blog.brandprotect.com

What does the math say about social media?

Recently an acquaintance of mine had a very unpleasant experience with a major retailer and I began to wonder what options the person had to convince the retailer that it was in everyone’s best interest to resolve the matter as opposed to leaving my friend unhappy.  The reality is that we all have had a negative encounter with customer service in one form or another.  From working in the hospitality field, I have first hand experience with people who had been met with what they believed to be poor service.  The lesson I learned very early on in hospitality, and which I believe to be true in most industries, is not that the customer is always right, but that they believe they are. With the growing popularity of social media this lesson is becoming more and more relevant.

In April 2010, a study based on an online questionnaire conducted by the Harris poll provided hard numbers which seem to validate the concern that companies have over their image being presented via social media. There were previous assumptions that social media users were limited to teenagers following celebrities, which was shown to be incorrect. This poll suggests that users from 18 to 55+ have very little hesitation in using social media to either promote or condemn a product or service by discussing their experiences. Not only are users prepared to share their experiences online, but what is more interesting are the numbers regarding how influential the opinions of people that are in their social media groups or friend lists actually are.

According to the numbers in the study, approximately 29% to 45% of people “agree” or “strongly agree” that their goal in offering opinions through social media is to influence their peers or groups. Additionally respondents answered that 69% to 76% believe that friends or family influence their decision to use or not use a particular company or product.

In a nutshell, this means that a third to half of people who participated in this study use social media to influence others and almost four out of five people say that the reviews of their friends or family via social media influence their use of a brand or company. What is additionally interesting is the decline in influence of celebrity endorsements which only yielded a maximum of 17% amongst 18 to 34 year olds (the youngest demographic polled) who believed reviews from celebrities influenced their use of a brand or company.  Another interesting finding is the influence strangers have via blogs or message boards. The study showed that 41% of 18 to 34 year old respondents were swayed by the opinions posted by people they don’t know on message boards or forums.

It therefore appears that brand monitoring and the management of the public perception of one’s company or products requires a much more proactive approach. It is imperative to manage the disappointment experienced by customers before they have an opportunity to share their negative experience with others. Applying the example of hospitality, the alternative to taking a proactive approach would be to allow an unhappy customer to express their negative experience on a message board such as tripadvisor.com or other third party services designed to provide additional revenue such as expedia.com or hotels.ca, which could potentially have a directly detrimental affect on a hotel’s bottom line.

With social media and internet reputation management becoming increasingly available, companies and brands can now take a more proactive approach. Being aware of a negative reputation is as crucial as taking the correct measures to address the potentially harmful affect on a brand or companies. However, it is also detrimental to pursue these matters incorrectly or too stringently. On certain occasions it is more effective to protect your brand or image by requesting that the individual or group remove content rather than taking immediate legal action to force the removal of content. The difficulty lays in how to sift through the thousands of blogs, forums and other social media outlets. This is where contracting the services of an internet management company would come into play. They are able to consult and advise a company on the most tried methods of gauging your brand or product’s online reputation.

Companies should consider creating their own social media best practices and training in-house employees to engage in conversations and respond to negative comments that could be indentified by a service such as social media monitoring. Some companies have taken the option of setting up social media groups and fan pages that are dedicated to their products and services as a proactive measure.

Regardless of the approach one takes to social media, it is here to stay. Be on top of the game to ensure that current and potential customers are getting the right message from your company directly. Don’t hide from negative criticism, but opt to engage your critics in a way that is mutually beneficial to all parties to ensure you are truly protecting your brand.

Protecting the World Cup: Ambush Marketing and I.P. Violation

Every four years the eyes of the world are on a 110 metre by 75 metre patch of grass as the best footballing nations of the world take to the pitch in the hope of lifting the FIFA World Cup Trophy. There were nearly 30 million (non unique) viewers of the 2006 World Cup held in Germany and it would be a good bet that there will be somewhere around the same number watching this time around as the event makes its hosting debut on the African continent. With those kinds of TV numbers being thrown around FIFA's official partners and supporters who have spent large sums of money to acquire the advertising rights to this event are going to need assurances that no one, knowingly or not, encroaches on these exclusive Intellectual Property rights.

