Internet and eCommerce Law Review 2018

Internet and eCommerce Law Review 2018

• 1.
  Internet and eCommerceLaw Review 2018 Annual TechLaw Update @cyberleagle London, 9 October 2018 www.cyberleagle.com Graham Smith Partner, Bird & Bird LLP
• 2.
  Review of 2018 Cross-borderinternet Digital copyright Online intermediary obligations Investigatory Powers Act Bird & Bird LLP Slide 2
• 3.
  Cross-border internet (1)Unjustified Geo-blockingRegulation Bird & Bird LLP Slide 3
• 4.
  Unjustified Geo-blocking andDiscrimination Regulation Bird & Bird LLP Slide 4 Online (Art 3) Online and offline (Art 4) Online interface (e.g. website or app) Trader Goods or services Trader Internal to one MS excluded Services Directive exclusions Copyright etc rules unaffected Compliance with EU or national law requirement (subject to explanation) Compliance with EU or national law requirement • Block or limit access to the trader's online interface • Redirect to a nationality/residence/establishment- specific version of the trader's online interface without customer's explicit consent Apply different general conditions of access where customer seeks to: •Buy goods for delivery in a MS to which trader offers delivery in general conditions •Buy goods for collection in an agreed MS that trader offers as an option in general conditions •Receive online services other than where main feature is provision of access to and use of copyright protected works or other protected subjected matter, including selling in an intangible form •Receive offline services in a MS where trader operates For reasons related to customer's nationality, residence or establishment + payment transactions (Art 5)
• 5.
  Unjustified Geo-blocking andDiscrimination Regulation ● Applies from 3 December 2018 (NB Brexit) ● Redirection consent ● Must comply with cookie laws ● Must still allow access to original website/app ● Compliance with Regulation does not amount to directing activities under Rome I (applicable law) or Brussels I Recast (jurisdiction) ● And for other targeting tests based on Pammer/Alpenhof? ● Third country traders who offer goods and services in EU are in scope (according to the Commission Guidance) Bird & Bird LLP Slide 5
• 6.
  Unjustified Geo-blocking andDiscrimination Regulation Slide 6 Bird & Bird LLP www.twobirds.com/en/in-focus/geo-blocking
• 7.
  Cross-border internet (2) Bolagsupplysningen/Ilsjan(CJEU) Bird & Bird LLP Slide 7
• 8.
  Tort jurisdiction -Brussels Regulation Art 7(2) ex 5(3) Bolagsupplysningen OÜ and Ilsjan v Svensk Handel AB (CJEU C 194/16, 17‑ October 2017) ●Art 7(2): MS jurisdiction based on place where the harmful event occurred or may occur (in this case, place of damage) ●Estonian plaintiff sues Swedish defendant in Estonia over inclusion in Swedish language website 'blacklist' and related user comments ●Defamation: damages and claim for rectification/removal of website and comments Held: ●Whole of claim can be brought in MS of 'centre of interests' (cf eDate/Martinez) ● All damages (not just forum MS) and rectification/removal ●Centre of interests applies to both legal and natural person ● For a business: the place where it carries out the main part of its economic activities ● Cannot be relied upon if the evidence is unclear ●Claim for removal/rectification cannot be brought in place of damage ● "single and indivisible application" Bird & Bird LLP Slide 8
• 9.
  Digital copyright (1)Communication tothe public (2)Remote PVR Bird & Bird LLP Slide 9
• 10.
  Communication to thepublic Renckhoff (CJEU C-161/17, 7 August 2018) ●School project copied an image from a photographer's website ● Project uploaded to the school website ● Reproduction right infringed ●But was communication to the public right also infringed? ●Held: yes ● Separate communication to the public ● 'New public' weblinking caselaw (Svensson etc) not relevant Bird & Bird LLP Slide 10
• 11.
  Remote PVR VCAST (CJEUC-265/16, 29 November 2017) ●User set terrestrial TV time slot/programme to be recorded, using VCAST website ●VCAST recorded transmission, sent it to user-designated cloud storage (purchased by user from elsewhere) Held: ●VCAST communicated to the public ● Sum of persons targeted by VCAST constitutes 'a public' ● Different technical means (cf TV Catch Up) ●Not within Article 5(2)(b) private use exception to reproduction right Bird & Bird LLP Slide 11
• 12.
  Online intermediary obligations Siteblocking injunctions Bird & Bird LLP Slide 12
• 13.
