2014 Internet and ECommerce Law Update

2014 Internet and ECommerce Law Update

• 1.
  Internet and eCommerce Review 2014 Bird & Bird Annual IT Law Update London, 22 October 2014 Graham Smith Partner, Bird & Bird LLP @cyberleagle
• 2.
  Last year’s “lookingforward to...” ● Digital Economy Act – will the rightsowners pay up? ● Defamation Act 2013 – coming into force ● Hargreaves – copyright exceptions ● Blocking orders – Constantin Films v UPC (CJEU) ● EU 'Notice and action' project ● Copyright and linking – Svensson, C More, Bestwater (CJEU) ● Copyright jurisdiction – Pez Hejduk (CJEU) ● Copyright distribution right - territoriality – Blomqvist (CJEU) ● ECommerce Directive – internal market, intermediary liability, ISS – Papasavvas (CJEU) ● Database right – metasearch – Innoweb (CJEU) ● Meltwater (PRCA) - CJEU
• 3.
  Review of 2014 Copyright, trade marks and the internet Metasearch and database right Cross-border internet liability RIPA, DRIPA and friends Farewell to the Distance Selling Regulations
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  Copyright, trade marksand the internet Browsing – Meltwater (PRCA)
• 5.
  NLA v PRCA(CJEU, June 2014) Copyright: do user's browser copies infringe? ● Article 5.1, EU Information Society Copyright Directive ● "Temporary acts of reproduction … , which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable: (a) a transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject-matter to be made, and which have no independent economic significance." ● Recital (33): "To the extent that they meet these conditions, this exception should include acts which enable browsing as well as acts of caching to take place"
• 6.
  NLA v PRCA UK Supreme Court: no infringement – subject to CJEU reference “It has never been an infringement, in either English or EU law, for a person merely to view or read an infringing article in physical form.” ● Browsing/viewing v download CJEU: no infringement ● Screen copy: temporary and transient • Transient ≠ fleeting “transient if its duration is limited to what is necessary for the technical process concerned to work properly” ● Browser cache: temporary and incidental “did not exist independently of nor have an independent purpose outside of internet browsing.”
• 7.
  Copyright, trade marksand the internet Site blocking injunctions
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  Site blocking injunctions Constantin Films v UPC Telekabel CJEU March 2014 ● Art 8(3) Copyright Infosoc Directive • Court can grant injunction against intermediary where services used by a third party to infringe copyright ● Confirmed target website ‘uses’ service of user’s ISP ● Proportionality • Costs v ease of circumvention - “prevent or make difficult to achieve”; “seriously discourage” the infringement • Collateral impact on legitimate activities - “do not unnecessarily deprive internet users of possibility of lawfully accessing information” “strictly targeted … without thereby affecting internet users who … lawfully access information” ● Transparency • Possibility for internet users to assert rights before the court
• 9.
  Site blocking injunctions Cartier et al v BSkyB et al Ch.D, Arnold J (17 October 2014) ● Websites selling counterfeit Cartier merchandise ● Art 11 EU Enforcement Directive • Court can grant injunction against intermediary where services used by a third party to infringe an IP right • Not specificially implemented in UK legislation ● Jurisdiction to grant injunction re trade mark rights • Satisfied ‘provided for by law’ test • Same threshold conditions as for copyright S97A • Use of service: UK-targeted website/online contract of sale ● Claimants not required instead to pursue site operators or use notice and takedown, payment freezing, domain name seizure, de-indexing or customs seizure ● Proportionate • But IP address sharing ● Safeguards (ORG): subscribers able to apply to vary/discharge, blocking page info, sunset clause.
• 10.
  Metasearch and databaseright
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  Metasearch and databaseright Innoweb v Wegener CJEU 19 December 2013 ● GasPedaal meta search engine ● Dedicated to car ads; searched across several sites including Wegener’s AutoTrack • Search form offering essentially the same range of functionality as Autotrack search form • formatted and relayed user queries in real time to Autotrack search facilities, then aggregated and displayed results. • presented results to the end user in an order that reflected criteria comparable to those used by the Autotrack site search engine for presenting results ● Database right infringement by making AutoTrack database available to the public without its consent ● Innoweb’s purpose was to provide access to entire contents of database by a means other than that intended by the database maker.
