legal issues for online communities - david deakin
TRANSCRIPT
Legal Issues for
Online Communities
24 February 2016
David DeakinPartner - Lewis Silkin
Who is David Deakin?
▶ Digital Media and Technology - commercial lawyer
▶ Online, Mobile, Social▶ Content, eCommerce, Marketing▶ Tech, Data, Consumer
▶ 12 years working in-house ▶ growth tech/digital companies ▶ large media/tech companies
▶ NOW back in Private Practice advising online / digital business
Who are Lewis Silkin??
Litigation & Dispute
Resolution
Media, Brands & Technology
Employment, Reward &
Immigration
Real Estate &Development
Corporate
Industry sector focus:• Marketing and Communications
• Media and Entertainment
• Technology
• Retail330+ total staff
60 Partners200+ total fee earners
Our clients include:• Havas Media• House of Fraser• Samsung• Haymarket• Viacom International• Gleam Futures• Rovio• Match.com
Chambers & Partners , 2015: Band 1 in five areas including:
‘Media & Entertainment: Advertising and Marketing’
‘Employment: Senior Executive’
‘Corporate/M&A: Lower-Mid-Market’
Legal 500, 2015: Tier 1 in five areas, including:
‘Brand Management’
‘Media & Entertainment’
‘Employment: employers and senior execs’
Key Issues: Legal Risk : Mitigation : Key Actions
▶ Intellectual Property / Copyright▶ Defamation▶ Moderation
▶ Data Protection
▶ Children
▶ Marketing Regulations
▶ International / Jurisdiction
▶ Terms and Conditions
1. Problematic Content
▶ Who is responsible for what is posted ?
▶ IP : Copyright
▶ Defamation : “Joe Blogs is a @@@@”
: Users vs Host
Copyright – what is it ?
▶ photos ▶ music▶ video▶ text
INFRINGMENT▶ copy▶ show▶ perform▶ play▶ make available
Defences
▶ EU : Electronic Commerce Directive 2000 - Article 14▶ UK : Electronic Commerce (EC Directive) Regulations 2002 - Regulation 19
▶ US : DMCA. Digital Millennium Copyright Act 1998 - S512(c)
• do not have actual / constructive knowledge of unlawful activity or information
• upon obtaining such knowledge, act expeditiously to remove or to disable access to the information
Defamation – what is it ?
a statement which is likely to lower the person in the estimation of right thinking people; or
which injures a person’s reputation, by exposing them to hatred, contempt or ridicule
and causes serious harm
RESPOSIBILITY
authors, editors, or publishers
Defences
• do not have actual / constructive knowledge of unlawful activity or information
• upon obtaining such knowledge, act expeditiously to remove or to disable access to the information
▶ Defamation Act 2013 s5
▶ UK : Electronic Commerce (EC Directive) Regulations 2002 - Regulation 19
~ ~ ~ Moderation
▶ Editorial / Brand <> Legal / Liability
▶ Reactive
▶ Pre
▶ Post
Knowledge
IN PRACTICE
▶ Be cautious about active encouragement / awareness of what site is used for…
▶ Consider type of moderation carefully…
▶ Strict process and information re Section 5…
▶ REACT
▶ Notice and Take Down - act expeditiously
▶ Data Protection Act 1998 – 8 Principles▶ Consent, Sharing, Security, Transfer
▶ ICO Guidance▶ http://ico.org.uk/for_organisations/data_protection
▶ Transferring data to the USSafe Harbour : Privacy Shield
2. Data Protection
Data Protection
Complete overhaul of existing European data protection legislation
• Draft Regulation published 25 January 2012• “Agreement reached” 15 December 2015
• Regulation not Directive > provides more legal certainty • But at the expense of being more prescriptive – “harmonisation at a higher level”
When will the Regulation come into effect ?
• 2 year implementation period (phased implementation?).
: EU General Data Protection Regulation
EU General Data Protection Regulation
More Data Subject rights Broader definition of personal data Higher level of Consent More detailed specificity on use/consent Implementing privacy by design and by default Privacy impact assessments Drafting and implementing policies Record keeping Appointment of DPOs Accountability Processors direct compliance obligation Extended security obligations Significant increase in the value of regulatory
penalties : Euro 20M / 4% turnover
3. Children
PARENTAL CONSENT▶ COPA▶ ICO / DMA guidance▶ GDPR <16
A practical guide for providers of social media and interactive services …examples of good practice from leading technology companies, and advice from NGOs and other online child safety experts.
Its purpose is to encourage businesses to think about “safety by design” to help make their platforms safer for children and young people under 18.
4. Marketing Regulations▶ Digital Remit
▶ All locations▶ Adopting UGC
▶ ASA / CAP Code▶ Legal, Decent and Honest▶ Claims and Comparisons▶ Alcohol / Children
▶ “Obviously Identifiable as a Marketing Communication”▶ Celebs and brand advocates ▶ Native content / adverts
▶ Competitions and Promotions▶ Free Prize Draw / Competitions
5. Global Reach
6. T&C
▶ Licenses to use content
▶ AUP ▶ FAQ
▶ Warranty / Indemnity from users▶ Disclaimer from operator
▶ Moderation - right but not obligation
▶ Law and Jurisdiction
Actions : KEY TAKE AWAYS
▶ Moderate / React expeditiously
▶ Prepare for new EU Data Protection Regulation
▶ Understand core Marketing and Promotions rules
▶ Audit T&C and Privacy Policy
