fant game

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Introduction

Acting for Fantasy League, the originators of the

fantasy gaming concept, we encounter a range of

legal issues relating to on-line gaming:

• How can companies prevent competitors from

using their game name?

• What can be done when a competitor registers a

similar domain name?

• What rights exist in games, their rules and scoring

systems?

• Do on-line competitions fall foul of betting and

gaming regulations?

• Which country's laws govern a web site which is

accessible worldwide?

At the request of Fantasy League, and in

conjunction with www.fiso.co.uk, we have put

together a guide summarising all of the relevant

legal issues for an on-line gamer. As well as acting

for Fantasy League, we represent a large number of

advertising, marketing and brands clients and

advise on all aspects of intellectual property,

advertising and marketing law. The guide has been

written from the perspective of a fantasy game site

owner but the underlying issues are of general

relevance to anyone with intellectual property

concerns. The guide is broken down into the

following self-contained areas:

• TTTTTrade Marksrade Marksrade Marksrade Marksrade Marks: how is a trade mark registration

obtained; how is it infringed?

• Passing OffPassing OffPassing OffPassing OffPassing Off: what are the constituent elements of

a passing off claim?

• Domain NamesDomain NamesDomain NamesDomain NamesDomain Names: how is a domain name

registered; how can a competitor be prevented

from using a similar domain name?

• CopyrightCopyrightCopyrightCopyrightCopyright: what does copyright cover; how is

copyright protection acquired?

• Database RightsDatabase RightsDatabase RightsDatabase RightsDatabase Rights: what is a database right; how is

it infringed?

• Data ProtectionData ProtectionData ProtectionData ProtectionData Protection: what personal data do you hold;

what notification obligations must you comply

with?

• Defamation and Rights of PublicityDefamation and Rights of PublicityDefamation and Rights of PublicityDefamation and Rights of PublicityDefamation and Rights of Publicity: how do you

avoid defaming famous personalities on your web

site?

• Linking and FramingLinking and FramingLinking and FramingLinking and FramingLinking and Framing: what do these terms mean

and are they permissible?

• Betting and GamingBetting and GamingBetting and GamingBetting and GamingBetting and Gaming: is your game illegal?

• JurisdictionJurisdictionJurisdictionJurisdictionJurisdiction: what law governs your web site?

These guidelines are not a substitute for specific legal

advice but they do address some of the more general

concerns. It is important in setting up and maintaining

a gaming web site to ensure that you do not fall foul of

the law. If you are uncertain, you should of course call

your lawyer, but before you do so the guide will

hopefully help you to understand the issues.

Geoff Steward

IP Litigation Partner

MACFARLANES

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Trade Marks

Can I register the name of my game as a

trade mark?

• "Any sign capable of being represented

graphically" is registrable as a UK trade mark.

"Sign" has no specially defined meaning - words,

game names, persons’ names (e.g. football

players), logos, slogans, photographs (e.g.

footballers’ faces) and even colours and football

strips can be registered.

• Only marks which have a distinctive character

and which can distinguish your game from other

games can be registered. Descriptive or generic

marks cannot be registered, neither can marks

which are too similar to existing registrations.

How do I obtain a registered trade mark?

• Trade mark registrations are obtained by applying

to the Trade Marks Registry. There are now forty-

five potential classes of registrations. Two

relevant ones for fantasy game web sites are

class 16 (paper, cardboard, printed matter,

photographs and stationery) and class 28 (games

and playthings).

• In addition to a UK registration, it may be possible

to obtain a single Community Trade Mark

registration which extends protection to the entire

European Union, but this will depend upon the

reputation of your game outside the UK.

How long does a trade mark registration

subsist?

• A registered trade mark gives the owner an

exclusive right to use the mark for goods or

services for which it is registered for an initial

period of 10 years, and is renewable thereafter.

Can I use a third party's registered trade

mark on my site?

• Generally speaking, great care has to be taken to

ensure that by using a registered trade mark on

your site you are not infringing it.

• Acts of infringement: once a trade mark is

registered, infringement occurs where, "in the

course of trade", someone does any of the following:

- uses a mark identical to the registered trade

mark for goods or services identical to those

covered by the registration; or

- uses a mark similar to the registered trade mark

for goods or services identical to those covered

by the registration (where the public is likely to

be confused); or

- uses a mark identical to the registered trade

mark for goods or services similar to those

covered by the registration (where the public is

likely to be confused); or

- uses a mark similar to the registered trade mark

for goods or services similar to those covered

by the registration (where the public is likely to

be confused); or

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- uses a mark identical or similar to a registered

trade mark for goods or services dissimilar to

those covered by the registration (where the

use takes unfair advantage of, or is detrimental

to the registered mark's distinctive character or

reputation).

