Online Pornography and the Law

This article examines laws, regulations and case law related to online pornography in selected jurisdictions to assess their effectiveness and limitations.1 The United States and online pornography"There have been many attempts in the United States to regulate online pornography, although not all of them have been successfully implemented".1.1 The Communications Decency Act (CDA), 1996

The CDA was the first federal law to impose significant constraints on internet communications. It imposed criminal sanctions on anyone who:

knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.It further criminalised the transmission of materials that were "obscene or indecent" to persons known to be under 18.

So, under the CDA regime, an ISP was liable for allowing dissemination of obscene or indecent material to minors over Internet facilities it controlled and could be criminally punishable by a fine or imprisonment for up to two years or both. However, the ISP could defend itself that it acted in good faith to take reasonable, effective and appropriate actions to prevent minors from receiving indecent material through the Internet. It could also use the defence based on the distinction between an access service provider and a content provider. If the ISP could prove that it only provided access to a network without interfering with the content, it would have been exempted from liability. If it is established that it acted as a content provider, then it will be criminally liable for transmitting indecent materials to a minor.

However, in Reno v American Civil Liberties Union the US Supreme Court found unconstitutional certain provisions of the CDA that were intended to protect minors from harmful material on the Internet.

This judgement implied that ISPs could no longer be held liable for the transmission to minors of indecent or obscene materials under the CDA. Thus, a quick reaction from the Congress was required to fill what could be considered as a gap. This reaction came with the enactment of the Child Online Protection Act, sometimes referred to as CDA II.1.2 The Child Online Protection Act (COPA), 1998Unlike the CDA, the COPA prohibited the transmission of material that is harmful to minors rather than material that is indecent or obscene. Section 231 (a) (1) provided that:

Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50 000, imprisoned not more than 6 months, or both.

Consequently, Commercial site operators who offered material deemed to be harmful to minors were required to use bona fide methods to establish the identification of visitors seeking to access their sites. Failure to do so could result in criminal liability with fines of up to $50 000 and six months in jail for each offence.

On the other hand, ISPs who simply provide access to harmful content to minors could hardly see their responsibility engaged since ISPs cannot be expected to be aware of the character of all materials transmitted through their servers. Indeed, it is technically impossible for them to monitor the enormous quantity of network traffic, which may consist of hundred of thousands of web pages.

The constitutionality of the COPA was challenged almost immediately after its enactment. In ACLU v Reno II, the Third Circuit Court found the COPA to be unconstitutionally overbroad because it prohibited a wide range of constitutionally protected speech. The Supreme Court upheld that decision.

Thus, the second attempt of Congress to regulate online pornography also failed.1.3 The Children's Internet Protection Act (CIPA) 2000The CIPA required schools and libraries that receive government funding to install filtering technology that blocks or filters Internet access to visual depictions that are obscene, or harmful to minors as well as child pornography in respect of children under the age of 17 years.

This Act was held invalid under the First Amendment because it required libraries to use filtering technology that inadvertently blocks access to thousands of legitimate websites while allowing access to some pornographic websites.Upon appeal to the Supreme Court, however, the law was upheld as constitutional as a condition imposed on institutions in exchange for government funding. In upholding the law, the Supreme Court made it clear that the constitutionality of CIPA would be upheld only "if, as the Government represents, a librarian will unblock filtered material or disable the Internet software filter without significant delay on an adult user's request."1.4 The Child Pornography Prevention Act (CPPA), 1996

The CPPA criminalizes the creation, possession and transmission of digital child pornography, whether the pornographic image is computer generated or an actual photograph.

The constitutionality of the CPPA has been challenged in several federal courts resulting in conflicting decisions. However in Achcroft v Free Speech Coalition, the Supreme Court overturned the provisions of the CPPA that made it a crime to possess or distribute any sexually explicit image that appeared to be a minor engaged in a sexual act because it violated the protection of free speech.2 United Kingdom2.

1 The Obscene Publications Act, 1959

In terms of the Obscene Publications Act, mere possession of an obscene article is not an offence. Possession with the intention of publication for gain, however, is an offence. As set out in the case of R v Fellows & Arnold, the offence may be committed simply by making obscene material available for electronic transfer or downloading by another party who is thus enabled to access and copy that material. "It thus follows that an ISP which provides online access and hosting in exchange for a subscription fee could face liability for an obscene website created by a subscriber, hosted by the ISP and to which the ISP provides access".

ISPs can also face liability for transmission of obscene material over the Internet under the Broadcasting Act 1990. This Act extends the Obscene Publications Act to incorporate live and pre-recorded 'programme services'.

So under this legislation, an ISP who hosts a website containing obscene material provided by a third party and who has requisite knowledge could face liability as the publisher of that obscene article. It has also been suggested that an ISP which provides Internet access to a known publisher of obscene materials may face liability, even where the material in question is hosted on the other party's own server.

No prosecutions, to date, however, have been brought against ISPs with respect to obscene material and, as noted by Gavin Sutter, it is unlikely that such a case would happen anytime soon unless an ISP was sufficiently aware and failed to act. With the establishment of the Internet Watch Foundation (IWF), self-regulation has proved to be a better and more effective solution to law. The IWF will be dealt with later in this dissertation.2.2 The Protection of Children Act 1978This Act criminalises the creation, the distribution and the possession of child pornography.

An ISP may be criminally liable as an accessory to a crime under section 3 of the Protection of Children Act if it carries illegal content such as child pornography on its servers. But it should be realized that the initial responsibility for generation and dissemination of child pornography lies with the authors and not ISPs. The responsibility of the ISP is only possible if the ISP who is aware of the existence of child pornography on its servers fails to take reasonable steps to remove it. Thus, it can be said that 'knowingly' carrying child pornography would bring liability for the UK ISPs even though actual knowledge is not a requirement under the 1978 Act.

3 The Council of Europe's Convention on Cybercrime, 2001Given disparities on the regulation of child pornography around the world, harmonization efforts have been undertaken at international level to deal with the issue; this is the case of the Council of Europe's Convention on Cybercrime. Article 9 (1) of this Convention provides that each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

• Producing child pornography for the purpose of its distribution through a computer system;

• Offering or making available child pornography through a computer system;

• Distributing or transmitting child pornography through a computer system;

• Procuring child pornography through a computer system for oneself or for another;

• Possessing child pornography in a computer system or on a computer data store medium.

South Africa as one of the signatories to this Convention has implemented this provision in terms of the Films and Publications Act No 65 as amended in 1999 to make the exploitive use of children in pornographic publications, films or on the Internet, punishable.

4 South Africa and online pornography4.1 The Films and Publications Act No 65 of 1996This Act regulates the creation, production, possession and distribution of pornography in South Africa. It also specifically outlaws child pornography, notably on the Internet.

Let us analyse instances where an ISP can incur liability in terms of this Act, i.e for distribution of pornography to minors as well as for possession and distribution of child pornography.4.1.1 Distribution of pornography to minors

According to the Films and Publications Act No 18 of 2004, distribution includes... the fact of handling or exhibiting a film or a publication to a person under the age of 18 years, and also the failure to take reasonable steps to prevent access thereto by such a person. Consequently, ISPs could face criminal liability for allowing access to pornography to minors on their servers under this Act. This reminds us provisions of the CDA and COPA intended to prevent access to pornography to minors and their fate in the US. So it is interesting to see that South Africa has succeeded where the US legislator has failed.

This Act prohibits the distribution of pornography to minors. So an ISP could be held liable for distributing to minors inter alia a publication or a film classified XX or X18 or a film not classified at all. But to be liable, an ISP needs to distribute pornography knowingly. It is therefore unlikely that an ISP who simply provides access to Internet without monitoring the content could be held liable for access to pornography to minors on its servers. It results that the duty of ISPs to prevent access to online pornography to minors is unlikely to be effective, parents or guardians are probably the first ant best defense for protecting children from pornography over the Internet. As regards the content provider, it is likely to be liable if it fails to take reasonable steps to prevent access by children to pornography and to face a sentence to a fine or to imprisonment for a period not exceeding five years or to both.4.1.2 Possession & distribution of child pornography

The Films and Publications Act was amended in 1999 to make the exploitive use of children in pornographic publications, films or on the Internet, punishable.4.1.2.1 Possession of child pornography

Possession is defined in relation to a film or a publication in the Films and Publications Act No 65 as amended as including the keeping or storing in or on a computer system or computer data storage medium and also the fact of having custody, control or supervision on behalf of another person. And section 21 (1) (a) (i) of the same Act states that any person who is in possession of a film or publication which contains child pornography shall be guilty of an offence and further may be sentenced to a fine or to imprisonment for a period not exceeding ten years or to both in terms of section 30 (1A). What this implies for ISP? May they face liability for keeping or storing child pornography on their servers?

