Shifting Facebook privacy challenges

When you think about causes for concern when it comes to privacy online, Facebook frequently comes to mind. The world’s largest online social network has roughly 1.32 billion monthly active users with an average of 829 million active daily users in June 2014. It’s no wonder that privacy regulators are watching Facebook and other large providers carefully.

As David Meyer pointed out in his article on GigaOm titled “Facebook has only “pivoted” on one kind of privacy — in other ways, it’s becoming more dangerous“, Facebook has changed but its not necessarily positive:

I must give credit where it is due: As Slate’s Will Oremus wrote in a piece called “Facebook’s Privacy Pivot” a few days ago, the social network has greatly improved its handling of user privacy in recent months. In a sense.

Once a company that seemed to delight in undermining its users’ choice of privacy settings, these days the social network promotes “friends” rather than “public” as its default post setting, it has an “anonymous” version of its site login tool that limits what personal information logged-into services can see, and it’s just generally less… shifty. Hooray for that.

However, there’s privacy and there’s privacy – and the kind that Facebook has decided to no longer play games with is just one facet, albeit an important one. Broadly speaking, it’s the kind that relates to providing a reliable border between private and public spaces. As for privacy from Facebook itself, its advertising customers and surveillance-happy authorities, that’s an entirely different matter.

The challenge facing Facebook users now is that, although Facebook has found a way to better respect users’ sharing preferences, it has found a new revenue option that is based on leveraging the data it holds from its users. As I pointed out in my post titled “You No Longer Control Your Personal Information, Facebook Does” –

The possible ramifications of this are only starting to become clear. For one thing, personal information is already a valuable commodity, it may even become a sort of currency given its enormous value. Facebook is clearly positioning itself well for this new personal data economy. Secondly, as the world heads closer to a sort of Scrutinised Zone, Facebook’s role could include being a powerful non-governmental power bloc with a “citizenry” rivalling the world’s larger nations in terms of population and economic and social influence.

For now, users should consider the possible ramifications for their privacy. Facebook now has an effective mechanism which it will use to trade access to users’ personal information. Before Anonymous Login, this was more covert and involved matching ads to Facebook updates and profile data programmatically. Anonymous Login goes beyond ads. It is a far more overt sales channel for users’ personal information with control shifting to Facebook from the people that control should belong to – the users, us.

Facebook seems to have realised that forcing users to share more than they would prefer to is not good for business. It has also realised that it no longer needs to do that, it has a tremendous amount of personal information it can profitably exploit in other ways. In some respects, users’ privacy has been even more eroded and users may not appreciate these shifting Facebook privacy challenges for quite some time. Whether this will return to bite Facebook will depend on how transparent it is about what it does with users’ personal information.

A quick note about the Cell C rebranding and ™

The Cell C rebranding has sparked a furious debate about the merits of the new logo as well as Cell C’s campaign involving Trevor Noah. In critiquing the new logo a number of people, myself included for some inexplicable reason, confused the significance of the ™ symbol with the ® symbol and have referred to the Cell C logo as being a registered trade mark. This is not accurate and this was borne out by news that the Cell C logo’s registration has been provisionally refused.

It is worth exploring what a trade mark is and what the distinction is between these two symbols. A trade mark is a mark used in relation to goods or services which distinguishes those goods and services from those sold or rendered by any other person. This is one of the reasons why a trade mark that is confusingly similar to another trade mark is often a trade mark infringement. Trade marks need to be distinctive to be effective although trade marks are also registered in different classes. This could mean that the same or a similar trade mark can be used for goods or services in very different industries or classifications.

Trade marks need not be registered and this is where the confusion came in with this story. The ™ symbol indicates that a particular mark is being used as a trade mark. It doesn’t mean that the trade mark has the protections afforded to registered trade marks which use the symbol ® to indicate registration.

What Cell C is doing is using an unregistered trade mark pending its application to register its trade mark. If registered, it will likely then apply the ® symbol to its logo. Cell C still faces a number of challenges to its trade mark’s registration including the grounds I mentioned in my previous post as well as provisions of the Trade Mark Regulations which specifically refer to the use of the © symbol as a basis of refusal of the application.

It isn’t surprising that Cell C is fighting for its new branding. It has reportedly spent a fortune rebranding its stores and, in all likelihood, paying its designers and lawyers too. It is a substantial investment which can’t simply be discarded and while its logo design choice may be questionable, it seems to be stuck with it for now unless its registration is rejected completely. In that case Cell C will have to decide whether to use its new trade mark as an unregistered trade mark and make the most of its investment or change its branding and try again.

Ambush marketing 101

It sometimes seems that one of FIFA™’s main pre-occupations during the World Cup™ is brand management and ambush marketing. I thought it might be helpful to explore this concept of “ambush marketing” and how it impacts on the World Cup™ in South Africa.

