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Google TiVo: Now Who’s Watching Who?

183054-google-tivo-ad-data_originalPersonal information and data can be captured and aggregated in the most unlikely of ways. Take, for example, television viewing habits.

In the past, data aggregators such as A.C. Neilson have used a variety of techniques to measure television audiences’ viewing habits in order to assemble ratings and assist networks and advertisers in identifying viewership and demographic rankings. It began with people compiling viewing information in journals. As technology progressed, Neilson and other data aggregators used “black boxes” attached to televisions to compile the all-important viewership and demographic information. Some people equated these activities to a form of “Big Brother” watching over us, but in virtually all cases, the “Neilson families” did so willingly and were compensated for their voluntary participation.

Just as everything else, we have now progressed well beyond the activities of yesteryear. The latest news on the viewership and demographic aggregation front comes from Google, which has announced that it is teaming up with TiVo, the digital video recording company, to assist advertisers in measuring how and when their ads are viewed by consumers. As most people know, TiVo and its progeny allow viewers to “fast forward” through commercials so that they can view only the content they elect to watch. While a boon to viewers who hate commercials, this capability frustrates advertisers who pay tens of thousands if not tens of millions of dollars to television and cable networks to promote their services and products. According to Google, this new service is an attempt to re-create its AdWords and AdSense models on the small screen.

The hitch is that most TiVo users typically catch the beginning or end of a commercial or other unwanted programming as they attempt to watch their selected shows. Only the most prolific of remote controllers can precisely fast forward their recorded programming to view only what they want and not what they don’t want. Having now had TiVo for 7-1/2 years, I still suffer the fate of imperfect fast forwarding and consequent rewinding. I just can’t totally avoid those pesky commercials, no matter how hard I try. And believe me, I try.

Google is of the view that even that momentary viewership of the undesirable commercials, while not a full ad impression, is meaningful to advertisers. Thus, it plans to use “anonymous second-by-second DVR viewing data” to track how viewers see ads placed through Google TV Ads and to assemble data on viewers’ television habits.

So, what can we as TiVo users do about it? Google has not yet announced if viewers can “opt-out” of this service. If that option is not available, then the only options seem to be that we participate as willing or unwilling (and uncompensated) participants, or give up our TiVo. Needless to say, that latter option is not realistic. I love my TiVo. I won’t give it up. But at what cost? The price of my privacy, it seems.

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Where Does Internet Defamation Occur? An Interesting Jurisdictional Issue

j0439359The issue of defamation on the internet is an interesting one because, perhaps contrary to intuition, the tort of defamation is generally considered to occur in the location where defamatory material is accessed, rather than where it is published. Dow Jones & Company v. Gutnick, a 2002 decision of the High Court of Australia, was the first case to reach a final court that considered the nature of defamation on the Internet. Dow Jones, a US company, allegedly defamed an Australian businessman in an article on the Internet. Dow Jones argued that the suit should be heard in the US, not Australia, because that is where the article was uploaded. They argued that the Internet, being such a revolutionary development in communications, deserved a new legal response; that the High Court should develop a global theory of defamation liability. The High Court declined to do so, holding that long-established principles of Anglo-Australian defamation law were applicable to online defamation. Canada appears to have followed suit.

The consequence is that regardless of whether online defamatory material has been posted and hosted in the United States, case law developments with respect to internet defamation in foreign jurisdictions may be quite relevant in determining the liability of a U.S. resident for posting defamatory content.

For a good review of the Dow Jones case, see A Result Contrary to Intuition: Defamation on the Internet and the High Court of Australia.

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Hyperlink to Libel: Can You Be Held Liable?

click hereIn actions for libel and slander, “publication” refers to the communication of defamatory material to a third person. Does hyperlinking to a website containing defamatory material amount to publication of that material in the eyes of the law?

This was the issue that was recently considered by the B.C. Court of Appeal in the case of Crookes v. Newton, the first case at the appellate level in Canada to consider whether the creation of a hyperlink to a site that contains defamatory material can make the creator liable for the defamatory material. The plaintiff, Mr. Crookes, claimed that he was defamed in various articles that first appeared on the Internet in 2005. The defendant, Mr. Newton, put up a post on his website under the heading “Free Speech in Canada”, and inserted hyperlinks to webpages that contained the defamatory articles. Significantly, Mr. Newton did not reproduce any of the content from the articles, nor did he comment on them in any way. The relevant post excerpt (hyperlinks omitted) is as follows:

Under new developments, thanks to the lawsuit, I’ve just met Michael Pilling, who runs Based in Toronto, he, too, is being sued for defamation. This time by politician Wayne Crookes. We’ve decided to pool some of our resources to focus more attention on the appalling state of Canada’s ancient and decrepit defamation laws and tomorrow, p2pnet will run a post from Mike [Pilling] on his troubles. He and I will also be releasing a joint press statement in the very near future.

