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  • Jose Manuel Perez Marzabal 9:00 am on January 8, 2014 Permalink | Reply
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    Steps to Take to Embed Content on Social Networks 

    Estimated Reading Time: 7 minutes

    The internet has created a stage in which possibilities to interact with new tools, together with a new public objective interested in sharing, expressing and communicating, have shaped a new model characterized by vigor, the transcendence of content and communities of users. In this context, as already pointed out in previous posts, new challenges are produced in the legal securities of companies and digital business models. To do this, the current post offers a series of guidelines that facilitate estimates of risks and legal obligations with respect to sharing and integrating content on social networks with particular emphasis in YouTube and Spotify.

    In addition to e-commerce platforms, there are a multitude of applications and web services focused on the generation of content. Two of the most known tools are YouTube and Spotify with which users can upload, share and see videos and music. Furthermore, a guided non-exhaustive list, are also very popular in other audio platforms (SoundCloud), videos (Vimeo), photography (Instagram, Flickr) or streaming (Ustream).

    The Legal Context

    In the legal Web context, as a general principle, one cannot utilize work and matter protected by intellectual property in social networks, unless they fulfill the following assumptions:

    • Any work that has been created that always does not yield to exploitation rights from third parties.
    • Work with authorization from its copyright owner, either explicitly written or through a Creative Commons license.
    • Work in the area of public domain.
    • Permanent exhibits on public mediums.
    • Speeches and public lectures, always done with an informative character and not a purely commercial manner.

    (More …)

  • Jose Manuel Perez Marzabal 9:00 am on October 16, 2013 Permalink | Reply
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    Buzz marketing campaigns and brand ambassadors: What to do legally? 

    Estimated reading time: 5 minutes

    Recommending a product or service to friends on Facebook, advertising on Twitter through prominent figures (marketing buzz), or sending company information to its LinkedIn contacts are all marketing models that become more and more popular in social networks. However, these types of practices carry legal implications.

    The relative novelty of the applicability of legal requirements in the context of social network services can create confusion of concepts and terminology, of which is significant at all levels. The evangelist consumers or brand ambassadors (brand advocates) all require forethought and thorough analysis prior to any marketing campaign.

    Digital marketing in legal terms

    In practice, the initial thinking in legal terms refers to the brand ambassadors as emergent advertising figures. And the legal implications of them in the context of complex systems through crowdsourcing and dynamic influence generated by social networks and product value platforms or services  in a profoundly interconnected ecosystem. The designated brand ambassadors are those evangelist consumers who support or feel passionate for certain brands and share their opinion about company products and services  in conversations with other people. (More …)

  • Jose Manuel Perez Marzabal 9:00 am on July 18, 2013 Permalink | Reply
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    Legal aspects to consider by developers and applications for Facebook 

    Estimated reading time: 4 minutes

    The possible legal responsibility of platforms for developers with the launch of apps represents a problem still characterized by a lack of legal security. We will look at compliance with the platform’s standards by developers and applications, focusing specifically on Facebook.

    Since the App Store opened, the number of app repositories has grown at an amazing rate, resulting in numerous transnational business models.

    (More …)

  • Jose Manuel Perez Marzabal 9:00 am on May 23, 2013 Permalink | Reply
    Tags: data protection, personal data protection   

    The future of data protection and how to adapt to it 

    Estimated reading time: 7 minutes

    The recently held #bigdataweek reminds us that monitoring data processing is a critical aspect of most strategic decisions and internet business models. We are faced with the widespread use of apps in mobile devices and in contexts with a major potential for data handling, such as the big data phenomenon, the Apache Hadoop software framework, or the emerging quantum computing.

    Against this backdrop, the European Commission presented its Proposal of the General Data Protection Regulation on January 25, regarding the protection of individuals with regard to the processing of personal data and the free movement of such data (henceforth “Regulation”), which will replace the current Directive 95/46/EC.

    The Regulation (as opposed to the current directive that requires a transposition process to make it applicable in national law of the Member States) will be directly applicable, will be hierarchically superior to Spanish law, and undoubtedly will have a major impact on the operations of the industry in general, and more specifically, on Internet companies and start-ups.

    Among the new general aspects incorporated, the Regulation includes the tightening of sanctions for non-compliance, the increase in the principle of transparency in companies, the need to reinforce the level of personal data protection, the right to data portability, and the principle of accountability.

    Aspects of the Regulation applicable to data processing in Internet companies

    1. On a conceptual level

    The Regulation designs a security architecture that takes into account both the technological process and the solutions offered for data protection by design –focus developed successfully by the Information and Privacy Commissioner, Ontario (Canada)- and by default. This new approach to data protection means that data protection is contemplated in the technology design phase of business models and risk analysis and management methodology are enhanced, as well as including the control panel for users as a privacy interface or other security technologies.

