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Global Media and Communications Watch

The International Legal Blog for the Tech, Media and Telecoms Industry

Posted in Policy & Regulation, Technology Penny ThorntonOliver Wilson

UK regulator publishes consultation on video-sharing platform regulation

On Friday 16 July 2020, the UK communications regulator, Ofcom, published a consultation on video-sharing platform regulation, calling for views by 24 September 2020. The UK government intends to introduce a new statutory framework this Autumn to implement the revised Audio-Visual Media Services Directive, including new obligations on UK-established video-sharing platforms (which the consultation says might include platforms such as TikTok and Twitch). This is an interim regime for the regulation of UK video-sharing platforms until the new online harms framework comes into force. Ofcom is seeking views now from platforms, experts, users and other organisations in order to help shape its approach to regulating video-sharing platforms, both in relation to the legislation expected to come into force in the Autumn and the subsequent guidance on the services which should fall within scope.


Services in Scope

The government intends to define video-sharing platforms (VSPs) in accordance with the Audio-Visual Media Services Directive (AVMSD). The AVMSD defines VSPs as services where “the principal purpose of the service…or an essential functionality of the service is devoted to providing programmes and/or user-generated videos to the general public, for which the VSP provider does not have editorial responsibility…”. However, the consultation says Ofcom will issue guidance for services in the Autumn to help them understand a) whether they fall within the definition and b) whether they fall under UK jurisdiction. The consultation lists six potential VSPs which are likely to fall under UK jurisdiction: Twitch, TikTok, LiveLeak, Imgur, Vimeo and Snapchat. YouTube, on the other hand, is said to be likely to fall under Irish jurisdiction, as it is headquartered there.

The revised AVMSD also introduces new requirements for On Demand Programme Services (which are the on-demand services currently regulated under the AVMSD) and changes the relevant definitions. Consequently, the Government recognises that this a potentially complex area, where companies will require further guidance to help them determine which category their services fall into.

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Posted in Internet of Things Raphael Fleischer

Consumer IoT – European Commission initiates inquiry into the consumer Internet of Things sector

The European Commission (“Commission”) has launched an antitrust sector inquiry into the Internet of Things (“IoT”) sector for consumer-related products and services within the European Union. The Commission is looking to develop a better understanding of how this fast-moving sector works and some of the potential issues that may arise from a competition law perspective. The regulator intends imminently to send requests for information to a range of players in this sector and already plans to publish a preliminary report on its findings in the spring of 2021. As such, the inquiry offers companies in the IoT sector an opportunity to steer the Commission’s approach to competition in this area.

On 16 July 2020, the Commission announced that it has launched an antitrust sector inquiry into the consumer IoT sector – a sector offering consumer-related products and services that allow users to control their surroundings through the internet – for example, through a voice assistant or a mobile device. A sector inquiry, based on Article 17 of Regulation 1/2003, is an investigation into a sector(s) of the economy that the Commission carries out when it has reason to believe that the sector in question is potentially not functioning properly from a competition law perspective. The IoT review follows other sector inquiries conducted in recent years by the Commission (in financial services, energy, pharmaceuticals and, most recently, in e-commerce).

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Posted in Policy & Regulation, Telecoms & Broadband Mark BrennanArpan Sura

U.S. Supreme Court Finds TCPA’s Federal-Debts Exemption Unconstitutional; Leaves Rest of TCPA Intact

On June 6, 2020, the U.S. Supreme Court issued its decision in Barr v. American Association of Political Consultants, Inc., et al., settling an issue that has lingered over litigation under the Telephone Consumer Protection Act (TCPA) for the past several years. In a badly fractured opinion featuring multiple concurrences and dissents, a majority of the Court held that the TCPA’s federal-debts exemption, which immunizes from liability “calls made solely to collect a debt owed to or guaranteed by the United States,” was a content-based law that violated the First Amendment.  Instead of striking down the TCPA’s autodialer restriction in its entirety, as the respondents requested, the Court’s majority severed the federal-debts exemption from the remainder of the TCPA.  As a result, the TCPA’s autodialer restriction lives to see another day.