When Mr. Crookes learned of the post, he asked Mr. Newton to remove the hyperlinks, but Mr. Newton refused. Mr. Crookes then sued Mr. Newton, taking the position that by creating the hyperlinks, Mr. Newton became a publisher of the impugned articles found at the hyperlinked websites. Mr. Newton brought a motion for summary judgment, arguing that that Mr. Crookes could not prove that the hyperlinks were brought to the attention of a third party and therefore “published”. Mr. Crookes was able to prove that Mr. Newton’s site had been accessed 1,788 times, but he could not prove whether any visitors to the site had ever clicked on the hyperlinks leading to the webpages containing the defamatory articles.

Mr. Crookes argued that there should be an automatic presumption of publication of the hyperlinked articles – such a presumption exists with respect to defamatory content in newspapers or broadcasts to the general public through the operation of ss. 2 and 12(2) of British Columbia’s Libel and Slander Act which provides:

s. 2. Defamatory words in a broadcast are deemed to be published and to constitute libel.

s. 12(2). The publication of a printed copy of a newspaper is proof, in the absence of evidence to the contrary, of the publication of the printed copy.

The Court refused to apply such a presumption, holding that since there is no such statutory provision in Canada providing for the presumed publication of communication distributed through the internet, it should be up to the Legislature, rather than the courts, to create such a presumption. Nor would the majority of the Court infer publication from the fact that Mr. Newton’s site had received 1,788 “hits”. Justice Saunders, speaking for the majority, noted that there was no evidence adduced with respect the volume of “hits” here compared to the norm, the usual behavior of internet readers or “surfers” or the jurisdiction in which they resided. As a result, there was insufficient information on which to infer that the hyperlinks had been accessed at all, let alone by Canadian viewers.

The court concluded that the mere fact that Mr. Newton hyperlinked the impugned sites did not make him a publisher of the material found at the hyperlinked sites. The Court referred to the 2005 case of Carter v. B.C. Federation of Foster Parents Assn., where it had held that a reference to a website in a printed newsletter, where there was no element of control by the defendant over that website, did not amount to publication of the defamatory material found at that site. In that case, a group of defendants had prepared a written newsletter which contained an internet address for an internet chat room which posted defamatory material, with the comment that “more news” could be found at that address. The Trial judge found that the reference in the written newsletter did not in the circumstances amount to publication by the Federation of the defamatory materials found at that site.

In this case, Mr. Newton advised that he saw the hyperlinks “as the equivalent of a footnote or biographical reference”, and the majority of the Court of Appeal agreed. The majority of the court found that there was no substantial difference between referring to a web address in a written article and a mere hyperlink; both required a decision on the part of the reader to access another website, and both required the reader to take a distinct action. Further, in this day of rapidly changing technology, the court was not persuaded that it would take any less effort to access a hyperlink than a web address in an article. Thus, according to the majority, if it is apparent from the context in which the hyperlink is used that it is being used merely as a biographical or similarly limited reference to an original source, without in any way actively encouraging or recommending to the readers that they access that source, then this would not amount to publication. However, the footnote analogy is not a complete answer to the question. If a hyperlink served as an invitation or encouragement to view an impugned site, or in some way adopted a portion of its contents, the hyperlink could be defamatory. For example, a statement that “The truth about [Person X] is found here, where “here” is hyperlinked to defamatory content may be sufficient to constitute defamation. Thus, the issue of whether a hyperlink promulgates defamatory content will require a contextual, fact-specific analysis.

(Of course, therein lies the rub. The majority of the Court did not see encouragement in Mr. Newton’s post, likening the links to a footnote for a reader or card index in a library. The dissenting judge was of the view that the context of the post served as an inducement to readers to click on the hyperlink).

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FBI Warns that Hackers are Spear-Phishing for US Law Firms

Phishing” refers to the fraudulent process of attempting to acquire sensitive information such as usernames and credit card details by masquerading as a trustworthy entity by way of e-mail, instant messaging or some other electronic communication. The communciation will often directs users to enter details at a fake website that is almost identical to the legitimate one.

