Nexus: defamation

Never Too Late: if you missed the IPKat last week

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Patents, copyright, event reports, defamation, IP Education Series… you say it, we’ve got it! The roundup of the variety of news that the IPKat covered last week has arrived… because it really is Never Too Late!

Patents

The recent update by the UKIPO of its Formalities Manual added that an AI inventor is not acceptable as it does not identify "a person" as required by law. In light of this, GuestKat Frantzeska Papadopoulou examines patent applications made by AI Inventor 'DABUS', and asks us to query the implications of this current view of excluding inventions created by AI.

German ratification of the Unitary Patent Court has been a long pending process, awaiting the outcome of a complaint in the German Constitutional Court. It has been suggested that Brexit has played a role in this. However, as GuestKat Rose Hughes reports, according to the judge overseeing the German constitutional complaint to the UPC (Justice Huber), these allegations may be bulls***.

In this guest report from Rien Broekstra and Gaëlle Béquet of Brinkhof (Amsterdam) (who represent Wiko in the parallel Dutch litigation), they detail the latest development in the ongoing FRAND wars, this time from Germany, concerning the requirements for a FRAND offer.

Typically, in disputes of insufficiency before the EPO, the burden of proof is initially on the side of the party alleging that the patent or application is insufficient. However, as GuestKat Rose Hughes notes, a recent Board of Appeal decision (T 1299/15) confirms it is possible for the burden of proof to shift back to the patentee if "serious doubts" exist.

Kat Eleonora Rosati reports on the CJEU judgment in Spedidam v INA, which followed up on Soulier and Doke and ruled that a presumption of consent of performers in relation to exploitation of recordings is not necessarily contrary to EU law.

Katfriend Bohdan Widła (Barta & Kalinski sp.j. and Jagiellonian University) provides an update on recent developments in Poland concerning damages for copyright infringement, and how much can be claimed.

Trade Marks

Katfriend Penelope Ng brings us a summary of a recent trade mark case in Singapore - Dentsply Sirony Inc. v Tomy Incorporated [2019] SGIPOS 13 - in which bad faith was successfully claimed.

GuestKat Nedim Malovic looks at the intriguing judgment of the EU General Court in T-149/19, which excluded likelihood of confusion between marks representing stylised human figures despite sharing the same public, considering the latter's average level of attention and the average degree of conceptual similarity between the signs.

Geographical Indications

GuestKat Peter Ling reports on a decision by the Higher Regional Court of Hamburg, which found that use of "Glen" in "Glen Els" constituted both an "evocation" of the protected denomination "Scottish Whisky" and a "misleading indication".

Events

Looking to catch up with the latest fashion (law) trends? Kat Eleonora Rosati informed us of the next event 'Fashion Law London - The Spring/Summer Collection', to be held in London on Friday 28 February 2020. IPKat readers enjoy a discount in the registration fee as well!

Katfriend Amy Crouch (Simmons & Simmons, London) provided the first report on the 63rd UIC John Marshall Law School Annual IP Conference, on the topic of "Antitrust & IP: Does it need to be retooled?"Amy also reported on "The State of Patent Law & Policy: Views from the Top" session in her second report from the JMLS IP Conference.

In light of all of the political drama within the UK concerning the NHS, AmeriKat Annsley informed us of the UCL IBIL Innovation debate which took place a few days ago (chaired by Mr Justice Birss) where experts who understand the patent system, innovator and generic business models, drug pricing, cost of drug discovery and public health systems, explored some of the issues faced.

Defamation

GuestKat Léon Dijkman looks at an interesting decision from the Amsterdam district court which ordered Google to remove negative reviews from Google Maps's review section after concluding that they were fake.

Economics and IP

Former PermaKat Nicola Searle shares her thoughts on the current state of the impact of economics on IP, and as a bonus asks for feedback from Kat readers.

IP Education

The IP Education Series is back! In this week's instalment, Dr Janice Denoncourt discusses Generation Z, IP Education and the United Nations 2030 Agenda for Sustainable Development Goals - in particular Goal 9: to build resilient infrastructure, promote sustainable industrialisation and foster innovation.