• An important defence to trade mark infringement

is available where you use the registered trade

mark merely in order to identify someone else's

goods or services. It will not be an infringement of

a registered trade mark such as "Arsenal" to use

that mark on your site, so long as your use of the

mark is not (to quote the legislation), "otherwise

than in accordance with honest practices in

industrial or commercial matters"; and, if not

honest, does not: "without due cause take unfair

advantage of, or [be] detrimental to, the distinctive

character or repute of the trade mark".

What can I do if someone infringes my

registered trade mark or expect if I infringe

someone else's?

• InjunctionInjunctionInjunctionInjunctionInjunction: requires immediate discontinuance of

use of trade mark altogether and could result in

shutting down of the web site.

• DamagesDamagesDamagesDamagesDamages: normally fall under two separate

heads: loss of sales, especially if the parties are

in actual competition; and general damage to

goodwill.

• Account of profitsAccount of profitsAccount of profitsAccount of profitsAccount of profits: requires infringer to account

for any profits wrongfully made by infringing

registered trade mark.

• RemovalRemovalRemovalRemovalRemoval: of mark from infringing goods or

material.

• Delivery up or destructionDelivery up or destructionDelivery up or destructionDelivery up or destructionDelivery up or destruction: of infringing material

(eg disks, posters, promotional materials).

Rather than wasting my money applying for a

registered trade mark, can't I deter potential

infringers by saying on my site that it is

already registered?

• Absolutely not: it is a criminal offence to claim that

a trade mark is "registered" when it isn't (eg by

using that word or the ® logo). If not registered,

use the sign ™ instead.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. Itis not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so.Professional advice appropriate to the specific situation should always be obtained.

The firm is not authorised under the Financial Services and Markets Act 2000, but we are able in certain circumstances tooffer a limited range of investment services to clients because we are members of the Law Society. We can provide theseinvestment services if they are an incidental part of the professional services we have been engaged to provide.

If you would like any further information or specific advice please contact your usual Macfarlanes’ contact or Geoff Steward(telephone: 020 7831 9222/ fax: 020 7831 9607/ e-mail: [email protected]).

© Macfarlanes March 2002

macfarlanes

Passing Off

What is the law of passing off?

• The law of passing off protects reputation and

goodwill, by preventing people from using

someone else's name, get up, trade mark or style

in such a way as to cause the public to be

confused as to the origin of a product or service,

(if such confusion results in damage to the

innocent party's business).

• Passing off protects a trader with established

goodwill against unfair competition from his

rivals; and protects consumers against being

confused as to the origin of the goods and

services being sold.

What is needed in order to bring a passing

off claim?

In order to bring a passing off claim, there must be:

• a misrepresentation;

• made by a trader in the course of a trade;

• to a prospective customer or ultimate consumer;

• which is likely or intended to injure the goodwill or

business of another; and

• which causes actual damage to that other.

• There is no need to prove that the actions

complained of were made fraudulently or with

malicious intent.

How is the law of passing off relevant to on-

line gaming?

• The law of passing off may be relevant when

referring to players without authorisation. Use of

the name or image of a player in connection with

your web site but without their consent may

amount to passing off, on the basis that

consumers may believe that the player has given

permission or has endorsed your web site. Well

known players have a marketable commodity

(goodwill) in their likenesses, and could therefore

be deemed to have suffered loss by virtue of the

exploitation of this without permission. Care

should be taken in relation to any reference to

players other than as pure "stat providers".

• Passing off may also be relevant where reference

to a competitor's site is made, or where elements

of a competitor's site (the "look and feel", the

format of the results etc.) are copied.

What can I do if someone passes off my

services?

The remedies available for passing off include the

following:

• An injunctionAn injunctionAn injunctionAn injunctionAn injunction: (requires total withdrawal of the

offending material).

• UndertakingUndertakingUndertakingUndertakingUndertaking: not to continue the act complained

of.

• DamagesDamagesDamagesDamagesDamages: these are difficult to quantify and

normally fall under two separate heads: loss of

sales, especially if the parties are in actual

competition, and general damage to goodwill.

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• Account of profitsAccount of profitsAccount of profitsAccount of profitsAccount of profits: this requires the wrongdoer to

account for the profits which he has wrongfully

made by the act of passing off.

• Delivery up or destructionDelivery up or destructionDelivery up or destructionDelivery up or destructionDelivery up or destruction: of the subject of the

claim (e.g. promotional material, customer

mailshots).

