether this ruling was reached solely on the basis of the content of the blog in question (politics and mafia). This ruling is a step in the wrong direction as it not only curtails freedom of speech online but also the curtailment of this right, can not be supported by a logical legal/factual argument.