Never Too Late 241 [Week ending 17 Nov] It may be the name of a fashion style, but is it trade mark use? | Bentley Motors found you have infringed small clothing firm’s ‘Bentley’ trade marks | Monday Miscellany | “Weel done, Cutty-Sark”--from poem to sailing ship to whisky: What’s in a name? | IPEC no longer London-focuses as IP small claims track reaches courts in Newcastle, Manchester, Cardiff and beyond | Can an employee’s freedom of expression trump their confidentiality obligations? The ECtHR weighs in (in a case concerning an employee’s personal website) | Around the IP Blogs | Wednesday Whimsies | Ferrero succeeds in enforcing is rights in the Tic Tac container before Italian court | Never Too Late: If You Missed the IPKat | In order to be irreplaceable, one must always be different: Chanel in trade mark dispute over GABRIELLE mark - again | [Guest post] Rome court rules that iconic photograph of judges Falcone and Borsellino is not a photographic artwork

Never Too Late 240 [Week ending 10 Nov] The Fruits of the Forbidden Tree - AG Opinion C-176/18 on the Boundaries of Plant Variety Rights | Book Review: Internet intermediaries and trade mark rights | case number and official translation of recent Swedish copyright referral now available | [Guest post] Event report: #FashionLawLDN - The Autumn Winter Review | Around the IP Blogs | Book Review: Global Genes, Local Concerns | BREAKING: Board of Appeal provides some initial thoughts on the Broad Institute’s CRISPR appeal (T0844/18) | ‘Competition Law in the Pharmaceutical Sector’ returns to Brussels with IPKat discount code | Thursday Thingies | OxFirst’s 4th Symposium on IP and Competition shows the need to conceptualize FRAND internationally | Sublicensing considerations in software contracts | Discussion point: Does processing of SaaS login credentials make you a data controller? | Never Too Late: if you missed the IPKat last week | BREAKING: High Court of England and Wales weighs in on communication to the public and linking | A case for our times: Ambiguity, insufficiency and uncertainty (Anan Kasei v Neo [2019] EWCA Civ 1646) | What was the relevant undertaking? Further comments on Unilever v Shanks [2019] UKSC 45 | Benelux Court of Justice rules on well-known trade mark in a work of art | Michael Palmedo named Shamnad Basheer IP/Trade Fellow | China introduces new regulation tackling bad faith trade marks… and who is Jing Hanqing? | No economic links, no exhaustion of the “Schweppes” mark in Spain | Rolling to a stop - Jaguar Land Rover shape trade mark rejected, this time by the UKIPO | [Guest Post] Novelty of Cripps Pink Apples under Council Regulation on Community Plant Variety Rights | Conference Report: “Artificial Intelligence: Challenges for Intellectual Property Law” | Airbnb rentals and communication to the public: do you need a specific licence for your TV/radio sets? | Book launch: “The Confusion Test in European Trade Mark Law” | Call to readers: let’s talk about patent quality | Can the UK become and stay a member of the UPC? | Feilin v. Baidu: Beijing Internet Court tackles protection of AI/software-generated work and holds that copyright only vests in works by human authors

Amsterdam district court orders Google to take offline fake reviews

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Last week, the Amsterdam district court issued an interesting decision in which it ordered Google to remove from Google Maps' review section negative reviews after concluding that they were fake [decision here, in Dutch]. The decision is likely to set an important precedent for future cases involving fake reviews, in part because it was rendered by judge Floris Bakels, a former Supreme Court judge who stepped down two years ago to spend the final years before his retirement in a fact-finding court.

The issue has come up repeatedly before German courts and the German Bundesgerichtshof has assessed it within the safe harbour framework of the E-commerce directive [e.g. here, at 31]. But to this Kat's knowledge, this is the first such decision in the Netherlands.

The decision

The plaintiff in the case was a local tailor in Amsterdam. On 7 April 2019, a negative review appeared complaining that the tailor had not done a good job on tailoring a wedding dress and had been rude to the customer. On five more occasions in April and four in August and October, more negative reviews appeared. The tailor, suspecting foul play, requested Google to take them down, but Google refused.

