Volume 10, Issue 6

This article discusses Art. 14 of the E-Commerce Directive 2000/31/EC (ECD) and critically examines the recent Opinion by AdvocateGeneral PoiaresMaduro in three joined cases against Google. AG Maduro suggests that Art. 14 ECD contains a “neutrality” requirement for the ISP as regards the information it stores. This view distorts Art. 14, making it a tool to shape the development of e-commerce and other internet services. Rather, Art. 14 must be understood in the context of the EU’s strategy to enhance European competitiveness and stimulate economic growth and investment. To that end, it seeks to overcome obstacles that make less attractive the exercise of internet services and e-commerce, obstacles such as divergences in national laws and legal uncertainty. The article is structured as follows. It starts with a general description of Art. 14 and 15 of the ECD as well as of the background to the Opinion (see II. and III. below). Thereafter, it discusses AGMaduro’s (mis)interpretation of Art. 14 and 15, including the practical implications (see III. below). Finally, it explains the role Art. 14 plays for the development of the Digital Single Market project (see IV.).

On 22 September 2009 Advocate General Poiares Maduro issued hisOpinion on Google Adwords in three joined cases. The article presents the factual background of the cases (I.) and examines how the AdvocateGeneral has dealt with the trademark issues involved (II.). Whereas the trademark prong of the AdvocateGeneral’s Opinion seems sound, its prong dealing with webhosting issues appears to raise more questions than it provides answers (III.). The so called “neutrality” requirement which the Advocate General found in Art. 14 of Directive 2000/31 (E-Commerce Directive) is analysed in depth by Ruessmann/Melin in CRi 2009, pp. 161- 165, earlier in this issue.

In recent years, an increasing numbers of internet users have become regular users of on-line social networking services such as Facebook, MySpace, LinkedIn and Second Life. These services provide a social space for users to connect with friends, network with business contacts and create “virtual” alter egos. Regulators have begun to take a particular interest in the privacy practices of social networking services. One of the most significant initiatives in this respect was recently undertaken by the Office of the Privacy Commissioner of Canada, in the form of a 113 page report on its investigation and critique of Facebook’s privacy policies and practices.Notably, the investigation addressed a range of the privacy concerns cited above: (i) collection and use of personal information by third-party application developers; (ii) account deactivation and deletion; (iii) accounts of deceased users; and (iv) the collection of personal information of non-users. This report is worthy of closer examination for a number of reasons. First, it provides useful lessons to both users and providers of social networking services, in identifying and suggesting solutions to certain privacy risk areas. This report also illustrates the willingness of the Office of the Privacy Commissioner of Canada to investigate, and publicly report on, the privacy practices of non-Canadian organizations. Finally, this report provides some significant direction on how overtly the purposes for personal information should be identified to each subject individual.

Employers worldwide are increasingly disapproving the use of social networks and blogging sites due to a decrease in productivity, as well as viruses and other malware or the deliberate or unintentional disclosure of confidential information. If contracts are awarded for software development or for IT or Business Process Outsourcing offshore, it is important to know how the contracting partner controls the risks relating to social networking and blogging. India is one of the preferred destinations for offshore software development and outsourcing and where Swiss companies award many of these contracts. Therefore, an examination follows of the legal position under Swiss and Indian law regarding employers’ options for checking up on social networking and blogging by employees.

As online tracking for marketing purposes becomes more common in the U.S., the Federal Trade Commission is leading the effort to control those practices. This article examines the FTC’s guidelines for behavioral advertising and suggests that future enforcement efforts will concentrate on individual actions against companies that are alleged to have violated the guidelines. Also discussed in this article is a recent FTC action against a company’s use of online tracking.