Licensing Industry

But now our opposable thumbs are spoilt for choice; the availability on interactive mobile devices of ever more sophisticated content, and particularly the internet, has brought undreamed of opportunities.

There are over 70 million mobile phone subscriptions now existing in the UK (and rising) and at the end of 2007 nearly 30 million users of mobile TV services.

With these sort of consumer numbers, no one should think that technical and physical limitations to the onward march of the mobile will be insurmountable. The boundaries are constantly being pushed back in ways which most people never imagined.

Arguably the biggest physical limiter up until now has been mobile screen size. Not any more. It seems that the Japanese have developed a 'projector' feature for handsets which, in conjunction with current day Secure Digital cards and other super-storage memory card formats, provides viewing opportunities to rival those through more traditional media.

Mobile broadband has now made full access to the internet a near reality for mobile users. I say 'nearly' because Apple was recently panned for making the advertising claim that "all the parts of the internet are on the iPhone". The ASA adjudicated that it was an over-claim for the reason that Flash and Java are integral to access many web pages and the iPhone doesn't support either.

These developments have brought incredible opportunities for consumers to generate their own content and the public seems to have an insatiable appetite for doing so. With that degree of interaction, brand owners are understandably excited by the marketing value which the quantity and nature of data produced by this interaction can provide.

For anyone who thought that mobile utopia had already arrived, the signs are that it's finally a reality.

So, can the party proceed without the regulators dampening enthusiasm?

The answer may be 'yes' because OFCOM's stated desire is to deregulate in order to increase competition. I don't doubt this, but it's also fair to say that the regulators often won't have much choice but to reduce restrictions due to the difficulties of regulating ever more disparate media. Arguably product placement and Bluetooth marketing are both examples of this retreat: existing product placement restrictions are due to be relaxed by the end of 2009 and the Information Commissioner's office, the UK's data protection authority, has confirmed that it won't regulate Bluetooth marketing.

Yet the answer would still be 'no' where public reaction prompts a higher degree of scrutiny and intervention by regulators. As a general observation, it's predictable that consumers will be more sensitive towards unwanted marketing communications using private mobile numbers, as compared to email addresses. So the issue of data protection in the context of mobile devices is one where scrutiny is likely to increase.

But, again, it's the accessibility of the internet to mobile devices which is likely to provoke most public reaction and resulting scrutiny by regulators and nowhere more so than in the areas of usage and abusage of personal data and posting on the internet of 'user generated content'.

One of the must-follow mantras for all data handlers is not to capture more personal data than is necessary for genuine business purposes. It's no longer enough (if it ever was) for website marketers to publish an 'off the shelf' policy; it might say the rights things but it's unlikely to be relevant where it counts. Now it seems companies can expect criticism if unable to demonstrate convincingly that their policy is proportionate and relevant to their business, as Google has found out recently, much to its discomfort.

Google announced that the time they hold IP addresses before 'anonymising' them is to be reduced from 18 months to nine, but this hasn't satisfied European Union regulators who are continuing to press Google to explain precisely why any personal data needs to be captured at all.

It's not difficult to speculate why Google would be reluctant to stop collecting personal data via its search engine. It has openly declared its interest in growing its 'new' businesses of providing data storage facilities to the public (for personal photo albums, videos, blogs, calendars, emails, etc), launching Google Chrome (a new browser in competition with Windows Internet Explorer) and a Google phone operating system.

In these competitive markets, the holding of personal data (particularly where obtained from the specialised search facilities for news, street maps, satellite images, books, etc) could provide a vital edge for Google over competitors.

Postings created by the public on sites such as YouTube have already created a fair degree of legal activity, not just by regulators but also by businesses and individuals whose rights or reputation are being misused or abused. With direct-to-website postings of video clips from mobile devices now possible, it's easy to predict that responsibilities will increase for hosts to prevent the damage from arising or continuing. Indeed, the trend would seem to suggest it's already happening, as demonstrated by eBay's experience.

One thing is clear: brand owners will have to embrace the mobile world one way or another and confront the new brand threats it will bring, whether in terms of legitimate competition or unlawful exploitation. Deciding not to be involved is a luxury few brand owners will be able to afford.


Ian Down is a partner in the entertainment, marketing and intellectual property department at Hamlins LLP, solicitors, in Regent Street, London and specialises in marketing and media law. Readers are advised that lawyers are like licensors – before you get a licence to rely on their advice you have to engage and pay them first. So please note that this article does not represent advice which may be relied upon or for which any responsibility is accepted by www.licensing.biz, the author or his firm.