And remember

• A company does not necessarily have to be

trading to sue for passing off. The law of passing

off is designed to protect reputation and goodwill;

it is possible for a business to bring a passing off

This note is intended to provide general information about some recent and anticipated developments which may be ofinterest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or reliedupon as doing so. Professional advice appropriate to the specific situation should always be obtained.




action some years after it last traded (so long as

its goodwill/reputation still exists) or where it has

not yet started trading (providing it can establish

that goodwill exists, e.g. through an extensive

advertising campaign).

• It is also possible to pass off a business in a

completely separate field of activity to yours (e.g.

using the name Kodak for a fantasy league web

site), although it will be more difficult in such a

case to show the likelihood of confusion amongst

consumers and damage to goodwill/reputation.

macfarlanes

Domain Names

Can I register the name of my game as a

domain name?

• The general rule is that virtually anything can be

registered as a domain name. There are some

technical restrictions (eg. domain names

consisting of only two letters cannot be registered,

but those consisting of one letter and one number

can). On the whole, however, providing it is still

available you can register virtually any domain

name you want using a combination of letters,

numbers and other characters, so long as it does

not exceed 64 characters.

• Domain names can end in any one of a number of

suffixes ("TLDs"). You could choose to register

your domain name as a .com.com.com.com.com, .org.org.org.org.org, .net .net .net .net .net (all of

these are gTLDs - generic Top Level Domains -

because they are not country specific), or as a

.co.uk.co.uk.co.uk.co.uk.co.uk (a ccTLD - country code Top Level

Domain) etc. Further new gTLDs (.biz .biz .biz .biz .biz and .info.info.info.info.info)

have recently been introduced, and more are

expected in the near future. It would be possible,

though expensive, to register your name with

each available TLD, although in practice

choosing any of the better known TLDs for a sole

registration is generally sufficient.

How do I find out what domain names are

available?

• All details of registrants are publicly available. A

WHOIS search against a particular domain name

should reveal the identity of the registrant as well

as other useful information.

How do I register a domain name?

• There are a number of accredited registrars

through which registrations can be made on line.

Details of these can be found at the ICANN web

site (wwwwwwwwwwwwwww.icann.or.icann.or.icann.or.icann.or.icann.orggggg) and the Nominet web site

(wwwwwwwwwwwwwww.nominet.or.nominet.or.nominet.or.nominet.or.nominet.org.ukg.ukg.ukg.ukg.uk) in respect of generic and

UK domains respectively.

What can I do if someone else has registered

the name of my game as a domain name?

• With so many TLDs to choose from, and

numerous ways of presenting a name as a

domain name (for example putting hyphens,

underscores or nothing between words) it may be

best to avoid difficulties simply by choosing an

alternative spelling or TLD for your domain name.

• On occasions, however, the matter is not so

straightforward. This will arise either where (for

some reason) there is not the usual scope for

choosing an alternative registration, and/or there

is a serious danger that customers may be

confused into thinking that you are responsible for

the site of the same name which in fact you are

not responsible for. In such circumstances, there

is an on-line dispute resolution procedure called

the Uniform Dispute Resolution Procedure

("UDRP") in respect of gTLDs. Nominet runs a

very similar procedure in respect of .uk TLDs.

The key features of the dispute resolution

procedure are establishing (i) that you have a

legitimate interest (such as a trade marktrade marktrade marktrade marktrade mark, a

business name, your own name etc) in the name

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in question, (ii) that the current registrant does not,

and (iii) that he registered and/or is using it in bad

faith. Although this sounds like a high test to

satisfy, in practice over 70% of complainants

under the UDRP are successful.

• As a last resort you could, in some

circumstances, challenge the domain name

registration in the courts. This is a much more

expensive process, and is only really appropriate

where a decision is required very urgently or

where you seek damages from the current

registrant in respect of his use of the domain

name, rather than simply the transfer of the name

in question. The basis of such an action will be

passing off passing off passing off passing off passing off or trade mark infringementtrade mark infringementtrade mark infringementtrade mark infringementtrade mark infringement.





What checks should I make before choosing

a name?

• If, when checking the availability of the name, it

appears that the name you have chosen is a very

popular one, you should probably be wary. Will

you be able to ensure that your target audience

can easily find your site if so many sites exist with

similar names?

• If the name is likely to be key to your brand

strategy, you should also check that it does not

infringe any existing registered trade markstrade markstrade markstrade markstrade marks. The

UK Trade Marks Registry can be searched on line

at wwwwwwwwwwwwwww.patent.gov.patent.gov.patent.gov.patent.gov.patent.gov.uk.uk.uk.uk.uk. However, as domain

names are worldwide it may be that you

encounter problems in another country even if

your name does not appear to risk infringing any

UK trade marks.

macfarlanes

Copyright

What types of work are protected by the

Copyright, Designs and Patents Act 1988?

