Tag: lesser known crimes

Undisclosed advertorial in blogs and social media

It is commonly misconceived that blogging and social media are regulation-free publishing forums. In fact, most of the laws that apply to traditional publishers apply equally to blogs and, sometimes, social media posts. Particularly important is the prohibition on undisclosed paid promotion in editorial content, also known as “advertorial” or “surreptitious advertising”.

Readers will be familiar with advertorial content in printed publications: it is usually surrounded by a border that marks it apart from proper editorial content and is headed by phrases like “Commercial Feature” or “Advertisement”. Whatever method is used by the publisher to differentiate it from other content, it is usually clear that someone has paid for it to appear.

Marking such content apart is good, ethical editorial practice in the interests of consumer protection. The Advertising Standards Authority of Ireland code of standards requires this:

Advertisement promotions should be designed and presented in such a way that they can easily be distinguished from editorial material.

The ASAI is an industry-run, self regulatory body and can only impose sanctions on its own members. It is sometimes accused of being toothless but most major companies and advertisers tend to comply with its rulings. However, because it is an industry body not backed by legislation and which can impose sanctions on members only, it is commonly believed that there is no specific legal prohibition on this conduct. An article in the Irish Independent earlier this week said:

There are no strict guidelines for bloggers and influencers when featuring sponsored content, but according to the Advertising Standards Authority of Ireland, sponsored online content “must clearly state that the material is a marketing communication”.

This is not the case, failing to identify paid editorial content is a criminal offence.

The relevant law is section 55(1)(q) of the Consumer Protection Act 2007 which states that, among other practices, a trader shall not “use editorial content in the media to promote a product (if a trader has paid for that promotion) if it is not made clear that the promotion is a paid promotion”.

The Consumer Protection Act implements the European Union Unfair Commercial Practices Directive which categorises this type of advertising as conduct that “shall in all circumstances be regarded as unfair“. This means that it is “blacklisted”: no case-by-case assessment is necessary. (Surreptitious advertising on television is prohibited elsewhere by the Television Without Frontiers Directive.) It might not be sufficient to merely identify advertorial with a simple phrase or logo: the Hungarian Competition Authority found that editorial content which included a slogan “Sponsored by Vodafone” was not enough to identify the nature of the arrangement between the publisher and the advertiser.

The prohibtion applies to the “media”, which is not defined but it appears widely accepted that this includes blogs and even social media accounts.  In the UK, for example, the then Office of Fair Trading carried out a targeted campaign some years ago requiring PR companies and celebrities to be transparent about their endorsements. The basis of this clamp down on undisclosed advertising was the UK equivalent of section 55 of the Consumer Protection Act.

The definition of “trader” in the Consumer Protection Act is wide enough to cover both the advertiser and the publisher/blogger and indeed some enforcement action in other Member States has been against both parties. In Ireland, the Competition and Consumer Protection Commission (formerly the National Consumer Agency) can prosecute breaches.

The penalties include a fine of up to €4,000 on summary conviction (or €60,000 on indictment) and/or jail. The Act provides for increased fines on subsequent conviction and daily fines if the conduct continues after conviction. The Irish courts tend not to impose significant fines for consumer law breaches of this nature and anyone prosecuted for such an offence in Ireland is likely to face a fine in the hundreds of euros if convicted or could benefit from an alternative to conviction (certainly for a first offence). Consumers can also bring an action for damages, though it might be difficult to establish loss.

It seems unlikely that the Commission will become active in this area unless it receives complaints. However, anyone can apply directly to the Circuit Court or the High Court for an order to stop someone who is in contravention of the prohibition, perhaps making private enforcement by competitors more likely than by the Commission.


Is the Law Society trying to regulate blogs?

Restrictive rules on advertising by solicitors contain important exemptions to protect the right of solicitors to comment on legal and other issues. Is the Law Society interpreting the rules in a way would restrict those exemptions and increase their oversight of comment by solicitors?

Advertising by solicitors is very tightly restricted by the law and regulated by the Law Society of Ireland. I have written about some of the restrictions before. Most of the rules regulate the tone of advertising; what might be termed “ambulance chasing” through advertising, for example, is not possible in Ireland. None of the UK-style personal injury ads you might see on daytime television are possible in Ireland. Even this, quite mild and professional, form of ad would most likely result in trouble for an Irish solicitor daring to upload it.

