IP addresses are used to route communications between computers connected to the internet, and could be said to work in a similar way to postcodes.  A number of companies have previously engaged in the practice of tracking file sharers by their IP address, hoping to discourage piracy online, but the Swiss Court found that these details are personal information, and given that the data is generally collected without the consent or knowledge of the users this is in breach of privacy legislation.

It is important to note that this is not the final word on the matter, and that some jurisdictions disagree with this view, for example both Irish and French courts have in the past ruled that IP addresses are not necessarily personal information.  Consensus will involve considerable collaboration on an international level, and when reached may have a significant impact on the way people use the web.

Your IP address on its own does not identify you, and in order to match an IP address to a particular internet connection it is generally necessary to obtain a court order forcing the relevant ISP to hand over the information.  On the other hand, there are a variety of techniques which, in some cases, can shed a little light on the identity of a user from their IP address.  These are for the most part more effective at identifying larger organisations, who may have been allocated a block of IP addresses, and so be identifiable through RIPE (one of five Regional Internet Registries) or by using similar methods.  Other less accurate methods include geolocation, using  online databases such as IP2Location.  These approaches are often unreliable, and even where it is possible to identify a particular internet connection, it is not certain who was responsible for activity online as many different people might be using the same IP address by routing their communication through the same connection via a wireless network.  It will be interesting to see how this issue is dealt with in future, as many more cases are likely to arise where connecting an IP address to a particular person is central to the outcome.

This is just one of a whole host of issues that have arisen in relation to online identity, which is of growing concern as people submit more and more personal information to social networks like Facebook, and as businesses pay more attention to their reputation on the internet.

On a related note, it is not just an IP address that can connect a person to activity online.  Users of membership sites such as Twitter or YouTube are distinguished by their username – which they choose themselves, and which do not need to be their real name.  Perceived by some as a significant problem with material online, much of it is posted anonymously using pseudonyms.  If you find defamatory content online, there is more often than not no quick way to identify the culprit.  In such cases, recourse to the courts is the only option; recently a US court ordered Google to release information connected with the identities of two YouTube users who had posted videos  of a business consultant without permission, and incorporating offensive remarks about her.  If cases like these are successful and well publicised, internet users may become more cautious when making comments online.

Finally, another issue bringing online anonymity into the spotlight recently is the offensive launched by the group Anonymous against proponents of intellectual property, called Operation Payback.  The group have claimed responsibility for the bringing down of a range of websites including the UK Intellectual Property Office.  One of the principal difficulties in identifying those who are culpable for the attacks lies in differentiating malicious connections from honest ones.  The attacks are classed as distributed denial of service (DDoS), and rely on huge volumes of users connecting to the target website at once to overload it – finding out which connections are bona fide is far from a straightforward task.

There is a tension between protecting the privacy of internet users and enabling law enforcement online, and this debate is likely to rage on for the foreseeable future, so we plan to keep our eyes peeled.

Wikileaks, described by itself as a “multi-jurisdictional public service designed to protect whistleblowers, journalists, and activists who have sensitive materials to communicate to the public”, allows people wishing to share information of a sensitive nature to do so with a wide audience, anonymously.  By, to some extent, removing the risk associated with revealing sensitive information, the site has arguably led to the publication of a wide array of stories that may otherwise not have seen the light of day.  It has been said that in its short lifetime since its creation in 2007, the website has produced more scoops than the Washington Post has in 30 years.

The site drew increased attention recently after founder Julian Assange, along with a variety of experts from different fields, working in conjunction with politicians and activists in Iceland, developed the Icelandic Modern Media Initiative.  This proposal was made to the Icelandic Parliament in February, and after passing unanimously last week, stands to make Iceland the World’s free speech capital by offering the strongest protection to those who wish to reveal sensitive information.  The new laws aim to protect the identity of whistleblowers, protect publishers, and provide immunity to intermediaries such as internet service providers.

This is a recent indication of how the law is likely to play only an auxillary role in the censorship of information in future.  Growing ever more important is an understanding that control of the dissemination of material online is rarely a viable option, and instead parties with a strong interest in their reputation should prepare themselves to counter damaging content not by bringing legal action, but by responding in kind – by engaging in discussion.  Knowledge of how, and where, to look for discourse that might damage a reputation, along with an awareness of the risks involved when taking action to remedy this, are crucial to public figures, governments, businesses and in fact anyone whose reputation is important to them.

