Fight back against cybercrime, police urge brands and advertisers

Join the war on website piracy, says Mary Shields (pictured below).

The City of London police (CLP) recently called for advertisers and brand holders to actively support their work in tackling online crime, particularly their initiative to disrupt online advertising revenues generated through placement on illegal websites. The Digital Citizens Alliance estimates that piracy websites generated approximately $227million in 2013 from advertising. CLP is now looking at those lawyers in Orlando industry to help them fight back.

The CLP’s police intellectual property crime unit (PIPCU) launched ‘Operation Creative’ to partner with creative brands and industry players to crack down on websites that host unauthorised copyright content and to disrupt revenue streams to illegal sites from online advertising. PIPCU had in pilot projects identified advertising as a key component in the generation of criminal profits for websites providing access to infringing content. As a result, they now publish and maintain a list of Infringing Websites (IWL), the first such list of its kind globally to be developed and maintained for law enforcement purposes and with industry involvement.

IWL is actually updated with input from the industry, agencies and intermediaries who can identify and report potential infringers. Their input is then vetted by PIPCU and, if confirmed, the website is added to the list.

Detective Chief Inspector Andy Fyfe, head of PIPCU, said: “If an advert from an established brand appears on an infringing website, not only does it lend the site a look of legitimacy, but inadvertently the brand and advertiser are funding online crime. IWL serves as a safety tool, ensuring the reputation of advertisers and brands are not discredited through association with illegal websites.”

In effect, this means IWL is updated and used within the industry and law enforcement as a ‘blacklist’ for advertisement placement in future. Potentially, this new tool could also be used as a reference point in commercial agreements and contracts between advertising agencies and their clients in terms of blacklisting. However, those agreements should also deal with the consequences of misplacement, tolerance margins and takedown policies at the beginning of that contractual relationship. A development of contractual obligations to include blacklist sites, such as those identified on IWL from time to time could be useful and might help this cooperation between law enforcement and industry. However, there are limits in a global context and that is perhaps where technology and self-regulation can step in to help.

By its nature, digital media crosses traditional geographic and jurisdictional boundaries and thereby creates new challenges. The legal variables between jurisdictions even within Europe can be striking. This makes it almost impossible to have a uniform approach which applies by way of law. The internet is also an area that is incredibly difficult to police and questions remain unresolved around who should take responsibility for assisting in that task. The International Chamber of Commerce (ICC) has mirrored calls of the PIPCU as regards online advertising and is actively encouraging its members and the industry to develop self-regulation and collaborate on safeguards to prevent or reduce advertisement misplacement, again in areas which promote or facilitate illegal activity or next to inappropriate content which can harm brand reputation.

Most industry players are happy to work with law enforcement to crack down on illegal activity. However, opinions diverge when you mention brand safety, which can be more subjective and arguably best left to the advertisers/brands concerned.

Duncan Trigg, CEO of Project Sunblock Limited which has developed technology focused on brand protection, said: “Brand safety means different things to different brands. For all, financial supporting and ultimately the legitimisation of illegal sites with any recognisable brand is a definitive no. However, elements of what is commonly referred to as inappropriate content should really be down to the individual advertiser to decide upon. In commercial terms, some of the most harmful content can be in disaster management.

“For example, an airline will not wish to appear advertising in the digital press against a travel disaster. True brand safety should give advertisers choice and capability to block exactly what content they feel is harmful to their own brand equity in real time at individual page level. With technology such as ours, there is no need to sacrifice the substantial benefits of audience and behavioural targeting that the real time bidding market place offers in order to minimise the risk of negative PR that misplacement can and does generate.”

Technology may well hold the key to any solution to these issues. The calls from the ICC and PIPCU for industry involvement and self-regulation to fill gaps that that the law cannot are sensible in this context. However, there needs to be meaningful self-regulation with consequences for any real value to be added. These new relationships and self-regulatory environments are still evolving. Technology sits somewhere in between, both creating and bridging gaps between industry, law enforcement and the future.

Mary Shields – of Faegre Baker Daniels LLP – is a corporate advisor to online businesses and SMEs on e-commerce and cross-border aspects of digital trade.