  Online intermediary obligations Siteblocking injunctions ●Cartier International AG v BT & EE [2018] UKSC 28 ● Who should bear cost of complying with site blocking injunctions? Held: ●National law, not EU law ●Akin to Norwich Pharmacal orders, freezing injunctions etc ●Rightsowner should indemnify service provider ●Broad basis for non-IP applications? Bird & Bird LLP Slide 13
• 14.
  Investigatory Powers Act Bird& Bird LLP Slide 14
• 15.
  Overview of IPActpowers ● Interception warrants • Bulk, targeted, thematic; Content and ‘secondary’ data ● Equipment interference (hacking) warrants • Bulk, targeted, thematic; Content and ‘equipment’ data ● Communications data acquisition and disclosure • Bulk warrants, targeted notices + request filter ● Mandatory communications data retention notices • Browsing histories (Internet Connection Records) ● Technical capability notices • E2E encryption ● National security notices ● Bulk personal dataset warrants Bird & Bird LLP Slide 15
• 16.
  Current status ofIP Act ● Royal Assent 29 November 2016 ● Mostly in force, remainder by end of 2018 - 8 separate commencement orders! - Lawful Business Practice Regs 2000 replaced by Monitoring and Record-keeping Regs 2018 ● Amendments to communications data retention/acquisition provisions following Watson/Tele2 currently going through Parliament Bird & Bird LLP Slide 16
• 17.
  Legal challenges -Liberty judicial review of data retention/bulk powers Issue Status Generalised and indiscriminate retention? No. Liberty have permission to appeal. Crime purpose for access to retained data not limited to “serious crime” Conceded. IPAct being amended. Access to retained data not subject to independent prior review. Conceded for events data/non-national security. Office for Communications Data Authorisations (OCDA) to be established under IPCO. National security within scope of EU law? (MI5, MI6, GCHQ) Pending CJEU reference from IPT Privacy International case. Non-crime retention and acquisition purposes? Public health, tax, regulation of financial services/markets and financial stability to be removed from IPAct. Does mandatorily retained data have to be held within the EU? Pending CJEU reference from IPT Privacy International case. Notification of those whose data has been accessed? Pending CJEU reference from IPT Privacy International case. Bird & Bird LLP Slide 17
• 18.
  Legal challenges ECtHR ● BigBrother Watch v UK (Chamber Judgment, 13 September 2018) ● RIPA held to violate Arts 8/10 on three specific grounds • Oversight of end to end process of selection for examination • Safeguards on access to related communications data • Access to journalistically privileged communications and sources ● Implications for IP Act… CJEU ● Ministerio Fiscal (C-207/16, Grand Chamber Judgment, 2 October 2018) • Access to mobile phone subscriber data insufficiently serious interference with Charter rights to be restricted to serious crime Brexit ● Post-BREXIT data protection adequacy decision? Bird & Bird LLP Slide 18
• 19.
  Finally… Bird & BirdLLP Slide 19
• 20.
  Copyright: • E-books digitalexhaustion – Tom Kabinet (CJEU) • Exceptions and fundamental rights – Afghanistan Papers (CJEU) Intermediaries: • Proposed EU Regulation on intermediary transparency • Global takedown (Google v CNIL, Glawischnig-Piesczek v Facebook) • EU Digital Single Market - AudioVisual Media Services Directive – by end 2018? - Copyright Directive Art 11, Art 13 – Spring 2019? - SatCab? • Internet Safety White Paper/Digital Charter/Digital Economy Act 2017 Code of practice • Proposed EU Regulation on Terrorist Content Cross-border: • Proposed EU Regulation on free flow of non-personal data • Proposed Regulation on EU Production and Preservation Orders • US-UK negotiations on direct LE/agency cross-border access to data - Overseas Production Orders Bill Proposed EU ePrivacy Regulation Digital Economy Act 2017 – age verification obligation, blocking notices to ISPs Looking forward to... Slide 20 Bird & Bird LLPBird & Bird LLP
• 21.
  twobirds.com Abu Dhabi &Amsterdam & Beijing & Bratislava & Brussels & Budapest & Copenhagen & Dubai & Dusseldorf & Frankfurt & The Hague & Hamburg & Helsinki & Hong Kong & London & Luxembourg & Lyon & Madrid & Milan & Munich & Paris & Prague & Rome & San Francisco & Shanghai & Singapore & Stockholm & Sydney & Warsaw 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 12 New 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. Thank you Graham Smith graham.smith(at)twobirds.com @cyberleagle www.cyberleagle.com