Procedural History

The TCPA was enacted in 1991 to restrict telemarketing activities and the use of automated dialing systems and artificial or prerecorded messages, often referred to as robocalls. As originally enacted, the TCPA prohibited almost all robocalls to cell phones placed without prior express consent.  The 2015 Bipartisan Budget Act, however, exempted from the prior express consent requirement calls made solely for the purpose of collecting a debt owed to or guaranteed by the United States (the federal-debts exemption). In 2016, American Association of Political Consultants, Inc. (AAPC) filed a lawsuit alleging that, in light of the new federal-debts exemption, the TCPA’s continuing ban on all other calls to cell phones violated the First Amendment. AAPC sought a declaratory judgment that the entire provision banning calls to cell phones was an impermissible content-based restriction on speech and an injunction preventing enforcement.

In 2018, a North Carolina federal court denied AAPC’s request for declaratory and injunctive relief. The district court agreed that the cell phone call ban with the federal-debts exemption was a content-based speech restriction subject to strict scrutiny, but it determined that the provision survived strict scrutiny because of the government’s compelling interest in collecting debt. The Fourth Circuit vacated the district court’s judgment in 2019, concluding that the cell phone ban as amended to include the federal-debts exemption could not survive strict scrutiny. Rather than invalidating the entire cell phone call ban as AAPC sought, the Fourth Circuit concluded that the federal-debts exemption was severable from the rest of the provision.

The Decision

In a fractured decision, the Court struck down (by a 6-3 vote) the federal-debts exemption under the First Amendment, holding that the exemption was a content-based restriction on speech that could not survive strict scrutiny. The Court also determined (by a 7-2 vote) that severing the federal-debts exemption from the remainder of the TCPA was the appropriate remedy.

In the controlling plurality opinion, Justice Kavanaugh concluded that the law was a content-based speech restriction because it “favors speech made for collecting government debt over political and other speech.” He also agreed with the government’s concession that “it ha[d] not sufficiently justified the differentiation between government-debt collection speech and other important categories of robocall speech.” On the issue of severability, Justice Kavanaugh first noted that AAPC’s broader initial argument for holding the entire robocall restriction unconstitutional was unpersuasive. Then, applying general severability principles, he concluded that the Communications Act’s severability clause and the presumption of severability required severing the federal-debts exemption.

Key Takeaways

As Many Questions As Answers. The Court’s opinion raises new issues that could factor into future TCPA litigation, including:

  • How might courts address content-based speech restrictions that differentiate between speakers, as opposed to the restrictions at issue in AAPC, which the Court found were message-based?
  • What justifications for content-based speech restrictions are sufficient to satisfy strict scrutiny?

Grandfathered Relief for Federal Debt Collectors. The Court specifically clarified that “no one should be penalized or held liable for making robocalls to collect government debt after the effective date of the 2015 government-debt exception and before the entry of final judgment by the District Court on remand in this case, or such date that the lower courts determine is appropriate.”

Autodialer Issue Remains Unresolved. The Court did not weigh in on a critical unsettled TCPA issue:  what constitutes an “automatic telephone dialing system” under the statute?

Next Steps

The Court may have another TCPA case on the horizon: Facebook v. Duguid, on petition for certiorari before the Supreme Court from the Ninth Circuit, raises the question of what types of technology qualify as an “automatic telephone dialing system” under the TCPA.

In the meantime, companies should continue to ensure that their activities comply with the TCPA’s requirements, and companies that previously benefitted from the federal-debts exemption will need to develop new procedures to ensure compliance.

Posted in Intellectual Property, Internet Brendan C. Quinn

U.S. Supreme Court rejects categorical rule that generic term plus “.com” results in a generic composite

The United States Supreme Court holds that adding a top-level domain, like “.com”, to an otherwise generic term does not automatically result in a generic composite, and that a genericness determination must consider the significance of the term to consumers. The case is U.S. Patent & Trademark Office v. Booking.com B.V., U.S., No. 19-46 (2020).


Booking.com – an online travel company that provides hotel and other reservation services – filed four trademark applications for the mark “Booking.com” with different visual features. The United States Patent and Trademark Office (the “PTO”) and Trademark Trial and Appeal Board denied registration on the basis that “booking” is generic for travel reservations and “.com” merely signifies a commercial website.

