April 30, 1998

Mobile and wireless services give rise to many new and novel legal issues, many of which are coming to be termed “m-legal” issues. One of the most recent m-legal topics to hit the headlines is the banning of picture messaging mobile phones. David Beckham and Michael Schumacher are two celebrities currently promoting the virtues of mobile phone picture messaging. Operators hope that picture messaging will mirror the success of SMS text messaging. An estimated 360 billion SMS were sent during 2002 (GSM Association). Soon there will be an average of 1 billion daily text messages. These are significant revenue streams for mobile operators.

It is predicted that m-commerce, or mobile buying and selling, will eventually overtake e-commerce. One recent analysis forecasts that global m-commerce revenues could reach $225 billion by 2005. Consider that mobile phones have reached mass market popularity faster than comparative technologies (ie radio, TV and Internet). Many more people will own mobile phones than traditional land-line telephones and the EU Commission predicts that more EU citizens will be Internet enabled via mobile devices than PCs. Wireless services, other than m-commerce, are already used by companies, consumers, mobile workers, emergency workers, the military, and the telematics, delivery and logistics industries. Some hospitals now use SMS to remind patients of upcoming appointments while doctors and nurses increasingly rely on mobile devices as opposed to paper charts. Hospital, emergency and outpatient wireless services will continue to be a large growth area.

The enormous popularity of mobile phones has meant that it is now common to make and receive calls in a myriad of public places. Despite this popularity, many people are displeased by an apparent lack of mobile etiquette. Some of the proposed solutions raise legal issues such as privacy, trespass, how to draft appropriate legislation, as well as the legality of technical mobile jamming devices.

The current e-commerce legal regime did not (fully) envisage the implications of m-commerce services and wireless services. In many ways the existing e-commerce legal regime may hinder the development of m-commerce. Numerous e-commerce legal measures require that users receive detailed prior information. Requirements also exist in relation to the formation of electronic contracts, distance selling, financial services and electronic signatures. All of these requirements are more difficult to satisfy for m-commerce.

New m-commerce and wireless services involve completely new and often complex activities and therefore necessitate new contract and legal business models. Complex issues of intellectual property law are also involved. The process of clearing third-party IPRs is particularly important for mobile service providers as there are many new opportunities for infringement (and secondary infringement) of IPRs. Already there is threatened litigation involving ringtone copyrights. It is only a matter of time before litigation arises with mobile pictures, moving pictures, database rights and wireless peer-to-peer file sharing (remember Napster). It is important to identify, minimise and allocate these, and other, risks wherever possible.

Standards setting organisations and membership organisations, such as the Bluetooth Special Interest Group, also have particular requirements in relation to the use of IPRs. It is also important to consider the extent to which any “freely” available or “open source” software may be incorporated into mobile phone applications, as these methods of software distribution often have particular restrictions on the use of such software.

Operators also need to consider their wireless contract terms and conditions. What additional terms and conditions are needed for new mobile services? How are existing and new customers bound by contract terms and conditions? How are terms and conditions updated? Electronic evidence issues also need to be considered in the mobile context. Electronic evidence obtained from mobile and wireless devices is increasingly being used in court cases.

Data protection and privacy concerns are also very topical. The EU has been described as leaning towards a prior consent “opt in” model for customer consent. This would mean that service providers have to obtain consent prior to contacting or sending marketing material to users. It is important to note that existing customer consents may not always be sufficient for new mobile activities and services. Data protection is an area which operators and other service providers will have to watch closely as there are many ongoing national, EU and international developments. Operators should be developing privacy and location data management policies to address these issues. Another related issue is wireless spam. While many legislators have been attempting to deal with spam, some are now addressing the growing problem of wireless spam.

Many people are also concerned with the possible health effects of mobile phones and base stations. There have already been a number of cases taken, although the body of scientific study so far indicates that there are no significant ill-health effects.

Other mobile world legal issues include new competition law issues; security of wireless networks; interception; record retention requirements for wireless communications; the applicability of broadcasting regulations to mobile services; so called “must carry” content obligations; and watershed hours. The UK government, for example, is concerned that children will be able to access adult content on their mobile phones which they would not have been able to view on TV (eg because of watershed hours) or content they may not be permitted to access on the Internet at home. As a result, the UK is reported to be considering a ban on mobile pornography. Mobile operators may oppose such moves as data services will be a large revenue stream. In addition there could be increased liability and cost issues if operators have to implement such a system.

This debate highlights the novelty of society’s use of new mobile phones and devices, as well as the often complex legal issues which surround new m-commerce and wireless services. Many corporates have plans to adopt wireless strategies and SMS and MMS popularity indicates that consumers are also willing to embrace the mobile revolution. As this revolution continues over the coming years, there will be many more legal controversies and m-legal issues which will need to be addressed.

M-commerce services or mobile services can be described as mobile buying and selling. M-commerce is predicted to overtake e-commerce.

Wireless services are mobile or wireless services other than m-commerce. Examples include: wireless e-mail; wireless access to corporate data, for example, via PDAs, Pocket PCs, etc; location based services eg friends finder services, find your nearest bar/restaurant/etc; SMS (short messaging service); MMS (multi-media messaging); picture messaging; rich-content services; premium services; health services; entertainment; etc.