It is submitted that ISPs would not be considered in possession of child pornography unless they are aware of its presence on their servers, in which case they have a duty to remove such material and only failure to do so exposes them to liability.

The application and interpretation of Section 27 of the Films and Publications Act related inter alia to the criminalization of the possession of child pornography was considered in the case of De Reuck v Director of Public Prosecutions, case in which De Reuck charged for possession of child pornography challenged the constitutionality of the definition of child pornography. The Witwatersrand High Court dismissed the applicant's challenge and held the definition to be constitutional; on appeal, the Constitutional Court upheld that decision.4.2.2.2 Distribution of child pornography

The Films and Publications Act No 65 punishes the distribution of child pornography of the same penalty as its possession, i.e. a fine or imprisonment for a period not exceeding 10 years or both. But, like possession, the distribution of child pornography requires the requisite knowledge of it by the ISP to give rise to liability. So ISPs who distribute child pornography in the carrying on of their business without being aware of the content of that material will be exempted from liability under the Films and Publications Act. However that Act imposes obligations on ISPs in order to prevent the use of their services for the hosting or distribution of child pornography as well as a close cooperation with the South African Police Services in the combat against child pornography.

One should also note that ISPs who merely provide access to or host child pornography without being aware of the content thereof may be exempted from liability in terms of the Electronic Communications and Transactions Act No 25 of 2002.

Web Hosting Services And Defamation Law

Generally, a hosting provider or a domain name, is not liable for defamatory content that is on the website or the domain name. However, web hosting providers can be liable for defamation in certain limited circumstances.

§230 of the Communication Decency Act of 1996 provides that; "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."There are various cases where the court has found that §230 does not apply. For example, §230 does not expand or limit otherwise applicable trademark law. In the case of Hall v. Mindspring, where Gucci sued Mindspring, a web hosting provider to take down content the violated the Gucci trademark, and informed Mindspring that the website hosted by them violated the Gucci trademark on various instances and Mindspring did not take it down, the court found that Mindspring could be sued for assisting the website in violating the Gucci trademark.

This case is a prime example of how hosting providers can be found to be liable for something that is hosted on their network. If the web hosting company is informed about the violating content and consciously and knowingly refuses to take it down, then the web hosting company is not immune from suit merely because of §230 of the Communication Decency Act.

This presents a real concern for users and for web hosting providers. When is it that one knows that particular content on their networks violates someone's copyright or trademark? Does one merely rule by exception, so to speak? This presents a responsibility on web hosting companies, to responsibly and reasonably police what is on their network and take violating content down. The line is a fine one, a web hosting company is under an inherent motive to take on more customers, even the rogue ones who violate copyright laws, and on the other hand assist and cooperate with people who are owners of trademarks.

The one sure way to avoid the likes of Gucci from going after your hosting company is to not purposefully avail of the laws and protections of the United States. That is, if the US courts do not have personal jurisdiction over the web hosting company, the US courts would be precluded from ordering the hosting company from taking infringing content down. This is an inherent principle from the due process clause of the 14th Amendment of the US Constitution, as applied to the States.

If you are a user who wants to use a website for such an infringing purpose the sure shot way is to find a non-US hosting company, and use a non-US domain name. The US courts do not generally exercise jurisdiction over non resident people, unless they have purposefully availed of the laws and protections of the US. (See the judgment of the US Supreme Court in International Shoe - http://en.wikipedia.org/wiki/International_Shoe_v._Washington ).

The problem with finding such a web hosting company (non-US) and a (non-US) domain name is that it tends to be more expensive. The US has great amount of competition between hosting companies, and lots of domain name providers. The industry is very highly competitive.

Cyber Bullying - The Curse of New Age Technology

The technological abuse

With the emergence of technology, computers, laptops, tablets and Smartphones have become a part of our everyday life. Today, literally no individual can stay without these gadgets. The communication sector has revolutionized in the past few decades sort of shrinking the whole world. The internet web has enabled the far ends of the earth to connect with each other just at a click of a button. The social media networking has further helped the people to connect with each other from different locations of the globe, know about themselves and establish a friendly bond for a lifetime. These sites and platforms have even helped the people find out long-lost friends and family members and brought them together again. But along with the benefits, the new technology has come along its curse too. And that curse is cyber bullying. It is a form of a cyber abuse that is deliberately used in a hostile manner to harass and threaten other people. With the increased use of technologies, cyber bullying is also on the rise.

The Menace

This problem has become an increasing menace, especially among teenagers. Cyber bullying comprises the use of text messages or emails, rumors sent by email or posted on social networking sites, and embarrassing images, videos, websites or fake profiles. Individuals who are cyber bullied are at times bullied in person as well. Additionally, it is sometimes pretty hard to get away from being cyber bullied since the source is unknown and cannot be restricted by us. It can happen 24*7 and can reach a person even when he or she is alone. Vulgar messages and photos can be posted anonymously and can spread out rapidly to a very wide audience. It can be difficult and sometimes impossible to trace the source. Erasing improper or pesky messages, texts and pictures is extremely hard after they have been posted or sent.

The Mental Impact

Though the social media sites, themselves do not promote these kinds of activities, but they are utilized as a tool to carry out such horrendous work. Kids and women are the main victims of cyber bullying. It can lead to major negative impact on the mind. Teenagers or kids who are victims of this appalling crime can undergo behavioral changes like the sudden and extensive use of alcohol and drugs, tendency to skip school, experience in-person bullying, unwillingness to attend school, have poor grades, lower self-esteem and erratic health problems.

Another form of bully

Cyber stalking is another form of cyber bullying. It may include false allegations, uncomfortable observation, making threats, identity theft, and damage to data or equipment, the solicitation of minors for sex or gathering information in order to harass. Women are the main victims of cyber stalking.

The aftermath

It can be as threatening and frightening as any other type of crime even though there is no physical or verbal contact with the stalker. Victims of this crime can experience extreme psychological as well as emotional reactions. It can result in changes in sleep patterns, depression, anxiety, anger, paranoia, shock and disbelief.

Precautions and steps to be taken

If anyone is a victim of any of these two bullying patterns, they should not keep it to themselves. The help of family members, close friends or professional counselors cope with this issue. Legal help should be taken, as this should be reported to the cyber security cell departments of the police so that the culprit can be traced out and apprehended at the earliest. Parents should be open with their children and monitor their social activities from time to time especially if they are underage. Proper scrutinisation and protection of your email and personal data be taken care-off so that they are not hacked and used abusively. Hence, with little caution and awareness you can protect yourself and your loved ones from cyber bullying.

California Law Protects Website Users Under the Age of 1

California has become the first state to pass a law giving minors, those under the age of 18, the right to remove any information they have posted to a website. The law also restricts the website from selling their personal information.

The new law in California will be effective beginning January 1st, 2015. The law applies to any mobile service or website if it has members under the age of 18 who are also residents of the State of California. Needless to say, this will encompass a large number of websites and mobile apps.

Content Removal Rights

Websites will need to permit minors to remove information or any content they have posted. For example, if you have a forum and a minor has made forum posts, the minor must be allowed to remove the posts. If the minor has been banned from the site then the website owner will need to remove the content upon request from the minor.

This will be a minor inconvenience for some websites, but a major headache for others. Much will depend on how the website content is managed. For some sites deleting content site wide will be as easy as pushing a button. For other sites a manual and laborious task of finding and deleting content will be required. For those sites they will want to think twice about permitting minors to post and the ramifications if a minor user gets upset and then demands their content be removed.

Selling Personal Information

California law will prohibit websites from using personal information about a minor to market certain categories of products. Initially, this will include firearms and alcohol, as one might expect, but also aerosol paint, tanning products, and certain dietary supplements. It is reasonable to expect the list of prohibited items will only grow.

It is important to realize this ban will override the website's privacy policy. A website cannot have a policy of using personal information to market these categories of products.

Time to Plan

The law was passed in 2013 and becomes effective beginning in 2015. This is to give website owners time to evaluate their website: who their users are, what content can be provided by users, how easy it is to remove content, what information is sold, and so on.