• Literary works, e.g. books, articles, game rules;

• Artistic works, e.g. illustrations, photographs,

drawings;

• Musical works, e.g. tunes or melodies;

• Dramatic works, e.g. plays, mime;

• Sound recordings;

• Film, broadcast and cable programmes.

For literary, dramatic, musical and artistic works, the

work itself must be "original" in order to obtain

copyright protection. This means that the work must

not have been copied.

Who owns copyright?

• Copyright in a work is usually owned by the

person responsible for its creation; the individual

taking a photograph of, for example, David

Beckham, will be the person responsible for its

creation. However, in the case of literary,

dramatic, musical or artistic works created by an

employee in the course of his employment, the

employer will be the owner of the copyright in the

works. Therefore, if the photograph of David

Beckham was taken by an employee of a

newspaper, the newspaper will own the copyright

in the photograph.

How long does copyright protection last for?

• Copyright lasts for a long time. The basic term of

protection for literary, dramatic, musical and

artistic works is the life of the author plus 70 years.

Scope of protection

• Copyright gives the owner the exclusive right to

do certain things in relation to the work. These

rights include the right to copy the work, perform

the work in public or make an adaptation of the

work. The owner can stop anyone else from

infringing his copyright by copying the whole or a

substantial part of his work or making an

adaptation of it without his consent. Therefore, if

you wish to use existing photographs of football

players, you must seek the consent of the owner

of the copyright in the photograph, which will

naturally include the payment of a licence fee.

Similarly, if you wish to use any form of literary

copyright, for example game rules, permission

must be obtained.

Can I copyright my idea for a game?

• Copyright does not protect pure information or

ideas. What it protects is the way in which an

idea is expressed, rather than the underlying

concept itself. Concepts/ideas can, however, be

protected by contract e.g. confidentiality

agreements.

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How is copyright protection acquired?

• Copyright arises automatically on creation of the

work as long as the work is recorded in a

permanent form. There is no requirement for

registration. Some works are marked with the sign

© to indicate that they are copyright works This is

not essential and it is not conclusive that the work

in question is a copyright work or that the claimed

copyright owner is the actual copyright owner, but

it can be helpful in protecting works abroad and

may also act as a deterrent to would-be infringers.

• Copyright can be bought. If you wish to use

somebody else's copyright you will need a

licence to do so or, alternatively, a transfer of

copyright may be made to you by the copyright

owner. Such transfers must be in writing and can

be made before, during or after creation of the

work in which the right subsists.





What are the consequences of infringing

someone else's copyright?

• An infringer can be sued for damages or an

account of profits.

• The copyright owner may seek an immediate

injunction to prevent repetition of the infringement.

• Certain forms of copyright infringement are also

criminal offences.

macfarlanes

Database Rights

What is a database right?

• Database right is a new "stand alone" right,

independent of copyrightcopyrightcopyrightcopyrightcopyright, which arises

automatically where there has been a substantial

investment in obtaining, verifying or presenting

the contents of the database. "Substantial" is

judged in terms of quantity or quality or a

combination of both. "Investment" means any

investment, whether of financial, human or

technical resources.

• "Database" means a collection of independent

works, data or other materials which are arranged

in a systematic or methodical way and are

individually accessible by electronic or other

means.

• Database right will therefore arguably cover

fixture lists, league tables and fantasy scores.

Who is the owner of the database right?

• Unless there is an agreement to the contrary, the

database right is owned by the person who takes

the initiative in obtaining, verifying or presenting

the contents of the database and who assumes

the risk of investing in creating the database (or if

the person is an employee, by his employer).

How long does the database right last?

• Database right lasts for 15 years from the end of

the year in which the database was finished, or

(where the database was made available to the

public within 15 years of its completion) the end of

the year in which the database was first made

available to the public. For example, if the

database is first made available to the public in

the fifteenth year after its creation, the period of

protection will effectively be extended from 15

years to 30 years.

• If you make substantial changes to the contents of

a database (like substantially updating the

database) then the resulting database may be

considered to be a "substantial new investment".

So, a new 15-year period begins to run from the

date of that investment. That way, provided your

database is updated at least every 15 years, it is

possible to maintain the database right more or

less indefinitely.

How do I protect my database?

• When creating new databases, or updating

existing ones, it is important to keep records of the

amount of time, money and other resources which

are involved. If data is obtained from a third party

and compiled in an independent database, the

database right will attach to the structure (i.e. the

selection and arrangement) of the database itself.