The Irish rules may or may not be a good way to regulate advertising by lawyers. They do, at the very least, clash with the demand that the professions be more competitive. But the rules do recognise a very important exemption: comment. Exemptions are included in the Solicitors Advertising Regulations that should ensure no overreach in their application that would regulate or prohibit genuine comment.

The Regulations only apply to an “advertisement”, defined as being almost any type of communication “which is intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice” but “excluding a communication which is primarily intended to give information on the law”. So, a communication must be both intended to promote a solicitor and not be primarily intended to give information on the law for the Regulations to apply.

This is quite a large exemption and obviously seeks to make a distinction between traditional advertising and, for example, news updates or comment. If a communication by a solicitor is primarily intended to give information on the law it is not an advertisement, is not governed by the extensive rules and restrictions contained in the Regulations and, importantly, is not subject to oversight by the Law Society. That oversight is significant: a breach of the Regulations is a disciplinary matter which can potentially have serious consequences for the solicitor involved.

Cartoons: prohibited content.
Cartoons: prohibited content.

One catch-all provision in the Regulations, for example, prohibits an advertisement which is likely to bring the solicitors’ profession into disrepute. It is quite difficult to know precisely what is covered by that prohibition (the Law Society does not publish decisions made under the Regulations) but it is quite easy to envisage an individual or organisation who dislikes a communication from someone who happens to be a solicitor making a complaint to the Society under this heading of the Regulations.

Last Friday the Law Society published a surprising practice note on advertising. The headine refers to legal advice columns, so you might think it applies only to regular pieces in local papers where readers send in questions, for example. It suggests that where the solicitor is paying to have the column appear or is simply reproducing the content, the exemption does not apply and the column might be an advertisement. This is fair enough: such a column should be identified as advertorial or a commercial feature by the publisher. In fact, paying for editorial content to appear in a newspaper without making it clear to readers that it is a paid feature is a criminal offence for all businesses, not just solicitors.

However, the practice note makes a number of significant leaps when interpreting the Regulations. It refers to an exemption “set down in regulation 12” and refers to the contents of regulation 12 as being a test. In fact, the exemption is contained in the definition of “advertisement” in regulation 2(a). Regulation 12(a) adds to or gives examples of the exemption, it does not limit it.  Paragraphs (b) and (c) do limit the exemption by clarifying that the distribution of free legal books may, for example, constitute advertising even though the publication might be information on the law.

The danger in this practice note, which one must assume the Law Society will apply in interpreting the Regulations, is that it sets a far more restrictive scope to the comment exemption in the Regulations. The paid advice column is not a difficulty, but many solicitors now publish blogs, for example, and some pay to do so. Many solicitors have websites which may constitute advertising in their entirety or may include information on the law but either way are likely to be paid for by the solicitor.

Where an article does not satisfy this test, that is, if it has been paid for by or on behalf of the solicitor, or where it has enjoyed repeated publication, the article is subject to the regulations in the normal way.

I do not accept this. Rather, the article might be subject to the Regulations. This blog is published using WordPress.com who I pay for mapping a domain name to it. Is it a series of legal articles written by me where part of the space in which it is published is paid for by me? Possibly, depending on your view of domain name mapping to a free blogging platform and whether the former constitutes “space” in which the blog is published. Is it an advertisement? Certainly not. It is not intended to be and it constitutes information on the law.

Regulation 12 is not a “test” of whether or not a communication by a solicitor is commercial or non-commercial. The test is in the definition of “advertisement” itself. The practice note is, perhaps inadvertently, further evidence of how the the Regulations are out of date. These anachronistic advertising rules do not appropriately accommodate or regulate blogging, social media or other contemporary means of communication.

The Regulations are already the subject of infringement proceedings by the European Commission who allege that they breach the Services Directive, which required that Member States ease restrictions on advertising by professionals. Despite this, the Law Society has recently been publishing practice notes which reinforce the existing Regulations and present to solicitors an interpretation of them more restrictive than the Regulations themselves. Complete reform of the the Regulations is long overdue.

