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

1. Digital Content and Media – A Legal
Update
Ben Holt, Associate Director
Tom Harding, Senior Associate

2. osborneclarke.com
The next 45 minutes
• Digital content – key regulatory issues
• Digital media – key issues and updates
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•
Consumer Rights Directive (CRD) – key issues
vs
•
Consumer Rights Bill (CRB) – key issues
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Digital Content – definition
'Data which are produced and
supplied in digital form'
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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.
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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.
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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'.
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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).
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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'.
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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
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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.
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CRB – key issues
8. Key consumers remedies re digital content
• The following remedies are available to consumers:
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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.
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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.
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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
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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?
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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..."?
•
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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.”
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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?
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Scenarios
Issues
• Defamation
• Intellectual Property
• Cyber-squatting
• Unlawful Trading
• Breach of Restrictive Covenants
• Harassment
• Impersonation / identity theft
• Other breaches
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Scenarios
Common Media
• Internet Forums
• Social Networking Sites
• Bespoke Websites
• User Generated Content
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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
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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
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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?
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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