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Global Media and Communications Watch

The International Media and Telecoms Law Blog

Posted in Broadcasting, Internet, Policy & Regulation, Telecoms & Broadband

UK: A New Chief Executive for Ofcom at a Pivotal Time for the Telecoms and Media Industry

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.

Posted in Data Protection & Privacy, e-commerce, Internet, Policy & Regulation

French consumer protection board cites social media violations

Like the United States, France has a broadly-worded consumer protection statute prohibiting unfair clauses in consumer contracts (the French term is “clauses abusives“).  What constitutes an “unfair” clause is in some cases fixed by regulation.  But in many cases, the term is left to the interpretation of the courts and France’s consumer protection agency, the DGCCRF.  France created an advisory panel to issue guidance on what constitutes an unfair clause in various circumstances.  On December 3, 2014, the panel published a lengthy opinion identifying 46 clauses in social media terms of use and privacy policies that the panel considers unfair.

The panel criticizes the widespread use of cross-references.  In their view, when terms of use refer to other policies (e.g. privacy policies, acceptable use policies) consumers cannot have a clear understanding of the contract.  The panel points out that provisions drafted in English are unfair under French consumer protection law because French consumers cannot be presumed to understand English.

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.

Any provisions that do not impose a strict duration on the platform’s retention of personal data are unfair because they violate the principles of French data protection law.  The same holds true for clauses that provide for the transfer of personal data outside the EU but don’t give the individual the possibility to provide a specific consent to the transfer.  According to the panel, certain privacy policies shift the burden for keeping personal data secure to the individual.  The panel states that the burden for protecting personal data lies principally with the platform, and that it is unfair to transfer this burden to the individual.

Any provisions that purport to allow the service provider to unilaterally modify its privacy policy without notifying the consumer in advance and giving the consumer an opportunity to terminate the service is also unfair under French consumer protection law.  The same holds true for clauses that require the consumer to regularly check the terms of use and privacy policy to make sure there are no changes.  According to the panel, the platform is responsible for informing the consumer of any changes.  Severability clauses are unfair, says the panel, because they do not take into account the situation in which an invalid clause is critical to the entire agreement.  Finally, choice of law provisions that purport to exclude the application of French consumer protection legislation are unfair.

The panel’s opinion is not binding on courts or on the French consumer protection agency.  However, the opinion has considerable persuasive authority, creating a presumption that the clauses identified in the opinion are unfair under French consumer protection law.  The panel’s opinion shows that consumer protection authorities may become more involved in the enforcement of data protection laws, thus complementing the enforcement actions of the French data protection authority, the CNIL.

Posted in Policy & Regulation, Spectrum, Telecoms & Broadband

U.S. FCC Issues Notice of Violation to Nike for Corporate Wireless System

In the latest example of increased U.S. Federal Communications Commission (“FCC”) enforcement activity, the agency’s Enforcement Bureau has issued a Notice of Violation to Nike Inc., for interference caused by a defective UHF amplifier card in Nike’s corporate Distributed Antenna System (“DAS”) network.  The Notice is an important reminder for all companies that operate wireless equipment to keep a close watch on FCC compliance and enforcement developments.

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Posted in Policy & Regulation, Spectrum, Telecoms & Broadband

U.S. House Republicans Preview 2015 Telecom Agenda: Reform the FCC and Increase Spectrum

With both houses of U.S. Congress coming under Republican leadership, it appears increasingly likely that reform of at least some of the laws governing the telecommunications sector could take place in 2015.  Republicans on the House Committee on Energy and Commerce recently offered a preview of their telecom agenda with the release of a Compilation of Policy Proposals.  The House policy document proposes two key telecom agenda items for future legislative action: reforming the procedures governing the primary telecommunications regulator, the Federal Communications Commission (FCC), and increasing commercial access to government-controlled spectrum.  While it is too early to know whether these proposed legislative changes will be adopted, they could significantly alter the FCC’s rulemaking processes and increase the number of wireless spectrum auctions in years to come.