Turning back to cyberspace, this is achieved by obtaining a court order, forcing the organisation hosting defamatory material to surrender the IP address of the user that posted it. This, along with the date and time they posted the material, can then be used to reveal their identity. This is known as a CyberSLAPP. A recent incident in the US involved the outing of a blogger who had posted a variety of unpleasant things about a model online. The court found that there was a ‘strong showing that a cause of action exist[ed]’ and so ordered Google to give up information on the bloggers identity. This is only the most recent in a series of similar cases, and advocates of privacy and freedom of expression are concerned that, as the law develops, if the courts permit such activity to continue it will have a significant chilling effect on the exercise of free speech online.

The issue boils down to a difficult-to-strike balance between freedom of speech, privacy, and the importance of being able to hold someone accountable for defamation. The internet has enabled global dialogue on any and every issue, and is frequently hailed as an incredible tool for democracy. However, at the same time, while the impact that the web has on our lives grows so does the scope for harm resulting from its unchecked use. On the one hand, permitting anonymous use of the net can give unscrupulous users the freedom to unfairly tarnish reputations; but on the other, innocent parties may be intimidated by the threat of being outed. Without anonymity on the internet the voices of the oppressed might ring substantially quieter, the threat of being silenced perhaps severe enough to dissuade the most fervent activist from making their protest heard.

Whichever side of the debate you are on, if this class of legal action becomes more widespread you would be wise to think before you post. Your anonymity is not necessarily as safe as you might think. Are you prepared to stand up and account for your statement?

For further information on CyberSLAPPing go: here

Only recently I wrote an article on online reputation monitoring for the Society of Computers and Law magazine.  (The article is accessible to members, and at £50 per annum, membership is excellent value).
In the article I discussed how web 2.0 technologies like blogs and forums which allow ordinary people with no HTML skills to post content online are the beginning of a massive sea change in society. Ironically, in that article I also mentioned how a heavy handed legal approach could sometimes backfire dramatically and have the very opposite effect to that intended. I gave the example of Usmanov and Craig Murray. (I am not aware of the ins and outs of the case, so mentioning it is not intended as a criticism of Schilling’s approach so much as an illustration of how the internet is turning the old rules on their head).

So we are rapidly seeing the need to adopt a different style in this new connected web environment. I suggest that strong threatening defamation letters should be reserved for really serious and clear cut defamation cases. A more softly softly approach is sensible initially in all other cases.

For example, CTMFS’ director Mr Evans, went over the top in sending me such a strong letter threatening legal proceedings, and demanding an apology, damages, correction etc. That is why I published it on this blog. It is a good example of what not to do. It also illustrates the dangers of non lawyers using standard legal precedents in non standard situations. Rather than asking a lawyer to send me a letter, he chose to fire off his standard template to me. I am sure if he had sought legal advice first, the letter I would have received would have been more proportionate, and therefore might have achieved a better outcome.

Blogging on the hazards of blogging – using a Californian server 

Californian surfer (Image: FreeDigitalPhotos.net)

Which leads me to the main purpose of this article, and that is to say that following this CTMFS experience which has been unpleasant, and negative, I have decided I need a US based location for any blogging that becomes controversial. On an everyday level I will be using it to write about the hazards of blogging.

The legal rules that UK web hosts are subject to, means that if you write anything controversial which others want to force you to take down, then your web host risks liability for the content if it continues to host the objectionable material. However, US hosts are subject to more favourable laws. For example, Blogger.com is hosted by Google in the USA, so you would not have to worry about having your voice cut off by your host if you said something someone wanted to have removed. I will be writing more about the liability of hosts in future blog posts.

For now I just want to say that I am now also blogging via http://www.shireensmith.com. This is being hosted in California, and now contains all the blog posts that Mr Evans might want removed from our IP Brands blog. The reason for choosing California is that it is that I like the sound of its favourable environment for bloggers, with its anti-SLAPP laws - a topic I will be looking into more closely in future blog posts. This is not directly relevant to me personally of course as I am a UK based individual and therefore subject to UK defamation laws, but its significance sounds like an interesting topic to explore in future blogs.

Quack? (Image: FreeDigitalPhotos.net)

I think it’s worth looking at what has happened here given the allegations of defamation.

It all started when I posted a tweet on Twitter mentioning that 3 clients had received CTMFS’ ‘invoices’. Ending with the word ‘scams’.

If Mr Evans’ intention was to stop the use of the word ‘scam’ in relation to the ‘pro forma invoices’ his company routinely sends out to UK trade mark applicants , then he would have had a more positive outcome had he sent an explanatory letter about his business model. No threats, just clarification.