Mobile Phone Bans

There are a number of different types of bans emerging. The policy reason, as well as the methodology of implementation, behind each is different.

Mobile Driving Bans

· There are perceived safety concerns for drivers using mobile phones. This has resulted in bans on using hand-held mobile phones while driving (eg in US States and European countries including Ireland – the UK is also considering such a ban).

· However, these bans, and the relevant exceptions, differ in each jurisdiction. Should public use in an emergency be exempt? Should police and emergency services be exempted?

· An emerging issue relates to mobile hands-free functionality which is (pre) integrated into vehicle dashboards by vehicle manufacturers. Do these fall outside of the scope of the exemptions to these bans? Some exemptions are felt to be limited to non-integrated hands-free kits which are only installed subsequently. If this view proves correct many legal bans may have to be redrafted.

Bans in Public Places

· Some public places now have signs indicating that mobile phones should be turned off. Indeed some authorities elsewhere have bans, or propose to introduce bans, on using mobile phones in specified public places. On-the-spot type fines will apply.

· There is yet no clear consensus between these measures. Indeed in California a ban on mobile phone use in public schools was later withdrawn.

Picture Phone Bans

· Saudi Arabia bans the use of picture phones outright and there have apparently been a number of convictions under the ban already.

· In other countries bans appear to be limited to the private sphere ie clubs, gyms, restaurants, etc. These bans occur in private premises. There have, however, been recent calls in Ireland to ban picture phones in schools.

· In the context of picture phones, data protection is potentially a more important issue than privacy. Since picture messaging will often identify a living individual, it is possible that this activity is caught by the data protection regime. Issues arise, therefore, in relation to whether there is a fair capturing and use of the personal information. For example, is the individual aware that their picture is being taken and have they consented? What happens if the picture is forwarded or used in a manner which the person whose picture was taken was not aware of, did not anticipate or did not consent to such use?

Mobile Jamming Devices

The enormous popularity of mobile phones has meant that it is now common to see people making and receiving calls in bars, restaurants, entertainment venues and a myriad of other places. Some people, however, want to ban or “jam” mobile phones, highlighting a lack of mobile etiquette in public places. One solution is a technical “system of digitally blocking mobile usage.” A recent European study found that a large percentage of consumers surveyed are in favour of such devices. These systems are known as mobile jamming devices. They block the radio signals of mobile phones. Therefore, it is possible to prevent mobile phones ringing in concert halls, aeroplanes, schools, restaurants, churches or, as some have even suggested, in courts!

However, these devices are not without controversy. Many argue that they could amount to an invasion of personal privacy. In addition, there is potential interference with mobile and radio devices used by law enforcement and emergency authorities. They may also block signals to mobile phones and other wireless devices (eg Blackberrys, XDAs, Pocket PCs, PDAs, etc) which may use non-audible signals such as texts, e-mails or even vibrate alerts. What happens if a doctor, or an IT consultant, on call is unaware that their mobile phone is “jammed” because there is no warning sign indicating that jamming devices are being used? Do users have rights not to be “jammed”? Potential liability issues may also arise if an organisation operates a jamming device but the signal drifts so as to block mobile phone signals in adjoining areas or adjoining organisations.

In addition, the legality and legal regulation of mobile jamming devices is far from clear. Certain jurisdictions view these devices as unregulated. Others have specifically banned them, one of the most recent such countries being Canada. However, other jurisdictions such as Japan have permitted mobile jamming devices. Some other jurisdictions feel that existing legislation prohibits the use of mobile jamming devices. In Ireland, for example, the Commission for Communications Regulation (previously the ODTR) appears to be of the opinion that the use of mobile jamming devices is not permissible. Such a view may be justified by an examination of the Irish Wireless Telegraphy Act 1926. While the Act pre-dates the widespread use of modern mobile phones and new mobile jamming devices, s 12 of the Act restricts the use of certain apparatus for wireless telegraphy. The operative section states that it is not lawful “for any person so to work or use any apparatus for wireless telegraphy that electro-magnetic radiation therefrom interferes with the working of or otherwise injuriously affects any apparatus for wireless telegraphy in respect of which a licence has been granted under this Act and is in force .”

It appears to prohibit the use of apparatus for wireless telegraphy which interferes with or “injuriously affects” licensed apparatus for wireless telegraphy. This may include new mobile jamming devices. However, should (or indeed can) such an old statute be interpreted to apply to a new and previously unenvisaged situation? Does it prohibit mobile jamming devices which interfere with certain localised wireless services, which may not be licensed or which operate outside of a public telecommunications network? It may also require a technical examination of the operation of mobile jamming devices to ascertain whether actual “electro-magnetic radiation therefrom” interferes with mobile phones. How do they operate? Do jamming devices “block” signals or actually “interfere” in some way with the working of mobile phones themselves?

Paul Lambert is with the IT Law Group at Matheson Ormsby Prentice in Dublin. Paul specialises in

IT legal issues, developing mobile and wireless legal business models and m-legals.

Contact: paul.lambert@mop.ie