macfarlanes
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
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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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
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
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www.macfarlanes.com
- 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.
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
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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.
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
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
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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.
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.
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
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.
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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.
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.
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
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
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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.
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.
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
• 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);
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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.
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
• 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).
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
• 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.
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.
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
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.
macfarlanes
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
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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.
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.
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
• 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.
macfarlanes
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
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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
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.
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
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.
MACFARLANES
10 Norwich StreetLondon EC4A 1BD
Tel +44 (0)20 7831 9222Fax +44 (0)20 7831 9607 DX 138
www.macfarlanes.com
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]).
© Macfarlanes March 2002