On 3 May 2016, the French Senate adopted a new version of the French Digital Bill. Below is what you should know about it, bearing in mind that this saga is not over yet as the Bill will now have to be reviewed by a Joint Committee composed of Senators and Deputies, in the next coming weeks.
The definition of operators of online platforms overall remains the same. The Senate merely reiterated that the purpose of this provision is not to create a third category of intermediaries but to suggest a regime that would be added to the editor and hosting provider regimes. Regarding price comparison websites, they will eventually be covered by the definition of platforms as the specific Article of the French Consumers Code governing them will be deleted.
If the definition of the platforms has almost not been modified, the Senators on the contrary substantially developed the obligations lying on them.
The UK Government has announced the key themes of a new Digital Economy Bill.
Reflecting an alignment in several areas with the priorities of the EU’s Digital Single Market initiative, the Bill will have a number of areas of focus:
- A potential new universal right to 10Mbps broadband with the possibility of speeds increasing the future
- An overhaul of rules covering the physical roll-out of networks to make deployment easier
- Enhanced consumer rights to help improve the B2C broadband market
- Greater alignment of online and offline copyright laws
- Reform of the rules applying to government use of data to enhance effectiveness
- Enhanced protection from “nuisance” market emails and calls
- Age verification for use of digital services containing pornographic materials.
Whilst the new bill will make changes in a number of important areas, seen in the round it is likely to represent evolution rather than revolution.
On 29 January 2016, Hong Kong’s Court of First Instance quashed a 2013 decision (“Decision”) by the Communications Authority (“CA”) – upheld by the Chief Executive In Council (“CEIC”) – against Television Broadcasters (“TVB”), primarily on the grounds that the CA and CEIC are inherently political entities lacking objective impartiality as decision makers due to their concurrent policy, advisory and executive roles.
While the Decision was ultimately set aside on constitutional grounds, as the CA and CEIC were not found to be an independent and impartial tribunal, the Honourable Justice Godfrey Lam of the Court of First Instance upheld most of the competition analysis by the CA and confirmed that TVB’s practices were anticompetitive. As the first President of the Competition Tribunal under Hong Kong’s new competition regime, Justice Lam’s judgment provides considerable insight as to how future competition cases might be interpreted in Hong Kong.
September 2013 Decision
In September 2013, the CA found that TVB had violated the antitrust provisions of the Broadcasting Ordinance, in that the station had imposed certain restrictions with their artistes and singers with the purpose and effect of restricting or distorting competition in the Hong Kong television programme service market (“downstream market”). The restrictions included the:
Big data is no longer a term used only by the digital economy. Competition law agencies in Germany and France significantly ramp-up their enforcement tools in the light of technology-driven market changes. As regulators aim at being on par with market players dealing with big data, such companies need to carefully analyze whether the approach taken in the EU can affect any planned transactions or whether their business model contains any risks of being reviewed by the agencies.
The German Bundeskartellamt (Federal Cartel Office or FCO) and the French Autorité de la concurrence (French Competition Authority) on 10 May 2016 published a joint report on Competition Law and Data (Report). The same day, the French Competition Authority announced the launch of a “full-blown sector inquiry into data-related markets and strategies” towards the end of this month. This follows an investigation by the FCO launched two months ago into whether a potential breach of data protection rules can constitute an abuse of dominance.
On May 13, 2016, Ofcom published a consultation on its proposals for increasing the amount of radio spectrum available for Wi-Fi in the 5 GHz band to deliver high speed wireless broadband for consumers.
News site Politico this week leaked a draft proposal for an EU Regulation on addressing geo-blocking and other forms of discrimination based on place of residence or establishment, or nationality within the Single Market. (And as a reminder – the phrase “geo-blocking” in this context refers to access limitations to websites generally rather than blocking audio-visual content – and indeed this is specifically excluded from the scope of the proposal (see below).) As we reported earlier (see here and here), this proposal was expected and follows from the e-commerce sector inquiry and the public consultation on geo-blocking which the European Commission conducted last year. It is expected that the final proposal will be published on or around 25 May 2016.
On 13 April 2016, the Beijing High People’s Court released the Trial Guidelines on Network Related Intellectual Property Right Cases (“Guidelines”). To a large extent, the Guidelines seem to be an attempt to codify the vast – and at times inconsistent – case law in this area by courts across China.
The issuance of the Guidelines represents the second codification effort within a relatively short period of time, after the circulation of the draft amendments to the Anti-Unfair Competition Law (“AUCL”) for public comment in February 2016.
Over the past few years, many of China’s largest Internet companies were entangled in legal disputes under the AUCL. These disputes involved “new types” of conduct such as ad-blocking; enabling users free access to others’ non-free content; inducing users of other products to use one’s own products; etc.
Given the lack of specific rules on Internet-based conduct in the AUCL, courts have dealt with these cases mainly on the basis of Article 2, a provision referring to the high-level principles of voluntariness, equality, fairness, honesty, good faith, etc. From these high-level principles the courts have developed other, more concrete principles – such as that of “non-interference” with legitimate operations of competitors – though the case law is uneven across different courts in China.
Welcome to the Hogan Lovells Global Payments Newsletter. In this monthly publication we provide an overview of the most recent payments, regulatory and market developments from major jurisdictions around the world as well as sharing interesting reports and surveys on issues affecting the market.
Key developments of interest over the last month include:
- Branchless banks: Mobile-only start up Atom Bank goes live in the UK following the lifting of regulatory restrictions.
- Fintech booms in Asia Pacific: Study reveals fintech investment in Asia Pacific quadruples to US$4.3bn in 2015.
- Blockchain breakthrough: Seven Wall Street firms successfully test blockchain for credit default swaps.
To view a PDF of the full Newsletter please click here. You can also follow us on Twitter at @HLPayments for regular news and updates.
China’s media and publishing regulator, the State Administration of Press, Publication, Radio, Film and Television (“SAPPRFT“), and its telecoms and Internet regulator, the Ministry of Industry and Information Technology (“MIIT“), have jointly issued new rules governing online publications in the People’s Republic of China (“China” or the “PRC“): the Online Publication Services Administrative Provisions (网络出版服务管理规定) (the “Online Publication Provisions“). The Online Publication Provisions were issued on 4 February 2016 and came into effect from 10 March 2016.
Foreign Investor Concerns
The Online Publication Provisions have raised a number of concerns among foreign investors in China, largely due to the expansive scope of what SAPPRFT and MIIT have defined as constituting “online publishing services”, coupled with a complete ban on foreign invested enterprises such as Sino-foreign joint ventures (“JVs“) and wholly foreign-owned enterprises (“WFOEs“) (collectively “FIEs“) from engaging in such activities. Not only are FIEs not allowed to directly participate in online publishing activities, but also all “cooperation projects in relation to online publishing business” (not further defined) between overseas entities, individuals and/or FIEs on the one hand and (domestic capital licensed) online publishers on the other are subject to prior approval by SAPPRFT. This may be an issue for cross-border content licensing transactions, particularly as the approval requirement is somewhat counter-intuitive to foreign investors even if you are familiar with the current direction in which China is heading in this area.
The new EU General Data Protection Regulation (GDPR) is finally with us. All change. All affected. Now is the time to pay attention.
Businesses have two years to prepare for the new GDPR, which will become fully enforceable on 25 May 2018.
Our Privacy and Cybersecurity team has issued an up to date practical guide, Future-proofing privacy, co-authored by 24 lawyers from 10 European Hogan Lovells offices. The guide is a unique resource to help your business understand the new rules, identify their impact and comply with them in a practical and viable manner.
Click here to download our guide.