Ambush Marketing at Netherlands v Denmark

There are a number of relevant and useful marketing resources which define the term “ambush marketing”. The following examples are particularly helpful in understanding this term:


Ambush marketing is a marketing campaign that takes place around an event but does not involve payment of a sponsorship fee to the event.[1] For most events of any significance, one brand will pay to become the exclusive and official sponsor of the event in a particular category or categories, and this exclusivity creates a problem for one or more other brands. Those other brands then find ways to promote themselves in connection with the same event, without paying the sponsorship fee and without breaking any laws.

The UK Government/Intellectual Property Office:

Ambush marketing generally occurs when one brand pays to sponsor a large-scale event (usually a sporting event) and a rival brand attempts to associate itself with the event. A marketing campaign takes place around the event but does not involve payment of a sponsorship fee to the event organiser.

The most notable example of ambush marketing occurred at the 1996 Olympic Games in Atlanta, when a sportswear company avoided paying a multi-million dollar sponsorship fee, but successfully mounted a marketing campaign by plastering the city in billboards, handing out free banners to spectators and erecting an entertainment centre in its own name overlooking the stadium. Though this prompted large sporting organisations such as FIFA and the IOC (International Olympic Committee) to adopt anti-ambushing strategies, ambush marketing has become more and more widespread, possibly because for some companies it is the only way to compete.

To protect official sponsors, event organisations can insist on certain criteria being fulfilled before a city or region are considered or awarded a major event.

Ambush Marketing Steals the Show Ambush marketing – a term often hissed in industry circles – occurs when one brand pays to become an official sponsor of an event (most often athletic) and another competing brand attempts to cleverly connect itself with the event, without paying the sponsorship fee and, more frustratingly, without breaking any laws. Ambush, or guerilla, marketing is as undeniably effective as it is damaging, attracting consumers at the expense of competitors, all the while undermining an event’s integrity and, most importantly, its ability to attract future sponsors.

The common theme is that an organization attempts to take advantage of the publicity around an event by directly or indirectly associating itself with the event despite not being a paid sponsor of the event concerned. By doing so the organization seeks to secure a similar benefit to that obtained by paid sponsors without incurring the associated costs. Doing so can also negatively impact on the relevant event’s branding and the organizer’s ability to secure paid sponsors for future events. This would almost certainly have a financial impact on events’ feasibility as they are modeled.

Ambush-protected vehicle


The primary piece of legislation dealing with ambush marketing appears to be the Merchandise Act. The Merchandise Act’s purpose is:

[t]o make provision concerning the marking of merchandise and of coverings in or with which merchandise is sold and the use of certain words and emblems in connection with business.

The Merchandise Act deals with a number of mark and trade mark uses. The most pertinent section of the Merchandise Act is section 15A, is titled “Abuse of trade mark in relation to event” and provides as follows:

15A. Abuse of trade mark in relation to event


(a) The Minister may, after investigation and proper consultation and subject to such conditions as may be appropriate in the circumstances, by notice in the Gazette designate an event as a protected event and in that notice stipulate the date-

(i) with effect from which the protection commences; and

(ii) on which the protection ends, which date may not be later than one month after the completion or termination of the event.

(b) The Minister may not designate an event as a protected event unless the staging of the event is in the public interest and the Minister is satisfied that the organisers have created sufficient opportunities for small businesses and in particular those of the previously disadvantaged communities.

(2) For the period during which an event is protected, no person may use a trade mark in relation to such event in a manner which is calculated to achieve publicity for that trade mark and thereby to derive special promotional benefit from the event, without the prior authority of the organiser of such event.

(3) For the purposes of subsection (2), the use of a trade mark includes –

(a) any visual representation of the trade mark upon or in relation to goods or in relation to the rendering of services;

(b) any audible reproduction of the trade mark in relation to goods or the rendering of services; or

(c) the use of the trade mark in promotional activities, which in any way, directly or indirectly, is intended to be brought into association with or to allude to an event.

(4) Any person who contravenes subsection (2) shall be guilty of an offence.

(5) For the purposes of this section ‘trade mark’ includes a mark.
[S. 15A inserted by s. 2 of Act 61 of 2002.]