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Posted in Policy & Regulation

Webinar: How to effectively do business with UK government

Doing business with governments – winning opportunities, negotiating successfully, and delivering profitability – is an art and a science. At a time of unprecedented government intervention, it has never been more important to ensure effective engagement, whether to win new contracts or secure investments, grants, or loans. You know how to succeed in the United States. In this webinar, we want to equip you to navigate the UK government environment by:

  • Highlighting similarities and differences between the UK and U.S. regulatory, procurement, and political systems.
  • Giving you insights into how the UK government thinks and behaves.
  • Helping you understand the tools available to you to succeed.

Led by lawyers from both our UK and U.S. offices, we will cover:

  • The legal and policy environment.
  • How to gather intelligence and build credibility within UK government.
  • How to stick by the rules and win.
  • How to negotiate with UK government at speed and under pressure.
  • Lessons learned from complex projects.

We would be delighted if you could join this interactive session focused on helping in-house counsel in U.S. businesses navigate the intricate network of UK government institutions, policies, and processes crucial for doing business successfully.

To register, please click here.

Date: 1 July 2020

Time : 10:30 a.m. – 11:30 a.m. EDT | 3:30 p.m. – 4:30 p.m. BST

Moderator: Michael J. Vernick, Head of the Government Contracts practice, Washington, D.C.

Speakers

Posted in Data Protection & Privacy Elisabethann Wright

Belgian DPA Issues Guidance on Temperature Measurements in the Context of COVID-19

In the context of their return-to-work policies companies are seeking solutions to detect individuals with fever at the entrance of their premises with the aim of preventing further contamination within the buildings. This can be achieved by means of conventional thermometers, digital fever scanners directed at the forehead of the person, or sophisticated thermal camera systems. The Belgian Data Protection Authority has issued a guidance in which it adopts a strict position regarding the implications of temperature screenings for individuals’ data privacy rights. More specifically, it provides that the simple act of taking a temperature falls within the scope of the GDPR even if the temperature measurement itself has not been recorded. The guidance also provides that in light of Article 4, paragraph 2 of the GDPR, measuring temperature by means of an advanced digital process is subject to the requirements of the Regulation.

On 5 June 2020, the Belgian Data Protection Authority (DPA) issued a guidance regarding temperature screenings within the context of the return-to-work policies developed by companies following the COVID-19 pandemic. In the guidance, the Belgian DPA addresses, among others, the privacy concerns arising from different methods of temperature screening.

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Posted in Artificial Intelligence, Policy & Regulation

Outlook on a common liability framework for high-risk AI systems in the EU

In May 2020, the European Parliament’s Committee on Legal Affairs took the initiative and published a draft report with recommendations to the Commission on a civil liability regime for artificial intelligence (AI) (the Draft Report). The Draft Report provides an outlook on some of the legal concepts that will be subject to discussion in a future legislative process.

Directive 85/374/EEC (PL Directive) and the Draft Report are considered by the Committee as two pillars of a common liability framework for AI systems and it acknowledges that such a project requires close coordination between all political participants. The Draft Report recommends drawing up an EU regulation on liability for the operation of AI systems and presents a proposal for such a regulation. The proposal suggests strict liability on the part of the “deployer” of certain “high risk” AI systems and an intensification of the deployer’s liability for other AI systems.

The debate on the appropriate legal concept for AI liability is ongoing. We therefore assume that the Draft Report will still be subject to amendments. Also, the proposal to implement the concept by way of a regulation, i.e. an act directly applicable in the Member States, could entail further discussions, as product liability was harmonized by way of the directive.

The amendments to the Draft Report are expected to be debated in the Legal Affairs Committee in late June or early July 2020. A vote on the report is scheduled for 28 September 2020, followed by a plenary vote in October 2020.

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Posted in Data Protection & Privacy

Facial Recognition Challenged by French Administrative Court

In a decision (French only) dated 27 February 2020, the French Administrative Court of Marseille invalidated the deliberation of the Provence-Alpes-Côte d’Azur Regional Council which allowed to set up, on an experimental basis, a facial recognition mechanism in two high schools in order to (i) better control and speed up entry of students into the high schools and (ii) control access to premises of occasional visitors.

This decision is important as this is the first administrative court decision in France about facial recognition. Since the GDPR entered into force, it is also the first French administrative court decision relating to data protection not based on a deliberation issued by the French Data Protection Authority (CNIL), which was already quite uncommon before GDPR’s entry into force.