Now having been recently involved in monitoring I.P. rights for a different worldwide sporting event and being a lifelong supporter of the game of football, I was instantly intrigued when I saw the January/February issue of the World Intellectual Property Review had an article outlining the steps that FIFA was taking in order to keep their partners' I.P. rights exclusive; the focus here was mainly on combating "ambush marketing". The crux of the article is that in addition to having to build FIFA approved stadiums to house the matches, ensuring the necessary security for the participants, officials, and spectators, and constructing the infrastructure needed to make everything run smoothly FIFA mandated that the South African government would need to have preventative and punitive measures in place in case any of the official partners' I.P. rights were to be violated.

According to the article, the World Cup falls under the category of a "protected event" as laid out in Notice 683 of 2006 of the Government Gazette). This means that all of the provisions in Section 15 A of the Merchandise Marks Act of 1941 can and will be applied to any case of I.P. violation throughout the full duration of the tournament; from the 11th of June 2010 to the 11th of July 2010.

Since I've dealt somewhat with Intellectual Property rights in this context I can say with a fair amount of certainty that there is a lot of grey area when it comes to things like fair usage. Some people will genuinely attempt to profit from ambush marketing whereas others will unintentionally infringe. While there are what FIFA calls opportunities for local businesses and traders, they must make sure that they are not in violation of any of the paid sponsors' I.P. rights. In FIFA's own words:

The rights protection programme is aimed primarily at tackling organized ambush marketers, counterfeiters, and unauthorized traders, all of whom seek to profit from an event to which they have not contributed.

As of the writing of the article there have only been a handful of cases of I.P. violation that FIFA has needed to deal with, most of which were settled out of court. One such case of ambush marketing that occurred after the article had gone to print involved South African airline kulula, who ran an ad campaign stating that they were the "Unofficial National Carrier of the You-Know-What". That in and of itself may have been tolerated but when the airline used South African flags in conjunction with football imagery, FIFA stepped in and demanded the cease and desist of the campaign.

We can probably expect the cases of ambush marketing to increase as the event draws nearer; I am reminded of the story of the supporters of the Netherlands national football team in 2006 that were forced by game-day officials to watch a match in their underwear because they had worn orange lederhosen that were sponsored by a Dutch brewer Bavaria, complete with corporate logos and all. Since Bavaria was not an official sponsor of the World Cup, the officials confiscated the pants and the supporters were out of luck. You'll all be happy to know that Holland won the match so at least the supporters had something to cheer about, even if it was a little breezy in the stadium that day.

How a Tweet almost brought an Airline to a Screeching Halt…

A single incident on a single flight, one of several hundreds or thousands of flights scheduled on any day could potentially be deterimental to the public perception of an airline. Southwest Airlines recently discovered the importance of reputation management and how a quick response to an attack on their reputation via social networking is integral to offset the backlash created by a disgruntled passenger.

If you haven't heard the story on any major television network, read about it online or any printed publication, recently film director Kevin Smith encountered some difficulty while travelling from Oakland to Burbank. Smith, who by his own description considers himself "fat", purchased three return tickets for a convention he was attending.  On his return to Burbank he was ejected from the plane citing safety regulations. Smith, renowned for his sharp wit as a screenplay writer did what most customers that have encountered unsatisfactory experiences do, he complained. Smith feeling rightfully humiliated and wrongfully ejected from a flight to which he had purchased three tickets took to his Twitter account and seemed to know the gravity of his actions posting: "You [messed] with the wrong sedentary processed-foods eater!"

Complaints and negative experiences are unavoidable in customer service and the impact of the complaint can be very different based on the situation. For example, if the manager of a restaurant knows that a food critic for a major publication is eating in his dinning room he is well aware that this particular customer's negative experience would be far more detrimental than that of other patrons.  This is due to their ability to share their opinion with a much larger group of people than most would through the traditional means of word of mouth.

Southwest was very fortunate to have a diligent employee who was monitoring the company's Twitter account (over a weekend) and was able to negate some of the reputation attacks which proceeded to overwhelm the company's customer service department. Several customer service attempts to resolve the situation were posted on Twitter and attempts to contact Smith via his Twitter account which had become viral were noted by those who had joined in attacking Southwest's reputation on Smith's behalf. Several individuals following the incident went as far as defending Southwest and agreeing that Smith should have been removed from the plane while others commended Southwest's attempts at a providing a satisfactory resolution. Southwest's admirable attempts at a resolution were reported on Mashable.com.