One issue will be to see if your website is or is not directed to minors and make necessary changes.

Claimed ignorance about the age of a user will not be a defense. The law says information such as their profile, what they say in their posts, their location and address or identifying themselves as going to school will be enough to put you on notice a minor is using your site.

What Is Crime-Ware? How Are They Harmful?

Cyber crimes or Internet based crimes are not new. They have existed for quite some time. However, methods of attempting malicious acts have undergone change. Earlier, they were carried out to harm a computer user and make his/her system function abruptly. But today, obtaining financial gains has become prime motive of such activities. Digitalization of financial and other services has prompted cyber criminals to innovate their methodologies. This is how crimeware software evolved.

We all are aware of computer viruses, malware, and other Internet based notorious tools. But, "Crimeware" is a relatively new term. Let us delve into the concept in detail. It is a collective word used to refer to all the software or programs which have been exclusively designed to plot a crime through Internet.

There is no special category of applications which are called crimewares. In fact bots, Trojans, spy-wares, email Spam, and phishing kits are considered under crimewares if they are used as ploy to attempt a crime. These crimes, generally, include financial or identity thefts.

We need to understand that not all the software or applications, which are used to satisfy someone's criminal motives, can be termed as crimewares. For example, Instant Messaging service software are often used by cyber attackers to bring about child abuse over Internet, but it cannot be called as crimeware. It is so, because Instant Messaging software was not devised exclusively for this purpose, instead it was used in a negative way. But, spy-ware, bots, and Trojan programs were meant for wrongful activities.

A computer program can be considered as crimeware if:

• It is used to bring about criminal activity

• The software is never desirable by a computer user in any circumstance

• It is meant expressly to carrying out the cyber crime, and not engage in it involuntarilyHow are Crimewares Harmful?

These programs often use social engineering techniques to fool an unaware computer user into handing over his/her sensitive personal and financial details to a criminal. Almost all the crimeware programs are involved in stealing away sensitive information of Internet users by some way or the other. Generally, Trojans are used for these purposes. Crimewares bring about cyber crime in following ways:

• They might get silently installed on your computer and record each and every keystroke you make through your keyboard. More commonly called key-logger, such a software can capture your personal details and password while you engage in on-line banking. Moreover, most of these software send this information to a remote user through the Internet.

• Certain crimeware applications are dedicated to download other malicious software onto your system.

• Few of them are also enabled with the capability to allow a hacker to remotely control your PC.

• Certain applications, like the programs of a phishing kit, direct you to a counterfeit website which is meant to harvest your sensitive personal and financial information.Some of the crimeware applications are so sophisticated that they are designed to go unnoticed even by a strong firewall or Internet security tool. They easily fool and evade detection or scan by your most advanced anti-virus.

How do they get into your PC?

These notorious applications, coming over the Internet, exploit vulnerabilities in your browser. However, certain other crimeware programs plot a targeted attack by using social engineering techniques. They direct you to hoax web pages and fool you into giving out your sensitive personal details.

A crimeware can be harmful for an individual PC user as well as huge organizations. It may affect directly to a victim or to third party individuals. Strong and reliable security applications must be used to combat crimewares. Additionally, your computer safety program must be updated to recognize latest risks. You must install safety patches for your operating system and other applications on your PC. Remember, your computer's security can never be perfect, therefore, browse safely and intelligently.

The Truth of the Threats, Vulnerabilities and the Resolution of Cyber Security

If you think your organization is not going to be hacked, you will be hacked! The best education you can get is getting your companies hacked once and then you will realize, budgets that were previously not available will become available and time was not there will be found'' EC Council President Jay Bevis...The truth of the matter is simple. We are in denial. We use the term 'We will deal with the situation, when it happens' Is that enough? I tell you not!! Cybercriminals are out there seeking to steal your information, commit Fraud, disrupt, degrade and deny access to information systems, these cyber intruders are Dangerous and Manipulative they are out there causing financial, operation and reputational harm right now under your eyes without you even knowing!

If someone said to you last year hackers are able to steal up to 45 million in 2days... You would say... Impossible? Nothing is impossible, we were taking by complete astonish and anger when on December 12, 2012, and February 19, 2013, an international team of hackers and thieves stole a collective $45 million from more than 5,000 ATMs across the world. Eight suspects were charged in connection with the crimes on May 9... how was this ''hacking done'. Mask involved? Weapons... answer... No... A hacking plan... at the tip of their fingers and a few keyboards... Was this the wakeup call our Society needed, that technology is becoming so advance, that it's making it easier for these cyber criminals to perform such acts and that cyber security education providers needs to be put in place into your banks!

IT Security is vital! The World's largest vendor Neutral cyber security education provider EC Council focus highly on the threats of breaches on cyber security to organizations. The president of the Council states '"A country deals with cyber threats by dealing with offensive capabilities by creating cyber armies - the entire concept of having a cyber-command will become a clear interface in the war systems of governments.". The EC-Council's flagship course Certified Ethical Hacker, CEH set the standard for what the world has come to expect from ethical hacking IT Security courses, becoming one of the most highest and demand in the world for organization's to have, as well this they provide Information Security, Network Security, Computer Security and Internet Security Certification and Training. So the Solution is BE PREPARED & STEP UP on your education get your IT SECURITY. To think like a hacker... Educate! Is this not an indication for all the CEO of the banks and organisations to have their employees trained as a CEH? Surely this should be made mandatory?!

Cyber threats are a major factor highlighting banks, it is continuing to grow and becoming more sophisticated in Australia, In March, Reserve Bank of Australia confirmed its computer networks had been repeatedly hacked in a series of cyber-attacks to infiltrate sensitive internal information, including by Chinese developed malicious software - or malware, Hackers penetrated computers at the Reserve Bank in an email scam targeting employees in an incident in November 2011 but details only emerged this year. A criminal syndicate had access to 500,000 credit cards and had already spent $30 million on 30,000 of them in transactions in Hong Kong, Europe, Australia and the US. Australian banks are facing new and ongoing security threats, this is combing with destructive hacking! Why do we not hear about the ongoing events and scandals in the media, what is the government in Australia doing about it? Pushing it under the carpet.. As if nothing is happening? Is people's identity, data files and money not important here? I thought Customer Protection and care within a bank was number 1 priority? Another valid point that CEOS should take on board vital security training is a MUST here!

How many of you have a contactless credit and debit cards containing a chip, so that when the card is held next to a reader,a payment is made without need of a pin,. Something simple like going to your local Food Works shop to purchase a loaf and pint of milk? Would you think of fraud? Hacking? Card readers that are now being built in as standard to mobile phones can be adapted to access data from these cards!..Anyone can have your data!! Thomas Cannon of Via Forensics done a reconstructive test: "All I did was I tap my phone over your wallet and using the wireless reader on the phone I was able to lift out the details from your card, that includes the long card number, the expiry date and your name. None of it was encrypted, it was simply a case of the details coming out through the air. "This was with A Barclays Bank, Which has a maximum of 13 million customers who currently use them... Though what other Banks and systems are accessible. I'm sure cyber intruders are planning their next intrusion with android apps which are getting more advance each day!

Let's face it... we are living in the 21ST Century, technology is rising, with the big tech companies such as Facebook, Microsoft, Apple, the New York Times, NBC and its affiliate websites already being 'victims' to the cyber-attacks and hacking scandals within this year! Banks and finance are one of the main sectors Cybercriminals are always going to attack. Why? Money? Did you know At least $15 million was stolen via online infiltration of 15 financial companies -- including JPMorgan Chase, Citigroup, E*TRADE, PayPal, TIAA-CREF, and TD Ameritrade -- overly a nearly two-year period. The perpetrators of the scheme were a group of hackers and identity thieves led by two Ukrainian nationals, according to authorities stated by the LA Times. This is an indication how powerful banking, and hacking has become.

The Resolutions is simple we can never spot a hacker out, we can't point to one random guy in the street... the answer is we can prevent our Banks to have the highest quality IT security system input. Most CEO Use the excuse 'We can't afford to send our employees on these training courses'. Though reality is... When you do get hacked which you will! How are you can afford to compensate your loss? Where's your budget then? Answer That?

Let's think professionally and smart. Education is key to success.. And the fact and point of my article Get Professional IT Security before it's too late! SIMPLE.

Cyber Law FAQs - Does Free Speech Apply to the Internet?

