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Global Media and Communications Watch

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

Posted in e-commerce, Internet, Policy & Regulation, Technology Christian Ritz

Digital competition policy on the move: Price algorithms in the German Monopolies Commission’s spotlight – European Commission launches consultation process

Price algorithms are clearly the “talk of the town” in the European competition law community these days. Just last week, the German Monopolies Commission published a report in which it discusses potential anti-competitive effects of price algorithms and proposes far-reaching amendments to the competition law enforcement framework. Meanwhile, the European Commission has announced a consultation process with a view towards shaping competition policy in the era of digitisation.

Price algorithms in the focus of European competition authorities

Across Europe, competition authorities are currently putting a focus on algorithms. In recent weeks, both the Federal Cartel Office and the Austrian Federal Competition Authority have addressed the question of whether the use of price algorithms can lead to excessive ticket prices in the airline industry. In addition, the Luxembourg Conseil de la Concurrence investigated whether the price algorithm used by a taxi app violated antitrust law. Finally, the French Autorité de la Concurrence and the Federal Cartel Office announced the launch of a joint research project to investigate algorithms and their implications on competition.

Monopolies Commission: Serious risks to competition

It its 22nd Biennual Report, published on 3 July 2018, the Monopolies Commission devotes an entire chapter to the issue whether, and if so, to which extent the use of price algorithms may enable or even facilitate infringements of competition law. The Monopolies Commission is an advisory board advising the German Federal Government, the legislation and the general public in the area of competition policy, competition law and regulation. Although the Monopolies Commission has no direct means of intervening, it nevertheless exerts considerable influence on the legislative process as well as public opinion through its Biennial Reports on current competition policy issues.

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Posted in Advertising, Policy & Regulation Eugene Low

Episode two: Hong Kong relaxes regulations on product placement

The Communications Authority (“CA”) recently issued its decision to relax existing regulations on indirect advertising (commonly known as product placement) in television programmes (“TV programmes”) and to lift bans on advertisements for undertakers and associated services. We have previously discussed the CA’s decision in September 2017 to review its Generic Code of Practice on Television Programme Standards and Generic Code of Practice on Television Advertising Standards (together, the “Codes“) in our article: Opening the door for product placement in Hong Kong? (link).

The CA conducted a one-month public consultation in April this year to gauge public views on its relaxation proposals, which were devised from an industry consultation with domestic TV licensees and studies conducted on TV advertising regimes in other major jurisdictions around the world. 63% of the respondents in the public consultation agreed that a general prohibition on indirect advertising (subject to exceptions on the types of TV programmes) should be lifted.

Major Changes suggested by the CA

  • Product Placement refers to the inclusion of products/services within a programme in return for payment or valuable consideration received by a licensee. Under the new regime, product placement in TV programmes is allowed as long as the products/services are presented in a natural and unobtrusive manner and there is no direct encouragement of purchase or use of the products/services.

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Posted in Broadcasting, Copyright, Cybersecurity, Data Protection & Privacy, Digital Single Market (EU), e-commerce, Policy & Regulation, Technology, Telecoms & Broadband Peter WattsPenny Thornton

The Brexit White Paper: A digital Brexit?

The UK Government’s White Paper sets out detailed proposals for the UK’s relationship with the EU following Brexit.

As described in our dissection of the document as a whole, the White Paper sees the digital economy as an area of global opportunity for the UK.   So what does the Government have to say about sector?

The White Paper’s distinguishes physical goods from the digital and services sectors.

  1. Integrated supply chains and the challenges of the Irish border have driven an approach to physical goods which maintains a high degree of integration with the EU through agreement on a “common rulebook” and creation of a “facilitated customs arrangement” as well as broader issues such as continued coordination in relation to defective and dangerous products.

Given the scope of the goods regime it will impact manufacturers, retailers and distributors of everything from consumer electronics to telecoms equipment as well as the e-commerce sector and online retailers for whom continued coordination on consumer protection will be important.

The broad thrust of continued integration is likely to be an attractive prospect for most companies in this sector but the devil promises to be in the detail. Specifically, questions are already being raised about:

  • the operation of the unprecedented structure for customs which is intended to eliminate all customs checks, tariffs and rules of origin on goods moving between the UK and the EU
  • the scope of the common rulebook and specifically how far it will reach in a world where digitalisation, the internet of things and smart devices are increasingly blurring the boundaries between goods and services
  • the UK’s input into the common rulebook and the effectiveness of protections against the UK becoming a “rule taker”.

