Guru in a Bottle

The Court of Appeal has recently given its long awaited decision on a legal challenge mounted by BT and TalkTalk that called into question the legality of the Digital Economy Act (DEA) 2010.

This recent controversial piece of legislation hasn’t been fully enacted and parts still remain to be brought into force by statutory instrument.

Uniquely for a primary piece of legislation, the DEA 2010 has been subject to judicial, parliamentary and regulatory review since coming into force, given some sections are now deemed to be unworkable.

The DEA 2010 introduces a system for tracking and taking action against offenders who habitually infringe the copyright of rights holders by peer-to-peer file sharing on the internet.

The DEA 2010 imposes certain legal obligations on internet service providers (ISPs) that include serving copyright infringement notices on subscribers where such file sharing takes place.

An anonymous copyright infringement list can be requested and provided that a certain level of infringement has taken place, the rights holder can apply to the court to gain an order to identify some or all of the subscribers on that list in order to commence proceedings.

Most operational details of the copyright infringement provisions aren’t defined in the DEA 2010 but left to a series of regulatory codes produced by Ofcom that has engaged in a detailed consultation process regarding the workability of the DEA 2010.

Sanctions in the DEA 2010 include limiting internet access as well as suspending it entirely and there’s an independent appeals process, covering the grounds on which infringement reports are made.

The 2010 Act states that “an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or ISP shows:

• the apparent infringement was an infringement of copyright; and
• the report relates to the subscriber’s IP address at the time of that infringement.
• An appeal will also succeed if the subscriber can show that the rights holder or ISP broke Ofcom’s regulatory code in any way.
• Ofcom has the responsibility of enforcing the ISPs’ obligations in any such infringement action and can impose a fine of up to £250,000 in contravention of the DEA 2010.

In deciding whether to grant an injunction against an ISP, the court is required to consider:

• steps taken by the ISP of the location to prevent copyright infringement
• steps taken by the copyright owner to facilitate lawful access to the material
• any representations made by a Minister of the Crown
• whether the injunction would be likely to have a disproportionate effect on any person’s legitimate interests
• the importance of freedom of expression.

The Secretary of State must be satisfied before making the request that the location is “having a serious adverse effect on businesses or consumers”, that the injunction “is a proportionate way to address that effect”, and that “making the regulations would not prejudice national security or the prevention or detection of crime”.

Other provisions in the DEA 2010 include an amendment to the Copyright, Designs and Patents Act 1988 to increase the criminal liability for “making or dealing with infringing articles” and “making, dealing with or using illicit recordings” to a maximum of £50,000, so long as it is done during the course of a business.

Last year, both BT and TalkTalk challenged provisions of the DEA 2010 that forced them to send copyright infringement notices to subscribers and to provide information about subscribers in certain circumstances.

The case against the Government was heard by the Court of Appeal where both ISPs argued that the DEA 2010 was incompatible with EU law. This argument was rejected and affirms that the DEA 2010 is consistent with European law.

The decision has been welcomed by rights holders who reportedly lose £400m a year in revenues as a result of peer-to-peer file sharing activities.

However, the judgment has also been fiercely criticised by other groups that argued that the sanctions imposed by the DEA 2010 impinge on an individual’s privacy and freedom of speech that’s incompatible with the European Convention on Human Rights.

The decision of the Court of Appeal confirms that larger ISPs will be required to take a role in policing the rights of copyright owners in respect of infringements committed by those ISPs customers and in some cases this will involve bearing a proportion of the costs.

Both BT and TalkTalk must now undertake the relevant investment and expenditure to ensure compliance with the DEA 2010.

The new edition of Essential Law for Marketers Second Edition by Ardi Kolah LL.M is out later this year published by Kogan Page. Pre-order your copy

Speaking at InsiderScope (organised by The Insurance Insider) in London earlier today, Willis chief executive Joe Plumeri spoke passionately about the need for better public relations for the insurance industry if it was to earn the respect of politicians and the public – something that bankers, he said, had failed to achieve given the debacle that’s engulfed the banking sector. A PR nightmare of its own making. And who could dare disagree?

Plumeri is a high-octane CEO with personality to match – something magical in an industry that has a reputation for breeding naturally cautious and self-effacing individuals who’d rather have their finger nails pulled than speak to the media.

The Plumeri style isn’t for the faint hearted. He’ll call a spade a spade. Not only that, he’ll sell you the spade and insure you against all personal risks. He’s my kinda guy!