Whilst in the real world, most laws are clear to most people, it is often a very different case in the cyber (virtual) world, as websites can often be seen as personal pages when in fact they are actually legally considered to be public websites in some cases.

This means that anything that could cause offence in the real world could also cause offence if published anywhere on the Internet.

A prime example of this is a growing number of prosecutions relating to posts on social networking sites such as Facebook and Twitter, most of these relating to content that has been deemed either offensive or threatening to others.

If in doubt about what is acceptable to post on such a site, a good way is to consider whether a post could cause offence if said on a megaphone in a crowded place and not to publish it in the first place if the answer is likely to be yes.

This does not mean, however, that people are not entitled to their own opinions on such sites, just that they need to be careful what they write online, rather than just writing the first thing that comes into their heads.

It is vital to know this in today's world, as quite a large number of people are wrongly under the impression that just because they are using the Internet, they can do and say whatever they like.

This is sometimes without any regard to laws that are in place within their country, because despite the fact that the Internet is an international system, people using it are still subject to the laws of their own countries whilst using it, and this is a point that some people don't seem to consider or even know sometimes.

One particular example of this is court cases, meaning that if something is the subject of a confidentiality order, that subject should not be posted on a social networking site anymore than it should be shared within the real world.

This is especially due to the fact that posts on social networking sites can often spread far quicker than anything that is published in a national newspaper, and can therefore cause problems if people post information deemed to be confidential or legally sensitive to an ongoing court case or investigation.

Overall, I would say that free speech is the same within the real world as it is within the cyber world, common sense would seem to be the key element in both worlds.

Into The Hornets' Nest: Robert Jay's Solution to Online Defamation

Out of the ashes of the Leveson inquiry, Robert Jay, QC, gave a widely reported speech to the Singapore Academy of Law. In this speech, Mr Jay threw his hat into the ring of finding a way to drag defamation law into the 21st century. His idea? For internet service providers (ISPs) to be placed under a duty to ensure their customers could not access defamatory content.

Much of the attention Mr Jay received was in respect of his criticism of the UK press, and rightfully so. However, the Times (helpfully) led with a feature on where Mr Jay believes the legal cross-hairs should be aiming next..."One possible way forward is to seek by statutory provision to bring ISPs within the scope of publishers for the purposes of the law of defamation, even if provision would need to be made for resultant claims to be served out of the jurisdiction."The Current Problem

It is pretty obvious that the Internet is a place where people like to talk. We blog, tweet and post our opinions incessantly and, unless you are (although not necessarily both) interesting or famous, most of the time, people rarely pay much attention.

Attention is often something given to those individuals who publish defamatory comments: a false statement (whether negligently or maliciously) identifying an individual and causing them loss in their trade or that would make a reasonable person think less of them (i.e. exposing them to hate, disgrace, ridicule, or damaging their reputation, causing them to be shunned, or the like).

Bringing this principle into the online realm has several issues; not necessarily in terms of proving defamation, but rather identifying the person who made the statement in the first place. The traditional print publishers are still publishers online and a libelous article remains libelous whether in print or online. Luckily, the publisher's name tends to be plastered all over their site, so identifying the publisher is easy in that instance. Not so when it comes to forums, blogs and social media. Simply put, not being able identify the author or publisher means that you cannot bring a claim.

Service Providers

The definition of service providers is as important as the role they play in defamation issues. For now, to give a picture of the current state of affairs, we will stick to the meaning of an entity that supplies 'any service... by means of electronic equipment for the processing... and storage of data at the individual request of a service recipient' - or, commonly, a web host.

The host of a site becomes involved in defamation issues simply because it is easy. When you cannot find the nasty person hiding behind a (non)hilarious pseudonym, the operator of the site is a good alternative to remove the material.

Legally, a host is not liable for any wrong-doing as long as they do not know what is being hosted (which is presumed in law). Luckily for victims, once a host is made aware of the defamatory material they will often take steps to remove it (rather than owe a duty to their customer) and if they don't then they are breaking the law themselves. This is a very simplistic view, with plenty of facets that can be discussed, but the obvious benefits of bringing the host into the situation to victims are that:   

It is less time-consuming to establish the identity of the host;   

Much in the same way as a newspaper, the host is a big company and has the assets to pay for any damages if they do not comply with their obligations; and   

There is a legal obligation for them to take action and most will do just that - meaning that offending material is removed quickly.

Full CircleBack to Robert Jay QC's 'solution'. What does imposing his obligation on ISPs mean and would it work? Taking the concept of a host first, if hosts are to be seen as publishers, then presumably it can be taken that their role would be far more hands on. This would defy current laws outright since, under EU law, hosts are under no obligation to monitor the information that is stored on their servers. A more obvious issue is the practicality of hosts monitoring this stored information. In January 2013 there were 629,939,191 active websites recorded by Netcraft. Admittedly, this is a worldwide count, but it does demonstrate the enormity of the problem - just how on earth are service providers supposed to monitor the ever-changing material their customers publish? The time, resources and expense that would need to be dedicated to this would be astronomical.

There can be a wider view of an ISP (akin to that described in the Digital Economy Act) as someone who provides internet access services. It seems likely that this is the kind of definition that can be implied in Mr Jay's statement. But with the wider scope of ISPs comes the added issue of monitoring access to site content. This magnifies the problem if broadband suppliers and social media sites are taken into account.

This begs the question as to what justification there is for ISPs to invest in tools and resources to cope with what is, in law, not their responsibility.

What is more alarming is the concept of giving victims an opportunity to pursue ISPs as a presentable alternative to the actual originator of any defamatory material. If an ISP can do something to assist and prevent illegal activity then they should. But this is an avenue that is readily available now. What is not readily available is an avenue for victims to be easily compensated for their hardship and loss, which can only really be put down to a veil of anonymity that the internet can provide.

To target ISPs in this way is unfair and skews the concept of what is just - ISPs are bystanders. If you are pushed into a lake by someone you cannot see, you cannot then turn to a bystander and make them pay for your suit to be dry-cleaned.

Mr Jay did, it must be noted, recognise that LJ Leveson was wise to avoid this topic in his report. It follows then that Mr Jay's comments are inherently unwise and ultimately the notion he presents is flawed. There was no detail about how this proposal would work, which is unwise in itself, but this does mean that any criticism of the proposal wanes to a degree given it's minimalistic nature and lack of presented rationale. While comments of this kind should be criticised for that very reason alone, it is left to him to give more details as to how such a proposal would work in practice to lower the raised eyebrows of all ISPs.

Starting Your Own Business? Consult With These Professionals First

You have decided to take a big step and open your own business, congratulations! Now, really comes the hard part making sure that you have all your bases covered during every step of the way.

Once you start the process of registering your business, you might be surprised at just how many other professionals you are going to want to sit and have a consultation with before you get in too deep. The fact of the matter is, unless you are experienced at opening your own firm, there are going to be a lot of technical and complex issues that you are going to need answers to and just don't have the time to research. That's where these professionals come into play.

First things first, you are going to want to speak with a corporate attorney once you get the ball rolling. Why? Because these attorneys have very specialized skills in areas like intellectual property law and contract law that you will be able to consult as your business gets started.

This means that if you are starting your business as a partnership or corporation you can consult a corporate attorney and get their advice on how to best structure your firm and how to make a partnership contract that is fair to all parties involved.

The next person that you are most likely going to want to get a meeting with is an accountant. Business taxes are a lot more complicated than the personal taxes that you are used to. So it is incredibly important that you consult with an accountant because they can inform you on any deductions that you will be eligible for and any other tax benefits specifically related to your business.

Accountants will also be able to work with you to help get your taxes set up, or they can do your taxes for your business. And, since the vast majority of businesses pay estimated taxes on a quarterly basis, those tax bills are going to be coming due a lot sooner than you might realize.

Beyond consulting with a corporate attorney and accountant once you start your business, there are going to be a variety of other professionals that you are going to need depending on how your organization operates.

For instance, if your firm is one that deals in the buying, selling or remodeling of any sort of properties you are certainly going to want to have a real estate lawyer at your disposal. In fact, if you are considering even buying property upon which to develop an office for your company, having a real estate lawyer go over the paperwork is a very smart move.

From there, you might want to also consider speaking with a wealth investment adviser, who will be able to instruct you on how to keep your business and personal incomes and investments separate so as not to run into any tax implications down the line.

