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A few days ago, Justice Kenneth Parker ruled against an appeal bought by internet service providers BT and TalkTalk over a case involving the Digital Economy Act 2010. The ISPs argued that the Act was incompatible with EU law as it, among other things, stipulated that people who download online content illegally can have their accounts suspended.

The Act has been controversial since it came in, but Justice Parker ruled in its favour and most components of it are now being implemented. The thinking behind this particular case is that illegal downloads – of music, films, TV shows, books and so on – damages the creative industries and violates rights relating to copyright and intellectual property. The ISPs tried to argue that web users have the right of free expression, but this was rejected in favour of protecting industries that have already been damaged by the extent of online privacy.

Without getting into a debate on net neutrality and whether web users' 'freedom of access to information’ is more important than the protection of creative content, this is arguably a growing problem with the internet. Lots of people download content illegally and expect to be able to obtain such information for free, which is a huge issue in creative circles. After all, creative content – no matter what it is – costs money to produce and so, especially when so many of these industries are already struggling, to then have so many people obtaining content for free through often less than legal means is massively damaging.

This issue is also highlighted by another recent case, this time involving Google. You may be aware that Google wants to create the world’s biggest online library and eBook store. The publishing industry has been dreading the possibility of this for quite some time: for a while, it seemed inevitable that Google would win the right to continue with pursuing this goal and the already struggling publishing industry would suffer even more. To a lot of people’s surprise, though, on 22nd March 2011, a US federal judge ruled against Google and announced that the Google Book Settlement would have given the company a ‘de facto monopoly’ and that it wouldn’t be allowed. 

One of the big issues here is copyright. Setting up such an online library would involve Google copying books that are still within copyright and therefore still owned by someone else. The Google Book Settlement also made it so that it was up to publishers to find out whether their books had been copied and raise it with Google, rather than the other way around, which was also considered to be a major issue with the proposals. It would also have given Google a stake in future proceeds, among other things, which would have created the ‘de facto monopoly’ that was ruled against by the US judge.

Google said that the purpose of the Book Settlement was to open up access to books that currently might not be available to everyone, including out of print books. The issue, though, is that when some books are out of print in some countries but not in others, and when some books are censored in some countries and not in others, it raises international issues that are the preserve of the government, not a private company. Needless to say, the publishing industry was relieved by the ruling of the judge, but Google is still estimated to be in possession of 12-15 million copied books, which, under current rulings, have been copied illegally.

Both of these examples show the conflict between the creative industries and the internet. They also show that, while when we think of online piracy and illegal downloading we immediately think of individual web users, they are not the only ones involved. The explosion of the internet and other digital platforms may have made it much easier for the creative industries to get their material out there and seen by more people, but it has also made it much more vulnerable to exploitation at all levels.

A lot of this is down to the freedom of the web. In many ways one of its biggest selling points, it also has the potential to create conflicts, especially when internet self-regulation is held in such high regard. It works to protect itself, which is admirable, but in doing so it poses real world problems that increasingly require action from governments and judiciaries.

The internet has, for a long time, been in something of a world of its own. Now it is coming to maturity, however, and as the above examples illustrate, it is starting to come to the fore in the real world and it’s posing issues that definitely need to be addressed sooner rather than later. Whatever your opinion of both these cases and your opinion more generally on online content, it seems safe to say that this issue isn’t going to go away any time soon.

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One question that seems to come up from time to time is exactly how far governments should involve themselves in the Internet. Over 1.6 billion people across the world now have web access and this figure grows daily: control of the internet is, unsurprisingly, sought after by governments and businesses alike. One of the key selling points of the World Wide Web has always been its independence – an entity that transcends nations and unites communities across the world with relatively little interference from governments.

But is this a good thing? As with any question, there are at least two clearly defined sides to the debate.

One the one hand, governments have a duty to protect their citizens, across all platforms. It would be hard to find many people who disagree that Internet use ought to be restricted for people who pose a threat to others, be they terrorists, paedophiles, hackers or other malcontents. Some level of government-related oversight in this area is a good thing: in the manner of the police, it keeps the whole as safe for the majority as it possibly can while being tough on the criminals around the edges.

