Businesses may often use peer-to-peer (“P2P“) telemarketing calls involving interpersonal communication to promote goods and services directly to customers. While such calls may be effective in some cases, they appear to be not so welcomed by customers in Hong Kong. A 2015 government consultancy study in Hong Kong reports that an overwhelming 96% of call recipients considered such calls as nuisance, with many not answering or hanging up soon after.
Considering public sentiment towards P2P calls, the Hong Kong Commerce and Economic Development Bureau (“CEDB“) recently launched a public consultation on measures to boost P2P regulation of telemarketing. Three options have been proposed. In particular, CEDB is looking to consider non-statutory regimes to be implemented alongside statutory options that tend to take more time to come into effect. Public consultation will close on 31 July 2017.
Current regulatory framework
There is currently no specific regulation on P2P telemarketing calls in Hong Kong. The Personal Data (Privacy) Ordinance (“PDPO“) controls direct marketing activities only where there is use of personal data. In reality, many P2P calls are cold calls that do not involve the use of personal data and therefore remain unregulated by PDPO.
On the other hand, the Unsolicited Electronic Messages Ordinance (“UEMO“) also does not cover P2P calls. UEMO only regulates the sending of commercial electronic messages such as faxes, e-mails, text messages and pre-recorded telephone calls. The current Do-not-call Registers administered by the Office of the Communications Authority which allow the public to unsubscribe from unsolicited faxes, text messages and pre-recorded telephone calls do not cover P2P calls.
The Federal Communications Commission (“FCC”) has released a draft Second Report and Order and Further Notice of Proposed Rulemaking on renewal requirements and permanent discontinuance rules for a variety of wireless services. The Draft Further Notice proposes new rules—such as additional renewal term construction obligations to enhance rural build-out—that, if adopted, would have far-reaching implications for wireless licensees.
In 2010, the FCC proposed to “create consistent requirements for renewal of [wireless spectrum] licenses and consistent consequences for discontinuance of service, and to clarify construction obligations for spectrum licenses that have been divided, by geographic partitioning or disaggregation of the spectrum.” The FCC did not adopt a final order implementing the proposed rules under Chairmen Julius Genachowski or Tom Wheeler, but current FCC Chairman Ajit Pai issued a request for the public to “refresh the record” in June 2017. The Draft Order currently on circulation addresses the comments filed in 2010 and the latest round of comments.
The Draft Order adopts new, streamlined renewal standards for all wireless radio service (“WRS”) licenses, including both geographic and site-based licenses. To qualify for renewal, each WRS licensee must demonstrate that it provided service to the public or operated to address private, internal communications needs over the course of its license term.
On July 13, the United States (“US”) Federal Communications Commission (“FCC”) issued a decision allocating a contiguous 5 GHz band of radio frequency spectrum for vehicular radar operations. The decision implemented in the US a 2015 decision by the International Telecommunications Union (“ITU”) to harmonize such spectrum globally for vehicular radar use, making it possible for such systems to be manufactured much more cheaply than in the past dues to global economies-of-scale. This decision is important because the very large amount of contiguous spectrum allocated allows for high resolution. High resolution enables vehicles to determine with greater specificity the objects that exist in their immediate environment, an important element for the safety of automated and autonomous driving. The FCC’s decision also marks the first time that the US has granted interference protection to vehicular radars. Prior to this decision, all vehicular radar systems on US roadways have been required to operate solely as low-power “unlicensed” devices, without any formal rights to be free from interference. In recognition of the need to ensure the safest operating environment possible for vehicular radars, the FCC denied requests to allow fixed radar systems to operate ubiquitously in the 76-81 GHz band under the same technical rules as vehicular radar. Instead, the FCC allowed only very limited non-vehicular radar use for foreign object debris detection on airport runways, where vehicular radars are not likely to be present. In this decision, the FCC consolidated all long-range and short-range vehicular radar operations in the 76-81 GHz band, removing such devices from the 16.2-17.7 GHz and 46.7-46.9 GHz bands, and establishing a gradual phase out (with grandfathering for the life of the equipment) of unlicensed wideband and ultra-wideband (“UWB”) vehicular radar operations in the 23.12-29.0 GHz band and the 22-29 GHz bands. Finally, the FCC left intact existing rules that allow for the operation of so-called 24 GHz “narrowband” vehicular radar. These legacy systems, which are widespread and operate on an unlicensed basis under Sections 15.245 and 15.249 of the FCC’s rules, can continue to be sold and operated in perpetuity in the US.
Earlier this year, the National Association of Corporate Directors (NACD) released an updated version of its Director’s Handbook on Cyber-Risk Oversight (Handbook). The updates add 16 pages of content to the previously 28-page document, including four additional appendices. While the use of and compliance with the Handbook is not mandatory, the Handbook is influential in shaping governance practices and thus it is prudent for those involved in corporate governance to familiarize themselves with the changes.
The Handbook, first released in 2014, provides Boards of Directors with guidance on implementing board-level cyber-risk oversight programs. The Handbook is part of the NACD’s Director Handbook series, which reports and comments on widespread governance practices to help directors discharge their duties appropriately.
The NACD’s issuance of an update to its Handbook in just three years signals that cybersecurity-related governance expectations of companies and directors are evolving.
Like the 2014 version, the Handbook offers five key principles for board-level cyber-risk oversight. These principles are intended to be adapted by each board based on the organization’s unique characteristics, such as size, industry, business plans, and strategy. The five principles are as follows:
In our 21 June blog we reported that the text of this, the first legislative proposal published by the Commission under the Digital Single Market strategy banner, had been finalised by the European Parliament and Council. The Regulation on ensuring the cross-border portability of online content services in the internal market ((EU) 2017/1128), to give it its formal title, has now been published in the Official Journal of the European Union (on 30 June 2017). That means the key dates for businesses providing portable online content services are now known. These are:-
20 March 2018: Regulation becomes applicable, with direct legal effect in all EU Member States.
By this date providers of paid-for online content services which are portable in subscribers’ home Member States must have enabled access for subscribers to those same services when they are temporarily present in another Member State, and without any additional charge.
