Back to “digital jurisdiction”

The umpteenth modification of the rules regarding
conflicts related to trademarks issued by a social network and some cases
recent events has brought back to my memory an issue that I have been
reflecting for a long time and that in fact we address in the I Congress of the Madrid Lawyers with a brilliant intervention by Andy Ramos on the matter.

Those of us who are dedicated to industrial property issues and
intellectual we had been using the national legislation as reference legislation,
community and international treaties, complementing it where appropriate with the
applicable procedural rules.

However, for some years now, this knowledge
has to be complemented with the standards that each of the networks
social dictates in relation to conflicts that refer to the improper use
trademarks, image rights, copyrights, etc.

Thus, each of these networks establishes its rules and what
In principle, these are conditions of use of the social network, they become
a material and procedural legal corpus that must be followed (as possible) to
try to resolve the increasingly numerous conflicts that affect our
customers. And doing a little review I realize that today the
80% of our activity has to do with the Internet and social networks, in a
way or another.

It's not that I have anything against rules that escape the
authority of the State since there are examples of self-regulation systems that
They have been a success. If we look at the UDRP rules governing conflicts
regarding trademarks and domain names, we will see how an overwhelming majority of
They are resolved by experts and administered by institutions
disconnected from the authority of any state, among which stands out for
the large number of cases and their quality WIPO Mediation and Arbitration Center.

However The problem arises when these standards are not the
fruit of a consensus but come from the owner and administrator of the network
social. The problem increases when the one who dictates the rules does so with a
"legal inspiration” more American than
European (and we already have cases of conflicts on Chinese social networks, which
looms). Things get more complicated when each social network has some
different standards. And to finish complicating it, the “policies", that is, the
interpretation of the norms, is the fruit of particular considerations
of each of the managers of each social network.

I recently intervened in a case that pitted two
Galician professionals for copyright issues in a social network.
The administrators and managers of the conflict began their communications with
quotes from the Digital Millennium Copyright Act, fair use and other standards
exotic, leaving the customer stupefied. Naturally, neither the Property Law
Spanish intellectual nor the community directives appeared anywhere.

More serious is a case of infringement of image rights of
a minor, with the intervention of the prosecutor's office, in which it was impossible
extend any measure that was requested beyond the borders
Spanish, even though the dissemination of the images is global.

And like these, there are many other cases that day by day
occupy There are many considerations that must be made to normalize this
situation and give it appropriate legal treatment.

There has been talk of the application of a principle of
territoriality by which “if you do business in my territory it is with the
laws of my territory”, a solution that is still partial due to the non-existent nature
territory of social networks that has been referred to.

The authorities of the European Union are also trying to
harmonization of European standards also has an influence on the
conflicts that occur on social networks.

There is still a long way to go, but
We have examples of success that show us that harmonized regulation
can reduce the number of conflicts substantially. The application of
territorial regulations could then remain for certain conflicts that
They only affect local situations.