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Posted in Policy & Regulation, Telecoms & Broadband Mark BrennanMichele Farquhar

RICO Complaint Settlement Highlights TCPA Abuse by Plaintiffs’ Law Firms; Serial Plaintiffs and Cy Pres Awards Continue to Flourish

As the number of frivolous Telephone Consumer Protection Act (“TCPA”) class actions continues to grow unabated, the potential rewards have even led to alleged criminal activity by plaintiff firms seeking to game the system.  A recently settled Racketeer Influenced and Corrupt Organizations Act (“RICO”) complaint showcases a particularly egregious series of allegations that several plaintiffs’ law firms conspired with other companies as well as borrowers to provide useless debt counseling that was merely a pretext to manufacture dubious TCPA lawsuits.

While the allegations in this recently settled RICO lawsuit may seem sensational, they reflect an all-too-common example of bad actors taking advantage of the ease of bringing TCPA claims and the urgent need for the Federal Communications Commission to reform its TCPA framework.  In the meantime, target companies can minimize their damage through greater awareness of potential problems and seeking expert counseling on avoiding these TCPA suits and handling filed complaints.

RICO Suit Targets Egregious Alleged TCPA Scheme.  According to the complaint, the defendants’ alleged scheme worked like this: certain defendants acted as recruiters, advertising debt counseling and relief services.  The recruiters instructed borrowers to default on their student loans and pay them instead.  While the defendants claimed that that money was placed in trust, it was simply kept by one of the defendants.  Next, the recruiters gave borrowers a script and told them to read it to their student loan servicer, asking the servicer not to call the borrower.

If the student loan servicer did call in the future, such as to try to help the borrower get out of default, those calls would be logged.  One of the defendants also sent letters to the servicer, trying to spur phone calls.  Once the recruiter thought the loan servicer had made enough calls, the borrower would then be referred to law firms that were part of the scheme.  Those firms would initiate legal actions or pursue arbitration against the loan servicer.  As part of the scheme, the defendants allegedly sent fraudulent communications to the servicer (including forged letters) and instructed their clients to commit perjury.

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Posted in Copyright, Technology Dr. Nils Rauer

The EU Commission is set to address the challenges of three-dimensional printing

Additive manufacturing, more commonly called “three-dimensional printing” or simply “3D printing“, is a truly fascinating technology. Whilst the first experiments date back to the 1960s, with the first meaningful industrial applications following in the 1980s, only throughout the last couple of years has the technology really gained momentum. Meanwhile, the market is growing rapidly. The European Commission’s forecast for the EU sees a business worth about €10 billion by 2021. However, as is often the case with disruptive technologies, the lack of legal certainty, especially regarding intellectual property and civil liability, causes a problem. There is a risk that the market development could be impaired and hampered from reaching its full potential. Against this background, MEP Joëlle Bergeron has now taken the initiative of tackling the issue by introducing a proposal for a new regulatory framework.

Background

In February 2017, Joëlle Bergeron suggested implementing a procedure on “three-dimensional printing, a challenge in the fields of intellectual property rights and civil liability” (2017/2007(INI)). Her report was first referred to and debated within the Parliament’s Committee on Legal Affairs (JURI), which then unanimously adopted the proposal on 20 June 2018 (see the details here). This was followed by a plenary vote on 3 July 2018. The parliamentarians adopted the initiative with an overwhelming majority: 631 votes out of 677 in favor, 27 against and 19 abstentions (see the video footage of the plenary session, from 5:32 onwards).

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Posted in Data Protection & Privacy Eduardo Ustaran

The Future of International Data Transfers

With the current focus on the coming into effect of the EU General Data Protection Regulation (GDPR), one could (almost) be forgiven for forgetting about the question of international data flows. However, given the political and legal developments currently affecting the future of international data transfers, that would be a very serious strategic mistake. Legitimising data globalisation remains a top business priority in our uber-digitised world. The coming of age of cloud-based services, the continuous advance of mobile communications and the push by developed and developing countries to reach a global market have made international data transfers more essential than ever. At the same time, the level of regulation affecting those transfers is becoming more impenetrable and politically charged.

Against this background, what are the issues that need to be taken into account to develop a solid global data flows legal strategy? Eduardo Ustaran examines the future of international data transfers in this article for Privacy & Data Protection Journal.

Posted in Copyright, Digital Single Market (EU) Dr. Nils RauerAlastair ShawPenny Thornton

European Parliament votes to reject controversial Copyright Directive proposal

In a dramatic turn of events, the European Parliament has today voted to reject the compromise position on the controversial draft DSM Copyright Directive, which was adopted by the Committee on Legal Affairs (JURI) of the European Parliament on 20 June 2018. A debate on the draft Directive by the whole European Parliament is now set to take place on 10-13 September 2018.

