Digital law and technologies: history and most relevant cases

We look back, and review what exactly Digital Law is, and the importance of the subjects regulated through it.

“We look back, and review what exactly Digital Law is, and the importance of the subjects regulated through it”.

Imagine the following scenario: while surfing the Internet, you come across a profile on a social network, web page or electronic platform, a brand, a design or a logo, which seems very similar to others you already know, and you even doubt whether they belong to the same owner or the same company.

Digital Law was born out as a consequence of the continuous advance of technologies, which allow Internet users to carry out too many activities that can infringe a number of legitimate rights with a simple “click”.

Its main objective is to adapt the protection of intellectual and industrial property rights to the current reality, being its field of action the online world.

To understand the importance of Digital Law, it should be born in mind that any intellectual and industrial property right can be affected by a telematic activity, including from a name or a logo, to a patent or a copyright.

Along the same lines, we find that the scenarios in which we can see this type of infringement are those that we daily visit or use, such as:

  • A website, an application or an online sales portal.
  • A domain name or IP address.
  • A social network profile, or a post on that profile.
  • An electronic blog.

When a user launches a website or an application, or creates a profile on a social network, it is usually with the aim of reaching the widest possible audience. However, they should be aware that the creation of a portal, the choice of a name or the registration of a domain name may infringe legitimate rights.

In the field of digital law, priority rights provide their holder with protection against the interference referred to in this article. Their mission, therefore, is to extend the protection of rights to the Internet area.

This mission to protect online rights has been developing for years. Our own Spanish Trademark Law 17/2001 already included in its article 34 the prohibition of using the rights protected by a registered trademark “in telematic communication networks or as a domain name”.

The fact is that the number of domain names that can be registered with the same term is infinite, which does not mean that they are not susceptible to infringement. The World Intellectual Property Office (WIPO) offers solutions so that owners who see their trademark infringed online can revoke or reclaim a domain name that, due to its similarity to their registrations, legitimately corresponds to them.

In this regard, the WIPO Arbitration and Mediation Center offers users the UDRP proceeding as an effective solution to abusive and bad faith registration of gTLD domain names that infringe trademark rights. Through this Policy, a WIPO Panelist will decide whether or not the domain name in question infringes the alleged trademark rights, a Decision that do not exclude the possibility of filling a Complaint before a Court later.

Digital Law also regulates the unlawful dissemination of copyrighted creations on the Internet. Any image, painting, music or film can easily be disseminated on the Internet, which can lead to infringement of the rights of the author of these works. It is therefore advisable to make sure that the content has already entered the public domain, and that there are no additional rights associated with it, as the author’s consent may be required for dissemination.

In addition to online trademark and copyright infringements on the Internet, as well as disputes over domain names, Digital Law protects what is perhaps its most important precept: the “duty of information” or, better said, the “right of access to information”, whose starting point can be found in Law 34/2002, of 11 July, on information society services and electronic commerce (LSSI), establishing certain information obligations for service providers on the Internet.

The duty to inform is a consequence of the risks to which users are exposed when they browse the Internet, as well as the risk they may generate by doing so. Simply downloading a file, accessing a link, purchasing a product or contracting a service online are actions that we carry out almost automatically, and we have the right and the duty to know the possible consequences, both for us and for other users.

As a result, Internet users need to be aware of their rights and obligations when surfing the Internet. Chapter II of the LSSI includes the obligation for those who launch a website or online portal to duly inform their potential recipients about these aspects.

This information constitutes good evidence that the content published or provided through an online platform has been obtained and provided in a lawful way, and that there is no infringement on their part of intellectual and industrial property rights. At the same time, users are under the obligation to make correct use of the media they use and the information to which they have access via the Internet.

Internet provides information on a massive scale that can be forwarded or published by its recipients quickly and easily. Digital Law was created to regulate these actions, with the mission of making Internet users aware that their activities on the Internet may have negative consequences for other users.

Likewise, since the entry into force of the European Data Protection Regulation 2016/679 (GDPR), Digital Law has managed to regulate a subject which had been a Little “diffuse”: Data Protection.

In the most current scenario, and thanks to the new Organic Law 3/2018, of 5 December, on the Protection of Personal Data and Guarantee of Digital Rights (LOPDGDD), data protection has undergone a real revolution, requiring that data subjects who hold personal data can exercise more control over them than ever before.

Therefore, the duty to inform remains the key precept, imposing much stronger obligations and much stricter sanctions on electronic service providers in case of non-compliance, as data controllers of the information collected through their websites or Internet platforms. Data owners have the right to know all information about how data controllers will process their data, including the options and methods for exercising their rights in relation to their personal information.

The LOPDGDD, for its part, in its mission to develop and adapt the RGPD to Spanish legislation, dedicates its tenth Title to establishing a series of rights of the new digital era, even introducing some that were not previously regulated, such as the right to digital security, the right to digital education or the protection of minors on the Internet.

Digital Law, therefore, focuses its objective on progressively regulating all intellectual and industrial property rights in the online and telematic sphere, culminating in excellent protection of sensitive information, and establishing sanctions that can reach up to 20 million euros in the most extreme cases of non-compliance.

Online rights protection is continually being strengthened, with projects such as the new European E-privacy Directive, which aims to increase users’ control over their personal data.

By virtue of what we have just explained, it is clear that it is perfectly possible to infringe or violate a legally protected right on the Internet, and therefore each user must be aware of the activities he or she carries out on the Internet. Before choosing a domain name or user name, requesting a name or trade name, or a user name, publishing or disseminating a content without the authorisation of its owner, or processing data without the consent of the interested party, it is advisable to exercise extreme caution and be aware of the information that is being published, in order to avoid possible liability for infringements on the Internet regulated by Digital Law.

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