What grabbed the audience by the throat was Plumeri’s ambition. And I don’t mean financial. Ambition in terms of reputation that the insurance industry deserved.  He was deeply motivational. Not something that the insurance fraternity are used to. He was brilliant. He was real.

He said that the unprecedented challenges facing the global economy should be embraced by the insurance sector. A sector that had repeatedly shown its resilience for more than 100 years.

“My contention is that the golden age of insurance is upon us. It’s going to be a bigger golden age now because what happened in the world has never happened before,” he observed.

The tough talking New Jersey born entrpreneur highlighted the rising frequency and severity of catastrophic events, the once in a lifetime meltdown of financial markets, the threat of terrorism and the political upheaval across north Africa and the Middle East as recent examples of a world in turmoil.

He also highlighted the longer-term trends that could elevate the risk faced by governments and businesses, including an ageing population, growing frustration with the economic and political establishment and competition over energy resources.

He’s no sentimentalist. Rather than dwell on the relative stability of the previous 50 years, Plumeri exuded breath-taking optimism when looking to the future. That sets him apart from all the doom-sayers who have nothing to offer but negative commentary about the future of the insurance industry.

It was a masterclass in having the balls to speak what you really think. If this was the US, I’m confident that if Plumeri’s ambitions pointed in the direction of politics, he’d make an inspirational Senator.

“All the above represent long-term risks, requiring long-term solutions and increased need for insurance and risk management solutions,” he explained.

With such challenges ahead for the global economy, Plumeri urged the insurance industry to be the world’s safe harbour. Now that was ambition.  It was about being bold.

“We should own resilience as an industry,” he said. And at that point  I was transported back to 2004 where I was working for the Defence Academy of the UK and responsible for launching the UK’s first national resilience centre.

The threats facing us as a country or as an industry can be boiled down into the following components:

• Terrorism
• WMD proliferation
• Resurgent militant Islam
• Nationalistic and ethnic clashes
• Rejection of Western values
• Economic competition
• Changing demographics
• Failed states
• Technology acceleration
• Natural disasters (“Acts of God”)
• Environmental risks
• Legislation and regulation
• International organised crime
• Dwindling resources
• Global warming

Plumeri’s stall was laid out. The insurance industry more than any other should be the ‘thought leader’ of the future.

“We focus on extreme events more than anyone else, which makes us more resilient than anybody else. Banks don’t do that, they simply do transactions. There is no other industry in the world that has the insight into business that helps them be resilient in the way that we do.”

Wow. He urged us to go home and tell our kids. And our grand kids (well, I would if we had them).

Bedtime will never be the same.

Leading the BBC News coverage on New Year’s Day was the news item that the German economy is predicted to have zero economic growth and that the rest of the European Union isn’t expected to do much better either.

Given such economic trading conditions facing marketers, it’s easy to become pessimistic about the outlook for 2012.

But there’s a glimmer of hope  – and a way to maintain market share and grow sales.

In the past, it was commonplace not to buy but to rent – whether this was formal attire from shops such as Moss Bros or the colour TV set from Radio Rentals.

And once again, hard pressed families are looking to maintain their quality of life by opting to rent rather than buy items they may have done in the past.

This can apply to electrical items such as washing machines; cars, and mobile phones as well as less obvious items such as computers; garden equipment and furniture for the office and the home. This is a logical response by consumers when faced with a shortage of cash and price inflation.

The rent-to-own model is likely to catch on in 2012 as millions of consumers opt for this model as opposed to  pawning their treasured valuables at the local pawn shop that have been doing a roaring trade in recent times.

With falling economic confidence; higher unemployment and the need for consumers to stash away money in the expectation of tougher times ahead, marketers should start to think laterally about how they are going to shift products and services in such a challenging trading environment.

The answer is to create new rental models rather than rely on consumers wanting to purchase goods outright.

Back in May this year, the Privacy and Electronic Communications (EC Directive) (Amendment) Regulations (2011 Regulations) came into force in the UK. It’s significant in that the EC Directive affects direct electronic marketing on laptops, desktops, digital and mobile devices and the security and confidentiality of such communications.

The main practical change is in relation to cookies – small text files that are stored on a user’s device when visiting a web site. The cookie assists the web or mobile site in recognising the user’s device and delivering a more tailored and user-friendly experience.