The aftermath of this incident included Smith recording podcasts which were available on his website and through Apple's Itunes which millions have access to.  A public apology was offered by Southwest airlines as well as an undisclosed amount of money spent to combat the negative publicity generated by this story.

Another interesting aspect of this incident was the documentation of the entire exchange between Southwest and Southwest supporters and Smith and Smith supporters for casual observers to view and formulate opinions regarding the handling of the situation. The lesson to be learned by any company that is reliant on its public reputation is that any customer now has the ability through social networking sites like Twitter, Facebook and Youtube to make a very public situation out of what was once a containable resolution....so make sure you are using a SMART social media monitoring tool!

Are you doing enough to protect your institution against money mules?

Before the advent of high-resolution security cameras, dye packs and GPS trackers, criminals would simply walk into a branch, pull out their guns, take the money and escape on their steeds. The criminals have evolved. They would then walk right up to the teller, hand them a note, and walk out with a bag full of money, right past blue-haired grandmothers updating their bankbooks and blue-collared workers depositing their paychecks.  Technology evolved.  So did the criminals. Now, criminals are robbing banks in even easier ways.

 

Phishing sites, vishing or smishing phone numbers, card skimmers - these tactics all enable the criminals to acquire the precious details they  need to defraud financial institutions and their customers of hard-earned dollars without ever leaving their homes.  Simply acquiring this information isn't enough for the criminals to start planning their retirement in a non-extradition country - they need someone to actually get the money for them.

 

Criminals are (typically) quite adept at protecting themselves - whether it be having a safe house, a getaway car, or rigging their hard drives with thermite - to ensure that getting caught doesn't mean hard time.  So what is an aspiring fraudster to do these days?  Find a Money Mule.

 

Money mules are typically recruited online, lured unknowingly into the criminal world by the prospect of quick, easy money.

 

You see the recruiting posts everywhere. Job postings and spam with subject lines of "Work from home!" or "Make $1000/wk CASH!" can seem like a blessing to those desperate in today's harsh economic times.

 

Once the "employee" (mule) makes contact with the fraudster (who pretends to be a corporation), the mule is instructed to open a bank account exclusively for use by the "corporation."  At this point, one of two things happens:  either the "corporation" will send the "employee" a legitimate-looking check, or; the "employee" will forward the account details to the "employer", who transfers a modest sum of money - maybe a few thousand dollars - into the account.  The fraudster then instructs the mule to withdraw 90-95% of the money.  Once the cash is in-hand, the mule is sent to a Western Union office, where they transfer the money back to the "employer", keeping their 5-10% share as their "salary."

 

Unfortunately, the only real check this mule is going to get is a reality check.  The check provided by the "corporation" is counterfeit, but this only comes to the attention of the mule sometime later on, well after the withdrawal and transfer is completed.  Once the bank realizes the check is counterfeit, they reverse the deposit, which then brings the account into overdraft, leaving the mule with a fairly significant debt to the bank.  When a direct transfer is made into the account by the fraudster, it comes from a compromised bank account.   Once the transfer is reported to the originating bank as fraudulent by the account owner, they reverse the transaction, with the same results - the mule is left on the hook for the debt.

 

This means that the person without a job is now jobless and in debt, the person struggling to get out of debt is now deeper in it, the retiree's pension check just got much thinner.  The bank is upset with the mule, the mule is upset with the "employer," and the "employer" is laughing all the way to the bank (for lack of a b etter term).

 

The mule now feels like an ass, having been taken advantage of and victimized as a result of their ignorance and/or greed.  To make matters worse, when the "employee" opens an account for their "employer", they are instructed to provide the account details - along with all other common employment information like Social Security/Insurance Numbers, full name/address, etc. to the "corporation".  This instantly makes the employee a victim of identity theft, as the fraudster collects this information for sale on the black market (or personal use) later on.

 

According to the Internet Crime Complaint Center (IC3), money mule handlers have tried to steal $100 million from small- and medium-sized businesses - who knows how much money the mules have lost as a result of these schemes.