Once you have consulted with the proper professionals who can help you set up your business to run smoothly the process quickly becomes much less of a headache down the road.

Why You Need Specialized Solicitors

On a regular basis, there are several issues that you may face that require legal advice. You may need a lawyer if you or someone in the family has met with an accident and needs to file a compensation claim. You will need a lawyer in situations like being wrongfully fired from your job, to start up a new business, to unfortunately get a divorce, file for custody of kids, to ensure your property borders are not violated and for several other reasons. Over the years, the law had constantly been amended to work for better justice. Specialized solicitors are one of the easiest ways to apply the latest in law to your particular case.

So what is it that a solicitor will be able to do for you? For starters, no matter what your case is, he is going to listen to all that you have to say and create a case file. Along the way he is going to request you for relevant documentation to help support certain facts of your case. In each type of case, the documentation required will be different. He will question you intensely on several aspects of the case so that he is able to put it together coherently and be prepared for the case going to court.

Once this is done, your solicitor will explain to you how the law works in your particular case. He will give you the pros and cons of going to court and what your chances are. Should you be starting a business, the solicitor will let you know of all the licenses and documents you will need to be able to stand on solid ground. Businesses can get into serious trouble if they are not in compliance with the law of the land.

Sometimes legal advice is all you need to get on your way. In other cases a lawyer will have to fight a case for you - as in situations like a compensation case or in family law. What is important in such cases is that you find a lawyer that you trust implicitly and be completely honest with him. You should be able to strike a rapport that will help him and you get through the case in a manner favorable to you.

The reason lawyers and their teams are important is because there is a lot of research and case building involved right from records to hiring consultants, strategizing and creating the necessary paperwork. You will not be able to do this on your own.

Getting Yourself the Right Legal Help

There are umpteen number of reasons why you may require a lawyer. Considering that the law today has several specialized and niche branches within it, often the need is for a specialized lawyer. Finding the right kind of legal services in your area can be a bit mind-boggling considering how many are there. Before you sign on a legal firm, here is what you need to look at.

A common recourse to law is in the case of a real estate transaction. These specialized lawyers comb through documents that are associated with the purchase or sale of a piece of real estate. In case you have inherited property, they will help you exercise your ownership. Should you be contesting a will, you could use their experience to work the case in your favor. Personal injury lawyers are also in demand, especially since injury can happen through an accident or at work through words and written means as well. Such cases can be a little difficult to navigate and a specialized lawyer will help you through it emotionally and legally. In all of these cases the primary goal of the solicitor is to get you what you deserve.

Solicitors are also hired in HR departments when it comes to employment. These are needed to represent the interests of both employers and employees. With these lawyers an employer is in a better position to understand how the law can work for them and how they can handle their employees better. For the employee, they can be sure that employment contracts, company policies are created such that they work for the mutual benefit of both. Having employee specific law can also tell you what your rights are and provide you with a recourse in case they have been violated in any way.

World over economies thrive on businesses that have their fundamentals in the right place. For this commercial law and its intricate ways have to be understood and applied by all businesses. The law is dynamic to a certain extent and therefore there is a need for solicitors who can clearly understand what needs to be done for the company they represent. This helps all businesses stay out of trouble and not lose a single working day.

Lawyers are also needed in cases that are more personal in nature like the case of family law, the filing of petty crimes, medical negligence and many more. Many legal establishments hire lawyers that are specialized is specific branches giving you the flexibility of approaching a lawyer that best suits you.

Defamation and the Internet: Cases For and Defenses To Internet Slander Allegations

What can you do when someone publishes something about you that hurts your reputation?

Any words, pictures or other information which, when passed on to somebody else, lowers a person's reputation in the public's eye are defamatory and the person harmed may begin a lawsuit. The person harmed must only prove that the information was communicated to someone else and could have a defamatory meaning.

Once someone has made a case for defamation, the person they claim against must establish one of the following defenses:   

Truth - If the information communicated on balance is true.   

Fair Comment - The statements made consist of an opinion on a matter of public interest and is based on well known true facts. This is true as long as both the comments are actually believed or reasonably could be believed and that they do not deal with criminal activity.   

Privilege - In some cases the law will provide some comments with special protection. Examples are witnesses in court, debates in government.   

Consent - If the person harmed has consented to the defamatory communication.   

Other Limited Exceptions - Such as a non-malicious employment reference.

A lawsuit may begin whether or not the person causing the defamation actually wrote the words or merely published someone else's words.

The issue of defamation on the Internet is becoming significant.

An Internet service provider who hosts web sites may be a publisher and therefore liable for a defamation claim. At the moment, the Ontario Courts have not provided a definitive answer on this subject. This type of situation may be found to be similar to a librarian with defamatory works in their library. In the librarian's case, there may be liability if the librarian makes defamatory works available and has reasonable grounds to be aware of their content. If you become aware of defamatory comments on a web site, you should contact the Internet service provider and advise them. They will then arguably have an obligation to remove the defamatory content or be liable for defamation.

Since the Internet has no borders, another significant issue is where to sue. Recent cases indicate that people outside of Canada have a right to protect their reputations in Canada and can therefore sue in Canada. Canadians can sue foreign publications provided those publications are also distributed in Canada. Suing someone who publishes in another country will depend on the laws of that country. This is a problem when a web site is hosted offshore. On the other hand, people publishing statements on the Internet have a real concern as to which country's laws they follow, where they can be sued, etc. The law continues to evolve in this area and it is impossible to say what liability a person may have for statements made on the Internet. It's best to be cautious.

Avoiding Online Trademark Infringement and Counterfeiting Starts With Awareness

Trademarks act to identify the source of a particular good or service. To be effective and drive sales, they generally must be visible to a certain segment of consumers. On the Internet, that "visibility" may be achieved through several marketing and search engine optimization techniques. The following discusses various ways in which unscrupulous infringers trade off the trademarks, trade names, and goodwill of trademark owners.

1. Domain Names - Certain usage of trademarks or confusingly similar variations as domain names may constitute trademark infringement. In addition to the remedies available against cybersquatters under the Anticybersquattering Consumer Protection Act (ACPA), 15 U.S.C. Section 1125(d), a trademark owner may file suit in state or federal court. Monitoring domain name registrations is an effective initial step in averting infringement. Trademarks, trademarks plus additional verbiage, and obvious typos (known as "typosquatting") should be considered in a monitoring program.

2. Meta Tags and Source Code - Sophisticated infringers will insert trademarks into the source code of a website to attract consumers to the site when entering search engine queries for the trademarks. These tactics include meta tags, title tags (located at the top of the page and usually displayed at the top of the browser window), and header tags (code associated with key text on the website page). Portions of the source code can be viewed by selecting "Show Source Code" or similar options depending on how what browser is used. Along with website copy, usage of trademarks in source code is likely a reason why a web page shows high in organic search engine results.

3. Website Copy - The actual text on websites is one of the more obvious ways to infringe a trademark and works well for search engine optimization. This type of infringing trademark usage can typically be found by using a find search of the website page(s).

4. Keyword Advertising - Trademark infringement in keyword advertising also known as "pay-per-click" advertising is one of the most insidious due to the effect it has on some trademark owners. In keyword advertising, someone bids on a particular keyword or phrase entered by the public into a search engine. The winning bidders typically appear as ads or results in a "paid sponsors" area of the search engine results page, usually at the top or right side of the page. Trademark infringement in keyword advertising occurs in two possible ways. First, the banner ad may contain infringing use of the mark and usually includes a link to a website. This may divert people looking for a trademarked product or service to the website of a third party. Second, the trademark may be used in the keyword bidding itself, which likewise may divert business from the legitimate trademark owner. The latter is particularly egregious because the price for keyword advertising is usually based on an auction format, and increases as the number of bidders for the term increases. Therefore, third-party infringers can drive up the cost for the trademark owner to bid on its own trademarks in keyword advertising.

5. Social Media - In addition to the obvious problem of infringers acquiring the user names of trademarks or brands (also known as "username squatting"), trademarks can be infringed in a variety of ways in social media. These include posts, domain name links, and background information. Companies should periodically monitor their trademarks on social media to prevent future infringement and stop innocent infringement as early as possible.

6. Internet Directories - Due to the numerous Internet directories that exist, unscrupulous trademark infringers can list their website or business (with a link to their website) in these directories and achieve misdirection of consumer searches for a trademark. This type of trademark infringement can be particularly difficult to remedy due the large number of directories, the relative lack of self-policing, and international distribution of operators. Typically, a settlement with a trademark infringer should include a requirement that a de-identification request be made to any Internet directories that contain infringing references or content.