The Merchandise Act defines a “trade mark” as a “trade mark as defined in section 2 (1) of the Trade Marks Act, 1993 (Act 194 of 1993), and includes a well-known trade mark contemplated in section 35 of that Act.” The Trade Marks Act, in turn, defines a “trade mark” as follows:

other than a certification trade mark or a collective trade mark, means a mark used or proposed to be used by a person in relation to goods or services for the purpose of distinguishing the goods or services in relation to which the mark is used or proposed to be used from the same kind of goods or services connected in the course of trade with any other person

The Trade Marks Act further defines a “mark” as follows:

any sign capable of being represented graphically, including a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination of the aforementioned

The Minister of Trade and Industry declared the event to be a “protected event” in terms of the Merchandise Act in General Notice 683 of 2006 from the date of the Notice’s publication in the Government Gazette until 6 calendar months after the event’s commencement. The Minister drew specific attention to section 15A and subsections 2, 3, 4 and 5 (quoted above). The purpose for this declaration was stated as follows:

The “protected event” status is conferred on the World Cup on the understanding that the World Cup is in the public interest and that the Local Organising Committee (LOC) has created opportunities for South African businesses, in particular those from the previously disadvantaged communities.

The apparent rationale is to safeguard the event’s anticipated economic benefits for South African businesses.

FIFA™’s trade marks

A document titled “2010 FIFA World Cup South Africa™ – FIFA™ Public Information Sheet (a guide to FIFAʼs Official Marks)” (“the guidelines”) list a number of FIFA™’s “Official Marks” or trade marks which it has registered in relation to the event. These trade marks include a number of graphical and textual trade marks. The textual trade marks include the following:

  • 2010 FIFA World Cup South Africa;
  • 2010 FIFA World Cup;
  • FIFA World Cup;
  • World Cup;
  • 2010 South Africa
  • South Africa 2010 or SA 2010 or ZA 2010.

The guidelines note that the trade marks listed do not constitute a “full list of FIFA™’s trademarks in relation to the 2010 FIFA World Cup™” and that a full list of FIFA’s trade marks may be obtained through an appropriate trade mark search.

The guidelines also set out a number of examples of so-called “Unauthorised Association” with a FIFA™ trade mark. In the context of “informational editorial use” (the appropriate category given the report’s nature), the guidelines state that “any legitimate editorial use does NOT create an Unauthorised Association” with FIFA™’s trade marks. In contrast, the guidelines further state the following:

“Infomercial/advertorial”: there is no legitimate justification for the commercial use or presentation of editorial content (“Infomercial” or “Advertorial”) by third parties using an Official Mark (such as emblems, words, slogans, event titles, etc.) as this creates an Unauthorised Association.

Putting it all together

So when it comes to ambush marketing in the context of the World Cup™ the central question is whether the brand being promoted is sanctioned by the event organiser, in this case FIFA™. If the brand being promoted is not sanctioned by the organiser, well that promotion is most likely a form of ambush marketing.

This issue came up recently when Bavaria arranged for some ambush marketing of its own at the Netherlands vs Denmark game. According to The Daily Maverick:

The two women were arrested on Wednesday for their part in Dutch brewer Bavaria’s ambush marketing stunt on Monday last week. At the Netherlands vs Denmark game, 36 women, initially dressed in Danish supporter gear, stripped down to orange minidresses, which featured a (miniscule) Bavaria logo.

Nieuwpoort and Castelein were charged in terms of the SA Merchandise Marks Act. As Bavaria is not an official World Cup sponsor, it is not allowed to promote its brand in connection with the tournament.

While the purpose of these measures is largely to discourage ambush marketing may be to protect significant investments in event-related marketing and branding, preventative measures like FIFA™’s heavy handed approaches have a Streisand Effect and only give the offending brand even more publicity.

In the Bavaria case the Bavaria logo is barely noticeable from the photo in The Daily Maverick’s article and while the extent of the unauthorised marketing shouldn’t be an issue, per se, event organisers should carefully weigh their options when responding. Arresting some of the women involved in the Bavaria campaign highlighted the Bavaria brand and brought a disproportionate amount of attention to the case, as is evidenced by the 50 members of the press who were waiting at the Johannesburg Magistrates Court to cover the event. This was almost certainly not FIFA™’s intention.

As The Daily Maverick’s Kevin Bloom and Theresa Mallinson pointed out –

Of course, the real winner in this scenario is Bavaria. The brewer has gained more marketing mileage from its initial ambush concept than it could’ve dreamed of – all due to Fifa’s inept handling of the incident. Talk about scoring an own goal.

Update: Also be sure to read Chris Moerdyk’s article on BizCommunity titled Kulula is outwitting FIFA at every turn for a perspective on Kulula’s controversial campaign.

Image credits:

Risks of bloggers being regarded as citizen journalists?

Given the more stringent test the press must pass when faced with a defamation claim, bloggers should be cautious before claiming the controversial title “citizen journalists”.