The background to today’s vote is that, as announced immediately after the JURI Committee vote on 20 June, the Committee’s decision was challenged by a group of 84 MEPs led by Greens vice-Chair Julia Reda and three parliamentary political groups. To do this, they triggered the Rule 69c (2) paragraph 1 of the Rules of Procedure of the European Parliament. As a result, the Committee decision to proceed with negotiations with the Council and the Commission on the basis of the adopted report was put to the vote.

The negotiation mandate was ultimately revoked by the Parliament, with 318 votes out of 627 MEPs against the opening of the interinstitutional negotiations, 278 in favor and 31 abstentions. It is now for the whole Parliament to examine the controversial provisions, and eventually decide to open the interinstitutional negotiations.

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Posted in Technology Penny ThorntonImogen Ireland

Are the UK’s intellectual property laws ready for AI?

“AI doesn’t just belong to a few tech giants in Silicon Valley”: these were the words of Google Cloud’s chief scientist for AI, Fei-Fei Li, speaking in March 2018 at a panel discussion on the impact of AI. Whilst companies such as IBM, Microsoft and Google have been at the forefront of AI for a number of years, many organizations across many different industries, are now looking to jump on the bandwagon, as AI continues to permeate the public consciousness. In response to the gathering momentum behind AI, thought-leaders in AI are calling for a careful look at how we should prepare. As Fei-Fei Li put it, we need to “really study the profound impact of AI to our society, to our legal system, to our organizations, to our society to democracy, to education, to our ethics.” In 2017 the UK Government commissioned a Select Committee to consider the economic, ethical, social and legal implications of AI. Against this backdrop, we ask whether or not the UK’s intellectual property laws are ready for AI, and look at what businesses can do to prepare.

Penny Thornton and Imogen Ireland in our London IPMT team look at questions of AI and IP ownership and infringement in light of current UK intellectual property laws. Click here to read the full article.

Posted in Data Protection & Privacy Eduardo Ustaran

Cookie Consent Is the New Panic

Judging by the number of calls and the intensity of the discussions about how to comply with the cookie consent requirement in a post-GDPR world, this issue has become a top worry for organisations and data protection officers. Partly due to the visibility of the mechanisms used to collect this consent, and partly due to the potential implications of operating a website without cookies, the dilemma around what solution to deploy has become a serious business decision. Different business stakeholders are often at odds with each other and matters are getting escalated to decision makers who had never been involved in the technically complex and largely misunderstood world of cookies. The tension is rising and yet, no approach has emerged as the preferred one among all involved. So everyone is getting anxious to find a way to do what they have always done and comply with the law. Is this panic justified?

As it happens, the law that requires consent for the use of cookies and similar technologies has not even changed. Since 2009, the EU ePrivacy Directive (2002/58/EC) has been the reason for all those website banners and notices that somewhat annoyingly are telling us that by using a website we agree to the use of cookies. Ironically, the article in the ePrivacy Directive that creates this obligation does not even mention cookies. The requirement concerns the storing of information or the gaining of access to information already stored in someone’s terminal equipment. Website cookies are definitely caught, but so are many other bits of data that can be extracted from a device – whether this is a computer, a smartphone, a watch, a car, a pair of shoes or a toaster. As with so many other data protection obligations, the general rule is subject to some exceptions. In this case, there are two: one covering the mere transmission of a communication and the other, the necessary use of this practice to provide an internet service explicitly requested by the user of the device.

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Posted in Data Protection & Privacy, Policy & Regulation Mark BrennanTimothy Tobin

California Enacts Sweeping New Comprehensive Privacy Legislation

California continues to be a first mover in privacy in the United States, enacting the US’s toughest and most comprehensive privacy legislation on Thursday, June 28, 2018. Unlike existing state and federal privacy legislation that has generally focused on specific sectors or privacy issues, the California Consumer Privacy Act of 2018 (AB 375), applies broadly to businesses that collect personal information about California consumers and aims to create significant new consumer privacy rights. In doing so, it creates significant new obligations for businesses.

The new law was a fast-tracked effort to stave off an aggressive California privacy ballot initiative (Ballot Initiative No. 17-0039). The Ballot Initiative’s primary sponsor Alistair Mactaggart agreed last week to withdraw his measure if lawmakers passed a comparable privacy bill before California’s June 28 deadline for finalizing propositions for California’s November General Election ballot. California lawmakers (lead by Assembly Member Ed Chau and Senators Bob Hertzberg and Bill Dodd) quickly introduced and cobbled together a bill in a matter of days, so that the bill’s language could be publicly available for the requisite 72 hours before it could be acted on by the Legislature. Within hours of this mandatory review period ending on June 28, both houses of the Legislature unanimously passed the Act and Governor Jerry Brown signed it into law. Later in the day, the California Secretary of State confirmed in a press release that the proponents had withdrawn the Ballot Initiative as agreed before it was certified for inclusion on the November ballot.

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