    2. At an authority level

    The new regulation introduces the key figure of the “data protection officer” with a wide spectrum of functions such as supervision, implementation and application of internal policies, auditing, information of the interested parties, and applications presented in exercising their rights, and monitoring document management.

    3. Regarding processes

    It establishes the impact assessment that must be carried out prior to data processing and proceeds to regulate the so-called “right to be forgotten”, both in search engines and digital footprint, in line with the Spanish ARCO rights. In other words, it specifies that public personal data on the Internet, such as hyperlinks or specific data, must be canceled by the controller when they are accessible in communication services that enable or facilitate their search or access.

    Similarly, it includes a contingency plan in the event of data breach, which establishes the obligation to notify a personal data security breach to the supervisory authority within a period of no greater than 24 hours and, where feasible, to the interested parties.

    Finally, mention should be given to other major developments introduced by the Regulation, such as the modification of the minimum age of minors to under 13 years of age regarding the direct offer of information society and social network services. On this point, it will be more important to sufficiently highlight the data protection and privacy policy on home pages and in registration forms in HTML format.


    To sum up, I suspect that the legislator has once again made an assessment of data protection dissociated from the technological context, maintaining an asymetrical exchange between the fast technological evolution and legislation. In particular, regarding the evident tensions between regulation and the dynamics of the Web 2.0 that generate bilateral business models based on the exploitation of user data.

    Although aspects such as account release, privacy by design and default, and the assessment of impact encourages the IT security culture in companies and operational criteria focused on risk management and the implementation of compliance programs, it is yet to be seen how regulatory solutions will evolve and what technical innovations will be introduced in the future.

    Jose Manuel Pérez Marzabal (@jmperezmarzabal) is a lawyer who specializes in Internet and e-commerce at MTNProjects. Furthermore, he is a visiting professor at BES La Salle and a teaching consultant at Universitat Oberta de Catalunya (UOC). He has a Master’s degree in International Law (LL.M) from WWU Münster and a Diploma in Advanced Studies in International Law and Economics from the University of Barcelona.

  • Jose Manuel Perez Marzabal 9:00 am on March 19, 2013 Permalink | Reply
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    The importance of Internet naming for your digital strategy 

    Estimated reading time: 5 minutes

    One of the most critical aspects in online branding strategy is associated with domain names. Historically we found a tense relationship between domain names on the Internet and third-party brands that coincidentally match them. This tension has generated numerous predatory and parasite practices like, among others, the systematic usurpation of domain names for later sale to the highest bidder as a business model.

    From a current and practical perspective, in the context of the so-called Web 2.0 that represents an evolution regarding traditional corporate websites, we are faced by the phenomenon of naming and personalized addresses that social networks provide (“vanity URLs”). In my modest opinion, the previous situation is repeated which gives clear precedent of the figure of the “cybersquatters” before the existing policy of the ICANN was consolidated as a fundamental part of the entire works for registering and resolving controversies stemming from the holder of a domain name and a third party for the registration and abusive exploitation of the name in the scope of Internet domains (also known for its acronym “UDRP”), to favor the resolution of disputes by arbitral mechanisms with the intervention of accredited entities, including World Intellectual Property Organization (WIPO).

    The elements making up the internet of computer networks need to be identified and differentiated from others through a unique and irrepetible address. Said identification is achieved through IP address and the domain name system (DNS). The domain names, which have the legal nature of immaterial goods, went from being a simple electronic address to being a distinctive sign sui generis that identifies individuals and legal entities, which make up the ecosystem of the Internet.

    However, and here lies a potential source of litigation, practically any user name can be registered as a URL address on the social networks and web applications with the sole requirement that it is available – one of the exceptions possibly is Facebook-. In other words, under the current “open” regime, without prejudice of the service terms and conditions on social environments (which we talked about in the last post), there are hardly any restrictions for individuals or entities that can be registered. However, faced with an infraction, both brand and unfair competition legislation would be applicable, which have the procedural advantage of the possible adoption of preventative measures ab initio.

    While waiting for new developments, the fast growth of social networks, as well as the strategic interest of developing the brand on the Web 2.0, in particular for those companies whose activities cross borders, it also encourages the creation of a wide portfolio of user names. For this reason, it is recommended that all actors with a minimum presence on the internet or that want to have a competitive advantage based on differentiation and brand image should use tools like namechk or Google Alerts before designing their portfolio of domain and brand names that will be used to solidify their digital marketing strategy.