To illustrate, in a recent example of spear-phishing launched from a web server in China, CEOs received an email message purporting to be from a federal court stating that a subpoena was being directed to the CEO with a link to a web address ending in “”. More than 1,800 CEOs clicked on the link. Once the victims arrived at the bogus site, they were asked to view court documents by downloading a browser plug-in, which was actually malware used to gain access to the victim’s computer.

On November 17, 2009, the FBI issued a cyber advisory warning that hackers appear to be targeting law firms and public relations firms. Here’s a not-so-clever example:

Subject: Attn: Pamela Pengelley

Alexander JLO – Solicitors
11 Lanark Square
Glengall Bridge
London E14 9RE
United Kingdom.
TEL:+44 794 4145 981
Fax:+44 794 4416 262

Good day: Pamela,

This is a personal E-mail directed to you and I request that
it be treated as such.

I am Barrister Wilson Baker, a solicitor at law. I am the personal attorney/sole executor to the late Engr Gerald Pengelley herein after referred to as’my client’ who worked as an independent oil magnate in my country and who died in a plane crash with his immediate family in December 2003.

Since the death of my client, I have written several letters to the embassy with an intent to locate any of his extended relatives whom shall be claimants/beneficiaries of his abandoned personal estate and all such efforts have been to no avail.

More-so, I have received official letters in the last few weeks suggesting a likely proceeding for confiscation of his abandoned personal assets in line with existing laws by the bank in which my client deposited a notably high amount of money.

On this note i decided to search for a credible person and finding that you bear a similar last name, I was urged to contact you, that I may with your consent, present you to the “trustee” bank as my late client’s surviving family member so as to enable you put up a claim to the bank in that capacity as a next of kin of my client.

I find this possible for the fuller reasons that you bear a similar last name with my client making it a lot easier for you to put up a claim in that capacity.

I propose that 35% of the net sum will accrue to you at the conclusion of this deal in so far as I do not incure further expenses.

Therefore, to facilitate the immediate transfer of this funds, you need, first to contact me via my private email:( for better confidentiality, signifying your interest and as soon as I obtain your confidence I will immediately appraise you with the complete details as well as fax you the documents, with which you are to proceed and i shall direct you on how to put up an application to the bank.

However, you will have to accent to an express agreement which I will forward to you in order to bind us in this transaction.

Upon the receipt of your reply,I will send you by fax or E-mail the next step to take.I will not fail to bring to your notice that this proposal is hitch-free and that you should not entertain any fears as the required arrangements have been made for the completion of this transfer.

Like I said, I require only a solemn confidentiality on this.

Best regards,
Wilson Baker Esq

A word to the wise – proceed with caution before clicking on a link in an e-mail, even if the message appears to be from a reliable source. Better to seek confirmation from your information systems resources than fall victim to a spear-phishing scam. For more information, check out Microsoft’s webpage, “How to Recognize Phishing Emails and Links”.

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Will Brazil’s Power Failure Prompt New Insurance Products?

On November 10, 2008, millions of people were left without electricity in two of Brazil’s biggest cities, São Paulo and Rio de Janeiro, as a result of a massive power failure. The outage also had a significant impact on telecommunications and the Internet routing system in a number of South American regions. According to CircleID Reporter, while Brazil took the largest hit, Paraguayan and Uruguayan networks also went out “as a result of the largest regional power outage to hit Brazil and its neighbors in several years.”

Power Lines

The losses arising from these types of outages can staggering. Recall in early July of 2008, when the network of Brazilian unit of Spanish telecom Telefónica (NYSE: TEF) was disrupted, leaving its 2.2mn Speedy broadband customers without internet access for about 36 hours in the state of São Paulo. According to Business News America, Zurich had said that it would set aside 24mn reais (US$15.2mn) for refunds to compensate for the service interruption.

Prompted by the internet losses, the Brazilian unit of Swiss insurer Zurich began offering a new civil liability insurance product in August of 2008 in the wake of a large-scale internet outage, reported the local financial daily Gazeta Mercantil. The product covers third-party damage and operational shutdowns resulting from service disruptions, according to the report.

According to Zurich Brasil’s financial insurance lines executive ,Vinicios Villela Jorge, “Many businesses were wanting to know whether the insurance market would make this type of product available so that they could require [clients] to get this policy when contracting their services.” It will be interesting to see whether new insurance products become available on the market as a result of this most recent network failure.

SOURCES: CircleID Reporter; BNAmericas

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