 

Money mule handlers - I'm hesitant to use this term, but the "masterminds" behind these schemes - are good businesspeople.  They are only interested in streamlining their business and maximizing their profits.  Some are part of larger, real-world criminal organizations/gangs, some operate exclusively in the tubes of the Internet.   Regardless, money remains the driving factor, and as banks get hip to the tactics of money mule operations, they begin implementing strategies to prevent their customers from suffering the same credit-score-reducing fate.  The handlers pick up on this, and start blacklisting banks - essentially telling the mules where they should be opening accounts.

 

Throughout our travels around the ‘Net, BrandProtect comes across all kinds of scams and associated data.   One juicy tidbit was a list sent around by a mule handler's handler - the person that directs the handlers how to run their "departments" efficiently, and makes executive decisions for the group.  So, what's on this list?  Well, Dearest Reader, I'm glad you asked.  The list contains names of almost 50 U.S. banks that are known to have lax account security in place, idyllic environments for the growth of the criminal's business.

 

Straight from the file itself: "Ask your clients... to open a Checking account and provide the log in details, such as "User name, Password, the 3 Security Questions and Answers".  They should go into the bank and get the account opened. It should NOT be done online. In a state that has more than one bank, please send all the banks to him so that he will choose the one that is convenient for him."

 

As you can see, this is not the work of a half-baked junkie looking to make a quick score - lots of time and effort has been invested in this, because the perpetrators know the rewards are great.

 

Are you on the list of banks known by criminals to have lax account security in place? Drop us a line, and we'll let you know.

 

Co-authored by: Michael Kiefer, BrandProtect 

 

 

Intellectual Property owners are making their voices heard!

A short while back I wrote a piece on "Anti-Counterfeit measures and the potential impact to user's web surfing rights".  In it I briefly mentioned "a French law" that was created to combat online copyright infringement; it essentially gave ‘infringers' three strikes before their access to the internet would be revoked.  The latest version of the bill added that a judicial review is required before any person's internet access can be shut off, which was present in the older versions of the law.  This law is now effective in France as of January 1^st, 2010, I could not find any cases in which it has been put into practice so far.  Then again it has only been a month.

Now while this change is seemingly beneficial to web users, the law can still be viewed as somewhat harsh especially in cases where it is unclear who is actually doing the infringing.  A potential infringer could be using an innocent party's unsecured wireless signal to download or seed pirated material or there could be a single party infringing on a machine with multiple users without anyone else knowing.  With no criminal or civil trials involved in these instances, at least in France, the possibility exists that innocent parties could have their internet access shut off becau se of the actions of others. 

Related to this is the issue of making a file available to be shared on a network; does it necessarily qualify as copyright infringement, and in the case of internet users in France could it cause you to lose access to the internet?  The owner of the machine hosting the pirated material may be unaware that this is happening at all. Are they, or should they be held responsible?

The debate over this is still ongoing but international precedent seems to indicate that yes they are responsible; the two cases that come to my mind instantly are the Pirate Bay torrent website and of Jammie Thomas-Rassett, which I'll mainly focus on here.  In Capitol v Thomas the defendant was sued for copyright infringement for downloading and sharing music.  The defence attorneys tried to claim that "Ms. Thomas" computer was hacked", and that the defendant was perhaps the victim in all of this but the judge quickly dismissed it and eventually the defendant was found liable for the damages. Interestingly the case was re-tried in 2009 based on new interpretations of what "making available"should mean.  While a similar verdict was reached, the fine was reduced from $1,920,000 USD originally to $25,000 USD. She is currently appealing this ruling.

Using the new HADOPI law and the ongoing Capitol v Thomas case as examples it is fairly obvious that the when it comes to file sharing the onus lies with web users to monitor their own online activities. If you are engaging in these acts you must be prepared to deal with the consequences if and when they arise.  It will be very interesting to see how the landmark copyright infringement case in the United States finally concludes and what implications it will have for the future.  As interesting will be the first applications of the HADOPI law in France.  One thing is for sure, owners of Intellectual Property are making their voices heard, and lawmakers are listening loud and clear.