If you want to get your own database right, it is

important to invest time, money and other

resources in obtaining, verifying and presenting

the data, which goes above and beyond a mere

replication of any data licensed in from a third

party.

• If you are creating a new database, it is a good

practice to specify clearly who owns the new

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database right especially where one is being

commissioned. This will avoid the difficulty of

having to prove who took the initiative in

obtaining, verifying or presenting the contents of

the database and who assumed the risk of

investing in making the database.

• If your database is going to be published, then

you should ensure that the name of the owner

appears on all copies and that the appropriate

copyrightcopyrightcopyrightcopyrightcopyright notices are placed on it.

Am I infringing someone else's database

right?

• Database rights are infringed by extraction or re-

utilisation either of the whole or a substantial part

(in terms of quantity and/or quality) of the contents

of a database without a licence or authority from

the database owner. The owner may also be able

to prevent the repeated and systematic extraction

or re-utilisation of insubstantial parts of the

contents of the database. "Extraction" of the

contents means the permanent or temporary

transfer of the contents to another medium. "Re-

utilisation" means making the contents available

to the public (for example by distribution or

renting) irrespective of the medium on which this

occurs.





• In the context of on-line gaming, great care has to

be taken therefore when making any use of the

databases of third parties (e.g. the Premiership

fixture list, other game organisers' fantasy scores).

Is copyright protection still available?

• Any database created as a result of the author's

independent effort will also qualify for copyright

protection as a literary work in the form of a "table

of compilation". Provided that some effort was

involved in creating the database and the

database was not copied from anyone else, it will

be protected by copyright copyright copyright copyright copyright as well as by database

rights.

macfarlanes

Data ProtectionWhy does data protection affect on-line

gaming businesses?

• All businesses that collect and use data on their

customers, suppliers and staff should be aware of

their data protection obligations. If you hold, for

example, contact details, payment details and any

other form of personal information of game

entrants, then you need to be aware of the data

protection obligations of your business.

What data are we talking about?

• Any data which can be used to identify a living

individual (not a company) is relevant. This will

include their name and address (including e-mail

address since this often allows a person to be

identified) and also includes any information

which, when taken together with other information

you hold, identifies that person - for example,

credit card details, telephone numbers, job title. If

you hold such information about people you may

also hold other information such as favourite

team, age, sex, nationality; all of this data will also

be subject to data protection regulations.

What do I need to do?

There are certain key steps which all prudent

businesses should take:

• NotificationNotificationNotificationNotificationNotification: Subject to limited expectations, all

businesses that use personal data should notify

such use with the Information Commissioner.

Notification is a relatively simple and painless

procedure (the current annual fee is £35), and a

form can be completed on-line at

wwwwwwwwwwwwwww.datapr.datapr.datapr.datapr.dataprotection.govotection.govotection.govotection.govotection.gov.uk.uk.uk.uk.uk. Your notification will

be a public record of the type of data which your

business uses and the manner in which you can

use it.

• Privacy policy/terPrivacy policy/terPrivacy policy/terPrivacy policy/terPrivacy policy/terms of usems of usems of usems of usems of use: You need to inform

your customer and anyone else on whom you

hold personal data of the data you will collect

from them and how you will use it. Generally, you

can only use data if the individual concerned is

aware of such use and has not objected to it

(special rules apply to sensitive data such as

racial background and health and exceptions to

information held for purposes such as payroll

administration). Make sure that your web site has

a privacy policy containing this information, or put

the relevant wording in your web site's terms of

use. It is good practice to refer to these

documents wherever data is collected.

• Data purchase agreementsData purchase agreementsData purchase agreementsData purchase agreementsData purchase agreements: If you buy customer

data, ensure that your agreement with the data

supplier makes it clear what uses you can make

of the data and that the data supplier has the right

to transfer the data to you.

Internal policing and good practiceInternal policing and good practiceInternal policing and good practiceInternal policing and good practiceInternal policing and good practice: The Data

Protection Act 1998 sets out eight data protection

principles that must be followed during your

processing of personal data. You should ensure that

your internal procedures allow you to comply with

them. They are:

• personal data must be processed fairly and

lawfully (hence the particular for there to be a

clear understanding between you and the

individual as to how you can use their data);

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• personal data shall be obtained for specified and

lawful purposes, and shall not be further

processed in any manner incompatible with that

purpose of purposes;

• personal data shall be adequate, relevant and not

excessive;

• personal data shall be accurate and kept up to

date;

• personal data must not be retained any longer

than necessary (you should ensure that your

databases are regularly swept to remove old and

obsolete data);

• personal data must be processed in accordance

with the rights of data subjects;

• personal data should be held in a safe and

secure environment; and

• personal data should not be transferred out of the

European Community without the individual's

consent.

