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Can you use intellectual property to remove negative content?
When you think about online content removal lawyers, you do not immediately think about intellectual property. Yet, there are areas where reputation management converges with certain intellectual property rights. For example, the equitable law of confidence has increasingly been treated as intellectual property by the Courts. In Coogan v NGN Limited and Mulcaire (and a conjoined case brought by Nicola Phillips) [2012] EWCA Civ 48, the Court of Appeal's judgment, Lord Neuberger concluded (see paragraph 31) that "technical or commercial information" was intellectual property within the meaning of section 72(5) of the Senior Courts Act 1981. Section 72(5) defines intellectual property as follows:
"intellectual property" means any patent, trademark, copyright, design right, registered design, technical or commercial information or other intellectual property.
What is intellectual property?
Intellectual property can be broadly defined as the rights given to a person over their mind's creation. For example, when a person's creativity becomes tangible (out of mind), intellectual property will protect the material asset manifested by the mind by giving the creator certain exclusive rights over the asset.
Personal reputation
The Internet has had a propagative impact on disseminating information, whether it is commercially or personally sensitive. As a result, information lawyers have to be more original and creative about how to protect information.
The Human Rights Act 1998 and the European Convention of Human Rights have acted as the catalyst for the law protecting information to which there should be a reasonable expectation of privacy. Confidential information has transmutated to include the misuse of private information. With the ubiquitous sharing of information online comes frequent misuse of information. In some cases, the misuse of private information can also involve civil harassment under section 1 and 3 of the Protection from Harassment Act 1997.
A company may not bring an action for injunctive relief to prevent harassment - see Daiichi UK Ltd v Stop Huntingdon Animal Cruelty [2004] 1 WLR 1503. But a victim can sue a company for harassment - see Ferguson v British Gas Trading Limited [2009] EWCA Civ 46, in which persistent collection letters and unjustified bills from British Gas amounted to harassment.
In Iqbal v Dean Manson Solicitors [2011], EWCA Civ 123, inter-solicitor correspondence in a contentious matter was found to amount to harassment.
The publication of private information may itself be an incident of harassment conduct – see Thomas v News Group Newspapers 2001 EWCA civ 1233.
Business Reputation
"Technical or commercial" information about a business could be potentially protected by intellectual property. For example, in the Coogan v NGN Limited and Mulcaire case mentioned above, the question was whether claims concerning the hacking of a person's phone messages amounted to infringement of intellectual property, and in particular, whether such messages amounted to "technical or commercial information or other intellectual property" within the definition of section 72(5) of the Senior Courts Act, 1981 set our above. Such information would have to be confidential in nature. Trade secrets are a subset of confidential information but are afforded greater protection than if the information was solely confidential. Trade secrets are governed by The Trade Secrets (Enforcement, etc.) Regulations 2018.
The rights holder can also use defamation law to protect online business reputation (and individual reputation).
The rights holder can use copyright or trademark law to remove content from websites. There are various mechanisms by which this can be done, including going through social media platform's intellectual property takedown procedures or issuing a Digital Millenium Copyright Act 1998 takedown notice to the website host or domain registrar.
Intellectual Property Infringements
Generally, intellectual property infringements involve takedown requests, tribunal or court disputes. The burden of proof is on the rights holder to prove that there has been an infringement on a balance of probabilities, which has caused damages, such as a loss of earnings due to the infringement.
Intellectual Property - The misuse of private information
As stated before, originally, the misuse of private information would be a breach of confidence under historic equitable principles, but it has developed to have a human rights aspect in privacy law.
A breach of confidence claim protects information that has not yet entered the public domain; it deals with the unauthorised disclosure of confidential information. For example, in the case, Coco v AN Clark [1969], FSR 415 developed a criterion for what qualifies as the misuse of private information. The case states that: (1) the information must have the necessary quality of confidence (types of information, for example, photographs and writings), (2) the information must be disclosed in circumstances importing an obligation of confidence (an obligation to disclose private information) and (3) any unauthorised use of the information (the 'Coco Test').
Private/confidential information is defined as 'any information that has not yet entered the public domain. For example, in Douglas v Hello [2001] EMLR 199, the Douglases were a celebrity couple who sold their wedding photos to OK! Magazine to publish. However, Hello! Magazine gained access to these photos and were prepared to publish them before OK!. Therefore, OK! Brought their publication forward to compete. OK! magazine and the Douglases sued for damages. The Courts held that OK! and the Douglases were entitled to commercial confidence over the wedding photos as the photos were not publicly available therefore were confidential despite the information about the wedding being publicly available for people to communicate.
Defending your reputation
The Courts will protect your reputation by enforcing your intellectual property rights by granting remedies for the infringement. The Courts have the power to award financial remedies, which include damages and an account of profits, or non-financial remedies, which are injunctions (i.e. interim injunctions, perpetual injunctions, super injunctions and block injunctions), disclosure orders, delivery up and destruction and declaration of non-infringement.
In Mosley v News Group Newspapers Ltd [2008] EWHC 687, the News of the World had exposed Mr Mosely's involvement with several female prostitutes when they published a video of an incident involving sexual acts. As a result, Mosely asked for an injunction to stop publishing the newspapers. Mosely was a powerful figure a former President of the Fèdèration Internationale de l'Automobile. Although the Court did not grant the injunction as the information was already in the public domain, Mosley was awarded £60,000 in damages.
Meghan Markle, the Duchess of Sussex, was most recently successful in claiming copyright infringement against the Mail on Sunday over articles published by Associated Group Newspapers, which reproduced parts of a personal letter Ms Markle wrote to her estranged father in August 2018.
Online Harassment Lawyers
The issue was whether Meghan was the 'sole author' and copyright holder of the letter at the time of publication. The Court held that Meghan was the sole owner of copyright in the letter.
How do you protect your reputation and other digital assets in the digital world?
It seems impossible to protect your digital assets in the digital world. The law concerning intellectual property protects the rights of creators, but it can also defend reputation. The Internet has enabled great opportunities for technical and business creatives to innovate, including new software code, slick user interfaces, solve endless problems in conventional business marketplaces. But, what happens when your ideas get stolen? What happens when your carefully built internet reputation over decades is torn down by ruthless competitors or the envious? How do you protect your investment?
There are several remedies available to you, but you will need to be creative and think outside the box. The Internet world is ubiquitous, constantly changing and anonymous. Therefore, it would be best to have a wide range of strategic options for protecting or maximising your digital assets (including reputation) value or usefulness.
Key points
· You cannot harass a company.
· Confidential information including misuse of confidential information and other types of intellectual property can be used to protect online reputation.
· Businesses can be found guilty of harassment.
· Misuse of private information may itself be an incident of harassment
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