Also, the world is increasingly reliant on the Internet for services. As many companies move their operations online – and as government services themselves migrate to the Internet – there is a need for proper investment in infrastructure. This is needed on such a scale that it has to be coordinated by the government: in the UK, much of the broadband upgrade might be carried out by BT and Virgin Media and of course it’s in their commercial interests to do so, but without directives from the government, this project would be much harder. The EU requires that all citizens should have broadband access by 2013 and it’s hard to see how this would happen without involvement from the government.

The threat of cyber terrorism also warrants government intervention to shore up communication systems and ensure the country’s infrastructure could withstand an attack. The UK government is currently spending £650m on cyber security and the threat is considered to be as serious as terrorism. Government spending on such security is vital to maintain the free and open nature of the web. After all, the infrastructure has to come from somewhere.

From this, we can see the different areas where the government should be involved in the Internet – in terms of provision and security especially. But what about the other side of the debate? How much involvement is too much?

One of the main issues that come up on this side of the debate is the idea of the Internet ‘kill switch’. We’ve seen this recently during the Egyptian protests when people across the country suddenly found that they couldn’t get online. Other countries have their web use restricted and censored as a matter of course: when the Internet is supposed to be open to all users, why, the argument runs, should governments decide what information people should or should not be allowed to access?

There is, though, a much wider issue at stake and it’s been around at least since the late 1990s. In 1996, Bill Clinton – then the US President – developed a plan called the ‘Federal Intrusion Detection Network’. Had the plans gone ahead, it would have required major companies to run their Internet connections through the federal government, for ‘safety’ reasons. While you could argue that this was a shrewd plan to protect key industries in the event of a cyber attack, on the other side of the coin, it can be seen as government meddling gone too far and opens up political questions as well as security ones.

The ‘Fidnet’ plan didn’t go into practice, but now in the US, there is a bill going through Congress called the Cybersecurity and Internet Freedom Act of 2011. The Act makes provision so that in the event of a ‘cyber emergency’, the White House can issue directives to Internet companies with which they must ‘immediately comply’. That the regulations governing the Internet can change on such a whim raises the question of how much security is too much. The vague nature of a ‘cyber emergency’ also raises questions.

The backing for this Act comes from the (alleged) ability of cyber terrorists to shut down whole cities. This might be the case, but Fidnet never happened despite the same fears and yet they’ve never come to fruition. The biggest power cuts in the US happen because of tree branches and thunderstorms. 

There’s also already a whole host of Internet security provision in the US and across the world, largely developed as a response to growing terrorist threats and the growing reach of the World Wide Web. New Acts will arguably only create more regulations, placing further obligations on internet companies and slowing the pace of progress.

Perhaps this is a key point – the internet is still under development. It’s a project that isn’t finished yet and that’s the way it’s supposed to be. Of course, there is a need for governments to make provision for its progression through investment in both infrastructure and security. But until it’s got where it’s meant to be – wherever that is – it can seem a little hasty for governments and others who go to such efforts to try and control it. In some respects, the Internet is still a child, and it needs room to grow. Too much of the wrong kind of regulation risks hampering that.

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Over the last decade, the internet has increased its depth and influence to an extent that was hard to predict. It has developed in many ways, with lots of different forms of media reflected in its content. One area that has increased massively over the past few years is user generated content. An increasingly popular means of engagement with the web, what exactly is it and what issues does it raise?

Simply put, user generated content is exactly what it says it is – online content written or created by the users of websites rather than website developers or site owners. This can include everything from forums and blog posts to videos, images and articles, depending on the website. Two of the most obvious examples of websites that thrive because of their user generated content are YouTube and Wikipedia, where users can upload videos and articles to the respective sites. There are also thousands of blog sites, forums on all manner of topics, online image galleries and more, all of which provide an opportunity for web users to engage with the websites through producing their own content. Often this is done in a small way, such as through commenting on blog posts, but others create whole enterprising operations out of their actions.

