Web 2 new legal approach

06 September 2006

Franklin Brousse

Web 2.0 is a new way to use the web. Whilst Web 2.0 will increases freedom of net users on the web, will there be a price to pay for this freedom in terms of potential legal liability?

Origin of Web 2.0

Web 2.0 is a new trend and concept created by Dale Dougherty from O’Reilly Media Company to define the emergence of a new type of web service resulting from many recent web technological changes and the new ways people use the web. It is considered by some as a rebirth of the original web.

What is Web2.0?

Web 2.0 can be difficult to define and most people do it by reference to the type of services that are classified as Web 2.0 service. Broadly, the services covered are those that enable the user to tag, blog, comment, modify, augment, select from, rank, and generally talk back to the contributions of other users and the wider web community.

The use of new Web 2.0 services allows the creation, organisation and free exchange of diverse content whether written, audio or video, within different communities.

Each net surfer has a new role as author or contributor and takes on a new responsibility related both to its own creations and the creations of others.

With Web 2.0, the net surfer is no longer considered as a mere “consumer” but as a true contributor who now has the ability to manage the contents of a specific website.

What was once an occasional use or a use reserved to certain people (personal web pages or blogs) is spreading through all kinds of new web services (online storage or sharing services, instantaneous creation of personal web space or web pages).

Legal implications of Web 2.0

Anybody can be responsible or share responsibility for using and contributing to Web 2.0 services. This means that there are new risks and constraints compared to regular websites, for both users and intellectual property rights holders or website editors.

From a legal point of view, the new Web 2.0 services create similar issues to those raised by “Discussion forums”, “Blogs” or personal web pages.

Users, authors and editors are exposed to higher risks due to the diversity and the originality of the contents put on the web by these new contributors.

The main issue here is the exponential growth of the amount of occasional contributors likely to violate third party rights such as intellectual property rights (copyright, trademarks) and privacy rights.

Whatever content is provided by users, this content often wholly or partly, reproduces existing and protected creations or works, without users getting prior authorisation from intellectual property rights holders.

The concepts of community, sharing and free services, such as the Peer to Peer network, involve the non-authorised exploitation of protected works especially through the creation of new works derived from original works which reproduce texts, pictures, sounds or videos from authors, artists or producers.

Furthermore, most Web 2.0 services use “Tags” to index the content of each user.

As a result, Web 2.0 services can involve illegal reproductions of trademarks, names or protected signs that can be associated with content degrading the image and the reputation of a company or a trademark.

Like “Blogs”, most Web 2.0 services offer a greater freedom of expression, which may be audio and give a wider dimension to user’s messages.

Within this framework, particular forms of denigration, defamation and degradation of a person’s image are appearing more and more often.

In addition, in countries like France the editorial liability for this content becomes an issue.

Often, the absence of control or modification by Web 2.0 editors of the online content makes the authors, contributors or users the only people responsible for this content.

Increasingly, more and more claims and demands are being made against net users.

In this context, Web 2.0 has “two faces”: one representing a world of freedom and free services, close to the spirit of the original Web, supporting creation and free exploitation of all kinds of content; the other, a “legal and economic nightmare” for intellectual property rights holders and companies whose works and creations are more and more considered as “rights free” and whose image is open to degradation.

With Web 2.0, any net surfer is able to take back control and freedom on what he or she accesses on the web to the detriment of regular and official content providers.
Web 2.0 is forcing authors, content providers and companies to create legal and communication plans to protect their rights and to fight potential infringements committed by the uses of Web 2.0.

Whilst some companies are busy protecting themselves from the implications of Web 2.0, others have decided to join the Web 2.0 world, such as AOL or TF1 in France.

Outlook for Web 2.0

Web 2.0 still has to prove that its emergence is not a mere “passing fashion” but can bring new kinds of business models which have not been credible until now.

The value of Web 2.0 services depends mostly on the user’s level of involvement, the amount and the quality of their contributions. This value must be sufficient to generate advertising revenue and commercial partnerships which could support business growth.

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