A text transcription follows.
This transcript is for anyone with a hearing impairment or who for any other reason cannot listen to the MP3 audio file.
The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT-LAW Radio, the weekly podcast that keeps you up to date on all the twists and turns in the world of technology law. Every week we bring you the latest news and in depth features that help you to make sense of the ever changing laws that govern technology today.
My name is Matthew Magee, and this week we look at a ruling from Europe's top Court that could mean web retailers and publishers have to become much more approachable.
But first, the news:
Virgin Media has dropped drops competition case against Sky and businesses don’t trust police over e crime.
Virgin Media has dropped its High Court competition law suit against Sky after the two companies agreed to show each others' television channels on their respective cable and satellite TV networks.
The two companies fell out in 2007 when Virgin refused to pay the high fees which it said Sky was charging for the right to show Sky programmes on Virgin Media’s cable network. The companies stopped broadcasting each other's channels, and Virgin Media lodged a court case claiming that Sky was abusing a dominant position in the pay TV market to charge high prices in breach of competition law.
The case was based on the Competition Act and the EC Treaty which prohibits a company which has a market dominating position from abusing it.
The companies have agreed prices for the broadcast of the channels and Virgin Media has dropped its suit.
Most large firms do not report e crime because they do not have faith in investigating authorities, a survey has found. The Corporate IT Forum, which carried out the survey, found that only 4% of respondents’ always reported e crime. Companies said that they did not report it because there was no competent authority to deal with e crime. Almost 57% said that they did not feel that e crime would be investigated properly, while 30% said that there was nobody to report it to.
Security chiefs at the 54 large companies which responded to the survey said that this lack of authority or action is having a direct effect on the amount of criminal activity taking place. The Government disbanded the National Hi tech Crime Unit in 2006, folding it into the Serious and Organised Crime Agency, but faced criticism from companies who had to report to local police forces any e crime that was not deemed to be part of organised crime or on a scale large enough to be dealt with by the Serious and Organised Crime Agency. A new body with less funding than the National Hi tech Crime Unit is being set up and will be called the Police Central E crime Unit.
That was this week's OUT-LAW News.
An obscure ruling recently issued in a spat involving a German Iisurance broker could end up changing British rules on web publishing and costing companies in the UK a fortune.
Big web publishers or retailers could end up having to man call centres just to answer queries from the public before they even become customers. Though experts say it is unlikely to get that bad, they admit that nobody knows the full implications of last week's ruling.
The European Court of Justice has said that companies with websites need to have more contact information on the sites than was previously thought necessary.
This is ground covered in the E Commerce Directive, which ordered all companies to publish information such as an e mail address and a physical address on their websites to increase consumer confidence in online commerce.
But the ECJ has looked again at the directive and has said that an e mail and physical address isn't enough, and that consumers need some way to get a fast response to communication. Fast responses are expensive, though it potentially means extra staff and extra infrastructure. Struan Robertson, a technology law expert at Pinsent Masons, the law firm behind OUT LAW, explained first of all what the law said in the UK before this ruling.
Struan Robertson: Our understanding of it was that any company had to put its geographic address and had to put an e mail address on its website and it wasn’t enough just to have a web form, I mean that is what we used to tell companies but by all means have a web form but that is not enough. You need an e mail address as well. But as we understood it that was all that you had to have and what the ECJ is saying is that actually you need something more than that.
An online insurance broker called Deutsche Internet Versicherung was taken to Court by the German Consumer Association, which said that the e commerce directive demanded that it publish a telephone number.
DIV fought the case and the German Court asked the European Court of Justice whether the directive really meant that companies had to publish their phone numbers. Its ruling was: yes and no. Robertson explains.
Struan Robertson: There are two choices. You can give a telephone number. That would meet the ECJ’s expectations. You can also give a web form but what’s uncertain is how you deal with that web form. The legislation says that you have to provide something that allows the company to be contacted rapidly and communicated with in a direct and effective manner. What we don’t really know is what that means exactly. In the case of the German insurer they provided a web form and they undertook to respond within 60 minutes to queries that were submitted through that form. Now that’s far more responsive than you get from most companies. The ECJ didn’t really elaborate on what it expects of other companies. It just said: “Fair enough. Deutsche Internet is providing a 60 minute service. That meets the requirement." Does it meet the requirement if they do it in the course of 24 hours? What about 48 hours? All these things we don’t know.
The ECJ's word is quite literally law – there is no higher authority when it comes to interpreting EU directives, and there are no appeals. But what does this mean? Robertson said it could have a major impact on the way companies communicate with the public, and on the cost of that communication. It might, he said, mean big companies will have to establish phone lines and call centres full of staff to answer them, or it might not.
Struan Robertson: That’s certainly one way of interpreting it. And that’s the problem. This is now a challenge of interpretation. We don’t know exactly what is expected of other companies. Does it make a difference if you give away your services for nothing? For example if you are Yahoo and Google, are you expected to meet the same duty as an insurance firm that is selling insurance on the web? We just don’t know.
The ruling is ambiguous in a couple of ways. First, it is unclear about what it demands. A phone number would definitely meet its demands. A web form also might. In a specific case it looked at a web form would be enough if a query through the form was answered within an hour, but it set no general standard of how quickly queries must be answered.
The second confusion is about how the ruling would take effect in the UK. The UK's regulations are almost exactly in the same words as the directive.
So it could take effect in two ways. If the Government changed its regulations or if a Court had to make a ruling on the matter and followed, as it would have to, the ECJ's ruling.
The Government has told us that it is not making changes to its regulations yet. So how would this end up in Court? With difficulty, said Robertson.
Struan Robertson: What you would be asking a court to do is to award damages when you have not actually sustained any loss, so it is unlikely that anyone would go to the expense of bringing that kind of action. There is a deterrent in this country against bringing spurious legal actions because you might find that the court awards expenses against you and you end up having to pay the legal expenses of the company that you are suing.
The Department of Business, Enterprise and Regulatory reform told us that: "We are currently assessing the impact of the ECJ's decision and what it means for UK e businesses. We will respond with more detail in due course."
Robertson said that the Government would do well not to stray too far from its existing guidance.
Struan Robertson: At the time the Government said that common sense should determine the contact details to be provided. I think we hope to see further guidance on the ruling from the Department for Business. We certainly have been given the indication that they intend to give guidance on the ruling. We just have to hope that that is pragmatic guidance and that it's not going to disrupt businesses. I can’t imagine that the Government is going to issue guidance to businesses that severely disrupt how they do business. I think the reaction will be: wait and see. I don’t think that a large organisation that doesn’t currently offer a team of people to respond to customer queries should immediately change the way that it does business as a consequence of this ruling.
Robertson said that the ruling did not appear to be grounded in the business reality faced every day by companies across Europe.
Struan Robertson: It think it puts a very different obligation on a business if you’re expecting them to have a large team of people manning telephones or on hand to respond to any query that a customer sends in. I mean particularly when you look at some of the detail of this case. They seem to be saying in the ECJ that an individual can send in a question through a web form and ask that the company telephones them because they might be on holiday. It just all smacks of being ill thought-through. I don’t think it is practical for all companies and that’s the problem. The UK approach was that common sense should determine details to be provided. I think that makes good sense. Some companies will list telephone numbers because that is sensible for their business and that is how they win work - and other companies it doesn’t make sense for them, it's just not viable to do it and it changes their business model dramatically if they’re forced to do it and I don’t think that makes sense.
That’s all we have time for this week, thanks for listening.
Why not get in touch with OUT LAW Radio? Do you know of a technology law story? We would love to hear from you on radio@out-law.com. Make sure you tune in next week; but for now, goodbye.