On the face of it, the growth of user generated content is an extremely positive development. It allows people to be more involved with the happenings of the internet and their favourite websites in particular. This helps to contribute to the free and open nature of the World Wide Web, providing ordinary users with a platform through which they can share their knowledge and interests, interact with other people in the same space and open up new ways of networking. 

One of the most successful web inventions – social media – largely rests on user generated content. Without it, the Facebook, Twitter and LinkedIn sites would largely be just shells. They need content to fill them and make them successful. This comes from the website users, who set up accounts and engage with the services. This has led to people networking with others across the world and has also given rise to a new form of protest movement and means of organisation for demonstrators, as well as a whole host of other uses. Other websites such as YouTube are beneficial because they not only allow user generated content to flourish, but they can also be integrated into or linked to from company websites, giving businesses alternative means of advertising and interacting with their customers. 

Despite these positives, user generated content is not without its pitfalls. For example, there is the question of quality. When people write their own content, there are no rules governing standards of accuracy, so even though they might put their all into it, there is no guarantee it will be watertight. Probably the best example of this is Wikipedia, which occasionally finds itself in the press for one sensationalist false article or another. While it may not be such a worrying issue in the case of Wikipedia, review sites such as TripAdvisor have come under fire as users have posted false reviews in order to make businesses appear worse than they are. When user generated content has the potential to damage companies’ reputations, it shows there is something of a problem emerging.

There is also the issue of copyright, which most often emerges in the context of visual content. For example, some users of YouTube and other video streaming sites upload clips of their favourite TV shows for others to view or songs by their favourite artists for people to listen to. This can lead to something of a quandary as the rules of copyright in such cases aren’t always clear. While some industry experts are happy for their products to be viewed on such websites, others aren’t and have been known to take action to have it removed for copyright reasons. Copyright law is complicated in itself, too, so even if a user thinks they are acting perfectly legitimately in uploading content to a website, they may be accidentally in breach of the law because the product is still under some form of copyright or distribution limitation.

When copyright is breached, the course of action is generally to remove the offending content from the site in question. This is what happened when Comedy Central asked YouTube to remove all clips of The Daily Show from the site. Other companies, such as the BBC, try to control the amount of user generated content on the internet by uploading their own official versions. Occasionally, though, infringements can lead to prosecution if a company or individual feels their privacy has been breached or copyright broken. When users largely upload content because they’re interested in a topic or simply want to share opinions with other people, they are often not aware of the laws surrounding such things and can find themselves being prosecuted for any number of activities.

There is clearly a question here of intent: if someone uploads something to a website that deliberately breaks a law – whatever it may be – then there is a case for action. Otherwise, it must surely be something of a legal grey area. If people accidentally make mistakes and are not aware they have broken the law, it is much harder to know how to deal with it. This is especially true when you consider one of the main purposes of user generated content is for entertainment and not done with any enterprising intention. The location of the infringement can also play a part, with copyright law not being harmonious around the globe. For example, the process for prosecution of copyright infringement is completely different to that of the UK.

Overall, then, this is something of a murky issue. On the one hand, copyright, libel and other laws must be upheld in order to protect businesses, artists, individuals and others. On the other hand, people have a right to generate their own content and contribute to the ongoing development of the internet. If nothing else, it’s fairly safe to say that this is an issue that is only going to grow in significance over time and may require a global approach in order to provide clear guidelines and solutions.

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From 1 March 2011, the Advertising Standards Agency (ASA) has new powers over UK company web sites and online marketing material. This article explains more about how a change in the powers of the ASA might affect your organisation's online strategy.

Under current advertising laws, the Advertising Standards Agency can only monitor and take action over traditional forms of advertising. This includes billboards and adverts on television, as well as advertising in newspapers. Until now, however, it couldn't monitor the content of company websites.

These rules are changing on 1st March 2011, giving the ASA the power to pass judgement on company websites and other online commercial promotion. This means that consumers will be able to complain to ASA if they feel a website features indecent, misleading or false content. The upshot of this is that the ASA will have the power to force companies to pay fines and change the content of their websites if they are found to be in breach of the rules, even if the content in question is not in the form of a traditional online advert.