More on court reporting of indecent material

In response to my post about sections 14 and 15 of the Censorship of Publications Act 1929, TJ McIntyre points out that it would be interesting to test the restriction on court reporting against the decision of the Supreme Court in Irish Times v. Ireland [1998] 1 IR 359. That case concerned balancing the constitutional right of the public to know what happens in courts against the right of an accused to a fair trial but the judgment is highly significant to court reporting generally.

In the Irish Times case, Hamilton CJ stated:

While the public nature of the administration of justice and the constitutional right of the wider public to be informed of what is taking place in courts established by the Constitution are matters of public importance these rights must in certain circumstances be subordinated to the interests of justice and the rights of an accused person which are guaranteed by the Constitution.

It is difficult to see what right could be asserted by someone defending section 14 of the 1929 Act against an Article 34 challenge, although Article 40 does say that the publication of indecent matter is an offence which shall be punishable in accordance with law. The offence of blasphemy, also mentioned in Article 40, is contained in section 36 of the Defamation Act 2009 which the then Minsiter for Justice was at pains to stress had to be preserved due to a “constitutional obligation”. Given that the 2009 Act does not deal with publication of indecent matter, one could speculate that the Minister was perhaps aware of section 14 of the 1929 Act and of the opinion that it partially satisfied the constitutional obligation to provide for an offence of indecent publication. Arguably, if the then Minister’s reasoning is accepted, sections 14 and 15 of the 1929 Act must  be retained unless and until Article 40 is amended.

O’Flaherty J, also in the Irish Times case, was of the opinion that freedom of the press is guaranteed under Article 40 “and that the protection in the constitutional provision is not confined to mere expressions of convictions and opinions.” The Supreme Court does not appear to have considered the 1929 Act (despite considering a variety of other laws), but it is hard to see how section 14 be reconciled with O’Flaherty J’s comments.

The purpose of reporting restrictions and in camera rules relied on today are of a different nature than the one contained in section 14 of the 1929 Act. O’Flaherty J noted:

While [various] enactments authorise the exclusion of members of the public, the entitlement of bona fide representatives of the press to attend such trials is preserved. Where a trial involves offences of a sexual nature, while the press may attend, legislation requires that when they report, they must do so in a way that safeguards the anonymity of the parties.

He refers to section 20(3) of the Criminal Justice Act 1951 which allows a judge to exclude the public from criminal trials for offences which are, in the opinion of the court, of an indecent or obscene nature. This sounds like a legislative enactment of the practice referred to by Dr Keating in the Free State era, when judges might invite members of the public to leave a courtroom in the interests of “respect”.

One would have assumed that in a case where section 20(3) of the 1951 Act is invoked and members of the press remain they are free to make accurate reports on the proceedings once parties are not identified. It is hard to see the point in excluding members of the public in those circumstances, if they can subsequently read the indecent or obscene details in a newspaper. However, if a reporter is present in a case in which section 20(3) is invoked and the trial judge is of the opinion that the details of the case are indecent or obscene, it would seem logical that there would be stronger grounds for a prosecution under section 15 of the 1929 Act, but I’m not aware of this ever happening.

Does anyone know more about the 1929 Act?

Censorship in the 1920s, still on the books?

The Radio 1 History Show recently had an interesting segment on the prosecution of a Waterford newspaper editor.

In the new Irish Free State, low levels of sexual immorality and sexual crime were viewed as two indicators of this nation’s health. The reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.

A prosecution brought against a newspaper editor in 1929 did much to establish this status quo. The editor in question was D.C. Boyd of the Waterford Standard. He had reported explicit details of a case in which a local business man was accused of raping a 13 year old girl.

You can listen here to Myles Dungan’s interview with Dr Tony Keating, who gave a lecture on the topic in Waterford.

Dungan says that “reporting of sexual crime was to remain largely off limits to Irish journalists up to the 1940s and beyond.” I was curious to learn how far that “beyond” stretched and what became of the offence Boyd was prosecuted with.

Section 14(1) of the Censorship of Publications Act 1929 provides:

It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings:

(a) any indecent matter the publication of which would be calculated to injure public morals, or

(b) any indecent medical, surgical or physiological details the publication of which would be calculated to injure public morals.

Section 15 says that an offence is punishable by a fine of up to £500 and/or up to six months imprisonment (which could include hard labour). In light of current debates about ISP and website operator liability for online content, it is interesting to note that section 15 specifically provided that the liability for the offence extended to proprietors, editors, publishers and “master printers”.