Although, such an approach would not have changed my opinion about his business model, it would have alerted me of his sensitivity about the use of the word ‘scam’ to describe his business model. I would have then avoided upsetting him by using other words. After all, what is the word but a slang term to describe an activity which is misleading (Chambers defines it as a trick). He equates the word with ‘fraudulent and dishonest’. Well, to me these are semantics.

But I do wonder if I had tweeted as follows: Warning: 3 clients contacted us today about ‘invoices’ from CTMFS of Liverpool. Beware! whether he would have left me alone. Or would he rather have descended on me like a ton of bricks for that too? I suspect he would have done so but we will never know for sure. The fact that he has been so heavy handed over such a trifle is because he wants the world to believe that he is no different to any other provider of trade mark services, despite his dubious business model.

Is CTMFS any different?

We take a lot of trouble to educate our clients about ‘scams’ of various sorts involving the issuing of ‘invoices’ to those whose names are on the IPO’s or other official registers. We advise them to be alert and not make payment on such ‘invoices’ and to contact us if in doubt. The IPO also does its bit to educate the public, by routinely sending warning letters here . CTMFS falls within the second category of business the IPO describes as potentially to be alert to.

By opting for a business model which we and the IPO have to warn consumers against, CTMFS positions itself in the firing line. The obvious way for Mr Evans to distance himself from others who he presumably regards as real scammers (presumably, I imagine these would be people who take the money and run, and provide nothing at all in return, and who possibly cannot even be traced), would be to improve his marketing practices. Because really it is all a question of degree.

If he wants to be regarded in the same light as any other provider of trade mark services then why the misleading style of approach? Why use a name suggestive of a connection with an official body? Why send a ‘pro forma’ invoice which does not make it clear that in addition, there are official fees to pay on top of the ‘invoiced’ amount, (and spell out these will be 1050 Euros).

I had hoped the his change to his practice (see here) whereby he would be sending a covering letter along with his pro forma invoice, was suggested a step in the right direction. But, perhaps he would not now be pursuing me if he was intending to change his business model.

And if he won’t change the model, it is probably because too many people are mistakenly paying on the pro forma invoices, in the mistaken belief that it is an official sum that they are required to pay. Does he really expect us to believe that people receive his ‘invoices’ and think, “what a good idea, I can now get an EU trade mark, so let me immediately settle this invoice”.

Would the majority of consumers knowingly pay the £500+ fee? I don’t think many people would without at least first shopping around to find out how much others might charge and what they would offer? Would they think this was a fair sum to pay just to have an OHIM form completed using the identical information available on the UK IPO site which they themselves would have to forward to OHIM with payment of the official fees? And would they think paying 1050 Euros is fair enough, given that plenty of other providers would be able to file online for them for 150 Euros less, and in general far lower legal fees to do the work?  I doubt that consumers are in fact making a real choice to purchase CTMFS’ services, because it is a rip off price for what it offers – particularly given that no-one is overseeing their application through the examination and advertisement stage through to registration.

So, no I do not think I have defamed Mr Evans or his business, CTMFS. As they say if it walks like a duck and swims like a duck and quacks like a duck, then it probably is a duck. Even if our duck has a small sign saying “You can’t shoot me, because I am not really a duck – see small print for details”.

So, I am writing this in full expectation that anything could happen, including full scale legal proceedings for refusing to take down the blog posts about his CTMFS invoices. The case against me is extremely weak which is why I will not cave in to his threats. His style is to issue threats to silence anyone who dares to utter criticism against him.

Generally his threat approach has tended to work with blog owners, and small businesses. They lack the time and resources to look into whether they would be able to fend off defamation proceedings. And although I too have better things to do with my time than get embroiled in defamation proceedings, I don’t see that I have any other choice but to stand up to him.  At least one side benefit I will gain from taking him on, and standing up for my principles is that I can relearn defamation law.

I used to be a defamation and media lawyer many years ago when I worked at Reuters as an in house lawyer. In those days, the legal department ran a rota system for advising on libel matters. If editorial needed to discuss with legal (whether during the day or in the middle of the night), a defamation issue they could ring whichever lawyer happened to be at the top of the list that week. I had sufficient expertise to perform such a role. However, now I have let that knowledge slip, focusing on IP and internet law instead. But technological developments and the nature of the issues that arise on the web make it imperative for all IP and internet lawyers to also cover media and defamation law. This is becoming widely recognised. So, given the need to come up to speed again on the subject, I can justify engaging in legal proceedings with Mr Evans as an educational opportunity.