In January 2015 the Court of Appeal of Milan issued a landmark decision on ISPs’ liability in relation to video-sharing platforms, which might finally settle the current case law in Italy in this area.
One of the main findings of the decision is the irrelevance of the distinction between active and passive providers, which had traditionally been taken into account by Italian courts to rule that, if the hosting provider activity entails some kind of “active” involvement, the liability regime set forth by EU Directive 2000/31/CE (the “E-Commerce Directive“) would not apply.
Moreover, the judgement finally sheds light on the provider’s removal obligation, clarifying once for all that the right holder must expressly and specifically identify the allegedly illicit content before the hosting provider is liable to remove that content.
In 2008, RETI TELEVISIVE ITALIANE Spa (“RTI“), the major Italian private broadcaster, sued YAHOO! ITALIA Srl (“Yahoo“) before the Court of Milan for copyright infringement due to the presence of a number of RTI’s videos on the Yahoo Video portal (a platform similar to YouTube in those days). Before filing the claim, RTI had sent Yahoo some warning letters with a generic list of TV programs, without however providing the list of the URLs of such videos (with few exceptions, and in these cases Yahoo promptly removed the videos).
In 2011, the Court of Milan issued a judgement in which it held Yahoo liable for copyright infringement due to its role as “active hosting provider” and accordingly the lack of applicability of the E-Commerce Directive.
On 7 January, 2015 the Court of Appeal of Milan completely overturned the decision of the Court of Milan and rejected all of RTI’s claims.
Following the recent terrorist attacks that occurred in Paris, the French Prime Minister Manuel Valls asked the Minister of the Interior, Bernard Cazeneuve, to offer up suggestions for strengthening the fight against terrorism on the Internet and social networks, which may be used for indoctrinating, getting in touch and acquiring techniques enabling the acting out of terrorist acts. Besides the adoption in the coming months of a law on intelligence, the French Government wants from now on to fight digital propaganda by increasing the number of cyber patrols and improving cooperation with Internet players.
France’s legal arsenal to fight terrorism, notably on the Internet, was already strengthened last autumn with the adoption of Law no. 2014-1353 of 13 November 2014, called “loi Cazeneuve”. This law notably added “incitement to commit acts of terrorism and their glorification” to the list of contents being particularly serious for which hosting providers are required to set up easily accessible and visible measures enabling anyone to report such content. Besides, they must contribute to the fight against the propagation of this content, make the means they devote to such fight available to the public and promptly inform public authorities of any unlawful activities that are reported to them.
The real innovation of this law nevertheless lies in the possibility for the administrative authority to request that editors or hosting providers withdraw unlawful content when “the requirements of the fight against incitement to commit acts of terrorism or glorification of such acts […] justify it”. In the absence of withdrawal within 24 hours, the administrative authority may request Internet service providers to prevent access to the concerned websites. It may also request search engines and electronic directories to dereference these websites. Furthermore, under some conditions, it is provided that the administrative authority may directly request that the concerned websites be blocked, without having requested the withdrawal of the unlawful contents beforehand to editors or hosting providers. In this case, blocking the website would thus no longer be only a subsidiary measure, used when editors or hosting providers do not withdraw the unlawful content promptly enough, but a main measure.
The Polish Ministry of Culture is currently working on a set of amendments to the laws on TV and radio broadcasting. The planned amendments will include a full ban on the advertising of unhealthy food to children under the age of 12. The amendments are yet to be approved by Parliament, but have already been deemed part of a general move, in Poland, aimed at limiting children’s access to products considered to be unhealthy and which lead to child obesity, as well as other related diseases.
The Polish parliament has recently passed a bill on the ban on selling and advertising unhealthy products in schools amending the Act on Food Safety (which amendments are planned to enter into force at the beginning of the Polish school year, that being 1 September 2015). If the amendments to the laws on TV and radio broadcasting are also passed, the broadcasters will also be obliged to refrain from showing unhealthy products before and after TV/radio programs directed at children below the age of 12.
The existing draft covers no details as to what exactly is to be banned; this is to be specified in a separate implementing act. However, it will be highly likely that this will directly relate to products such as chocolate, sweets, sweet drinks (sodas), and crisps, etc. Hence, the planned bill will fall in line with the agreement entered into in October 2014 by and between the group of major Polish broadcasters on their self-regulation of the advertising of food and drinks to children below the age of 12.