7. Blog Posts, Article Sites, and Other Commentary - Blogs, article submission sites, and other sites allowing for commentary are an excellent opportunity to build inbound links and thereby increase a website's search engine optimization. Unfortunately for trademark owners, these sites provide an equally excellent opportunity to divert business by using the trade name or trademark of others.

8. Search Engine Directories - Similar to Internet directories, search engines provide listings, such as Google Local (now Google+), where companies can list themselves along with their address, basic business information, description of services/goods offered, and website address. These listings are ripe for one business to claim the identity of another. Trademark infringement can also occur in the description of the business or services/goods offered. Most search engines provide a process to "claim" a listing or to transfer it to the rightful owner. Companies should be proactive in this area by claiming their listings before adopted by third-party infringers.

9. Website Hijacking - One of the scariest new developments in trademark counterfeiting is website hijacking. This new form of infringement is likely a response by infringers to the success brand owners have achieved in shutting down online trademark counterfeiting. Website hijacking is where an infringer hacks a website, typically a corporate one and sometimes one owned by a well-known company, sets up a sub-domain, and operates a counterfeit online store selling infringing products. The company many times is oblivious to this, and only finds out after the brand owner files suit to stop the infringing online store operated unknowingly by an innocent third-party company. This technique is particularly devious in that it provides the counterfeitert cover and time with the court system to move their operation before the brand owner can get an injunction in place.

Despite the peril posed by the Internet to trademark and brand owners, there are many effective strategies to stop infringement. Monitoring trademark usage is an effective first step. Contacting intellectual property counsel and sending cease and desist letters are additional steps that may be effective before filing suit for trademark infringement.For more information regarding, trademark protection see our firm website.

Darin M. Klemchuk is an intellectual property (IP) trial lawyer located in Dallas, Texas with significant experience enforcing patent, trademark, copyright, and trade secret rights. He is the founding partner of Klemchuk LLP, an intellectual property and technology law firm. One of his chief passions is reengineering the way legal services are delivered, and structured Klemchuk LLP to be an innovative law firm.

He additionally focuses his practice on trademark and copyright enforcement programs aimed at protecting IP rights and stopping counterfeiting. He was selected to be included in the Internet Lawyer Leadership Summit, a group of lawyers in the US focused on Internet law issues. He also practices commercial litigation and business law, social media law, and ecommerce and IP licensing.

Advancements in Technology Contribute to the Exploitation of Women and Children

Law enforcement in modern culture is so vastly enhanced by technology; it would seem that criminals don't stand a chance. Unfortunately the same technology that dazzles the business-world has a dark side... it can just as successfully be used for harm.Parents are aware of the dangers that lurk near or around their children. Parents have security systems installed in their homes, children are almost always in sight, many practically conduct background checks on families who invite their child over to play even for an hour, and, although a parent may consider dropping off a group of teens at a mall, they wouldn't dream of letting their child roam any mall alone; these are just some of the precautions that the nation has become accustomed to. Amazingly, after taking all of these precautions, parents unwittingly allow the criminal element to sneak right into their home.    "An estimated 10 million children are using the Internet unsupervised. By 2015, approximately 77 million kids will be online. With so many children online, today's predators can easily find and exploit them. For predators, the Internet is an effective and more anonymous way to seek out and groom children for criminal purposes such as producing and distributing child pornography, contacting and stalking children for the purpose of engaging in sexual acts, and exploiting children for sexual tourism for personal and commercial purposes. This modern-day form of slavery has become a $13 billion per year global industry."Human trafficking refers to transportation of persons for forced labor, sexual exploitation or other illicit activities. It is estimated that more than 1 million people are trafficked annually around the world; some experts say it could be double that.

Human trafficking has become a global business that generates huge profits for traffickers and organized criminal groups. Because it's all hush-hush, getting reliable statistics is challenging.

But still, it remains true that many women and children, especially those from overseas, are lured into trafficking, pornography, or prostitution with the false promise of an economic opportunity-a job, an income, a part in a movie, or even a spouse or a position as a nanny. Job offers are so simple to post online. People desperately searching for employment or even temporary income are vulnerable-sometimes parents have arranged the situation thinking they are sending their child away from a bad situation where the child can excel. Many of those who accept these offers from what appear to be legitimate sources find themselves in situations where their documents are destroyed, they or their families are threatened, or they are bonded by a debt that they have no chance of repaying.

Now, online predators and increase their actions with less effort while remaining concealed. Traditionally people who set their sites on children as prey would have to scope out susceptible kids in public areas-parks, school yards, libraries, or malls. A lot of time needed to be committed to "winning over" these potential victims. This can be attained much faster and easier on the web. Kids generally know to stay away from a stranger (and they have a concept of what a stranger will look like); but the internet allows predators to conceal their identity in such a way that children fighting for their independence from mom and dad find appealing. Children can't see that the perpetrator isn't another child and many children are naturally trusting, inquisitive, or independent. These traits have always contributed to the predator's success; but the information is easier to gather anonymously. Despite lectures at home AND at school, children readily give up personal information in a chat room or on instant messaging that they don't realize could quickly and easily be traced back to their town... and eventually to them. Physical contact may never occur, but perpetrators have learned to draw the children into service in many ways.

Advancements in home equipment make every home a target and anyone a predator. A predator doesn't have to be some sleazy rat tucked away in a dark room with a computer. Anyone can set up an online business. College students all over the country do it every day. A minimum amount of technology is needed; the school often provides the rest.

The majority of porn SPAM is sent out with no regard as to who may open the file. A survey completed by the University of New Hampshire specifically for the Crimes Against Children Research Center showed that "one in 5 youth received a sexual approach or solicitation over the Internet in the past year... [and that] one in 4 youth had an unwanted exposure in the past year to pictures of naked people or people having sex." The goal is to hook children on pornography, get them accustomed to the visuals, and then draw them in to posing themselves. The business of selling child pornography leads to another set of Internet-related business. Many aspects of technology contribute to the success of internet crime; some of these include:

Encrypted websites. Anonymous surfing allows you to look without leaving a trail from your browser, your computer system, your country, IP address, etc. You can accomplish this by entering the address (URL) of the site you wish to go to at the free anonymous surfing proxy site, and that site will retrieve the page for you and present it to you. The site you visit will not receive any information because the proxy will not have transmitted anything to it. People who want to buy porn can cloak themselves.

Web enabled streaming video: With streaming video or streaming media, a Web user does not have to wait to download a large file before seeing the video or hearing the sound. Instead, the media is sent in a continuous stream and is played as it arrives.Misleading domain names: Such domain names are designed to trick minors into visiting an obscene website. Some examples include whitehouse.com (instead of gov) and hummer.com; these sites explode with pornography when children accidentally click in.

Email address lists: SPAMers frequent chat rooms specifically to gather users' email addresses (and a bonus is that they can know the specific interests). Many can buy lists legitimately or illegally, gather then from profiles or yellow pages online. Sexual-related or obscene SPAM is then sent to minors as well as adults... but minors are less likely to screen their email before they open and are shocked or intrigued by the pictures.

The topic is sensitive to both sides of the trafficking and smuggling issue: the countries of both the victims and the perpetrators. No country wants either side publicized. This secrecy contributes to the lack of data stored, and the inability to for law enforcement agencies to record patterns and capture criminals. The criminal aspect doesn't concern itself with this stigma, they share information readily within their circle... gaining great strides on the good guys.

Trademark and Brand Enforcement in Social Networking - Using Terms of Use

In today's Web 2.0 world, businesses face new ways to broadcast their presence and advertise their goods and services, and the Internet is an effective, far-reaching tool for brand marketing. As businesses explore new ways to advertise online, it has become apparent that brand marketing has transcended buying ad space on popular search engines and other informational sites to actively engaging with their consumers in conversations and sharing information. Now businesses must embrace social networking as a marketing strategy.

Social networking sites have continual membership growth. Facebook, for example, is estimated to have more than 350 million active users. Twitter now boasts around 32.1 million users. MySpace attracts about 115 million people to its site each month. With such a wide consumer base at the ready, how have businesses used these social networking sites to their advantage? As businesses move into the cyber frontier, how they protect their brands is critical. To help businesses police their brands and leverage the power of social media, these social networking giants have put mechanisms in place to help guard against fraud, impersonation, and rights infringement. After all, social networking strategies only work if everyone plays by the same rules.

