Back in the Wild West days, a citified pansy venturing onto the Ponderosa was as
good as dead, unless he packed a pistol – or better, hired an experienced
gunslinger to accompany him through the Badlands, protected from the highwaymen
and tribal mercenaries out for quick cash or revenge on the white
The West isn’t so wild anymore, but the Internet is. And to navigate
the wasteland of the Internet, where it seems there is a predator or scam artist
behind every other website, you may have to avail yourself of the services of
the modern-day gunslinger – a lawyer! As it happens, Israel is “blessed” with
more lawyers – one per 170 residents – than any other country in the
Once, we worried about finding them enough work, but thanks to the
Internet, lawyers are busier than ever.
That’s because the Internet is,
daily, providing new legal challenges, with many situations that previous
generations of lawmakers may never have even fathomed. Like the Case of the
Stolen Reputation, in which Dr. Dov Klein of Tel Aviv won a NIS 50,000 award
from Google and a plastic-surgery clinic (Proportzia) for the theft of his –
name?!? Yes indeed, that is exactly what happened to Klein. In 2007, Klein, one
of the leading plastic surgeons in Israel, noticed that a Google search of his
name led to results featuring the websites of other plastic-surgery outfits
(notably Proportzia, named in the lawsuit) and to display ads for
Apparently, Klein discovered, these outfits had decided to
capitalize on his name and reputation. Using Google Adwords, the competitors,
instead of purchasing terms like “plastic surgery” or “liposuction,” as one
would expect, purchased the term “Dr. Dov Klein,” ensuring that whoever
searched for that name would come across their ads!
Adwords, of course, is the
genius system Google uses to monetize everyday words and terms, with clients
bidding for the rights to those terms; for example, if you operated a travel
agency, you might want your text-box ads (on the right side and/or top of the
search-results page) to appear on pages where Google users search for
“Airlines,” “Vacations” and the like. The more popular the term, the more
expensive it is. And while you probably wouldn’t think of it, apparently one can
purchase an individual’s name as an Adword!
This is exactly what happened to
Klein, who was understandably miffed: not so much because his competitors
appeared in the search results for his name, but that they had actually used his
name as an Adword to get those ads on the results page. So, taking advantage of
the plethora of lawyers in Israel, he sued, hiring attorney Ami Savir to
represent him against Google and Proportzia.
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The litigation process in
the case was just as interesting as the results, Savir said.
called this ‘parasitical behavior,’ and that’s exactly what it is,” he said.
“Dr. Klein has spent years building his reputation, using his own hands. A
search for Dr. Klein resulted in parasite sites showing up in the search
results, illicitly using his reputation, because of the use of Adwords. We sued,
and the court saw it our way.”
The case revolved around the search for
the Hebrew spelling of Dr. Dov Klein. But it emerged in court that the search
algorithm used to determine which ads should appear on which search-result page
is the same in all languages. In fact, according to the case protocols, Google
Israel tried to shield itself from the case by claiming that the search engine
was owned by Google Ireland. But the court ruled that, as far as it was
concerned, all Google search engines were the same.
In its defense,
Proportzia said while they might have purchased Klein’s name as a keyword, it
didn’t do them much good, resulting in just a few hundred clickthroughs – and
just 15 new customers – for the year, plus they had used Dr. Dov Klein as a
keyword. Nevertheless, the court said, an individual has a right to his or her
reputation, and it awarded Klein NIS 50,000 for his trouble, plus NIS 10,000 in
While there have been similar cases in other countries,
Savir said, Klein’s case is the first to take on the use of a personal name,
instead of a brand, as an Adword. A lengthy case in the French courts was
resolved this year in favor of Louis Vuitton, which sued Google because the
company sold that brand name on Adwords to retailers who were hustling Louis
Vuitton replica purses online.
But Klein’s case was worse, Savir said.
It’s bad enough stealing the reputation of a brand, he said, but it wouldn’t
surprise anyone, for example, if one soft-drink company were to buy the name of
another company on Adwords just so they could place ads in front of customers.
But stealing an individual’s reputation and name is something else altogether,
As “cloudy” as the rights a person has to their reputation is on
Google’s search algorithms, the legal questions on data in the Internet cloud
are even more complicated. One reason for that, said attorney Miriam Wugmeister,
is because of the different rules each jurisdiction has regarding the privacy of
“Many companies have their own Internet, with heavy security, and
servers accessible only to specific groups,” she said. “But more and more
companies – even very large ones – have come to rely on the public cloud, the
server network operated by companies like Google and Amazon,” to the extent that
some companies even use services like Gmail for their corporate
“That data could be spread out and stored on servers around the
world,” she said, “and if there is a breach – as is not uncommon – the question
of what laws apply to the data becomes more complicated.”
So far, there
have been no breaches of sensitive corporate secrets from the public cloud, but
Wugmeister said it’s just a matter of time.
“Companies are less focused
on security than they are on low-cost solutions,” she said. “That goes for both
the providers and customers. And the service providers admit that they
are not up to the challenge.”
The true legal test, she said, will come
when a breach occurs and the clients try to sue – at which point the service
providers will pull out the agreements the clients signed, which exonerate the
providers in advance from any responsibility for leaked data.
large corporations have more than enough lawyers on staff to give as good as
they get. And if there are any holes in those agreements, you can be sure that
some corporate lawyer out there will figure out a way to abrogate those
After all, the cloud may be ephemeral, but the damage that
may result from a data breach will be very real. Imagine – we thought we had
more than enough lawyers, but it may turn out that we don’t have enough!
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