Do I need to bother - what will happen if I

don't comply?

• Failure to hold an appropriate notification with the

Information Commissioner can be a criminal

offence for which directors of your company may

be personally liable.

• If a complaint is made about your data protection

practices, the Information Commissioner may

launch an investigation and has the power to levy

a range of measures.

• Perhaps more importantly, poor data protection

compliance can upset and alienate customers to

the extent that you lose their business.

macfarlanes

Defamation and Rights of Publicity

What is the law of defamation and what is the

difference between libel and slander?

• The law of defamation is concerned with each

person's right to have his or her good name or

reputation protected. Libel covers defamatory

statements in a more or less permanent form

(including web site content and e-mails); slander

covers spoken defamatory comments.

What must be proved in order to succeed in a

claim for defamation?

A claimant in a defamation action must establish

three things in respect of the material complained of

(usually words):

• that it is defamatory; the test is "whether it lowers

the person in the estimation of right-thinking

members of society generally or tends to make

them shun or avoid that person";

• that it refers to (expressly or by inference) the

claimant; and

• that it has been published to another person.

What defences are available in a defamation

claim?

The main defences are:

• JustificationJustificationJustificationJustificationJustification: that the words are true;

• Fair CommentFair CommentFair CommentFair CommentFair Comment: that the words complained of are

fair comment, made in good faith and without

malice, on a matter of public interest;

• PrivilegePrivilegePrivilegePrivilegePrivilege: on certain occasions (such as during

judicial or parliamentary proceedings),

statements which would otherwise be defamatory

can be made;

• Unintentional DefamationUnintentional DefamationUnintentional DefamationUnintentional DefamationUnintentional Defamation: a defendant may have

protection where there has been a genuine

mistake or an innocent misuse of another's name.

The defendant has to offer to make amends with a

suitable correction or apology; publish it in a

reasonable and practicable manner and pay the

aggrieved party costs and compensation.

• Innocent DisseminationInnocent DisseminationInnocent DisseminationInnocent DisseminationInnocent Dissemination: this is likely to be used

in relation to the transmission of material across

the Internet which a person has no reason to

believe is defamatory. The defendant must show

that he is not primarily responsible for a

defamatory publication (ie he is not the author,

editor or publisher), and that he took reasonable

care and did not know or have reason to believe

that he was contributing to the publication of

defamatory material.

How might the law of defamation be relevant

to gaming web sites?

• Defamation can arise in relation to advertising

carried on a site. Examples are advertising which

adversely affects another company's reputation,

for example in the area of comparative

advertising, or which makes unauthorized use of

images, photographs, voices or impersonations of

celebrities.

• News stories on or comment about sports

personalities, or companies which sponsor them

could be defamatory in nature (for example

allegations of drug use).

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• Assessments of a player's performance could be

defamatory.

• Statements published on chat room sites could

also be defamatory.

Site owners should ensure that:

• advertisers give warranties and indemnities that

they will avoid defamatory statements;

• users who access linked material realise that they

have left the site, and that the site owner does not

take responsibility for the content of linked sites;

• they take reasonable care to check content, such

as editorial comment, on their site and take

advice where there are concerns; and

• they remove at once any defamatory material they

are made aware of, for example in chat rooms or

on bulletin boards.





What is malicious falsehood?

• A malicious falsehood is a false statement made

about an individual or company or its products/

services which the maker of the statement knew

(or did not care if it) was untrue and which was

likely to cause damage. A claim for malicious

falsehood can be brought as an alternative to

defamation, although it is more difficult to

establish as the claimant must prove that the

maker knew or did not care that the statement was

untrue.

Does English Law recognise an individual's

right of publicity?

• This is a well known concept in the United States.

It means the legal right which a celebrity has

during life to control and profit from the

commercial use of their name and personality.

• Currently, there is no such right under English law,

so a celebrity would have to consider bringing a

passing offpassing offpassing offpassing offpassing off or defamation (or possibly trade marktrade marktrade marktrade marktrade mark

infringementinfringementinfringementinfringementinfringement) action if there has been an

exploitation of his or her reputation/goodwill

without permission.

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Linking and Framing

What do these terms mean?

• A link link link link link or hyperlink hyperlink hyperlink hyperlink hyperlink is a signpost to another page

or site located on your web page. It can operate

either by opening up the signposted page as a

separate screen or by moving the viewer to the

new page or site.

