Update 56: April 15, 2008
1. Abortion and religion-related content is inappropriate, Google says
Ads for non-religious sites with views
on abortion? No problem! Adverts for pornographic sites? Sure! But abortion and
religion related content? No way! So Google refused to run a pro-life ad for The
Christian Institute's website, christian.org.uk, ("UK abortion law - news and
views on abortion from the Christian Institute"), because "abortion and religion-related content"
content" according to Google's policy.
Lawyers for the Institute say this is
unlawful discrimination under the Equality
Act 2006. They demand that Google change its policy or face legal action.
s. According to
2. German Jewish Group Sues Google over YouTube
The Central Council of Jews in Germany filed a temporary injunction March 20,
2008, against Google in Hamburg District Court. The Jewish group demands that
Google pull hate videos from its YouTube subsidiary. Among the offending videos
was one in which a photo of the late president of the Central Council, Paul
Spiegel, was burned against a background of swastika
, Stephan Kramer, the general secretary of the Central Council
of Jews explained the move: "The radical right-wing scene is using YouTube,
massively, as a platform. We are accusing Google, with its YouTube video
platform subsidiary of being an accomplice to inciting racial hatred and
3. Self-Regulatory Principles on Behavioral
December 2007, the Federal Trade Commission (FTC) released a
proposed principles to guide the development of self-r
egulation in the area
of online behavioral advertising. Behavioral advertising means the tracking of a
consumer’s activities online – including the searches the consumer has conducted,
the web pages visited, and the content viewed – in order to deliver advertising
targeted to the individual consumer’s interests. One proposal is aimed at more
transparency and consumer control:
website where data is collected for behavioral advertising should provide a
clear, concise, consumer-friendly, and prominent statement that
(1) data about
activities online is being collected at the site for use in providing
advertising about products and services tailored to individual consumers’
(2) consumers can choose whether or not to have their information
collected for such purpose. The website should also provide consumers with a
clear, easy-to-use, and accessible method for exercising this option."
guidelines are partly intended to adress concerns over the Google-DoubleClick
deal. So far Google is not engaged in behavioral advertising, but declines to
say whether the merger will facilitate
Alexis, Alexei, Behavioral Advertising - Search Engine Firms Expected to
Face Continued Hill Scutiny, Electronic Commerce & Law Report 2008, 121-123
4. Sponsored Links decision in the U.K.
Google changes its trade mark policy in the
UK and in Ireland: The use of trade marked terms to trigger ads will be allowed,
starting May 5. This move brings the policy in line with the one in the US and
Google might have announced the change
because of a recent High Court Ruling that cleared Yahoo of trademark
infringement. Victor Wilson, owner of a London based catering business had sued
Yahoo, after discovering that typing Mr Spicy, a name that he registered as a
Community Trade Mark, triggered sponsored links for Sainsbury's supermarket.
Yahoo asked for summary judgement, arguing that it had not used plaintiff's
trademark, and got it:
"The trade mark in this case is not used by anyone other than the browser
who enters the phrase "Mr Spicy" as a search query in the defendants' search
engine. In particular, the trade mark is not used by the defendants. The
response of the defendants to the use of the trade mark by the browser is not
use of the trade mark by the defendants.
That is enough to decide the case in the defendants' favour. But the
matter does not stop there. If, by some process of reasoning, one were to hold
that the search engine's response to the words used by the browser was, itself,
use by the defendants, in my judgment, it is not use of the mark "Mr Spicy". What, instead, is being used is the English word
"spicy" as it appears in that
But please note: The advertiser had used the word "spicy"
as keyword, not "Mr Spicy", so its still possible that buying a keyword that
matches another firm's trade mark is unlawful in the UK.
might be a dangerous one that leads to more lawsuits.
mark policy change, the cost to brand owners and the law, Out-Law
March 6, 2008:
sponsored links ruling in High Court, Out-Law
AdWords Trademark Policy Revision (IK and Ireland)
Victor Andrew Wilson v. Yahoo! UK Ltd. / Overture Services Ltd., Decision of
February 20, 2008
5. First Google street view lawsuit
in the USA: Boring v.
Google allegedly took pictures from what was
labeled as “private property” for its Street View Feature. So, Aaron and
Christine Boring filed suit in Allegheny County court on April 2, 2008. They are
demanding $25,000 to make up for the "mental suffering" and the diminished value
of their home. Google claims that this lawsuit is pointless since anyone can ask
them to have pictures removed without legal action. You can watch some of the
pictures of the property and the complaint
Mr. and Mrs. Boring sue Google over Street View pics - "No one will compromise
our privacy but us", The Register
6. Article 29 Data Protection Working Party
Report: Opinion on data protection issues related to search engines
report by the European Uni
on's privacy panel, the Article 29 Data Protection
Working Party, demands that search
engines follow EU privacy regulations, even when the services are headquartered
outside the European Union. They should delete personal
data held about their users within six months.
Key findings of the report:
The Data Protection Directive (95/46/EC)
generally applies to the processing of personal data by search engines, even
when their headquarters are outside of the EEA.
Search engines may only process personal
data for legitimate purposes and the amount of data has to be relevant and
not excessive in respect of the various purposes to be achieved.
In view of the initial explanations given by
search engine providers on the possible purposes for collecting personal
data (e.g. Service improvements, system security, fraud prevention,
personalised advertising), the Working Party does not see a basis for a
retention period beyond 6 months.... In case search engine providers retain
personal data longer than 6 months, they will have to demonstrate
comprehensively that it is strictly necessary for the service.... If there
is no legitimate ground for processing, or for use beyond the well-specified
legitimate purposes, search engine providers must delete personal data.