The tremendous increase in the number of blogs in recent years has, to a degree, given rise to a call for bloggers to be recognised as an extension of or part of the press. After all, so one argument goes, bloggers report on events, express opinions on those events and otherwise conduct themselves as pseudo-journalists. Therefore they should be granted the same recognition and access as the press. To a degree this argument has merit and there are a number of bloggers who function as journalists, often despite not being formally trained as such. Bloggers often specialise in specific areas of interest and may be in a better position to report on relevant issues. We have even seen tremendously popular and effective group blogs emerge on the Web which arguably produce more relevant and engaging news than traditional media. These sites include The Huffington Post and Om Malik’s network of blogs. Sites like these present high quality content and are frequently not bound by the production schedules that hamper traditional media production so they are more nimble and report on current events faster than their traditional counterparts.

The one challenge facing these sites is that their bloggers may be unfamiliar with the norms and rules that govern and guide journalists. These norms and rules deal with fact checking, multiple sources and so on. These norms and rules serve a valuable purpose and, theoretically, help keep stories objective and accurate. The press is position to exercise a fair degree of influence on the public in general and this position of influence was one of the factors guiding the courts’ approach to the press’ liability for such things as defamation. As blogs become more prominent and influential themselves (in many respects blogs are more influential than the traditional press), the same considerations would surely apply to bloggers. Bloggers could be found liable for defamation where they are negligent in their reporting and this means that bloggers should take the same (if not more) care as their traditional journalist counterparts in researching, writing and publishing their stories.

Newspapers who have bloggers posting to their websites are already blurring the lines between bloggers as amateur writers and professional or quasi-professional journalists. In these case there is likely to be little doubt that these bloggers will be held to the same test as the journalists they share the spotlight with. On the other extreme will be those bloggers who post purely for personal reasons and express personal opinions. Hopefully we will see a test emerge from our courts to cater for the range of influence bloggers exert and the tests they should meet when determining liability.

One thing to bear in mind is that the law of defamation is probably well developed enough to address this issue and what we need is a more creative application of the law to the new circumstances bloggers present.

Creative Commons 3.0 licenses released

Version 3.0 of the Creative Commons licenses have been released.

The previous version was 2.5. According to the Creative Commons blog:

The latest version of the Creative Commons licenses ” Version 3.0 ” are now available. To briefly recap what is different in this version of the licenses:

Separating the generic from the US license

As part of Version 3.0, we have spun off the generic license to be the CC US license and created a new generic license, now known as the unported license. For more information about this change, see this more detailed explanation.

Harmonizing the treatment of moral rights & collecting society royalties

In Version 3.0, we are ensuring that all CC jurisdiction licenses and the CC unported license have consistent, express treatment of the issues of moral rights and collecting society royalties (subject to national differences). For more information about these changes, see this explanation of the moral rights harmonization and this explanation of the collecting society harmonization.

No Endorsement Language

That a person may not misuse the attribution requirement of a CC license to improperly assert or imply an association or relationship with the licensor or author, has been implicit in our licenses from the start. We have now decided to make this explicit in both the Legal Code and the Commons Deed to ensure that ” as our licenses continue to grow and attract a large number of more prominent artists and companies ” there will be no confusion for either the licensor or licensee about this issue. For a more detailed explanation, see here.

BY-SA ” Compatibility Structure Now Included

The CC BY-SA 3.0 licenses will now include the ability for derivatives to be relicensed under a Creative Commons Compatible License, which will be listed here. This structure realizes CC™s long-held objective of ensuring that there are no legal barriers to people being able to remix creativity in the way that flexible licenses are intended to enable. More information about this is provided here.

Clarifications Negotiated With Debian & MIT

Finally, Version 3.0 of the licenses include minor clarifications to the language of the licenses to take account of the concerns of Debian (more details here) and MIT (more details here).

As part of discussions with Debian, it was proposed to allow the release of CC-licensed works under DRM by licensees on certain conditions ” what was known as the parallel distribution language but this has not been included as part of Version 3.0 of the CC licenses.

The inclusion of the BY-SA 3.0 license is an interesting and helpful inclusion. According to the Creative Commons wiki, the BY-SA 3.0 license operates as follows:

A final change incorporated into Version 3.0 is that the CC BY-SA 3.0 licenses now include a compatibility structure that will enable CC to certify particular licenses, stewarded by other organizations similarly committed to promoting a freer culture, as being compatible with the CC BY-SA. Once certified as compatible, licensees of both the BY-SA 3.0 and the certified CC compatible license will be able to relicense derivatives under either license (eg., under either the BY-SA or the certified CC compatible license).

This addition could really help bridge the gap between Creative Commons licenses and similar licenses employed by other parties and organisations. Although the idea seems to be to impose the governing structure of a Creative Commons license on comparable licenses, the benefit of greater uniformity is going to add more certainty to the copyleft market.