Therefore, while the current law allows companies to show adverts on their websites that it wouldn’t be allowed to broadcast on television, from March 1st all of this will change. So what does this mean for companies who rely on their websites for business? What will be the impact of the new rules?

On the one hand, it could be argued that this is a positive shift for consumers. It means that all claims made on company websites will have to be true, or else they would have grounds to make a complaint. This helps to protect consumers’ rights and promote quality of service. It also might mean that companies make more of an effort to keep their websites up to date – such as by not relying on old surveys or out of date endorsements to promote themselves – which will be good for both web users and the companies themselves.

On the other hand, it potentially creates the potential for companies to land themselves in hot water despite their best efforts. After all, two different companies in the same industry could both easily proclaim themselves to have "the best customer service in the business" because different customer surveys – even if conducted at the same time – could produce different results, but it would still look suspicious to have dual claims and might lead to complaints.

The new ASA monitoring powers also apply to any other web software that may be controlled by a company. So, for example, if they have a blog, social networking account (Facebook page, Twitter account, LinkedIn company page, etc.) or paid search advertisements (Google AdWords, etc.), these will still be subject to the new scrutiny rules. There is a distinction made between marketing and editorial content (only marketing communication falls under the new rules), but often the line can be blurred on websites and so companies may prefer to be cautious rather than risk the wrath of customer complaints.

This opens up the possibility that many websites are going to have to be restructured and re-written in order to ensure compliance with the new ASA rules and to be on the safe side when making marketing claims. All of this opens up a window of opportunity for copywriters, who are likely to receive requests to help companies redevelop the content of their websites once the new rules come into effect.

As well as web content and marketing communications, there is also the potential that other aspects of companies’ online profiles will have to be restructured, providing another opportunity for copywriters. For example, many online businesses take steps to improve their Google rankings through search engine optimisation. This might include profiling ‘recommended links’ on a piece of editorial content, writing a blog post tailored around a certain key phrase or product, or perhaps posting sponsored tweets on Twitter. While these may not be directly construed as marketing in the traditional sense, the new ASA powers make the world of SEO far harder to navigate, as it opens up the question of what counts as marketing and what, for example, counts as opinion or editorial copy. With many companies outsourcing their SEO efforts too, it may require the company to take a much closer role in what the outsource company is posting online on their behalf. And, with many SEO outsource suppliers being based outside the UK it might be that the knowledge and experience isn't available to them to provide the level of service needed to protect the company.

Officially, if an individual posts a comment on a website remarking on a product or service they have received, this does not fall under the jurisdiction of ASA. If a company then uses that comment in its online marketing material, though, it will fall under the jurisdiction. This makes the practice of checking websites for truth and honesty more important than ever before. Another example would be product pages advertising a particular item or service. If a company was selling an action figure, for example, but the picture promoting the toy on their website showed the action figure surrounded by a larger play set that wasn’t actually included in the price, then someone might complain that it constitutes false advertising and an investigation might be conducted as a result.

This could prove to be a window of opportunity for web content writers with the skill to write good copy and the ability to check that what they are writing is all factually correct. Having a good copywriter to take care of things also allows the company to get on with business without having to worry that they might be fined for false advertising.

Of course, ASA won’t be proactively searching the web for breaches of its rules; the whole thing depends on consumers raising issues as they come across them so it’s possible the real impact of the new rules will be minimal. Last year, 2500 complaints were made to ASA about web content but they couldn’t be investigated because the powers didn’t exist. There is no way of telling whether any more complaints than this will be made once web content does fall under the ASA remit or whether it will stay roughly the same. However, from March 1st the potential will be there for false or misleading claims to be investigated and so ultimately, it’s much better to be safe than sorry and take steps to ensure company websites are entirely truthful, both in their marketing and editorial content.

More information is available directly from the ASA web site at www.asa.org.uk.