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Posted in Copyright, Internet, Policy & Regulation, Telecoms & Broadband

U.S. FCC Releases Notice of Proposed Rulemaking to Extend Video Programming Rights to Over-the-Top Video Providers

On December 19, 2014, the U.S. Federal Communications Commission (“FCC”) released a Notice of Proposed Rulemaking (“NPRM”) proposing to give over-the-top (“OTT”) video programming providers certain legacy negotiating and carriage rights with respect to both cable programming (i.e. program access rights) and broadcast television programming (i.e. retransmission consent rights).  As we previously reported, the FCC proposes doing so to facilitate the availability of cable and broadcast television programming to OTT providers and enhance consumer choice and competition in the video market.  Entities providing OTT programming or considering doing so (as well as their competitors) should evaluate carefully the impact of the proposed rules on their businesses and consider submitting comments to help guide the FCC in its efforts to establish rules.  Comments are due February 17, 2015, and Reply Comments are due March 2, 2015.

The NPRM proposes granting program access and retransmission consent rights to OTT providers of linear video programming (i.e. scheduled programs, like those carried on cable channels or aired by broadcast television stations) by expanding the FCC’s definition of “multichannel video programming distributors” or MVPDs, which are entitled to such rights under the FCC’s existing rules.  Under the NPRM, OTT providers of non-linear video programming (i.e. non-scheduled or on-demand programs, like those currently offered by Amazon Prime, Google Play or Netflix) would not have such rights.  Continue Reading

Posted in Copyright, Data Protection & Privacy, Policy & Regulation

European Commission Work Programme for 2015 focuses on Digital Single Market

Just in time before the end of the year, on 16 December 2014, the European Commission adopted its 2015 Work Programme (Link: http://ec.europa.eu/atwork/pdf/cwp_2015_en.pdf). Encouraging the “Digital Market” is amongst the topics high on the agenda. Particularly, the Commission plans to finalize negotiations on the proposed General Data Protection Regulation and Connected Continent package, while also introducing legislation on copyright in a digital world.

By way of background, at the end of each year, the European Commission specifies its priorities for the coming twelve months. The agenda is not legally binding. It is only a list of targets outlining where the Commission’s resources will be focused. The Work Programme for 2015 is primarily based on the ten points of the Political Guidelines previously announced by the new Commission President Juncker. (Link: http://ec.europa.eu/priorities/docs/pg_en.pdf)

A central aspect of next year’s agenda is establishing and deepening “A Connected Digital Single Market“. Its aim is to finalize negotiations on the telecommunications (Connected Continent) and data protection proposals, as well as launch new legislation on copyright. The work programme refers to the feedback the Commission received in the course of the Public Consultation on the Review of EU Copyright Rules in July 2014. Although the expected White Paper has not been published, the Commission affirms the need for reform.

In October 2014, the new Commissioner for Digital Economy and Society, Günther Oettinger, announced a comprehensive revision of European copyright law. The announcement (Link: http://www.handelsblatt.com/politik/international/schutz-geistigen-eigentums-bis-2016-eu-plant-urheberrechtsabgabe-im-internet/10900130.html) reveals that the Commission is planning to introduce copyright levies on the use of copyright-protected works on the Internet. Those levies have been suggested in such a way that companies would have to pay for the online use of works regardless of whether their headquarters is within the EU. The copyright levy seems to be inspired by the new German ancillary copyright for publishers which was adopted a year ago. This ancillary copyright can be used by publishers to charge news aggregators for publishing small pieces of articles (so-called “snippets”). Besides Germany, there will be similar rules in Spain from 1 January 2015.

In conclusion, it is fair to say that in addition to the telecommunications and data protection priorities of the Commission, considerable attention will be devoted to copyright harmonization in 2015.

 

Posted in Policy & Regulation

Australian Government to address online copyright infringement

By: Carolyn Dalton, Executive Director of Policy Australia Pty Ltd

The Australian government has recently announced new initiatives to address concerns about online copyright infringement.  A ‘frequently asked questions’ (FAQ) document about the reforms was also released.  There were two key planks to the announcement:

  1. A call to industry to develop a new industry code within 120 days, or face new binding regulatory arrangements to address online piracy; and
  2. Amendments to the Copyright Act 1968 (Copyright Act) will be made to enable rights holders to apply for a court order requiring ISPs to block access to websites operated outside of Australia which provide access to infringing content (usually referred to as ‘site blocking’).

The new measures will be reviewed after 18 months to assess their operation and effect.