The district court granted the tailor's claims and ordered Google not just to remove the reviews, but also to provide the tailor with the authors' IP addresses, names, e-mail accounts, phone numbers and other information that could help identify them.

Crucially, the district court established that all or at least most of the reviews shared the following characteristics (par. 4.3):

(i) the reviews were written in the English language; (ii) they were written by Google-users which, in total, have placed only one or two reviews; (iii) none of the names are familiar to the tailor and the identity of these users cannot be traced through the internet; (iv) the reviews refer to the Google Reviews tool and other reviews remarkably often; (v) the reviews are almost always directed towards the owner's person; (v) the reviews every time address "the owner"; (vii) the reviews warn others not to go to the tailor; (viii) the reviews address "bad quality" and "bad services"; (ix) the reviews address the tailor in pejorative terms ("he is just the owner of a tailoring store […]", "all you are is just a tailor").

According to the court, this "very specific combination of identifying data justifies the preliminary assumption that the reviews were written by the same person or persons".

Furthermore, some of the reviews were written under obviously fake names – apparently corresponding to the names of the French electronic music duo Daft Punk – and one referred to a wedding dress that was made by the tailor, even though that service was discontinued in October 2018. And in the years prior to the first review on 7 April, the tailor had received only three negative reviews.

The district court concluded that these findings support the assumption that the reviews were written by the same person or group of persons wanting to take revenge on the owner. Thus, the district court assumed that the reviews did not describe actual events, but were intended primarily to hurt the tailor's repute. They were therefore considered defamatory and unlawful.
The district court proceeded to weigh the interests of the parties. It found that the tailor had a strong interest in removal of the reviews and in identifying the authors so as to take legal action against them. This interest was held to outweigh the reviewers' interest in anonymity in the circumstances of the case, as well as Google's interests in remaining as neutral as possible as a review platform. The district court rejected Google's suggestion that this would have a chilling effect for writing negative reviews, as the decision was based not on the fact that the reviews were negative but that they were fake.

When it came to the removal of the reviews, the district court made an important observation which is also worth quoting in full:

[C]aution is necessary in light of the fundamental right of freedom of expression, also on the part of the anonymous users, and the fact that the Google services perform a facilitating role in the dissemination of information on the internet. But also here the protection of the reputation and good name of the tailor should be given more weight that the freedom of Google users to place fake reviews and the public's ability to access them

Consequently, the requested relief was granted.

Cosimo and Lucrezia are hoping for a good review (Source: author's cats)

Comment

In a time where online reviews can make or break local businesses, it makes good sense to allow businesses to act against fake reviews. Indeed, many platforms allow users to only place reviews if they actually used the relevant service (for instance by booking and paying for accommodation through the platform). Since the aggregate star rating from all Google Reviews automatically comes up when searching for a business on Google, it can have a particularly strong impact on a business. Thus, so long as Google puts little restrictions on the ability of users to review a business, it is important for business owners to be able to act against abusive reviews.

However, it is important to heed the district court's warning that "caution is necessary" in cases where a takedown of negative reviews is requested. It will not always be easy to determine when a review is "fake", since reviews by their nature are subjective. On the one hand, reviewers must be able to express frustration over bad service, even if it is strongly worded; on the other, there must also be some protection for reviewed businesses against gross exaggerations. It seems likely that principles developed in defamation law will inform this balancing exercise.

In this case, three elements seems to have contributed substantially to the outcome: (a) the reviews were written by fake persons and relate to fake events; (b) the reviews were intended to damage the owner out of spite; and (c) the reviews showed structural similarities and together formed a pattern. On these facts, this Kat is happy with the outcome of the decision, but it is interesting to think to what extent each of them is necessary and sufficient to warrant removal of a review.

As for (a), the fact that the review were written by "fake" persons should not, by itself, be dispositive. In fact, one might argue that it would be prudent to use a pseudonym on the internet, especially when commenting on a platform as public as Google. On the other hand, the fact that the reviews appeared to relate to non-existent transactions, in my view rightly, received a lot of weight. Then again, how is Google to disprove a business holder's allegation that the names of the clients are not familiar to them and that the relevant transaction never took place? Furthermore, the first review of 7 April seems to also be affected by the order (though this is not clear as the decision is anonymized), but that review related to an actual customer experience.