Alternatively, if you are concerned about the impact of the new ASA regulations on your web site, and perhaps do not have the time or experience to review your site or marketing yourself, contact us today to arrange a consultation.

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In 2003, European regulations known as the Privacy and Electronic Communications Regulations (PECR) came into force. The purpose of these rules is to govern electronic and other marketing, particularly marketing relating to online activities. Other covered areas include telemarketing, faxes and SMS messages. The regulations are enforced in the UK by the Information Commissioner’s Office (ICO).

Since they came into force, there have been major issues surrounding the application of the PECR, with many organisations flouting the rules, whether intentionally or not. One major example of this is the opt-in/opt-out checkboxes found on many websites as well as in emails.

To illustrate, the regulations dictate that no individual should receive any marketing emails unless a series of criteria have been met (the same rules don’t apply to businesses). The criteria are:

1. the individuals’ details must have been obtained by the company in question through a legitimate sale or negotiation;

2. the sent message must relate to similar products offered by the sender;

3. the individual must have been given the opportunity to refuse marketing messages from the sender and can easily opt out at any time of their choosing.

This means that companies who don’t offer individuals the means to opt out of marketing messages are in breach of the PECR and, therefore, both UK and European law.

The reason this is such a big issue is the way such opt out facilities are currently implemented. Take the example of an online retailer. When you make a purchase through that retailer’s online store, you will be presented with a series of checkboxes at the bottom of the form relating to marketing. In simple terms, these give you the chance to refuse marketing from the retailer and any third parties. The problem, though, is often in the way the checkboxes are worded. For example, it is common to find statements written in a negative manner (such as ‘click here if you do NOT want to receive information from us’).

This assumes automatic agreement unless the customer takes action to dictate otherwise and it is a problem in the world of online marketing: naturally, there is a desire and a need for online companies to market their business and services to customers, but they also have to comply with the PECR and the Data Protection Act to ensure that individuals’ rights of privacy are met. This means that assuming customers are willing to receive marketing emails unless they instruct otherwise is not only dangerous but increases the chances of the rules being breached.

This problem is exacerbated by pre-selected checkboxes. This most commonly happens where you have to check the box to opt in to a marketing messaging service – retailers and marketers often pre-select the checkbox in the hope individuals will leave it as it is. Conversely, in cases where you have to check the box to opt out, retailers and other businesses tend to leave the box unchecked to maximise their mailing lists. While they are in theory complying with the regulations, if an individual was confused by the phrasing or layout of the options, any complaint to the ICO would be likely to be upheld (the ICO receives around 5000 complaints every year on matters relating to unwanted marketing).

Of course, it can be argued that this is not just a problem related to online marketing practices: similar ‘opt in’ assumptions can be seen everywhere from pension schemes to organ donation, with new processes being bought in to assume the compliance and participation of individuals unless they explicitly state otherwise. The major issue for online marketers and businesses, though, is determining the reasons why people choose to opt out of marketing messages in the first place in order to work out the best ways to persuade them to opt in.

This requires much more careful action than wording opt in/opt out checkboxes in such a way as to ensure maximum compliance by default. It means that online marketers need to carefully consider what attracts individuals to certain websites in the first place and how they can keep their attention once they’re there, thereby encouraging them to sign up for marketing messages.

It has been widely reported that people are turned off by pop ups and other unwanted forms of advertising, so it’s likely that they are just as put off by marketers sending messages that the individual sees as being unsolicited, either because the marketer is flagrantly breaking the rules or because the individual accidentally opted in to something.

Perhaps the solution is as simple as having a good web design to catch people’s attention and then providing the best possible product / service to customers so they will be interested in finding out about new offers and services from the company in future marketing messages. This would be coupled with an obvious and easy means of opting out if an individual so desired (such as can be seen in email newsletters, which are required to include a ‘click here to unsubscribe’ link).

Whatever the solution, it is clear that there is currently a widespread problem relating to breaches of the PECR that is not only annoying to individuals receiving unwanted messages, but could ultimately damage the otherwise good reputation of a free and democratic internet.

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