Social Media as a Marketing Tool

Facebook, the largest social networking site, is a good example of how social networking sites have become an effective marketing tool for businesses. Facebook has developed its website to allow for Pages, customizable mini-sites geared toward organizations, products, or public personalities, to join the conversation with Facebook users. A Page essentially allows fans to become brand advocates. It allows users to post comments, view news and information about a certain product, and learn more about a company. Businesses have jumped on this viral form of advertising.

Facebook now has more than 1.6 million active Pages. More than 700,000 local businesses have created Pages to reach their target demographics. In fact, it is estimated that Pages have created more than 5.3 billion fans. The Page form on Facebook requires the creator of the Page to be the official representative of an organization, business, celebrity, or brand. As such, the representative becomes the Page Organizer, able to add and remove content, manage the information appearing on the site, and increase the viral effects of the advertising. Each Page (depending on the type of organization selected) comes equipped with pre-selected formatting options, such as tabs for Discussion Boards, Events, Information about the organization, and Photos. The Info tab, for example, lets you share key information about your company, such as Website, mission, overview of the business, and products. Fans can post comments on a company's wall, view videos, and read about upcoming events or promotions. Every time a Page has activity, such as postings or announcements, this activity becomes visible on the NewsFeed. Information about your fans regarding their activities on your Page also becomes available for viewing by their friends, thus opening the door for others to become a fan of your Page.

This is what causes the viral nature of advertising on Facebook. Businesses can capitalize on this market and gain valuable information from tools such as Facebook Insights, which, includes data on fans' engagement with posts from a business's Page. Businesses have also "opened up shop" on Twitter and MySpace. Some businesses have launched official Twitter accounts and allow (or require) employees to post daily or weekly Tweets, often about promotions or events.

What's interesting about these sites is that there isn't a filter that blocks out negative or unflattering information. As such, questions arise as to what a business can do once the angry "fan" or follower posts negative comments on a wall, if a disgruntled former employee opens a page in your name, or if someone poses as a representative of your business claiming your company name or brand as their username.

Social Networking Sites and Their Terms of Use

The simplest and most cost-effective way to protect a brand on social networking sites is to utilize the site's dispute resolutions mechanism. Most of the social networking giants have procedures in place for submitting complaints about copyright infringement, trademark infringement, and privacy concerns.

Facebook: The Facebook Statement of Rights and Responsibilities asks users to agree that they are the rightful owners of all the content and information they post on Facebook. They are also asked to agree that they will not create accounts for anyone without their permission. Users are not allowed to post content or take any action on Facebook that infringes or violates other's rights or otherwise violates the law and Facebook reserves the right to take down content or remove a webpage that is found to be infringing on those rights. Facebook provides its users with tools to help address intellectual property issues. Most of these tools are forms that are submitted electronically.

Twitter: The Twitter rules specifically state that they don't monitor user's content and will not censor such content except in limited circumstances. Twitter does not allow impersonation of others that does or is intended to confuse, mislead, or deceive others. However, ways for monitoring such impersonation has proved to be a problem for Twitter since their biggest concern is fake accounts. Twitter also reserves the right to reclaim usernames on behalf of businesses or individuals that hold legal right or trademarks in those user names. To prevent name squatting, Twitter suspends accounts that are inactive for more than six months.

Business owners using social networking sites would be wise to read the terms of use to be well-versed in protective actions these companies have put in place to help police brands. It's a new marketing world, and greater tools can lead to greater risks if a business isn't careful. Just as businesses benefit from social networking sites, the social networks rely on businesses to leverage their power. It's a symbiotic relationship-and must be protected.

For additional information regarding social media law and protecting brands and trademarks in social media, please see our website.

Darin M. Klemchuk is an intellectual property (IP) trial lawyer located in Dallas, Texas with significant experience enforcing patent, trademark, copyright, and trade secret rights. He is the founding partner of Klemchuk LLP, an intellectual property and technology law firm. One of his chief passions is reengineering the way legal services are delivered, and structured Klemchuk LLP to be an innovative law firm.

He additionally focuses his practice on trademark and copyright enforcement programs aimed at protecting IP rights and stopping counterfeiting. He was selected to be included in the Internet Lawyer Leadership Summit, a group of lawyers in the US focused on Internet law issues. He also practices commercial litigation and business law, social media law, and ecommerce and IP licensing.

Protecting Brands From Online Trademark Infringement Via Pay-Per-Click Advertising

The Internet provides a vast frontier for commerce. Unfortunately, due its nature, the Internet is ripe for unscrupulous third parties to divert sales from brand owners by tricking consumers into believing their products and services are associated with a well-known brand. Companies should be diligent in policing their brands online.

How Pay-Per-Click Advertising Works

One of the ways diversion happens is through pay-per-click advertising or "PPC" as it is known in the industry. A PPC campaign is set up through Google or another search engine to bid on certain keywords matching an Internet search query. In the first step, the user selects the keywords and typically sets a maximum amount or cumulative budget for each keyword. Next, the user prepares a short advertisement to be shown by the search engine in the paid sponsors or links section of the search results when the keyword is searched. Search engines have varied the manner in which these advertisements are displayed, so they are no longer limited to the top or right portions of the screen. If all goes according to plan, the user's advertisement will redirect the searcher to another webpage where services and products are offered for sale. These products and services may have nothing to do with the brand names used as keywords.

Trademark Infringement in PPC Advertising Significantly Harms Brands

Because PPC campaigns are largely unpoliced on the Internet, they are particularly effective at diverting sales from brand owners as they efficiently locate people interested in the brand and display advertisements to them high in the search engine listings. This can lead to millions of dollars annually in diverted sales. This is a huge problem for companies. And the problem is not limited to companies engaging in e-commerce. All companies that sell products or services under a brand name are at risk, even if they only have brick-and-mortar retail outlets.

In addition to diverted sales, brand owners face significant harm to their goodwill where the diverted products and services are inferior to their brand name equivalent. This is because the consumer is confused as to the source of the products and services and attributes their inferior quality to the brand owner. Worse, the brand owner is frequently unaware this has happened, and as a consequence, cannot take steps to correct the confusion.

What should Brand Owners do to Protect Themselves?

A good first step is to register all brands and other trademarks. A trademark acts a source identifier and can be a word, phrase, logo, tagline, or other identifier. Obtaining a federal registration provides the brand owner with significant rights, including nationwide priority, which is very important for combatting infringement on the Internet.

Next, the company should police its brands by monitoring the search engines to see what comes up either in the sponsored links as a result of PPC advertising or in the organics when searching the trademarks as keywords. Infringing use of the trademarks in these advertisements should be addressed.

In certain circumstances, trademark owners can request that Google and other search engine companies prohibit use of the owner's trademarks in their keyword suggestion tool or in PPC advertisements. While litigation is ongoing and the question of whether search engine companies can be liable for PPC advertising infringement is not settled, it's best to build a record of repeatedly requesting the search engine companies to cease use of trademarks in their PPC advertising programs. This puts the search engine companies on notice, which may be helpful later if litigation ensues.

Finally, if all of these steps do not address the infringement, it may be time to hire an attorney to file suit to stop the infringement. See our website for additional information regarding steps to protect trademarks and reduce trademark infringement.Darin M. Klemchuk is an intellectual property (IP) trial lawyer located in Dallas, Texas with significant experience enforcing patent, trademark, copyright, and trade secret rights. He is the founding partner of Klemchuk LLP, an intellectual property and technology law firm. One of his chief passions is reengineering the way legal services are delivered, and structured Klemchuk LLP to be an innovative law firm.He additionally focuses his practice on trademark and copyright enforcement programs aimed at protecting IP rights and stopping counterfeiting. He was selected to be included in the Internet Lawyer Leadership Summit, a group of lawyers in the US focused on Internet law issues. He also practices commercial litigation and business law, social media law, and ecommerce and IP licensing.

Child Custody and Choosing the Correct Representative

Family law courts Divorce is a long and tedious process and takes an emotional toll on all parties involved. Divorce cases are always processed in family law courts and the parties are represented by family law lawyers. During a divorce, the children of the couple are the most vulnerable; they feel insecure about their parents' devotion towards them and uncertainty for their future plagues them. In these times children require constant reassurance from their parents and loved ones to pacify their turmoil.