So, when was it repealed? It wasn’t. Sections 14(1) and 15 remain on the books.

According to Keating, Boyd’s case was the first prosecution of this type and was described by the trial judge as being exactly the type of case the law was introduced to deal with. One can only hope that it remains in force due to oversight rather than principle.

Dr Keating says that the maximum fine of £500 in section 15 would, in today’s money, be £22,000 (I am assuming he was referring to sterling). The Fines Act 2010 means that the offence is now subject to a Class A fine, currently up to €5,000.

I’m not aware of any more recent prosecutions but in 1953 Joseph Blowick TD was asking the then Minister for Justice Gerald Boland whether he had submitted a newspaper report on the murder of a judge‘s daughter in Northern Ireland to the Attorney General with a view to having it prosecuted under section 15.

Surely the Minister will agree that the publication of the sordid details referred to in the particular paragraph should not go at least without protest from the Minister provided that he is not statutorily debarred from making a protest to the Censorship Board? In the interests of the clean journalism practised in this country, very laudably practised I must say, surely the Minister should not allow the publication of sordid details like these to pass.

The Minister informed Mr Blowick that his officials had considered the publication but did not believe it could have been calculated to injure public morals.

It is difficult to see how the prohibition on publication is compatible with the Constitution or the European Convention on Human Rights. Even if freedom of expression were not an issue, the prohibition itself refers to both “indecent matter” which would be defined quite differently today than in 1929. Another difficulty, as was the case with Mr Blowick’s complaint in 1953, would be in proving that the publication was “calculated to injure public morals”. It is a mystery how Mr Boyd was found to have done so in 1929.

Damages for misleading commercial practices

The Consumer Protection Act 2007 was a significant piece of reform legislation which has largely gone unnoticed and under utilised.National Consumer Agency

The National Consumer Agency uses the Act as part of its enforcement function and it has been reported that the NCA has initiated proceedings under the Act against Associated Newspapers (Ireland) Limited arising out the infamous Sunday Tribune wrap-around published by the Irish Mail on Sunday. In 2009, Tesco unsuccessfully sought an injunction against Dunnes Stores to prevent allegedly misleading advertising, partly under the provisions of the Act (more here).

However, there are a number of aspects of the 2007 Act that consumers can rely on. I recently obtained exemplary damages under the Act on behalf of a client in a District Court action where the client had been misled. The case concerned a contract with a tradesman for goods and related installation works where the goods had been delivered but the works not completed, despite having been paid for in full. The plaintiff was forced to engage a third party to complete the works and obtained judgment against the tradesman for the cost of doing so.

Prior to being hired by the plaintiff, the tradesman represented that he was an agent of a manufacturer (which happened to be the third party later engaged by the plaintiff to complete the works). The plaintiff assumed that he could call on the manufacturer to step in if the agent failed to complete the works. The tradesman was not an agent of the manufacturer; hence the manufacturer had no liability to the plaintiff and had to be paid for completing the works.

The 2007 Act lists four categories of commercial practice:

  1. unfair commercial practices;
  2. misleading commercial practices;
  3. aggressive commercial practices; and
  4. prohibited commercial practices.

The latter two categories are more serious and engaging in them is a criminal offence. A wide range of behaviour can constitute a misleading commercial practice and, if it would encourage a consumer to enter into a contract, the 2007 Act provides remedies. Engaging in a misleading commercial practice is not an offence (unless it relates to consumer information regulations) but does give rise to a right of a consumer to seek damages, including exemplary damages.

In this instance, the trader’s representation that he was an agent of the manufacturer was a factor which influenced the plaintiff’s decision to contract with him and exemplary damages of €500 were awarded against the trader as a result, adding 18% to the total award.

The Act makes for interesting reading and covers a wide range of commercial practices. It is likely that the extent to which the Act affects everyday marketing and sales is not widely appreciated, though the NCA has published a guide.

Here are some interesting examples: it is prohibited to

  • represent that a product is able to cure an illness, dysfunction or malformation, if it cannot;
  • use advertising to encourage children to purchase a product or to persuade a parent or adult to purchase it for them;
  • persistently fail to comply with a customer’s request to cease unjustified contact.