Instead of deletion, search engines may also anonymise data, but such
anonymisation must be completely irreversible for the Data Protection
Directive to no longer apply.
The Working Party finds that the correlation
of personal data across services and platforms for authenticated users can
only be legitimately done based on consent, after the users have been
Users of search engine services have the
right to access, inspect and correct if necessary, according to Article 12
of the Data Protection Directive (95/46/EC), all their personal data,
including their profiles and search history.
Cross-correlation of data originating from
different services belonging to the search engine provider may only be
performed if consent has been granted by the user for that specific service.
7. Important thumbnail decision in Germany
German courts were split on the question, if copyright law allows the creation
and display of thumbnail images by picture search engines.
There have been two major
decisions, one by the District Court of Hamburg (Case No. 308 O 449/03, full
text available at:
http://www.linksandlaw.de/urteil73-thumbnails.htm) and the second by the
District Court of Erfurt (Case No.: 3 O 1108/05, full text available at:
District Court of Hamburg ruled against Google's German news service when it
found that thumbnail images, that were displayed beside excerpts from various
news stories, were protected under German copyright law and could not be
reproduced without permission.
District Court of Erfurt argued that webmasters must brace themselves for other
users to link to their works. The court stressed the fact that the thumbnails
cannot be enhanced into high quality images and that the depiction of thumbnails
is beneficial to the copyright holder, because visual search engines help users
to locate them on the internet. Page owners had one easy way to prevent their
pictures from appearing as thumbnails in search engine results, the court wrote.
They can restrict access to the works on their site, e.g. by the use of a
plaintiff appealed the decision and the Thuringian Higher Regional Court
(decision of February 27, 2008, Case No. 2 U 319/07
full text in German) did not follow the reasoning of the District Court.
accordance with prior cases the court found that the creation and display of
thumbnail images is not allowed under the exemptions granted by the German
Copyright Act. Google also failed to convince the court that the "implied
consent" defense applies. In the eyes of the judges, the upload of a work on a
web site is not enough to find that the copyright owner agrees to all search
engine uses. So thumbnails used by picture search engines violate the German
Copyright Act (I don't agree with this result, please see my article
Green light for search engines to use thumbnail images?).
the court came up with a solution to dismiss the lawsuit. The plaintiff was
engaged in search engine optimization. Under these circumstances, the court
found that the plaintiff had attracted crawlers and was estopped from raising
claims against search engines!
I don't think that
it is a good idea to assume that the plaintiff abused her legal rights:
plaintiff had used metatags (the decision only speaks of the keyword metatag
- that is useless, if you want to optimize your pages for Google, but the
plaintiff might have also used other metatags). Metatags don't "attract"
crawlers. They are a way of telling search engines which keywords are
relevant for a web site, but they don't influence how often a web page is
visited. Metatags are used to increase the visibility of a web site within the
(web) search results.
court did not offer a solution what the plaintiff should have done, if she
wanted her web site to appear in the web search results, but not in the
picture search results. If she had optimized the pictures (which is very
difficult to prove), than the reasoning of the court would have been correct,
but only then.
In my view, it
would have been better to consider the search engine optimization under the
aspect of "implied consent". The use of the metatags shows that the
copyright owner wanted his works to be found. So it would be consequent to
assume, he impliedly consents to the necessary copyright uses by search
more in depth analysis, see the
in my German Links & Law Blog
In short (it's all about adwords and metatags in the USA
U.S. District Court for the Eastern District of
Kentucky denied a motion to dismiss without actually deciding whether the
purchase of keywords was a trademark use, holding merely that the plaintiff's
Lanham Act claim was "plausible". (T.D.I.
Int'l Inc. v. Golf Preservations Inc., E.D. Ky., No. 07-313, 1/31/08)
case, where competetor's trademark was displayed in the ad copy, a
federal court found initial interest confusion as a matter of law, because
the defendant offered no evidence to show a lack of initial interest
confusion and could offer no explanation for why he chose plaintiff's
trademark as an Adword. (Storus
Corp. v. Aroa Marketing Inc., 2008 WL 449835 (N.D. Cal. Feb. 15, 2008))
For more information on this case see: Goldman, Eric,
Adwords Ad Creates Initial Interest Confusion -- Storus v. Aroa,
Technology & Marketing Law Blog
The Second Circuit heard oral arguments in Rescuecom v. Google. Click here
comprehensive report by James Grimmelmann.
According to the
11th Circuit the use of trademarked terms in metatags constitutes trademark
infringement. Judging from the statement that the description Google used in the
search results included the trademarked term, the defendant probably used it in
the description metatag.
Medical Corp. v. Axiom Worldwide, Inc., 2008 WL 918411 (11th Cir. April 7,
information on the case see: Goldman, Eric,
11th Circuit Freaks Out About Metatags - North American Medical v. Axiom,
Technology & Marketing Law Blog
New in Legal Resources
Euler, Ellen, Web-Harvesting vs. Urheberrecht,
CR 2008, 64-68
Wiebe, Andreas, Suchmaschinenmonopole und
Kartellrecht, Medien und Recht Int. 2007, 179-187
Ernst, Stefan, Suchmaschinenmarketing in der
aktuellen deutschen Rechtsprechung, Medien und Recht Int. 2007, 195-200
Weichert, Thilo, Datenschutz bei Suchmaschinen,
Medien und Recht Int. 2007, 188-194
Klein, Sheldon / Huffnagle, Henry, Split
Decisions: The Issue of "Use" in the Context of Search Engine
Keyword-Triggered Advertising, Intellectual Property & Technology Law
Journal, Volume 19, Number 12, December 2007, 1-8