IPT italy

European Commission adopts Communication on e-commerce - The European Commission has published a Communication on e-commerce and other online services entitled "A coherent framework to build trust in the Digital single market for e-commerce and online services".

On 11 January 2012 the Commission adopted, as part of the Single Market Act and the Digital Agenda, a Communication presenting 16 initiatives with the main aim of doubling the volume of e-commerce in Europe by 2015. In a press release announcing the Communication, the Commission outlined the potential economic and social benefits of the development of e-commerce and other online services, including the creation of jobs and offering better choice for consumers. However, it also recognises that there are many obstacles preventing both consumers and businesses being able to fully embrace online services.

The Communication proposes an action plan based on five top priorities: developing cross-border access to online products and content, improving operator information and consumer protection, introducing reliable and efficient pay and delivery systems, combating abuse and resolving disputes more effectively and deploying high-speed networks. Its aim is to "create an environment more likely to foster a dynamic Digital Single Market by tackling the problems in its path, while promoting investment in wireless connectivity and new-generation fixed infrastructure and supporting the development of cloud computing".

In order to meet the five priorities, the Communication sets out 16 main actions to be undertaken. The actions include:

• the adoption of a "European Consumer Agenda" in 2012;

• guaranteeing an appropriate level of information and customer care online; and

• the further development of the market for payments by card, Internet or mobile phones on the basis of the responses to a Green Paper adopted on 11 January 2011 entitled "Towards an integrated European market for card, internet and mobile payments".

The Communication is accompanied by two staff working papers. "Working paper: Online services, including e-commerce, in the Single Market" analyses the factors hindering the development of e-commerce and evaluates the E-Commerce Directive and "Working paper: Bringing e-commerce benefits to consumers" analyses those obstacles that have been identified as particularly relevant for e-commerce in products.

For the full text of the Communication please see here.

ICO issues updated cookie advice - With the May 2012 deadline for cookie compliance fast approaching, the Information Commissioner's Office has issued updated guidance on how organisations should approach the new law, while Europe suggests that national authorities are not being consistent in their guidance.

The revised law on cookies was implemented in the UK on 26 May 2011 to comply with amendments to the European E-Privacy Directive. At the time, the ICO announced a one year grace period, up to May 2012, for organisations to become compliant and the ICO issued limited guidance on how this might be achieved. In December 2011 the ICO updated this guidance to provide more detail and practical examples of how organisations could address their obligations under the new law.

Since the Privacy and Electronic Communications Regulations were introduced in the UK in 2003, organisations have been obliged to give website users clear and comprehensive information about cookies and why they are used. The new law goes further and requires organisations to gain user consent (or "opt-in") to the use of cookies on websites they visit. The updated guidance repeats the recommended steps first set out in the initial guidance on how organisations should be approaching compliance, namely:

1) checking what types of cookies are used on a site and how;

2) assessing how intrusive of user privacy they are; and

3) deciding how best to obtain consent in each case.

The updated guidance makes it clear that a key focus of the ICO is creating a well-informed user so that a shared understanding of what cookies are and how they work will develop between website owners and users. In the long run it is hoped that well informed users will make gaining consent easier. Another long-term goal is the development of web browsers that deal with the consent requirement but considering how long this could take to develop and roll-out to users, a browser solution is not likely to assist compliance in the short term. Industry has been trying to get to grips with the new requirements for some time and the International Chamber of Commerce is working on a cookie compliance guide to help organisations to deal with their obligations. This guide should be published in the coming weeks. The European Advertising Standards Alliance and the Internet Advertising Bureau of Europe have also been working towards a solution for informing users about advertising cookies based on a recognisable icon that signals to users that certain types of cookies are being used which will enable advertisers to target them for behavioural advertising.

Although the grace period has a number of months left to run, the ICO's updated guidance confirms that if it receives a complaint about an organisation during this lead in period, the ICO will investigate and will expect the organisation to be able to show plans and progress towards compliance, as well as a timeframe within which compliance will be achieved.

To view the updated guidance from the ICO, please click here.

Meanwhile, the European Commissioner for the Digital Agenda, Neelie Kroes has noted that the guidance provided by national authorities, such as the ICO, and the lack of guidance from other national authorities is leading to "different interpretations, sometimes, or even confusion about what the rules mean and how to comply with them". In a blog entry on 20 January 2012, Ms Kroes noted that tools and services that have been developing to deal with the issue of cookie consent are also based on different interpretations of the law and the "diversity of resulting approaches" is confusing to website users. Ms Kroes has suggested that a global "Do-Not-Track" (DNT) standard could be a good way for organisations to comply with the law. However, a DNT standard is not possible with current browser settings, so is not a feasible approach for organisations looking to become compliant in the immediate future.

Company sues ex-employee over Twitter followers - A Company has sued its former employee for £217,000, claiming ownership of the latter's list of Twitter followers as it constitutes a "customer database".

Noah Kravitz posted Twitter messages and amassed 17,000 followers on behalf of his employer, PhoneDog.com ("PhoneDog"). In October 2011 Kravitz left the interactive mobile news and review website, renamed the Twitter account and took all of its followers with him despite being asked by his former employer to return the account.

PhoneDog sued Kravitz in a federal court for misappropriation of trade secrets, interference with economic advantage and conversion. In December 2011, in response to a motion to dismiss filed by Kravitz, the court ruled PhoneDog had properly pleaded its trade secret and conversion claims.