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Posted in Policy & Regulation

Hogan Lovells L.A. Partner Named a Variety Dealmaker of the Year

Los Angeles based corporate partner Sheri Jeffrey was named a 2014 Variety Dealmaker of the Year in recognition of her high-profile work with cross-border investments in the media and entertainment industries.  Variety’s fifth annual Dealmakers Impact Report celebrates “the individuals behind the most significant showbiz deals of the past year.”  A link to the announcement in Variety is here:  https://variety.com/gallery/dealmakers-impact-report/#!27/sheri-jeffrey/

Sheri received recognition for her work this year with companies and organizations around the world, including, among other clients, advising Luc Besson’s EuropaCorp., 21st Century Fox, and newly formed film studio, Studio 8.

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Posted in Data Protection & Privacy

Hong Kong Privacy Commissioner takes lead on Privacy Regulation of Mobile Apps

Privacy regulators are increasingly turning their attention to the manner in which mobile apps collect, process and transmit personal data.

On 9 December, 21 privacy enforcement authorities around the world issued an open letter to seven of the world’s leading app marketplaces calling on them to make app privacy policies available to users prior to downloading.

The open letter was initiated jointly by the Office of the Privacy Commissioner for Personal Data, Hong Kong (the “PCPD”) and the Office of the Privacy Commissioner of Canada. Other signatories to the letter included the UK Information Commissioner, the Privacy Commissioners of Australia and New Zealand and the Vice President of the Korea Internet and Security Agency.

The open letter follows a May 2014 study of over 1,200 mobile apps from around the world which was conducted by the Global Privacy Enforcement Network (“GPEN”), an association of 26 privacy regulators, including the PCPD. The study concluded that a significant number of mobile apps do not make adequate disclosure to users. Specific findings include:

  • 85% of the apps surveyed failed to clearly explain how they were collecting, using and disclosing personal information;
  • More than half (59%) of the apps left users struggling to find basic privacy information;
  • 31% requested an excessive number of permissions to access additional personal information; and
  • 43% of the apps failed to tailor privacy communications to the small mobile device screen, either by providing information in a too small print, or by hiding the information in lengthy privacy policies      that required scrolling or clicking through multiple pages.

In addition to the open letter sent last week, the PCPD has also recently published its own guidance to mobile app developers in Hong Kong. The Best Practice Guide for Mobile App Development can be downloaded in full here: http://f.datasrvr.com/fr1/814/28028/Mobileapp_guide_e.pdf
While the PCPD’s guidance is directed at small and medium sized app developers, the principles set out in the document are important for businesses of all sizes seeking to promote or transact their businesses through mobile apps in Hong Kong or that are engaged in the development of mobile app technologies. In particular, the PCPD’s continued advocacy of “Privacy by Design” – the concept that technology should be developed from the outset with privacy concerns in mind – will be an important business consideration.

Overview of the Hong Kong guidance:

Parts A and B of the guidance provide background information on the application of Hong Kong’s Personal Data (Privacy) Ordinance (“PDPO”) to app development and the six data protection principles that underpin the PDPO.
Part C explains the “Privacy by Design” concept and encourages developers to consider privacy issues throughout the entire development life cycle of the app.
Part D is aimed at apps which access the personal data of their user and provides developers with a checklist for applying the Privacy by Design approach as the app is being developed. Through a series of questions the developer is encouraged to complete a checklist that examines each type of data being collected by the app and to consider, systematically, how the app can be built with the least intrusion to a user’s personal data privacy.
Part E provides some best practice recommendations where user data is accessed or collected by an app and is linked to the information compiled by the developer in the checklist in Part D. In particular, app developers are encouraged to only access the types of data necessary for the app and ensure that their privacy statements are tailored for their particular apps. Privacy policies should state clearly whether the apps would access data on the user’s smartphone, the types of data that would be accessed and why and how such access would be carried out. This information would then allow users to make an informed decision whether or not to download and use the app.
For apps that do not access or collect personal data, Part F of the guidance reminds developers that transparency is one of the cornerstones of the PDPO. Even if no personal data is being collected from users, developers are advised to make this clear to the user through a privacy statement before the app is installed.