Element (b) seems tantamount to finding bad faith on the part of the reviewers. Indeed, writing a negative review about a non-existent transaction almost by definition seems to be done with intent to harm the business. The interesting question is if a bad faith requirement would be applied to reviews about real transactions. That is, would removal of those reviews only be warranted if an intent to harm the business can be established?

Element (c) perhaps supports a finding of bad faith in the present case, but this Kat feels it should be particularly cautiously applied in future cases. After all, it might be tempting for business owners to argue that many of their negative reviews fit the abusive pattern and here, too, Google might not be in a good position to argue otherwise. In fact, in the present case two reviews fell under the scope of the order that did not really seem to fit the pattern and lacked various elements listed by the court in par. 4.3. One of these actually complimented the tailor's service, but complained he was too expensive ("Go this place only if you want to burn extra cash as the owner did provide very nice service"); another was so vague that it wasn't even clear what the user was trying to say ("… seems like the kind of guy who would tell on you if he catches you cheating in class. regards TB").

Lastly, an interesting question is whether the decision provides a basis for a business' competitors to challenge fake positive reviews [support for this hypothesis might be found in a 2018 decision by the court of Lecce, which jailed a man for selling fake reviews on TripAdvisor, see here] Again, due to the prominence of Google's search and review services, these may give a business an important competitive advantage, but the intention to harm competitors will be much less direct. All in all, the decision offers much to digest and even more to look forward to.

Have Associated Newspapers made a Royal error publishing Megan Markle’s private letter?

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Meghan Markle, Her Royal Highness, the Duchess of Sussex is suing the Mail on Sunday and its parent company Associated Newspapers, after they published a private letter from Meghan to her father earlier this year.

In a press release, the lawyers for The Duchess of Sussex said that they have taken legal action over the “intrusive and unlawful publication of a private letter written by the Duchess of Sussex, which is part of a campaign by this media group to publish false and deliberately derogatory stories about her, as well as her husband. Given the refusal of Associated Newspapers to resolve this issue satisfactorily, we have issued proceedings to redress this breach of privacy, infringement of copyright and the aforementioned media agenda”.

Her Royal Katness
Image: G Travels

Associated Newspapers have reportedly state that they will defend the case: “The Mail on Sunday stands by the story it published and will be defending this case vigorously. Specifically, we categorically deny that the Duchess’s letter was edited in any way that changed its meaning.”

Whether you are interested in the Royals or not, this case is a juicy one simply on account of the number of potential claims - copyright infringement, breach of moral rights, defamation, Misuse of Private Information, and breach of data protection rights. Here are some initial thoughts:

Copyright in Letters

Copyright protects original literary works and this also includes letters. The owner of a piece of work is usually the person who created it, in this case the writer of the letter. The copyright in the content of the letter therefore belongs to the writer of the letter, although the physical letter belongs to the recipient. This means that in order to share the content of a letter, Associated Newspapers would have required permission from Meghan, unless they can benefit from one of the copyright defences.
For example, if the use for the purpose of criticism, review or quotation, or for the purpose of reporting current events under section 30 of the Copyright, Designs and Patents Act 1988.

If Associated Newspapers wanted to argue that they benefited from criticism, review or quotation they would have to meet the criteria, which includes that the work had already been made available to the public, and therefore unlikely to apply to a private letter.

The exception for reporting current events does not explicitly require that the material already be available to the public, presumably this is to account for breaking news. However, it is a fair dealing exception and therefore requires that the use was fair. When considering if a use is fair, a court would take into account if the work had already been published, or if it was confidential. It is unlikely that use of confidential material would be considered fair unless there was a legitimate and continuing public interest clearly demonstrated, for example “leaked documents” with a clear public interest.

Readers may remember the case of His Royal Highness the Prince of Wales in 2006 (EWCA Civ 1776), where he also took action against Associated Newspapers after they published extracts from his diary. The Prince of Wales also brought an action for copyright infringement and breach of privacy. In relation to copyright, it was found that the Prince of Wales was the copyright owner and that the reproduction of the diary was an infringement of that copyright. Associated Newspapers argued that they benefited from the copyright exception of news reporting. However, the court found that the quotations from the journal had been chosen for the purpose of reporting on the revelation of the contents of the journal as itself an event of interest and not for the purpose of reporting on current events.