British marketers have until May 2012 in order to fully comply with these new regulations or face action from the Information Commissioner’s Office (ICO).

Previously, the 2003 Regulations required that web site users be given clear information on what cookies are and how they are used and that web site users be given an opportunity to refuse to accept them being placed on their computer.

Web site owners accommodated this requirement by including the necessary information and the opportunity to ‘opt out’ in a prominent privacy policy on their web site, either included in or linked to from the web site terms of use.

Since 2003, there have been numerous examples of ‘implied consent’ that continued to be invasion of privacy and unwanted electronic communication and effectively this resulted in amendments to the 2003 Regulations.

The 2011 Regulations now change the ‘opt out requirement to an ‘opt in’ requirement.

What this means is that web users must give their express consent to cookies to be installed on their device before the web site owner can use them. The only exception to this requirement is where the cookie is ‘strictly necessary’ for a service – for example, in an online check-out context.

Although this has led to redrafting the wording of privacy policies as well as changing the operability of web sites, it does present practical problems and severe inconvenience for web site owners which is why in the main many web site owners are still in breach of the 2011 Regulations as few have been slow to adopt these requirements.

Over the next few years this is likely to change as the Information Commissioner now has enhanced powers of investigation and enforcement including the right to impose penalties for breach of the 2011 Regulations up to £500,000 and the right to audit the marketer’s activities without the need for consent.

Marketers should use this time now to review how their web sites work in order to comply with the 2011 Regulations.

Take this time period to review and list the various cookies used on your site, such as flash cookies, browser cookies and third party cookies to assess which ones are strictly necessary to provide users with web-based services and those which aren’t and remove those in the latter category. As a general rule of thumb, the less intrusive the cookie, the lower the risk and the need for obtaining specific and active consent

• Remember that the aim of the 2011 Regulations is to improve internet users’ privacy, so the more intrusive the use of cookies then a higher priority must be given to considering how to change that use
• Any attempt to gain consent that relies on web site users’ ignorance about what they are agreeing to is unlikely to be compliant
• Consider how intrusive the use of cookies are and discuss this with third party cookie providers to agree a suitable approach to obtain users’ consent
• Remember that the more intrusive the activity, the more priority a marketer must give to obtaining meaningful consent from the web site user. For example, using a cookie to create detailed profiles of an individual’s browsing activity would be considered very intrusive and would therefore require meaningful consent
• Look at all the circumstances in order to select the most appropriate solution. Information about cookies needs to be provided to all users before placing a cookie for the first time. Once consent is gained at that point, there’s no requirement to gain consent each time the same person uses the same cookie for the same purpose in the future
• Requesting consent could be achieved through a variety of mechanisms, such as the use of standard terms and conditions, pop-up check boxes or general browser settings. There’s no one simple solution and it will very much depend on the user experience and the type of cookies involved that will dictate the form of consent used
• Begin to create and implement appropriate and tailored solutions to gain web site users’ consent
• The ICO is likely to be taking enforcement action against web site owners in the late 2012 so marketers need to have reviewed their cookie practices and to have implemented a practical and effective strategy to obtain users’ consent before then.

 

Look out for Guru in a Bottle’s Essential Law for Marketers Second Edition, to be published by Kogan Page in 2012.

They used to say watching paint dry was about as boring as it gets. Try watching waste disposal TV. That really will rot your brain whereas watching paint dry does have something going for it. Once it’s dry, you can paint over it with something nice if you don’t like it.

It may be an exaggeration but it looks to me that most of the fare on primetime telly is catering for the tastes of a large proportion of the nation hooked on easily forgettable content.

The trouble is a diet of waste disposal telly has started to turn us into a nation of glutons that can only get satisfaction and enjoyment through the lens of public humliiation and spite.  As James Palumbo so accurately observes in the Times this morning (Thursday 22 September) ‘the more we become addicted to a diet of backsides in Big Brother and bug eating in I’m a Celebrity…Get Me Out of Here! the worse the programmes get. ’ And is this what we want to share with our kids as they stay up with us on Saturday nights? What’s the message – whether intentionally or not – we want to send to them? 

According to research recently published by UNICEF parents just don’t spend enough time with their kids,  so we need to stop and think about their tv diet before its too late! 

This moral malaise is storing up problems for the future as we rush headlong in creating a society where what matters most are hedonistic pleasures that often comes at the expense of another person’s misfortune or plain bad judgment.

