All posts in Blog

We, Best + Hancock (a consortium of sole practitioners) are launching, as it were, in January 2012. That being so, if you dig through the site a bit, you might wonder why there are some old posts here dating back to 2008. The short answer is that I imported them from an earlier blog I maintained (Online + Lawful). I decided to decommission that blog but didn’t want to lose some of the lengthier posts I’d written. Simple as that really.

Those reading the old posts should note that some of the government policies and links to which they refer may now be out of date. If you have any questions in relation to anything I’ve said in those posts, feel free to drop me a line.

A few months ago now I had reason to sign a software-related agreement with a US developer (to cut a long story short, I’d had a developer create an extension for me for a well-known CMS).

Once we’d finalised the wording of the contract, the developer sent it to me, via a service called EchoSign, for signature. EchoSign offers various ways of using the online channel to assist in the formation of contracts but the method used on this occasion was broadly as follows:

  • the developer uploaded the electronic version of the contract to EchoSign;
  • he then entered my email address and included a note to me;
  • then he clicked send to send the contract to me;
  • I entered my name and (from a couple of options) decided to sign with my mouse;
  • the contract was then sent back to the developer for his (electronic) signature, upon which the system emailed out a PDF of the signed contract for us both; and
  • the contract was then automatically filed (for him) in his online account with EchoSign.

Read more…

A while back now I was drafting a privacy policy for a particular website, when it struck me that one could use a nifty content rendering effect (using, for example, a bit of jQuery) to make navigating privacy policies, terms of use and legislation a better experience for those who actually read them.

Take, for example, an average privacy policy for a site that collects and uses quite a bit of personal information. If the privacy policy has been well drafted, it should cover all bases sufficiently to enable those using the website to know, for example, when their personal information will be collected, the uses to which it will be put, whether any of it will be shared with third parties and who to contact to check and request correction of one’s personal information. Sometimes the need to cover all bases can make for a longish privacy privacy. Yet, it may well be the case that many users only want to find information on a specific issue. The clause or paragraph title should lead them to the right place. But should they have to scroll down through multiple paragraphs? And what if they’d like to read only two or three clauses and see them all in close proximity, even if the clause numbers are far apart?

Read more…

UK-based Out-law has recently reported, in one of its excellent legal podcasts, on recent cases in France in which the courts have held that website operators who republished RSS feed content onto their sites were legally responsible themselves as publishers of what transpired to be posts that were invasive of certain third parties’ privacy rights. The fact that, due to the nature of the RSS parsing technology, their websites were automatically updated when the incoming feeds were updated was no excuse. In other words, the French courts disagreed with the website operators’ argument that they exercised no editorial control over the publications. Read more…

Social media and legal code

The article “Social media and legal code“, published recently in NZ Lawyer, provides a checklist of governance, legal, and quasi-legal issues for those involved in the planning, design, operation, and maintenance of social media sites. To a very large extent, it distills the practical issues that are discussed in more length in previous posts.  Hope it’s of some use.

It is conceivable that you or your organisation may wish to resyndicate, on your or its own site, content from the feeds of other websites. Alternatively, you may wish to bookmark a handpicked and tagged selection of items from various websites in del.icio.us, take the resulting del.icio.us feed and use that to populate your site with headline links to items on other sites.

Resyndicating content from others’ feeds

It should follow from the discussion in the previous post that taking and resyndicating others’ feeds without their consent is not a good idea. If such consent is not obvious from terms on their site or from the feeds themselves and there is any risk of adverse action upon re-use, the safest bet is to request permission and, if granted, obtain written confirmation. Failing to do so could prompt the content owners to unleash their legal hounds.

Equally, even where a general consent to resyndicating feeds is apparent from an organisation’s site, you may need to take care that you comply with any terms accompanying that consent. By way of example, the New Zealand Herald expressly “encourage[s] the use of NZ Herald RSS feeds as part of a website or weblog”. At the same time, their RSS licence terms require, among other things, that NZ Herald’s headlines are displayed in the exact form received, are not modified without their consent and that the resyndicating website stipulate that the headlines are supplied by nzherald.co.nz.

Read more…

With the versalility and portability of RSS feeds comes a greater ability on the part of third parties to easily copy your content by, for example, republishing it on another website. However, the publication of an RSS feed does not mean the copyright owner relinquishes its rights in the literary, audio or video content that the feed conveys.

Although the issue is untested in New Zealand courts, in my view the legal position is that the production and making available to the public of an RSS feed carries with it a licence (sometimes express, sometimes implied) to anyone using the internet that they may subscribe to that feed in any personal feed reading application (whether in the nature of a desktop feed reader, web-based feed reader, personalised homepage or otherwise), but no more unless the copyright owner expressly says so by way of more encompassing licence terms. In particular, the mere making available of a feed does not convey any right for third parties to, for example, re-syndicate the full feed content (i.e., item titles and full item descriptions) on their own website. Read more…

Questions raised at the design stage or later on in a site’s lifecycle are likely to include whether to make email notifications of new content available to users and whether to produce RSS feeds as an alternative notification mechanism. These questions may give rise to some or all of the following issues:

  • whether there are any implications flowing from the Unsolicited Electronic Messages Act 2007;
  • possible copyright implications of publishing your own or your organisation’s content via RSS or Atom feeds, in terms of proactively protecting copyright in feed content from resyndication or, if you wish, positively allowing such resyndication; and
  • possible copyright and trade law implications of resyndicating others’ content (e.g., from or via feeds) on your own or your organisation’s site.

I’ll endeavour to tackle each of these in turn. Because there’s quite a bit to say on these issues, I’ll spread the three bullet points across three posts. This post deals with the first. Read more…

Introduction

This third post in the series entitled “Your own or your organisation’s sites” addresses the issue of content moderation. While that issue is related to content creation, it is considered sufficiently significant to treat as a subject in its own right.

Moderation decisions

Preferably before the site is launched, a decision needs to be made as to whether to moderate user contributions and, if so, how. There are three potential approaches:

  • not to moderate at all;
  • moderate before user-generated content goes live on the site; or
  • moderate after user-generated content goes live on the site (either across the board or by way of spot-checking).

This decision can be usefully informed by considering the nature of the site, those likely to use the site, the risk of hostile or abusive comment or an influx of spam, potential commercial or political ramifications and whether there are any particular categories of users that may need protection (e.g., children).

Read more…

Introduction

This second post in the series entitled “Your own or your organisation’s sites” addresses some of the legal issues that can arise in the context of content creation.

Depending on the context of one’s social media site, there are potentially a number of issues relevant to the creation of content on the site which ought to be considered prior to launch, including:

  • terms of use;
  • an appropriate privacy statement; and
  • if the site is an organisation’s site, the appropriateness of staff contributions to the site and whether staff contribution guidelines are desirable.

While the area of placement of terms of use and privacy statement may also be relevant at the site design stage, they are discussed under the heading of content creation because, in legal terms, they are more closely related to the creation and use of content.

Read more…

If you'd like to get to know us or discuss something over coffee, drop us a line.