• Deep linking Deep linking Deep linking Deep linking Deep linking is a form of linking or hyperlinking.

It involves transferring the view to another site, but

bypassing that site's front page. Most links are, in

fact, deep links.

• Framing Framing Framing Framing Framing involves transferring or otherwise

showing another site's content, but doing so within

your site's look and feel. For example branding

and advertising might remain as found on your site

and the URL indicated might also suggest that the

viewer was still on the original site and not that they

were looking at another's content. This is very

dangerous and is likely to amount to an

infringement of the other site's rights.

Why would I want to do these things?

• You may want to use links as a means of getting

from one part of your site to another and also as a

way of showing visitors interesting or relevant

pages on sites belonging to others. Deep linking

occurs if you want to direct someone to a specific

page on another web site. You might, for

example, want to show them a story that was

published on a news site about your game, but

you need to link directly to that site and not to the

front page of the news service. This will often be

because the front page of another's site will not

immediately be relevant to the point that you are

wanting to make and you only need or want your

viewers to look at a specific page or part of the

site.

• Framing is done when someone wants to bring an

article or some content on another's web site to

their viewers' attention without letting it be known

that they have left the original site. You might want

to do this to retain viewers and not have them

follow other links to yet more pages when you

want to keep them on your site. By framing a third

party's content your menus and links would be

kept around the other person's content. People

also want to do this where they generate

advertising revenue on their site and want to

maximise the number of page impressions on

which their advertising is seen.

What are the risks if I do link or frame?

• Linking is a generally accepted activity on the

internet. Before you link to a page you should,

however, check to see if the site in question

forbids the establishing of links. In addition you

should consider whether it is appropriate for your

site to link to the material displayed on the linked

page or site. If, for example, you link to a

defamatory story that has been found on the

internet then it is possible that you will be found

liable for publication for that story. In addition,

some countries, notably Germany and Belgium,

have indicated that someone who links to a site

may be held liable if that site's content is illegal. In

the UK the courts are not likely to hold you liable if

you did not know and had no reason to believe

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that content to which you link is illegal but you

should always consider whether it is appropriate

to link to a site.

• As for deep linking you should, in addition to the

issues raised above, always check any terms and

conditions relating to the use of the site that holds

the section that you wish to deep link. Often sites

will forbid deep linking since, by bypassing other

intermediary pages, revenue may be lost. If you

are in doubt then you should contact the web site

owner and seek their permission.





• You should not frame another site's page without

obtaining prior written permission. If you do frame

somebody's site and they object to this then it is

likely that they will claim that you have infringed

their copyright. This has not been tested in the

United Kingdom so far, but it is, at best, a risky

thing to do without permission and very likely to

involve you in court proceedings.

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Betting and Gaming

A few definitions

• Betting Betting Betting Betting Betting - (governed by the Betting, Gaming and

Lotteries Act 1963) - the placing of a stake on the

uncertain outcome of a game or event which

occurs during the game (aka "fixed odds betting"

or "betting by wager").

• Gaming Gaming Gaming Gaming Gaming - (governed by the Gaming Act 1968) -

the playing of a game of chance or skill (not

athletics or sports) where you risk money or

money's worth, and stand to win prizes, whether

or not you are at risk of losing the money you

placed in the first place.

• Pool Betting Pool Betting Pool Betting Pool Betting Pool Betting - (governed by the Betting, Gaming

and Lotteries Act 1963) - the promoter puts all

entry monies into a pool, deducts his expenses,

then pays out to a winner according to the

relevant pool rules. The promoter cannot lose, so

it is not a bet by wager.

• Lotteries Lotteries Lotteries Lotteries Lotteries - (governed by the Lotteries and

Amusements Act 1976) - the distribution of prizes

by chance where a person must make a

contribution (in money or money's worth) to enter.

• Prize draws/competitions Prize draws/competitions Prize draws/competitions Prize draws/competitions Prize draws/competitions - (governed by the

Lotteries and Amusements Act 1976) - a

competition allowing a person to win by means of

his mental or physical skill.

Betting - fixed odds or pool?

• Betting is presumed illegal unless permitted by

statute, which allows betting under restricted

circumstances. Fixed odds betting by wager is

controlled by licence granted following an

application to the Betting Licensing Committee,

and controlled by it thereafter.

• Nearly all on-line fantasy style games will

comprise pool betting, as a "pot" of money from

entries is shared out after deduction of costs

and margin. All persons carrying on a pool

betting operation will need to be registered

pools promoters, accredited by the local

(borough) council for which there is an

application process and on-going rules and

procedures, which enforces the provisions of

the Pool Betting Act 1958. Pool betting must

involve an element of skill, as it is this that

distinguishes it from a lottery.