Oh and one very interesting side note on the HADOPI law.  Apparently the font used in the logo by the HADOPI agency "was used without the prior consent of the trademark owner", who created the font for the sole use of France Telecom.  If there is a more perfect definition of irony I haven't heard it yet.

 

 

Brand Abuse - How can you ignore your brand being abused?

If someone was breaking into your house every night while you slept and was taking money from your piggy bank….wouldn’t you try to stop it?  So why aren’t large corporations not doing more to stop perpetrators from continuously stealing revenue from their bottom line?  Through traffic diversion schemesselling of counterfeit goods, unauthorized associations, identity theft attacks and defamatory social media discussion, brands are being violated, reputations tarnished and significant revenues lost.

 

 

Traffic diversion schemes include domain cyber squatting (i.e.www.fasebook.com), and many various tactics to direct traffic away from your site (sometimes to competitors sites or even pornography).

Why spend thousands or even millions of dollars on a marketing budget just to have the benefits diluted and revenue stolen from you through various traffic diversion schemes. CMO’s need to start paying attention to this and start protecting their brands.

Wouldn’t you also want to know if someone was saying they were a partner of yours?  Think it’s not important?  Take for example a financial organization down south….we recently found a “hate group” site claiming on their website that they conduct all their banking at this organization.  If one influential blogger/tweeter comes across this post, the banks reputation can be tarnished in days or even hours through social media.  Which brings me to my next point…

Marketers also need to continuously monitor social media sites for potentially damaging situations. It only takes minutes for once again an influential blogger to say something slanderous, someone to make a  negative video or a disgruntled employee to post confidential information and the word spreads like wild fire.  Free tools can provide some minimal coverage but the time it takes to weed through the junk is prohibitive.  Prioritizing what’s relevant and emotionally charged to mitigate negative impact on your brand is necessary.

I think some of the hesitation in the past for marketing departments not leveraging brand protection services is that they didn’t know what they would do with these “issues” once they were uncovered. They also strongly hesitated getting their legal departments involved in these situations, for obvious reasons (very expensive!)…..so why not just ignore it? That is where cease and desist capabilities can help manage these situations in a very cost effective way and help remove the vast majority of the threats uncovered.  Not to toot our horn, but BrandProtect’s track record for getting infractions removed via cease and desist methods alone is approximately 70-80%.

So once again, I ask the question…..if someone was breaking into your piggy bank every night, wouldn’t you try to stop it?

Why you shouldn’t care about average takedown times for phishing attacks

“Lies, damned lies, and statistics”

 

For quite some time now, we have increasingly encountered a question when talking to potential clients:  “What is your average takedown time?”  This is a completely logical question to ask – cutting the lifetime of phishing sites is the whole point of employing a takedown service such as ourselves - but the question is a dangerous one.

 

First and foremost, there is no average phishing attack.  Each has different characteristics, sources and impact, and therefore the notion of an average takedown time is very misleading.  Simple attacks can be taken down in a matter of minutes, while some of the more sophisticated attacks, particularly those hosted on a fast-flux bot net, can take several hours or even days to resolve despite continuous efforts by the takedown provider. Since there is no caveat that smaller organizations will be targeted less, and rarely in a fast-flux attack, the average takedown time is almost completely irrelevant.

 

Vendors also have different definitions of what exactly constitutes an incident. Some of our competitors consider every distinct URL an incident, whereas BrandProtect has special guidelines for grouping similar URLs into one incident. This diversity amongst providers makes calculation of the average takedown time inconsistent, despite the unfortunate cases that some of our competitors are trying to lay claim to having the fastest average takedown times. 

 

Somewhat unsurprisingly, if BrandProtect were to play that game, our data suggests that our takedown times would equate to being significantly faster than those for our nearest competitor.  But BrandProtect doesn’t play that game.  We don’t claim to have the fastest takedowns in the industry; we claim to be the best.  Being the best is more than getting sites disabled quickly (which we do quite well, thankyouverymuch!), but also providing our customers with above-and-beyond service. 

 

Success in dealing with identity theft attacks cannot be measured by something as variable as takedown time – success is a function of detection, takedown, and communication effectiveness, all of which have a significant bearing on the overall time in which a phishing attack can cause damage.  Collaborating with clients and other partners to improve every aspect of our offering – detection, analysis, customer education programs, our client portal, reporting processes, etc. – is the only way to ensure the utmost client confidence that our response to an attack will result in minimal damage.