In divorce, each parent has an equal legal right to the custody of their children. The family law of the state decides on the child custodial rights and duties regarding any divorce case. The involved parents can receive joint guardianship for their children and equal parental rights. The family law courts which handles the divorce proceedings determines the criteria for the child custody - the child's upbringing which includes education, medical care and the religion being followed. During the divorce proceedings or trial separation the court of law temporarily grants the child custody to a neutral party; this can be an institution or a neutral relative of the couple divorcing.

In some cases if a parent demands for sole custody and if the circumstances are conducive to it then the parent is granted exclusive custody of the child or children. In this case the non-custodial parent receives visitation rights or supervision rights if he demands it.

Divorce is a very fragile process and needs to be handled with the utmost care. Choose a law firm or lawyer specializing in family law. Your representative lawyer needs to understand the different dimensions of your case and should be capable enough to deal with it in such a way that it reaps you the most positive results. Try to judge the lawyer's passion and interest regarding various issues and if he or she is truly invested in your cause. Will the lawyer give his or her 100 percent to your case? Check on the experience of the lawyer, and the past history of the similar cases he has represented. Analyse his approach to such cases and determine his success rate.

Establish clear and direct communication channels with the divorce lawyer you intend to hire to deal with your legal matters. The law firm should provide you with regular updates regarding your case.Any new issue or problem which suddenly surfaces needs to be immediately conveyed to you. This will help you make a better decision on the matter to protect your family.

Websites Potential Legal Liabilities

The changing trends of the way to do business in the modern technological era we are living in are bringing about many changes and risks. Data breaches, copyright violations, defamation and invasion of privacy are just a few that are creating new and emerging industries to address these issues. Companies are trying to get their information in the public are using the internet more and more though little are aware of the fact that they are they then face the same legal exposure as a publisher and that comes with responsibilities. Some of the new legislation is continuing to create even more potential liabilities. Things sometimes are moving so fast in changes it becomes so impossible to keep up with it all.

Some of the areas that a business needs to investigate to make sure they are not at litigation risks are user privacy, copy right infringement on content, graphics and domain name. The potential of plaintiffs is overwhelming given the number of people surfing the web and the number of businesses and organizations with sites. The potential liability with web site content is great and growing at a rapid pace. With the usage of online freelance boards and use of writers internationally that are unfamiliar with life in the country you operate business puts you even at a higher risk of potential content legal liabilities.

Most businesses operating in the modern technological world today you will more in likely have internal and external email and a website providing information and possibly e-commerce for products and services open you for serious potential legal liabilities and attacks. The risk of loss for intellectual property is also another factor companies need to consider and just like many other countries the laws governing all vary greatly. Small business are especially at risk since they are not like large corporations having a data security department and a staff of lawyers and others watching out monitoring and protecting their interests.

With more and more companies venturing into the World Wide Web their exposing liability becomes even more complex and evolving as technologies also evolve many may want to consider cyber insurance and data protections systems. This is an emerging business in the insurance industry that entrepreneurs may even consider as a startup business as the need for it is continuingly growing and evolving with the technologies that are running and driving business in today's modern world.

Protecting Brands in Cyberspace

Facebook has more than 350 million users, Twitter boasts 32.1 million, and MySpace attracts over 115 million to its site each month. The number of people using social media makes trademark infringement and brand confusion as easy as creating a username and password.

In Dallas alone, where we are based, more than 700,000 area businesses have a Facebook Page, which are customizable mini-sites geared toward organizations, products, or public personalities. In reaching out to their target demographics, these companies allow users, or "fans" of the page, to post comments, view news and information, and basically have a voice about that company. With tools like these open to the public, how are companies able to protect their brands and trademarks in a social media-run world?

There are some proactive ways to beat counterfeiters and imposters to the punch. For one thing, it may be beneficial to have a few employees or outside contractors regularly check social networking sites for unauthorized use of your brand, bad press, trademark infringement, and the sale of counterfeit goods. Of course, the best defense is a good offense, so join the online community and create your own positive buzz. It's a relatively inexpensive way to advertise and reach consumers, who may not always be reached by traditional methods.

Also be sure to register your company or brand name with key social media sites. This can be a simple process and probably the easiest way to secure your company's reputation on social media sites. By registering your name or brand, no one else can. The trouble lies when someone else has already secured your name. If that happens, there are several steps you can take to ensure that your social media presence is your own.

For one thing, be sure to take advantage of the "terms of use policies" to protect your rights. Facebook, LinkedIn, and Twitter all have procedures in place to assist rights owners in handling infringement. It's important to take full advantage of these safeguards to protect your brand. Many sites require an official representative of the company to control the page or username, but others, like Twitter, don't. Typical guidelines include rules against impersonating others that does, or is intended to, confuse, mislead, or deceive the general public.

Other options may include calling your in-house counsel or litigation, but before taking any sort of action, first analyze the seriousness of the offense. Taking a tough stance against a fairly harmless infringer can backfire and cause negative press (or in some cases, benefit the offending party). Sometimes it's more effective to send a letter explaining the situation and asking the party at fault to fix the problem.

Regulations and organizations are in place to remedy infringement when letters and niceties don't work. The Digital Millennium Copyright Act (DMCA) may be helpful in copyright infringement cases because many social networking websites have guidelines that mirror DMCA requirements. The Word of Mouth Marketing Association (WOMMA) is an official trade association representing the interests of the social media industry, with an ethics code requiring members to adhere to certain guidelines, such as disclosure of identity, genuine honesty in communication, and compliance with media-specific rules.

Social media and social media law has not only opened up new avenues for communications and brand marketing, but has also added whole new ways to infringe on those efforts. Making sure that your brand and company is protected in cyberspace isn't just important; it's an integral part of 21st century communications.

Commonly Asked Legal Questions About 419 Emails

A 419 scam is an everyday occurrence. It is an attempt to steal money from people based on the premise that extra money will be gained if they advance a small amount of money. Many people fall prey to this scam and are left with a number of legal questions about their rights, the law and the legal recourse available to them. Here are the top questions on the topic answered by Lawyers.

Q. What is a 419 scam?

When a person gains something from another through deception or deceit, it is considered fraud. Explained legally, "it is a material misrepresentation of fact that is known to be false by the person making the misrepresentation, and intends the misrepresentation will be acted upon out of ignorance about the falsification." A 419 scam is a fraudulent activity that involves paying more than the cost for at an auction, or an attempt to steal money through a false promise that the person paying the money would gain even more money when they pay a small amount.

Q. Can the bank still sue a person if a 419 scam case was dismissed by a criminal court?

In such a situation, the bank might still have a valid civil claim that covers issues like conversion, breach of contract, etc. The bank could try to collect the money by filing a civil case. If the court finds that they have a valid claim, you may have to appear in a civil trial to determine whether or not you need to pay the bank. However, the burden of proof in a civil suit is normally not as high as it is in a criminal case.

Q. Would it be better to with Corporate Security or refuse comment when faced with a case?

The law requires every citizen to morally and legally cooperate with corporate security. As per the law, a citizen should provide all the information that they seek. This could involve provision of records, testifying in court, signing sworn affidavits, etc.

However, it is important to remember that most situations are unique. If statements you make or details you provide are likely to implicate you in the case, you may need to consider retaining the services of legal counsel.

Q. Can a 419 scam victim write off the money as investment fraud, loss or theft?

When a person loses money as a result of a 419 scam, it is considered as a personal casualty loss. While you are allowed to deduct some losses in the year when you actually discovered the loss, there are limitations to this. If the loss can be reimbursed or if there is a chance of recovery of the loss, deduction would not be possible. Also, you can only deduct property if you have a tax basis in it. What this means is that, if you lost money out of your pre-tax assets, you cannot deduct that loss.

Q. If I get a letter from a British law firm requesting me to send money, would it be a 419 Scam?

There are many forms of scams originating out of Nigeria and other West African countries where they use fake British law firm identities. Whenever you get a request for money from someone you are not personally aware of, it is always a good idea to verify with the Better Business Bureau or the FBI before taking any kind of action.

A number of scams start with an email. If you are not sure of the validity of the email, you should not send money. Scamming and fraud are criminal offenses. If you are concerned about being a victim of a 419 scam, mail fraud or any other kind of fraud, you should ask an expert to provide legal insights that can help you take the best course of legal action available to you.