Gaming

• Gaming must be permitted under the Gaming Act

by virtue of a licence which can be obtained by

application to the Gaming Board. As a general

rule, if the gaming is not a commercial activity, in

a public (unlicensed) place and/or not for profit, it

will be allowed on an unregulated basis.

Prize draw or lottery?

• Anything which involves prizes being awarded

by chance, where entrants have made some

"contribution" as a qualification for entry, will be a

lottery and, with the exception of certain

permitted lotteries which include the National

Lottery, will be illegal under the Lotteries and

Amusements Act 1976.

• Lotteries are rarely an issue for on-line fantasy

style games as the commercial reality is that an

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element of skill is the factor which determines the

result rather than mere chance.

• A payment will only amount to a "contribution" if it

is made in the knowledge and expectation of a

chance, but any form of direct or indirect

contribution which is made by the entrant as a

condition of entry to the promotion, will amount to

a contribution. It is however an accepted practice

that the cost of a second class stamp for a postal

entry, or the cost of logging on to the internet to

enter does not amount to a contribution.

• One way of avoiding the illegal lottery problem is

by offering entrants an alternative route to

participation - a free entry route. This free entry

route must be a genuine, realistic and unlimited

alternative and must be clearly set out before any

decision to purchase is made.

• If you insist on a contribution to enter, then the

rules on competitions must be considered

instead.

• An illegal competition may be avoided if you

ensure that prizes are not awarded by chance, by

including a determining element of skill: the

disadvantage of this is that you have no control





over the number of winners. Where a controlled

number of winners are required you should allow

for a tiebreaker. Any tiebreaker must itself be skill-

based and the judging panel must properly review

all valid entries.

Lotteries - what are the relevant offences?

• There is a wide range of offences under the Act,

including activities such as printing tickets,

publishing advertisements of the lottery or lists of

winners, using premises for the purposes of the

lottery, etc. These offences are punishable by

unlimited fines or imprisonment. Officers of a

company can be prosecuted as well as the

company itself.

• There have been few recent prosecutions under

the Act. The Crown Prosecution Service

examines each case on its facts and must be

satisfied that there is evidence to support a

realistic prospect of a conviction and, if so, that

the public interest requires a prosecution.

JurisdictionWhat law governs my web site?

• While you can choose to state that any contract

you enter into with a game entrant is governed by

English law, this does not necessarily mean that a

dispute will be dealt with by the English courts or

that certain mandatory local laws will not be

relevant. Also, even if your on-line terms and

conditions state that the English courts will have

jurisdiction, a customer may well be allowed to

sue in his home country. This is even more likely

if your web site is considered to be "active" in a

different country.

Can I be prosecuted for infringing laws in

countries outside the UK?

• Yes you can. Many countries take a very

restrictive view of the activities that may be

carried out on the internet. Certain of these adopt

an approach that any site capable of being

accessed from within their jurisdiction should be

subject to local laws. Such countries include, in

Europe, France and Germany; in Asia, Vietnam

and Singapore; and certain US States. As a result

it is important, at the very least, to consider

whether your site is likely to be accessed from

sensitive countries and, even more importantly, if

your business might be seen as directed towards

that country and therefore "active" in it.

Can I be sued for infringing other people's rights

(e.g. trade marks) in countries outside the UK?

• Yes, you can. However the case law to date indicates

that a national court is less likely to find against a web

site owner if the web site does not somehow target the

consumers in that country or where the web site is

"passive" rather than "active" in nature.

What makes my web site "active" rather than

"passive" in a certain country?

Each case is decided on its facts. However, factors

which have been taken into consideration in the past

by the courts when considering whether a web site is

"active" in a different country are:

• whether the web site/products are advertised in

that country, e.g. through magazine publications

sold or available there by subscription;

• what top level domain name you have registered.

For example, www.sport.com may suggest an

international focus, while www.sport.ie suggests a

focus towards the Irish market.

• whether your web site is available in the language

of that country;

• whether you offer your products in the currency of

that country; and

• whether you have supplied customers from that

country in the past.

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This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intendedto be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriateto the specific situation should always be obtained.

The firm is not authorised under the Financial Services and Markets Act 2000, but we are able in certain circumstances to offer a limited range ofinvestment services to clients because we are members of the Law Society. We can provide these investment services if they are an incidentalpart of the professional services we have been engaged to provide.

If you would like any further information or specific advice please contact your usual Macfarlanes’ contact or Geoff Steward (telephone: 020 78319222/ fax: 020 7831 9607/ e-mail: [email protected]).


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