PhoneDog claims that Kravitz wrongly converted the account to his own use and misappropriated company trade secrets by continuing to use the account. The list of Twitter followers on the account is allegedly similar to a customer database. PhoneDog is seeking damages of $2.50 a month per follower for eight months, amounting to a total of $340,000 (£217,000). PhoneDog's valuation of $2.50 a month is according to "industry standards".

The dispute has highlighted some key issues for businesses that use websites such as Facebook and Twitter. Such businesses should have clear policies governing the ownership and use of social media accounts, with the employment contract itself setting out who owns the account. Where employees mix business contacts with personal ones on sites such as LinkedIn, there is also a need to clarify who owns what.

The outcome of this case will be keenly anticipated and may help companies to decide whether embracing the use of social media to further their business interests is a risk worth taking.

For more discussion please see a DLA Piper Intellectual Property and Technology Alert here.

Websites protest against SOPA and PIPA - Several prominent websites staged a 24 hour blackout protest against proposed US anti-piracy laws on 18 January 2011.

The draft Stop Online Piracy Act ("SOPA") and Protect Intellectual Property Act ("PIPA") are US House of Representative and House of Senate bills which aim to stop access to websites, especially those hosted outside the US, that sell or distribute copyright protected material and counterfeit goods. Opponents of SOPA and PIP argue that they will inhibit the free and open internet.

The legislation takes the fight against piracy further than the Digital Millennium Copyright Act as the latter focuses on removal of the specific infringing material rather than targeting the site hosting such material. SOPA will authorise the US Department of Justice to seek court orders requiring a service provider to "take technically feasible and reasonable measures designed to prevent access by its subscribers located within the United States to the foreign infringing site" (SOPA section 102 (c) (2) (A) (i)).

Content providers such as the Motion Picture Association of America and CBS Corporation, along with business representatives such as the US Chamber of Commerce support the legislation, arguing that growing internet piracy threatens innovation and jobs in the creative industries. Internet companies such as Wikipedia and Reddit, however, strongly oppose the legislation. They argue that not only will the legislation inhibit a free and open internet but it will also adversely affect the corporate interests of start-ups which will be unable to meet the costs of complying with the requirements set out in the bills.

Reddit and Wikipedia are amongst the websites that staged a 24-hour blackout on 18 January 2011 in protest against the legislation. Google expressed its solidarity with the protestors by displaying messages reading "Tell Congress: Please don't censor the web" linking to a petition against SOPA and PIPA.

Following the protests, certain levels of support for the legislation appear to have dwindled, with 12 of the 40 original co-sponsors of PIPA withdrew their backing and Google reporting that it collected 7 million signatures from the US for its petition. Subsequntly, Senate Majority Leader Harry Reid announced the postponement of the procedural vote on PIPA and House Judiciary Committee Chairman Lamar Smith announced the postponement of the Judiciary Committee's consideration of SOPA.

Ofcom makes ruling on the determination of "on-demand programme services" - Ofcom rules in favour of the Authority for Television on Demand ("ATVOD") and its determination that three services constituted "on-demand programme services" for the purposes of Part 4A of the Communications Act 2003.

On 6 July 2011, ATVOD, the UK regulator of video-on-demand services, issued identical determinations that three services, "Nickelodeon content on Virgin Media", "Comedy Central content on Virgin Media" and "MTV content on Virgin Media" (each a "Service") were "on-demand programme services" ("ODPS"), which are regulated under the recently-introduced statutory regime in Part 4A of the Act. The provider of an ODPS is subject to a requirement to notify ATVOD and pay a fee, in addition to ensuring the ODPS meets certain regulatory requirements. A service is an ODPS if it satisfies section 368A of the Act, the key criterion for these purposes being that there is a "person" who has editorial responsibility for it (368A(1)(c)) and it is made available by that "person" for use by members of the public (368(1)(d)).

Nickelodeon, Paramount (owner of the Comedy Central content) and MTV (the "Appellants") appealed to Ofcom to quash ATVOD's decision.

ATVOD relied on the "clear contractual arrangements" between each Appellant and Virgin Media to determine that each Appellant had editorial responsibility for the applicable Service that included content from that Appellant. It argued that "the Appellant had agreed it is the provider of the ODPS comprising the Appellant's content under the Agreement and has "editorial responsibility" over the same, save in respect of any insertions or advertising placed by Virgin Media in or around the content."

On appeal to Ofcom, each Appellant argued that it is not the "person" who makes the applicable Service available for use by members of the public, nor is it the "person" who has editorial responsibility for that Service. Each Appellant argued that Virgin Media makes the applicable Service available to the public in that it "controls restricted access to its service, enters legal contracts with consumers granting access, collects subscription fees... and provides customer support". Regarding the editorial responsibility issue, ATVOD's reliance on the agreement between Appellant and Virgin Media alone "is a fabricated and arbitrary standard that does not appear in the Act."

Having concluded that both the Appellants and Virgin Media made the Services available for use by members of the public, Ofcom's ruling as to which entity had editorial responsibility was crucial. Ofcom concluded that the agreements included a clear statement as the intention of the parties regarding the allocation of "editorial responsibility" and therefore the Appellants were in "the unattractive position of asking Ofcom effectively to strike out a clause in a contract which they, as sophisticated commercial broadcasters, appear freely to have agreed". For this reason, amongst others, Ofcom upheld ATVOD's determinations in relation to all three Services.