When will we ever have a National Data Bill? Get it right DC!

Almost every state now has their own bill.  Now the House and Senate have two bills which need to go to one.  It is kind of like every state has their own gas fuel mixture requirements.  It is costing taxpayers billions to have our government regulate, both at a state and federal level and business to comply to all these State and Federal bills, that are different.  The new House bill looks like it only pertains to FTC regulated companies.  Being in DC this week, I could not happen to notice the number of overhead cranes.  Building out for the next 100,000 government workers to over regulate us!

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US House Passes Data Accountability and Trust Act (DATA)

On December 8, 2009, the Data Accountability and Trust Act -- HR 2221(DATA) moved one step closer to law by passing the House of Representatives.  DATA is sponsored by Congressman Bobby Rush (D-IL).  The DATA in Congress has similar elements as Senator Leahy's S. 1490, the Personal Data Privacy and Security Act, including not only breach notice obligations, but also information security policy requirements.

Both the Leahy and Rush bills also impose increased obligations on "information brokers," defined as follows in the Rush bill:

    (6) INFORMATION BROKER- The term `information broker'--

    (A) means a commercial entity whose business is to collect, assemble, or maintain personal information concerning individuals who are not current or former customers of such entity in order to sell such information or provide access to such information to any nonaffiliated third party in exchange for consideration, whether such collection, assembly, or maintenance of personal information is performed by the information broker directly, or by contract or subcontract with any other entity; and

    (B) does not include a commercial entity to the extent that such entity processes information collected by and received from a nonaffiliated third party concerning individuals who are current or former customers or employees of such third party to enable such third party to (1) provide benefits for its employees or (2) directly transact business with its customers.

(the Leahy bill uses the term "data broker", but has a similar definition).  Information brokers would be required to submit their security policies to the FTC in the event their breach notice obligations where triggered.  Moreover, the DATA imposes obligations on information brokers concerning data accuracy, data access and disputed data.  Information brokers would also be required to maintain audit logs or similar measures "which facilitate the auditing or retracing of any internal or external access to, or transmissions of, any data containing personal information collected, assembled, or maintained by such information broker."

Brand Protection - Who would have thought a cache copy would make a difference?

Companies when seeing Internet infractions on their brand need to cache a copy if they really want to go the distance.  Recent rulings like SP Techs., LLC v. Garmin Int'l., Inc. have made admissible stored images as evidence.  Having a service that stores infraction images and the associated forensics makes cases....

http://www.chicagoiplitigation.com/2009/11/articles/inequitable-conduct/internet-archive-website-is-admissible-evidence/

Internet Archive Website is Admissible   Evidence Posted on November 13, 2009 by R. David Donoghue

SP Techs., LLC v. Garmin Int'l., Inc., No. 08 C 3248, Slip Op. (N.D. Ill. Sep. 30, 2009) (Pallmeyer, J.)

 

Judge Pallmeyer denied defendants' motion for summary judgment of inequitable conduct in this patent infringement case. Plaintiff SP Technologies ("SPT") asserted a patent for a touch screen keyboard that cannot be moved, resized or closed by a user. Defendants argued the patent should be held unenforceable based upon the inventor's alleged failure to disclose to the Patent Office twenty lines of code for disabling a close button allegedly copied from a website and used in the patent, as well as certain alleged prior art Palm Pilot devices.

Intent to Deceive

The Court held there were questions of fact as to the investor's alleged intent to deceive the Patent Office as to both alleged pieces of prior art. With respect to the code, there was evidence that the inventor believed there was no need to submit any evidence about a portion of the code because only the entirety of the code was relevant to patenting. Regarding the Palm devices, the inventor believed he had disclosed the Palm Pilots because they were mentioned in articles submitted to the Patent Office.