The above changes to the legislative landscape in Poland mean that the manufacturers of food products, in particular snacks, may need to adjust their marketing strategies to assure their full compliance with law.
Coming hot on the heels of an op-ed in Wired Magazine and a more detailed U.S. FCC-released “Fact Sheet,” FCC Chairman Tom Wheeler has proposed Open Internet “net neutrality” rules to the other FCC Commissioners and scheduled a vote on the rules for the FCC’s Open Meeting on February 26, 2015. As discussed below, these rules would represent a shift in U.S. telecommunications policies governing Internet access services, creating new net neutrality protections for Internet content, applications, services and devices by applying “Title II” common carriage duties to broadband.
Reclassification Under Title II
Representing a notable departure from the FCC’s previous Open Internet rules adopted in 2010 and from prior FCC orders classifying broadband Internet access as a Title I “information service,” Chairman Wheeler’s current proposal would adopt Open Internet rules under provisions of the Communications Act (as amended) governing Title II common carrier “telecommunications services” while finding additional independent statutory support for the rules under Section 706 of the Telecommunications Act of 1996. The proposed rules would reclassify retail broadband Internet access services under Title II of the Communications Act and, if a court determines it necessary to classify broadband ISPs’ service to “edge providers,” the proposed rules would similarly reclassify that service under Title II. In another notable departure from the FCC’s 2010 Open Internet rules, Chairman Wheeler’s proposal would apply similar Open Internet requirements to both fixed and mobile broadband Internet access services.
On 29 December, 2014, Hong Kong’s Privacy Commissioner for Personal Data (the “Commissioner”) published a guidance note concerning the potential implementation of section 33 of the Personal Data (Privacy) Ordinance (the “PDPO”), which would restrict the export of personal data from Hong Kong.
The Commissioner’s view is that publication of his guidance will help businesses prepare for the eventual implementation of section 33 and that, in any event, businesses should comply with the guidance as a matter of their corporate governance responsibilities. We believe that the Commissioner’s guidance on cross-border data transfers will be highly controversial. The controversial aspects of the guidance are compounded by the fact that there is at present no proposal by the government to bring the enactment of section 33 forward, either in its present form, or at all, and therefore no pending statutory instrument to evaluate the guidance against. Furthermore, the guidance is also unclear in a number of key aspects, making its interpretation difficult. These uncertainties mean that it has a very unusual status as a guide to compliance with the PDPO.
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What is commonly known as a “database” might not necessarily qualify as a database in its pure legal sense and might therefore not fall under the regime of the Directive 96/9/EC of the European Parliament and of the Council on the legal protection of databases. This is the core take-away from one of the latest decisions rendered by the Court of Justice of the European Union (CJEU). Based on this conclusion, the judges held that third parties may not use Ryanair’s flight database in reliance on certain statutory limitations set out in the Directive 96/9/EC. Rather, the restrictions set out in Ryanair’s terms and conditions apply as they are not overruled by mandatory European law (see Judgment of 15 January 2015, Case Ref.: C-30/14)
The underlying dispute emerged between the airline Ryanair and the Dutch aggregator of flight information PR Aviation. As part of PR Aviation’s business model the company gathers flight data from airlines using the information available on their websites. Ryanair, however, requests all users of its websites to refrain from commercial use of its flight data. This ban on “screen scraping” is set out in Ryanair’s online T&Cs. PR Aviation disregarded the T&Cs and claim a right to free access to the database under the Dutch provisions that implement the Directive 96/9/EC.
With an ongoing rulemaking at the Federal Communications Commission, a pair of Congressional hearings, and President Obama’s recent remarks on the matter, U.S. policymakers have been actively debating net neutrality issues. However, the U.S. is not alone: The EU has taken significant steps towards a new net neutrality law, Brazil and Mexico passed legislation last year, and Chile’s regulatory authority acted to enforce the country’s existing net neutrality law. The global interest in and debate over net neutrality will continue as more countries consider whether to regulate and the effects of recently adopted policies appear. As regulatory models continue to evolve, organizations should monitor carefully for new developments that could impact their business operations and legal compliance obligations.