A look at the current telly schedules gives us little to cheer about. We appear to be a nation of glutons feeding off waste disposal telly. It’s as if we’ve become followers of some kind of strange cult. And the high priest is none other than Simon Cowell.

The X-Factor attracts upwards of 16m viewers a week which would give the Christmas Day broadcast by Her Majesty a run for its money. But the enjoyment X-Factor provides to its viewers with its fare of ritualistic humilation is probably in the same entertainment category for those that used to rock up to watch gladiators beating the crap out of each other in Roman times or those that gathered at the foot of guillotines at the time of the Peasants Revolt. It  doesn’t say much about where we’ve come from and where we’re going as a society, does it?

The lastest in a long line of waste disposal tv is  Red or Black. I think I’d rather watch paint dry!

It wasn’t that long ago that we used to watch shows on primetime telly and poke fun at the excesses of Japanese tv game shows that were a frequent staple of ITV’s Clive James on Television.  

Now we’ve become a parody of the very things we took pleasure in mocking. The taste for pain on prime time is mainfesting itself in ever more extreme degrees.  In Embarrassing Bodies patients allow themselves to be poked about about by men in white coats. Then there’s a plethora of Supersize and Superthin freak shows that pretend to be some macabre form of ‘edutainment’ that simply serve to fuel the more nasty side of our prurient interest in the misfortune of others.

I’m not advocating a ban on this stuff - but isn’t it time we stopped pretending that these shows don’t have an influence on the way in which we are conditioning behaviour in our society – particulary amongst those who are more suspectible to such negative impressions that lead them to think that pleasure can only come from someone else’s misgain?  

Here at Brit Insurance, sponsor of the England Cricket Team, we’ve been talking internally about the strong parallels between sport and business in the wake of the team’s fantastic performance against India to become the world’s number one Test cricket side.

In particular, the link between leadership, team work and performance with a top winning side in sport as well as in business.

A few weeks ago, Simon Barnes (The Times) wrote: “Team, team, team. England go on about it. They really believe it and it really works and perhaps part of the reason it does so is that there isn’t a player who is more equal than all the others…The experiment seeks to demonstrate that lack of weaknesses plus team spirit can be as effective as teams who contained some of the greatest batsmen and bowlers that ever drew breadth.”

I agree with the thinking about leadership, teamwork and performance and the parallels it has for business.

In his blog, journalist Mihir Bose wrote: “Money doesn’t always guarantee sporting success…Managers are under pressure always talk of how much the opposition has spent, but it is management more than money that matters in the end.”

On cricket, Mihir writes: “India is the money bags of world cricket. India’s rise marked the first time that a major team sport had passes into non-Western hands. In recent years, India has matched its off-field success with on-field victories and, unlike English rugby, the Indians arrived in England as the top dogs in both Test and one-day cricket. The hope was …we would have a riveting series between two teams ranked one and two in the world. Rarely in modern cricket could two teams, which were supposedly so evenly matched on paper, turn out to be quite so mismatched on the field of play.”

One of the keys to England’s success, he writes, is its ability to maximise its resources.  “It remains a classic illustration that while in business success is driven by money that is not the case in sport. A successful sporting teams needs money. But it also needs men who know how to use that money. That is the difference between money and sport, however much sport becomes a business. The biggest spender is not always the one who has the largest smile come the end of the season.”

There’s a lot that can be learned in business by how sports teams achieve great results and a great example of this in action is Brit Insurance, one of the best managed companies in  its sector.

Perhaps the winning England Cricket Team and Brit Insurance share much more in common than you may have thought..

Peter Sutcliffe-Keenan and Jordan Blackshaw just received custodial sentences of four years in length for their part in inciting the riots in the UK that have ripped apart whole neighbourhoods and communities and has led to an a national introspection of our broken society. Whilst the rule of law needs to be upheld, what’s interesting is that the authorities are extending their jurisdiction to the web  – neither men left the relative safety of their bedrooms and attempted to orchestrate looters via their Facebook accounts.

Increasingly, the virtual and real worlds are colliding faster than anyone could have predicted  – and certainly the two defendants’ legal teams must be taking stock this morning of the implications of this as both their clients begin a long stretch behind bars.

And those of us who work in professional public relations must also take note of the pace of change that’s taking place in every aspect of the management of modern PR.