    Jose Manuel Pérez Marzabal (@jmperezmarzabal) a lawyer who specializes in the internet and e-commerce at MTNProjects. He is also a visiting professor at BES La Salle and a teaching consultant at Universitat Oberta de Catalunya (UOC). He has a Master’s in International Law (LL.M.) from WWU Münster and a Diploma in Advanced Studies in International Law and Economics from the University of Barcelona.


  • Jose Manuel Perez Marzabal 9:00 am on January 23, 2013 Permalink | Reply
    Tags: law 2.0, , terms and conditions   

    Companies and Social Networks: legal issues to consider 

    Estimated reading time: 8 minutes

    Editor’s note: Today we introduce a new section to the blog: law 2.0 with Jose Manuel Pérez Marzabal, lawyer who specializes in the internet and e-commerce at MTNProjects. He is also a visiting professor at BES La Salle and a teaching consultant at Universitat Oberta de Catalunya (UOC). He has a Master’s in International Law (LL.M.) from WWU Münster and a Diploma in Advanced Studies in International Law and Economics from the University of Barcelona. Welcome Jose :)

    The web 2.0 phenomenon has had an enormous impact since it became popular in 2004. In the media, we have seen news about its critical mass, the flotation of one of the best known platforms and the infringement of user privacy. However, little public relevance had been given to the issue of its terms of service (TOS) until first Pinterest and more recently Instagram had to modify their terms of service due to copyright issues and those regarding licenses of use of the user’s photographs.

    This post briefly analyzes the specific issue of the general terms and conditions of companies that provide social network services. We refer to the general terms and conditions (GTC) as opposed to the terms of service, as the former is more suitable and comprehensive of the magnitude of the predisposition effect of rules for general agreements.

    The expansion of networks and applications in social environments poses a large number of legal questions for which an easy solution is difficult to find. Regardless, the increase in legal protection in the assessment and compliance of GTC is essential to create stability in the management of electronic transactions and will help facilitate the development of businesses in social environments.

    This modern negotiating technique adapts to the dynamics of networks and applications in social environments thanks to its general, abstract, uniform, rapid and massification aspects. Similarly, the economic interests and risks of their business models also facilitate the management of contracts. The company draws up the terms that are not left to the contingencies of each user, which at the same time allows probabilities and costs to be calculated, thus achieving a better organization of its resources and investments according to its customer base.

    The GTC also give the company a better negotiating ability compared to the user, either by including unfair terms, the exemption from liability, passing risks to users or imposing excessive burdens; powers and prerogatives with no correlation to the terms received in a context of bilateral markets; in particular, in the scope of networks and applications in social environments that depend on data processing, including user segregation techniques and adopting presentation methods, which reduce the number of users who read the GTC, at least until contracting through intelligent agents and other technologies expected in the near future.

    The GTC are presented under the premise take it or leave it. The fact is that should users actual read the GTC, they are unable to understand the legal implications. In practice, a common clause establishes that the parties confirm that they have understood the provisions stated here in their entirety, prior to accepting them.

    More experienced companies in risk analysis and management can more efficiently assess the safeguards of the expectations of risk, and the legal obligations to be conveyed to the consumer -the exact allocation of these risks minimizes the costs of the service on offer-, and optimize the exploitation of user data for advertising based on interests or context. In other words, companies standardize risk, reduce costs and optimize the forms of exploiting users to create their GTC.

    In substantive terms, the GTC of companies that provide social network services should include, inter alia, aspects such as advertising of commercial brands on the platform, the level of service, security measures, handling of personal data and geolocalization, intellectual property of the user-generated content (UGC), and exclusions from liability.

    We should take into account that GTC refer to assumptions that de facto are unlikely to occur, the majority of users have no direct knowledge of the practices of the companies. Technologies such as data mining, or its evolution, popularly known as “big data”, allow service providers to manage their businesses with less exposure to uncertainty in certain areas.

    Access to information regarding user behavior and the sporadic monitoring of their browsing could contribute to a more reliable assessment of their demand, and even allow market segregation. Preferences of users are no longer the most difficult variable to apprehend in the potential demand of a product and become the object of capture in those goods and services more adjusted to the commercial possibilities offered by the network, through “conversations” with users.

    Thanks to the reduction in transaction costs and the disintermediation of the internet, networks and applications in social environments not only allow the company value chain to be optimized, but also the exploitation of business models associated to the same in a global market. Recessions are opportunities and the current situation we are living should be a magnificent opportunity for companies, both multinationals and SMEs, to reconsider their competitive strategy for the network society.

    Post published under the Creative Commons Attribution-Non-Derivative works 3.0 Spanish license. It may be copied, distributed and broadcast provided that the author is cited; derivative works are not permitted. The full license can be consulted on http://creativecommons.org/licenses/by-nd/3.0/es/deed.es.


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