EU. The European Union has been considering a law on net neutrality and is poised for further developments this year under a new European Commission that appears to favor net neutrality and prioritizes the Digital Single Market. Europe has had net neutrality legislation since 2009, but the current approach is relatively light-touch and, for example, does not prohibit all forms of discrimination. In April 2014, the European Parliament voted to approve a stronger net neutrality proposal that would prohibit Internet service providers (ISPs) from charging for faster network access and would prevent mobile networks and broadband providers from blocking services that compete with their own. The providers would still be permitted to have “specialised services agreements” on defined levels of quality of service, so long as they do not impair the quality of Internet access. The European Parliament’s text would impose significant constraints on “managed services,” leading some critics to warn that the text is overly prescriptive. In order for the proposal to become EU law, the Parliament, Commission, and Council of the European Union will need to reach a consensus.
Is mere accessibility in a Member State of an allegedly copyright-infringing image on a website enough to confer jurisdiction on the courts of that Member State to hear an infringement action? The answer is, in short, yes. But why?
In a judgment handed down last week in the case of Pez Hejduk v EnergieAgentur.NRW GmbH (Case C 441/13), the CJEU has held that the court of a Member State in which an allegedly infringing copyright work is merely accessible online does have jurisdiction to hear an infringement action.
The jurisdiction in this case arises from Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Judgments” or “Brussels I” Regulation). It is based on the concept of “the place where the damage occurred” (explained below).
- The case concerned the posting of copyright images online without the consent of the copyright owner (but is likely to be applicable to unauthorised postings of all kinds of copyright works online).
- The CJEU, following its earlier decision in the Pinckney case, has also confirmed that where jurisdiction is based on the accessibility criteria alone, the court hearing the action may only rule on the damage caused in that Member State. This consistency is most welcome but still means that obtaining relief across the EU may require multiple law suits.
- Today’s decision does not affect the jurisdiction of national courts to try copyright infringement cases based on the domicile of the alleged infringer; jurisdiction based on the defendant’s domicile being the fundamental principle of the Brussels Regulation.
- And it also does not say, in terms, whether courts having jurisdiction to try copyright infringement actions on the basis of the defendant’s domicile can also hear claims for the same defendant’s equivalent acts of infringement in other Member States. In relation to the UK, this was answered in the positive by the UK Supreme Court in the 2011 Lucasfilm (stormtrooper helmet) case, but a ruling of the CJEU on this specific point would be very helpful.
After Ed Richards announced in October 2014 that he would step down as Ofcom Chief Executive at the end of the year, the hunt for his successor was on and in late December 2014, the Ofcom Board announced the appointment of Sharon White as Chief Executive.
Steve Unger, Ofcom’s Strategy head, is acting as interim chief executive until Ms White will joins Ofcom in late March 2015, at what will be a pivotal time for the regulator in the UK. Among the sensitive matters likely to be awaiting her attention are:
Although her background is not in media and telecommunications, Ofcom points to Ms White’s training as an economist and 25 years’ experience in the public sector and government, with the regulator’s Chairman Dame Patricia Hodgson saying “Sharon brings with her an outstanding combination of intellect, political acumen and experience leading complex public organisations”. Most recently, she has been responsible for managing the UK’s public finances as the second permanent secretary at the Treasury, and the stakeholder management skills she has no doubt honed over rounds of spending cuts should stand her in good stead for the role mediating the regular battles between telecoms and media companies.
The panel indicates that it is misleading for social media platforms to tell consumers that the service is free. The contract should explain that the service is provided in exchange for the platform’s ability to use the consumer’s personal data to sell advertising. Privacy policies that state that IP addresses and browsing habits are not personal data are also unfair and misleading, according to the panel, because they diverge from the French legal definition of personal data. Many privacy policies do not define specific purposes for which personal data may be used. Because French data protection law requires that individuals are informed of the specific purposes for use, clauses of this kind are unfair, says the panel. The same applies to provisions that purport to authorize the platform to process sensitive data. Any processing of sensitive data requires a separate explicit consent from the individual. The panel identified provisions on onward transfers as another problem: most privacy policies do not identify the third parties to whom personal data may be transferred and do not identify the purposes for which the third parties may use the data. Likewise, privacy policies often do not offer the individual a right to object to transfers of their data. These provisions are unfair, according to the panel.