The most recent and reliable survey on the changes taking place within the £7.5 billion PR industry in the UK has been published by the trade body PRCA and PR Week. Over 1,300 respondents took part, representing both agencies, in-house and freelance practitioners. 

What’s particularly eye-catching was that PR professionals almost unanimously agreed (93 percent) that online comms had become a more important part of their roles in the past two years and expected this to increase in importance (89 percent) whereas event planning had apparently decreased in importance - which may reflect a down turn on spending money on more traditional face-to-face communications.

In his new book, ‘Real-Time Marketing & PR’, David Meerman Scott remarks: “Gone are the days when you could plan out your marketing and public relations programs well in advance and release them on your time table. It’s a real-time world now and if you’re not engaged, then you’re on your way to marketplace irrelevance. ‘Real time’ means news breaks over minutes, not days. It means ideas percolate, then suddenly and unpredictably go viral to a global audience. It’s when companies develop or refine products or services instantly, based on feedback from customers or events in the marketplace. And it’s when businesses see an opportunity and they are the first to act on it,” he concludes.

Back in 1990, Norman Tebbit, Conservative MP for Chingford, Essex said: ” A large proportion of the British Asian population fail to pass the cricket test. Which side do they cheer from?” In his narrowly defined view of the world, this was a clear cut decision. You’re either for or against our boys.

Well, I beg to differ.

As a youngster, many British Asians like myself have struggled to come to terms with our dual identity – both as a member of the Asian community as well as the wider British community. Today, this isn’t an issue for most of us, as being “British” means we can cheer for just about anyone given the diversity that as a society we’ve become since Norman Tebbit created his loyalty test.

Frankly, we are just as much British as the next person! But that doesn’t mean we can’t support India too at the same time!

I’m very proud of my Indian heritage as a first generation Parsee. But what Norman Tebbit and others like him must recognise is that many Asians have a deeply embeded affinity for the UK that in fact goes back centuries in our family’s case as many of my ancestors fought for the British in the First and Second World Wars and many of their compatriots lost their lives in defence of the Realm. This is a source of pride that certainly I hold to this day.

I’m also extremely proud of the many hundreds of Asians that have made countless contributions to all sports in this country and if we take cricket they include sporting icons such as Ajmal Shahzad, Nasser Hussain and Monty Panesar to name a few – who as a nation we can all feel proud of.

So back to the Tebbit Test – it’s cricket that will be the winner of what promises to be a thrilling Test between the world’s number one cricket team and our boys who must beat India  by at least two clear matches in the forthcoming series to be ranked as the world’s top team.

With all to play for, I’ll be watching on the edge of my seat for what promises to be a fascinating test where the winners are everyone who loves cricket – irrespective of their country of birth.

Today’s opinion piece by veteran former BBC correspondent Martin Bell in today’s Times was bang on. He talked about the need for truth in news reporting and gave the example of journalists “sexing it up” (my words) for the TV cameras when reporting from a war zone in order to add extra drama to their dispatches from the theatre of war.

“The BBC’s apology for a recent Panorama on Asian sweatshops suggests that even now telling the truth is not as simple as it seems,” writes Martin Bell. 

Journalism, like politics attracts driven, ambitious individuals with scant regard for the truth and an insatible   thirst for success at any expense.

Martin Bell recalls senior journalists still working at the BBC known for “doctoring” their dispatches by adding extraneous gunfire when filing their reports from a quiet corner of a battlefield.

But it’s not just journalists who seek to distort the truth for their own ends.

Some public relations (PR) folk  have turned this into an art form. And this got me thinking about the dangers of PR damaging itself by constantly seeking to be sensationalist and the lengths some will contemplate to get their story on the telly, in the newspaper or trending on Twitter.

In many respects, this is a greater risk of damaing reputation than a dodgy news report as the media has effectively been disintermediated by the web in so many sectors that now PR folk are much more powerful in that they can reach an audience directly rather than be filtered through some news sausage machine.

Given this shift of power, there’s no need for PR folk to become sensationalist. PR guru David Meerman Scott advises that instead that news releases should be turn into a regular flow of useful information; this should talk to the audience rather than simply journalists; should invite some kind of response from your desired audience segment and should be tagged for social media re-use on sites such as Technorati, Digg and delicious so that this stuff can be found.

Earlier this week I had breakfast with a bunch of media lawyers, QCs and Simon Cole, managing editor of Sky News who told me that as of the 1st of July the network will stop using artist illustrations of what happens in court. Read More »