Facts and procedure

On October 2017, the President of the Provence-Alpes-Côte d’Azur Regional Council consulted the CNIL to request its assistance in setting up, on an experimental basis, a facial recognition system in two high schools in the South of France to be used at the entry and inside the premises to control access of students and visitors. Although the experiment had not been authorized by the CNIL, the Regional Council, in a deliberation (French only) dated 14 December 2018, decided to launch it. Expressly opposed to this measure, several French data protection and human and civil rights associations, including the French association “La Quadrature du Net“, filed an action for annulment of the Regional Council’s deliberation before the French Administrative Court of Marseille on 14 February 2019.

In the meantime, the Regional Council pursued its discussions with the CNIL and communicated to it the data protection impact assessment (DPIA) drafted for the facial recognition experiment. On October 29, 2019, the CNIL finally published on its website a press release (French only), in which it considered, based on the finalized version of the DPIA communicated by the regional council, that the experiment, which concerned students, most of whom were minors, with the sole aim of making access to their high schools more fluid and secure, was neither necessary nor proportionate to achieve the intended purposes.

In its decision (French only) of 27 February 2020, the French Administrative Court of Marseille took up most of the points raised by the CNIL in its press release and invalidated the decision of the Regional Council insofar as it (i) had not provided sufficient guarantees to obtain free and informed consent of students to the processing and (ii) did not demonstrate that the purpose of checking the entrances to the high schools could not be achieved by other, less intrusive means.

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Posted in International Trade and Investment Brian Curran

Two Key CFIUS Developments: CFIUS Publishes 2018 Annual Report and Proposed Regulations Revising Critical Technologies Mandatory Filing Program

CFIUS Publishes 2018 Annual Report

The Committee on Foreign Investment in the United States (CFIUS), a U.S. government interagency committee that conducts national security reviews of foreign investments, recently released its 2018 annual report. The report takes into account cases reviewed by CFIUS both before and after the August 2018 enactment of the Foreign Investment Risk Review Modernization Act (FIRRMA), which expanded CFIUS’ jurisdiction and enabled CFIUS to implement a pilot program that mandated filings for certain transactions involving critical technologies. The annual report confirms that, in 2018, China topped all foreign investors for the seventh year in a row, and describes CFIUS’ review of the first declarations submitted under the CFIUS pilot program.

Proposed Rule Would Alter Mandatory Filing Requirements

On 21 May 2020, CFIUS also published a proposed rule (the Proposed Rule) in the Federal Register that, among other things, would alter the requirements for the critical technologies mandatory filing program implemented on February 13, 2020 (essentially the successor to the pilot program). The Proposed Rule seeks public comment within 30 days of its publication. The Proposed Rule would replace the “industry” criterion of the critical technologies mandatory filing program with a criterion related to whether certain U.S. government authorizations would be required to export, re-export, transfer (in country), or retransfer the “critical technology” that the U.S. business produces, designs, tests, manufactures, fabricates, or develops to certain transaction parties and foreign persons in the ownership chain.

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We will continue to monitor this space for further developments. For further information or assistance regarding transactions potentially subject to CFIUS’ jurisdiction, please do not hesitate to contact any of the authors.

Posted in M&A

Negotiating M&A transactions in the COVID-19 era: considerations for navigating new opportunities in uncertain waters

As businesses around the world continue to adapt to new day-to-day realities and challenges brought about by the COVID-19 pandemic, priorities necessarily shift to near-term concerns. Nevertheless, times of significant disruption also give rise to new opportunities for both strategic buyers and financial sponsors.

Whether in the form of distressed M&A, defensive M&A, or strategic combinations – many industries are expected to see rapid, significant change in the weeks and months ahead. Evaluating M&A opportunities in the world that will exist as economies around the globe find a way forward calls for a fresh, comprehensive approach to thinking through every aspect of a transaction – and with this we could see some divergence from pre-COVID-19 market practice.

This is necessary not only to account for how the world has changed already, but also to anticipate and prepare for the uncertainties that lie ahead.

Click here to read our thoughts on some of the key issues to consider when negotiating M&A transactions in the COVID-19 era and how we expect the approaches taken by buyers and sellers to differ from those taken previously.