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  Cross-border internet liability Google Spain (CJEU) Vidal-Hall v Google (High Court)
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  Cross-border internet liability Google Spain CJEU (13 May 2014) ● Territorial scope of data protection legislation ● Google Inc and Google Spain both parties • “the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State”; or, if not established (Art 4(1)(a)) ● Subsidiary can be an establishment of the parent (Recital 19) ● Google Inc search activities are processing by controller ● Google Inc search is ‘in context of activities’ of Google Spain advertising support • ‘inextricably linked’
• 14.
  Cross-border internet liability Vidal-Hall v Google Inc (16 Jan 2014) ● Targeted advertising based on internet usage data collected (historically) from Safari browser users ● Challenge to jurisdiction over allegations of (inter alia) misuse of private information ● Distress and anxiety is damage within jurisdiction ● (obiter) visibility of ads was an act of publication to claimants/others, effected within jurisdiction (+ collection?) • Information that may have been apparent from screens included private information
• 15.
  RIPA, DRIPA andfriends
• 16.
  RIPA, DRIPA andfriends Prologue – Digital Rights Ireland CJEU 8 April 2014 ● Invalidated EU Data Retention Directive on privacy grounds ● Contrary to Art 7 (&8) EU Charter of Fundamental Rights ● CSPs required to retain various traffic, service usage and subscriber data ● Validity of Data Retention Regs 2009 made under ECA 1972? 3 months later… ● Data Retention and Investigatory Powers Act 2014 • Tailored notices to CSPs up to 12 months • RIPA definitions of telecommunications services • Non-UK providers and conduct for interception warrants, capability and communications data notices • Conflict of laws interception warrants defence for non-UK providers • RIPA definitions amended to ensure covers e.g. webmail - Includes cloud storage facilitation
• 17.
  “The bill clarifieshow the current definition should be interpreted, but this cannot change or extend the meaning of the definition in RIPA to capture new services” The Home Office, quoted in The Sunday Times 13 July 2014
• 18.
  ‘The lawyer GrahamSmith says that this is “twaddle” ’ Baroness Helena Kennedy, Hansard, 16 July 2014
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  RIPA, DRIPA andfriends Epilogue ● Parliamentary Intelligence and Security Committee Privacy and Security Inquiry ● RUSI Review on the Use of Internet Data for Surveillance Purposes ● @terrorwatchdog Review of Investigatory Powers ● IOCCO investigation into police use of communications data powers to reveal journalists’ sources ● Various legal challenges • Investigatory Powers Tribunal cases (TEMPORA and PRISM) • Big Brother Watch ECtHR • Tom Watson MP/David Davis MP judicial review of S.1 DRIPA • Bureau of Investigative Journalism ECtHR
• 21.
  RIP the DistanceSelling Regulations
• 22.
  RIP the DistanceSelling Regulations The Consumer Contracts etc Regulations 2013 (w.e.f. 13 June 2014) ● EU Consumer Rights Directive - distance contracts ● Cancellation period 14 calendar days (NB downloads) ● Pre-contract information • Digital content “functionality, including applicable technical protection measures” “relevant compatibility with hardware and software” • Button “order with obligation to pay” or corresponding unambiguous formulation (e.g. Pay Now). ● Post-contract confirmation in durable medium (defined) • E-mail, paper, personally addressed and accessible storage long enough for purposes of information ● Post-contract phone queries – basic rate ● ess
• 23.
  Looking forward to... ● Online R18 legislation (AVMS Regulations 2014) ● Consumer Rights Act ● The continuing saga of RIPA/DRIPA ● Copyright and linking – C More, Bestwater (CJEU) ● Online copyright jurisdiction – Pez Hejduk (CJEU) ● EU copyright review ● Social media offences • Malicious Communications Act 1988 • Revenge porn offence? ● eIDAS Regulation (in force 2016) • electronic signatures, electronic seals, time stamp, electronic delivery service, website authentication
• 24.
  Graham Smith [email protected] @cyberleagle Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses. Bird & Bird LLP is a limited liability partnership, registered in England and Wales with registered number OC340318 and is authorised and regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC4A 1JP. A list of members of Bird & Bird LLP and of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at that address. twobirds.com Thank you