A number of other prohibitions might be particularly relevant in light of current economic conditions:

  • a representation that the trader is about to cease trading or move premises, if the trader is not;
  • a representation that describes a product as “gratis”, “free”, “without charge” or anything similar, if a consumer has to pay anything other than necessary and reasonable costs;
  • operating, running or promoting a competition or prize promotion without awarding the prizes described or reasonable equivalents;
  • explicitly informing a consumer that if the consumer does not purchase a product, the trader’s job or livelihood will be in jeopardy.

The maximum penalties for breaching these prohibitions, on a first summary conviction, are a fine of €3,000 or imprisonment for up to 6 months (or both). Subsequent convictions for offences under the Act carry maximum penalties of €5,000 or 12 months’ imprisonment (or both).

Lesser known crimes: do you own that copyright?

The second in my irregular series of lesser known crimes, like the first, relates to unlawfully claiming ownership of an intellectual property right.

Section 141 of the Copyright and Related Rights Act 2000 provides:

A person who, for financial gain, makes a claim to enjoy a right under this Part [ie. copyright] which is, and which he or she knows or has reason to believe is, false, shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, or to imprisonment for a term not exceeding 5 years, or both.

The penalties are far more serious that those applicable to the trade mark offence. It was introduced to the legislation as an amendment proposed by the then Labour Senator Brendan Ryan, who proposed a maximum penalty of £10 million. He saw it as a necessary counterbalance to the “draconian powers” afforded to copyright owners in the legislation.

[T]here is nothing to suggest that a person who, maliciously and for monetary gain, abuses those powers would pay a penalty other than through the civil courts – even that is patchy and requires clarification … if such a scale of unprecedented powers is to be granted, there must be a balanced penalty for abuse of those powers.

Section 141 is the type of offence companies like YouTube are talking about when they say in their copyright notice:

Be aware that there may be adverse legal consequences in your country if you make a false or bad faith allegation of copyright infringement by using this process. Don’t make false claims!

However, the process they refer to is their own notice-and-takedown procedure and the adverse legal consequences under section 141 require that the claim is made for financial gain. I expect that section 141 was envisaged as addressing false claims for damages. While I’m not aware of any prosecutions under section 141,  it is conceivable that someone could gain from having someone’s videos removed from YouTube (eg. if the complainant ran a paid site featuring the same video under licence).

Lesser known crimes: is that trade mark really registered?

Do you use the ® symbol and, if so, do you know what it means? If you don’t, you might be committing an offence.

I have written before about the different legal structures under which a business may be run. The only reference to trade mark law in that post was to point out that a registered business name is not, of itself, a trade mark.

The Trade Marks Act 1996 defines a trade mark as “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.” This is an example of legalese.

The Patents Office, which handles the registration of marks, offers a more helpful definition:

A trade mark is the means by which a business identifies its goods or services and distinguishes them from the goods and services supplied by other businesses.

You might identify your business using a company or registered business name and therefore use it as a trade mark. However, it is not a registered trade mark. A registered trade mark provides a monopoly on the use of trade mark: it stops others from using it. Of course, there are limitations to that monopoly and not all marks can be registered. See here for a good FAQ on registered trade marks.

Whatever about the detail of trade mark law, the ™ and ® symbols are familiar to us all. But what do they mean?

  • Using the symbol indicates that you are using a name or logo as a trade mark. It does not offer specific protection. However, you might take an action for passing off (which is like suing on the basis of an unregistered trade mark) and will obviously require evidence of using the mark as a trade mark. Use accompanied by the ™ sign may assist.
  • Using the ® symbol indicates that the name or logo is registered as a trade mark.

The difference is not merely technical. Section 94 of the Trade Marks Act 1996 provides that it is an offence to falsely represent that a mark is registered. The fine was originally a maximum of £1,000 with a further fine of up to £100 per day for a continuing offence.

The recent Fines Act 2010, which has been signed into law by the President but has not yet been commenced by the Minister for Justice and Law Reform, will increase these fines. If my reading of the Act is correct, a section 94 offence will become a Class C offence and therefore carry a maximum fine of €2,500, with the daily fine for continuing offences becoming a Class E offence with a fine of up to €500 per day.