Compliance is critical:

The results of the 2013 GPEN global survey were equally disappointing, particularly for Hong Kong, where 60 of the most popular local smartphone apps were reviewed, with many found to be defective. Following last year’s survey, improving privacy and data protection in the use of apps became a key area of focus for the PCPD, which stepped up its educational efforts by conducting seminars targeted at app developers and launching a dedicated website on online privacy at www.pcpd.org.hk/besmartonline.
Failure to comply with data privacy requirements in Hong Kong can have consequences that go far beyond simply monetary fines and other regulatory sanctions: very often reputational issues are also in play. In the latest published figures for 2013, the PCPD reported a 48% per cent increase in complaints and a doubling of enforcement notices. Moreover, the incident and investigations that followed showed a greater willingness by the Commissioner to “name and shame” businesses that he believes have fallen foul of the law, making the consequences of non-compliance far greater than in the past.
Details of the local results for the 2014 GPEN survey are awaited but the lack of publication of those results by the PCPD as the end of the year approaches suggests that little improvement has been made by developers in Hong Kong in the last 12 months. The Privacy Commissioner has already indicated that if standards do not improve enforcement action against offenders will not be ruled out. The timing of the open letter and this latest guidance note suggests that it may be the first in a series of follow up actions to be taken by the PCPD to try and ensure compliance by mobile app developers.

 

Posted in Copyright, Entertainment & Content, Internet, Policy & Regulation

Russian President Signs a Law that Expands the Current Scope of the Anti-piracy Law to all Types of Content

On 24 November 2014, the Russian President signed into law a bill introducing amendments to the so-called Anti-piracy Law[1] and expanding its scope to all types of copyright-protected content available on the Internet, except for photographs (the “Law“)[2]. The Law will take effect on 1 May 2015.

Under the Law the following procedure will become available for copyright and related rights holders wishing to restrict access to audio-visual works which have been placed on the Internet illegally:

-                    the right holder may seek before the Moscow City Court a preliminary injunction against illegal use of content on a particular Internet website;

-                    upon obtaining a preliminary injunction, the right holder may file an application with the Russian state authority in charge – Roskomnadzor[3] – seeking restriction of access to a website containing infringing content;

-                    further, within three business days Roskomnadzor must determine the hosting provider  and send an electronic notification requesting the removal of the infringing content;

-                    within one business day from the date of receipt of notification of the hosting provider must  inform the website owner of the necessity to immediately remove the infringing content from the website or restrict access to such content;

-                    within one business day from the date of receipt of notification of the website owner must  remove the infringing content;

-                    in case the website owner fails to do so, the hosting provider must restrict the access to website within three business days from the date of receipt of Roskomnadzor’s notification;

-                    in case the website owner and/or the hosting provider fail to restrict access to the website, Roskomnadzor sends the information on such website to telecom operators, which must restrict access to the website within twenty-four hours.

In addition to the above procedure, the Law allows the right holder to undertake an out-of-court measure by sending a complaint to the website owner. Within 24 hours from the complaint’s receipt the website owner must cease the infringement or present proof evidencing the lawful use of content on the website. To make this work the Law obliges the website owners to disclose his/her/its name, address and email on the website.

The Law further provides for a possibility of perpetual restriction of access to the website where infringing content was placed repeatedly and this has been confirmed by the court’s ruling. Upon such court’s ruling Roskomnadzor sends the information on such website to telecom operators which in turn must restrict access to the website within twenty-four hours upon receipt of the Roskomnadzor’s notification.

Parallel Initiatives: New Anti-Piracy Legislation vs. Anti-Piracy Fee for Internet Content

In parallel with the discussion on the amendments to the Law the Russian Union of Right Holders (the “RUR“) has proposed fighting piracy by introducing a fixed royalty fee to be paid by the telecom operators to right holders in exchange for unlimited use of almost all types of content on Internet. It is suggested the royalty will be collected by a collecting society accredited by the state. This initiative is now under consideration by the Russian Government.

These two parallel processes (one – introduction of a thorough anti-piracy legislation; and another – introduction of a fixed royalty fee for unlimited use of content on Internet) clearly do not look like a perfect match. We are closely watching both initiatives and will provide further updates.

 


[1]               Federal Law No. 187-FZ dated 2 July 2013 “On amending certain legislative acts of the Russian Federation on protection intellectual rights in information-telecommunication networks” (the “Anti-piracy Law“).

[2]               Federal Law No. 364-FZ dated 24 November 2014 “On introduction of amendments to Federal law “On information, information technologies and the protection of information” and to the Russian Civil Code” is available at (in Russian): http://www.rg.ru/2014/11/27/gpk-dok.html.

[3]               Federal Service for Supervision in the Sphere of Telecom, Information Technologies and Mass Communications.