Materiality

Regarding the allegedly copied code, the Court noted that few inventors could be considered the sole inventor of every aspect of their invention. Almost all inventions include some known components. And defendants did not prove that the single component of the invention represented by the allegedly copied code was central to patentability. The Court did, however, note that it appeared the code was likely copied as it was identical to that on the website and in other manuals, down to a misspelling. The Court accepted as evidence a printout of a copy of the website at issue from the relevant 1999 date. The copy of this website was maintained by the Internet Archive, or the Way Back Machine. The printout was authenticated by an Internet Archive employee that explained the Internet Archive's process of maintaining historic copies of websites.

Similarly, defendants did not present sufficient evidence of the materiality of the Palm devices. Defendants offered only pictures without proof, such as a manual, that a user could not move, resize or close the keyboard.

Are Anti-Counterfeit measures taking away your right to surf?

I recently read a very interesting article from the New York Times by Kevin J. O’Brien titled E.U. Leaders Bolster Internet Access Protections and it really got me thinking about how just vital having access to the Internet is in this day and age, to the point where some government officials are considering it a basic human right. 

 

To quickly summarize the piece, on the fifth of this month (which is significant for reasons that will be explained later on) European lawmakers were able to reach a ‘middle of the road’ deal between governments that wish to create and implement harsh laws designed to combat online piracy and advocacy groups that believe that having access to an Internet connection is a human right.  The lynchpin of the agreement mandated that a legal review must be undertaken before anyone accused of engaging in online piracy offenses can have their Internet connection cut off.  Those in favour of the compromise were pleased that the deal had essentially made access to the Internet a legal right in Europe without sacrificing the authorities’ ability to prosecute those that are found guilty of committing online piracy crimes; although some advocacy groups were disappointed that the ruling did not go far enough to require a full on criminal trial before any action could be taken against alleged offenders.  But regardless of the perceived shortfalls of the deal it was generally considered a success. 

 

This ruling comes in the wake of attempts by the French Government to get a strict anti-piracy bill passed into law which would give French authorities the power to disconnect users from the Internet after a third piracy related offence.  There is also a similar movement in the United Kingdom spearheaded by the Business Secretary Lord Peter Mandelson.  In both cases the infringers would receive two written warnings before their Internet access would be disconnected upon being caught offending for the third time, without even as much as a legal review. 

 

The E.U. decision also came in the midst, quite literally, of the sixth round of negotiations regarding the Anti-Counterfeiting Trade Agreement in Seoul, South Korea, which is what I alluded to earlier in this post.  The main significance of this, as University of Ottawa Law Professor Michael Geist points out on his blog, is that the chapters of this agreement that focus on the issue of Internet enforcement are being drafted under a veil of heavy secrecy.  Some of the provisions in the agreement, that have been made public via a leaked document, would require that all signatories create, among other things: penalties both civil and legal for those that are found guilty of “internet infringements”, the establishment of “third-party liability”, and limitations on what are known as “safe harbour” rules for Internet Service Providers.  One of Geist’s biggest concerns with ACTA, albeit speaking strictly in the context of Canada, is that it would supersede any domestic IP legislation that is already in existence, provided any such legislation exists, and block any attempts to create new laws in the future; it must be noted that the European Union was represented in Seoul and will no doubt be present at the next round of negotiations which are slated to commence in January of next year in Mexico, so if the E.U. were to ratify this agreement all of the work the officials have done to create the safeguards outlined in the O’Brien article would, potentially be rendered useless.  Geist closes off one of his posts by saying that “it is clear that there is no bigger IP issue today than the Anti-Counterfeiting Trade Agreement being negotiated behind closed doors this week in Korea”, and to his point I may have to agree.

 

While I feel that having access to the Internet is becoming, if not already is, a basic human right it is important to note that like other basic human rights it should not exceed the boundaries of law; combating illegal online activities is a fight worth fighting but it must be tempered with provisions that prevent strict penalties and respect the concept of due process, especially considering that many of those accused of online piracy are presumed guilty.  The problem with this is that the Internet is still what I would consider a frontier in that laws that govern it are still being created and refined; in an ideal situation these laws would be impartial and uninfluenced by any outside force, but sadly as in ‘real life’ that is not a reality. 

 

I would love to know what others think of the notion that Internet access is a basic human right, and from both sides of the argument because I’d like to think I’ve presented a ‘middle of the road’ point of view.  It is truly a fascinating debate and one that we haven’t fully scratched the surface of quite yet.