Moral Rights and Defamation

In the press release from the lawyers acting for the Duchess of Sussex, they claim that Associated Newspapers published "false and deliberately derogatory stories". In the press release from Prince Harry, he adds that the letter was published in an intentionally "destructive manner...by strategically omitting selected paragraphs, specific sentences, and even singular words..." Associated Newspapers have stated that they "categorically deny that the duchess's letter was edited in any way that changed its meaning."

If they did edit the letter, however, this could give rise to claims under moral rights. In particular, the author of a work has the right to object to derogatory treatment of their work. According to section 80(2) of the CDPA 1988, this includes adding to or deleting from a work, as well as alteration or adaptation which amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author.

In addition, this would open up the opportunity for a claim in defamation. If they letter was unedited then it cannot be defamation since the contents was true. However, if the information was manipulated, as the Royals argue, to deliberately mislead the public to the derogatory effect Markle, a claim would be possible.

Privacy and Data Protection

Balancing skills required
Image: Tommy Hemmert Olesen

In the statement it suggests that The Duchess will also bring claims of breach of her Article 8 right for respect for private and family life, home and correspondence (European Convention on Human Rights). In the context of publishing private information, this would be weighed against Article 10 right to freedom of expression and information. In the UK this would be brought under the common law action for Misuse of Private Information which provides the framework for balancing individual privacy rights and the freedom of the press. The requirements for this action include 1) the information was private, 2) the receiver of the information knew, or ought to have known, that the information would reasonably be regarded as private, and 3) the information was used without authorisation to the detriment of the party communicating it (see Campbell v MGN [2004] UKHL 22). If it is established that the information was private, the court then consider whether, in the circumstances, the interest of the owner of the private information must yield to he right of freedom of expression conferred on the publisher by Article 10. This would be decided on the circumstances of the case and it is not valid to suggest that public figures should expect less privacy as a justification for an intrusion on their private lives (Eady J in Mosley v NGN [2008] EWHC 1777).

In the UK the Data Protection Act 2018 (the UK’s implementation of the GDPR) provides protection for the processing of personal data. Processing includes collecting, recording, storing, using, analysing, combining, disclosing or deleting it. Personal data is any information relating to a natural person who can be directly or indirectly identified by that data. So, if it can be shown that the letter is personal data and that Associated Newspapers processed that data, then The Duchess could argue that it was processed without consent and therefore contrary to data protection laws.

Post GDPR protected post
Image: Loïc GERBAUD

Perhaps Associated Newspapers will rebut with an argument that these breaches of privacy and data protection were necessary for the public interest, which can apply for example if it supports or promotes democratic engagement. However, just because something is interesting to [some of] the public, does not mean that it is in the public interest. Public interest requires a higher level of need, in order to justify the breach of the individual’s human rights.

In the 2006 case, the Prince of Wales also argued that the information in his diary was confidential and therefore protected under Article 8. Associated Newspapers argued that the publication of the diary was in the public interest and permitted under Article 10. The Judge agreed with the Prince of Wales that “the right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest…[The Prince of Wales] is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own ‘human autonomy and dignity’ as is any other.”

Although a letter and a diary are slightly different, in that a letter was intended to be read by the recipient and a diary is usually intended to be entirely private, it is likely that they would be treated the same in the circumstances of being published without permission.

Therefore, it seems that publishing a letter without permission would likely be an infringement of copyright. There is also a case to answer for the claims for breach of privacy and data protection. Additionally, if Associated Newspapers if edited the letter there could also be an argument for breach of moral rights and defamation. We eagerly await the outcome of this controversial case, one thing we can say for sure is that once it is completed we will need to go and update our textbooks!

Nexus

Never Too Late: if you missed the IPKat last week

Amsterdam district court orders Google to take offline fake reviews

Have Associated Newspapers made a Royal error publishing Megan Markle’s private letter?

Copyright in Letters

Moral Rights and Defamation

Privacy and Data Protection

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