There is no such obligation on providers whose services are not paid for, but those providers may opt in at any time. If they do, they must first inform their subscribers and all the holders of rights in the content accessible via their service. In other respects, once opted in, the Regulation applies to these service providers with equal effect.
Instagram recently rolled out a new feature to a select group of its users who use the social media platform for promotional purposes. This tool allows influential users to add a new subheading to posts that reads “Paid partnership with…” It is designed to help users clearly and conspicuously tag the brand that sponsors a post. The announcement comes just two months after the Federal Trade Commission (FTC) focused its attention, for the first time, on influential Instagram users and raised concerns about whether certain users were violating FTC Endorsement Guidelines. Instagram claims its new feature will bring “more transparency to commercial relationships” between Instagram influencers and the brands they promote.
The world of sponsored social media posts has become so convoluted that Buzzfeed News now publishes a regular column titled “Is This an Ad?” The column investigates ambiguous social media posts to determine whether the poster has an undisclosed partnership with the brand they are promoting. For example, one celebrity posted an Instagram photo with the caption “Thanks for getting me to the Hamptons, @lyft!” While it is not clear from the description, a bit of investigation revealed that the celebrity has an ongoing partnership with Lyft and received a free ride immediately before touting the company on Instagram. The new Instagram tool aims to avoid ambiguous posts like this one by ensuring disclosure in compliance with FTC Endorsement Guidelines.
On June 19, Hogan Lovells Washington D.C. hosted a panel to discuss Europe’s Digital Single Market (DSM) initiative and how the European Union’s strategic plans might affect trade and business relations between the United States and Europe.
Hogan Lovells partners (Brussels) were joined by Andrea Glorioso, Counselor for the Digital Economy at the Delegation of the European Union to the United States; Kelsey Guyselman, Counsel at the U.S. House of Representatives; and Adam Sedgewick, Technology Advisor at the National Institute of Standards and Technology. The panel discussed a range of political and economic implications of the Digital Single Market and how U.S. companies might anticipate and respond to any coming changes.
Political Considerations in the Single Market
The panelists discussed the realities of the DSM as a political—as well as an economic—project. For the panel, these realities were most recently exemplified by the new ban on mobile roaming charges in the European Union. The process took over a decade to fully realize, according to Mr. Glorioso, and balanced political, business, and consumer needs on the one side with the economic realities identified by the Commission.
We are pleased to invite you to the next webinar in our Internet of Things series, taking place on 26 July at 12.00 P.M. EDT/5:00 p.m. BST, focusing on connected vehicles and smart cars. This session promises an insightful and comprehensive look at the most important legal issues involving connected vehicles, from autonomous driving to new mobility solutions. The discussion will be highly relevant to automotive companies, suppliers and technology firms.
Joining moderator Lance Bultena to dissect the IP, privacy and communications legal issues posed by these evolving and disruptive technologies will be Hogan Lovells partners Ari Fitzgerald, Audrey Reed and Tim Tobin.
Our Automotive Group head and Munich partner, Patrick Ayad, will then take questions from the panel on commercial issues before moving to top Washington, D.C. litigator Michael Kidney, who will assess the product liability risks associated with this fast-moving industry.
We will end by taking your questions.
Future sessions of this webinar series will focus on other aspects of the increasingly complex IoT environment, including commercialization and dispute resolution challenges, highlighting discussions on:
- Spectrum and infrastructure
- Commercial and M&A
Click here to register for this webinar.
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:
European Commission proposed amendments to draft RTS on SCA: amongst other things, the Commission has proposed a new exemption to strong customer authentication and independent auditing of the transaction risk analysis exemption.
Implementation of MLD4 in Germany: Deutsche Bundestag adopts draft law implementing MLD4 by amending the existing German Anti-Money Laundering Act.
Joint Committee of the ESAs consults on draft RTS under Article 45(6) MLD4: the draft RTS specify the minimum anti-money laundering measures firms must put in place where a uniform approach cannot be applied across a group structure.
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.
Swiftly following the CJEU decision in Filmspeler (see our blog post), in which the Court found that the selling of multimedia players with add-ons to illegal streaming websites amounted to copyright infringement, the CJEU has confirmed that an indexing site such as the infamous website, The Pirate Bay, can be liable and as a result, internet service providers (ISPs) can be ordered to block those websites (judgment of 14 June 2017, C‑610/15 – Stichting Brein v Ziggo and XS4ALL Internet).
The focus of the legal proceedings is the website The Pirate Bay which is in fact not a party directly involved in the dispute. Rather, the Dutch organization Stichting Brein who is fighting against piracy applied for an injunction against two telecom companies in the Netherlands, Ziggo and XS4ALL. Stichting Brein demands that the two ISPs block access to The Pirate Bay website because it infringes copyright.
The Pirate Bay serves as a popular website that enables users to find and download – mainly illegal – content on peer-to-peer file sharing websites. Instead of storing the content on The Pirate Bay, the so-called BitTorrent Index allows the website operator to index the metadata on protected works that is available on peer-to-peer networks by third parties and to categorize the metadata for the users. Consequently, The Pirate Bay operates as a search engine.
Stichting Brein was arguing that The Pirate Bay itself infringes copyright. However the ISPs argued that it is not The Pirate Bay but the actual users that infringe copyright and that they therefore cannot block the website.