Waiting for the cookies to crumble

During 2009 behavioural advertising stealthily crept onto my legal radar. Behavioural advertising on the internet involves a search engine or website operator displaying advertisements to a user based on that user’s previous internet browsing history. This process is made possible by cookies which track a user’s journey through the world wide web and send data to a search engine or website operator which in turn then determines the content to display to that user based on their journey so far. The purpose is to serve more relevant ads to a user and of course to increase conversion.

My article for Latitude Group, Taking the Biscuit: Cookie Law Gets Tough, back in November explains how some recent legislative changes will now challenge the manner in which a website operator will have to provide a user with information about how their cookies will monitor that user’s journey on that website and it will also require the operator to obtain the user’s consent for that activity. The general purpose of the change would seem to be that users are fully informed and maintain some control over who uses their browsing history and how.

To date, I’m pleased to see that the industry’s approach to behavioural advertising more widely has been responsible and transparent. The Internet Advertising Bureau collaborates with industry players to promote transparency, user choice and education. The body has established a Code of Good Practice which is well subscribed to (see here for the IAB’s Your Online Choices website). Google is also particularly keen to show transparency; it recently improved the way it serves Gmail behavioural and contextual advertising so that the ads which it displays are not only reflective of the content of the email in current view, but also of the content of recent messages received in the same in-box. Credit to Google, they provide detailed information and strong assurances that the new practice requires no human involvement and that all ads are both entirely computer generated and family-safe (see here for How Gmail Ads Work). Google’s commitment to both privacy (for its customers) and transparency (of its practices) is underlined in its response to International Data Privacy Day today in its Google’s Privacy Principles blogpost.

However, with an OFT market study into online behavioural advertising and customised pricing already well under way and an awareness of legal and ethical challenges growing in this area, the lawyers amongst us will feel a lot better once we’ve got some “official guidance” to get our teeth into in terms of both the wider issues raised in behavioural advertising and, of course, our tasty cookies.

Branded

brand
• noun 1 a type of product manufactured by a company under a particular name. 2 a brand name. 3 an identifying mark burned on livestock with a heated iron. 4 a piece of burning or smouldering wood.
• verb 1 mark with a branding iron. 2 mark out as having a particular shameful quality. 3 give a brand name to.

I’ve recently been inspired by an article from Kevin O’Keefe on Real Lawyers have Blogs on the importance to lawyers of creating their own personal brand. Although aimed at law grads and associates his Define your Personal Brand As A Lawyer post rang true to me also; as sole in-house counsel to a business which previously had no lawyer working in it, a large part of my time is making sure my colleagues understand the broader commercial value which a lawyer can bring to the business and that we’re not just here to fire-fight any disputes, check contracts or create red-tape and obstacles!

As I work in the digital marketing industry, I found Mitch Joel, in his 6 Pixels of Separation blog shared some great insight in his Top 10 Dos And Don'ts Of Social Medial For Current And Prospective Employees. It conjures up the picture of a personal brand being a 3-dimensional presence and that social media is the perfect tool to achieve that. I enjoy using social media tools to connect with the people I work with and my friends, and so Mitch’s blog was further inspiration to me to step-up a gear in relation to my own personal branding. I already Twitter as @in_house_lawyer (more followers than my personal Twitter account worryingly), so that seemed a good platform from which to take my own personal brand to the next level. It’s also a demonstration to the business I work for of the all-important value-add of an in-house counsel.

So, here it is, the next stage in my personal branding campaign, my In-house Lawyer blog. I tried to blog once before but the fear of being insufficiently profound, high-brow or intellectual or perhaps not the first person to spot a legal development stopped me from saying anything at all! However, now that I have a personal brand to develop, the purpose of my blog has completely changed as its now my vehicle for establishing my In-house lawyer brand.

Bloggers Beware

I was in two minds as to whether I should author this blog under a pseudonym or reveal my true identity. As I’m looking to increase my profile in the digital law world and not planning to stir the pot of outrage and controversy, it made sense to opt to be me, but for others the blogosphere is the venue to let loose their alter-ego and to critique the world in which they routinely operate.

Enter "Night Jack", an under-cover blogger sharing his experiences of front-line policing, criticising policing strategies and politicians, using real-life and traceable examples of police investigations and prosecutions. This successful blog attracted almost 500,000 readers at its peak and lead to a prize for political writing for its anonymous author. Ironically Night Jack had not covered his own tracks well enough and a Times journalist worked out the blogger’s true identity by his own process of deduction and detective work mainly using information available on the internet. Night Jack sought an injunction to prevent the Times from revealing this information and his actual identity.

Unfortunately the rein of Detective Constable Richard Horton’s alter-ego, Night Jack, was to be cut-short. In a landmark ruling, the Court took the view that "blogging is essentially a public rather than a private activity" lacking the quality of confidence needed to gain legal protection.

In arriving at its decision the Court asked if DC Horton had a reasonable expectation of privacy? And, if he did, would any public interest argument override that right? In the analysis of the first question, it was found that claimants who relied successfully upon this recently developed cause of action, had a pre-existing relationship of confidence, or the information in question was of a strictly personal nature concerning, for example, sexual relationships, mental or physical health, financial affairs, or the claimant's family or domestic arrangements. There was no successful case analogous to that of DC Horton where there was such a significant public interest element to the information in question. The analysis of the second question was therefore academic.

As with the majority of cases this one turns on the facts, and a different blogger with a different subject-matter at a different time will no doubt yield the chance of a different judgement. But for now, bloggers beware, if your alter-ego crosses the line from personal to political/public interest commentary, writing under a pseudonym is no guarantee of your anonymity.

DC Horton received a written warning for breaching his contract of employment. With such a readily-accessible and tempting array of social media tools now available, many of which can be used to both social and business effect, employers are advised of the value in having a clear policy identifying the extent to and manner in which business information should be broadcast across them.

The link to the full script of the Night Jack case can be found here: http://alpha.bailii.org/ew/cases/EWHC/QB/2009/1358.html