Slowly but surely, the U.S. Courts of Appeal increasingly agree on how to interpret the definition of “automatic telephone dialing system” (“ATDS” or “autodialer”) in the Telephone Consumer Protection Act (“TCPA”). On February 19, 2020, a unanimous Seventh Circuit panel refused to revise a putative class action in Gadelhak v. AT&T Services, Inc. after concluding that the dialing system used by AT&T did not qualify as an autodialer. Like the Eleventh Circuit in Glasser v. Hilton Grand Vacations Company, LLC and Third Circuit in Dominguez v. Yahoo, Inc., the Seventh Circuit held that an “autodialer” must use “a random or sequential number generator” to either store or produce numbers. Because the system used by AT&T simply pulled numbers from a database, the court found that the system was not an autodialer and the texts did not violate the TCPA. Continue Reading
Businesses are increasingly turning to trade secrets as a mechanism to protect their innovations and know-how. From the implementation of the EU Trade Secrets Directive, to recent amendments to China’s Anti-Unfair Competition Law, many countries have taken significant strides to increase protection for trade secret owners and their rights. However, mobile workforces, advancements in technology, and inconsistencies in enforcement regimes pose new challenges for rights holders. With further political and economic changes on the horizon, learning how to navigate this rapidly evolving legal and regulatory landscape is essential.
We are delighted to launch the second edition of our guide to trade secrets legislation and legal developments around the world. Knowing how, when and where to enforce your rights is essential. This guide assesses the current state of legal protection afforded to rights holders within each jurisdiction, as well as the changes that are taking place.
Understanding the law and how it can help you can mitigate potential losses and save vast amounts in legal fees and potential loss of revenue.
What’s new for 2020?
Our 2020 edition introduces new chapters examining trade secrets legislation in Japan and Mexico, as well as the latest developments across China, France, Germany, Italy, Netherlands, Russia, Spain, UK, and the United States.
The UK Government Department for Culture, Media and Sports (DCMS) has today published its initial response to the public consultation on the Online Harms White Paper, published in April 2019. In its response, DCMS gives an indication of how it plans to adapt the proposed regulatory framework to take account of some of the concerns raised by industry stakeholders, including the fact that is it minded to make Ofcom the new regulator and that Ofcom will be providing guidance on the companies in scope.
The Online Harms White Paper, published in April 2019, set out proposals by DCMS for tackling online harms and included consultation questions on the proposed new regulatory framework. Key aspects of the proposals include the introduction of a statutory duty of care on companies whose services allow users to share user-generated content or interact and the establishment of a new regulator to enforce the new framework, with the power to impose fines. The government’s response to the consultation provides an indication of how it intends to deal with some of the concerns raised as part of the consultation process, pending the publication of a full response in the Spring.
Kari’s Law, signed into law on February 16, 2018, requires organizations that use multi-line telephone systems (MLTS) to provide callers with the ability to dial 911 directly from any telephone in the system. MLTS are often used in hotels, office buildings, corporate and educational campuses, and other enterprises. As a result, a wide variety of organizations will be impacted by Kari’s Law and must comply with its requirements.
The Federal Communications Commission (FCC) recently published its implementing regulations. The regulations went into effect on January 6, 2020, with a compliance date of February 16, 2020. Continue Reading
CZ.NIC, the Registry for the .CZ country code Top Level Domain (ccTLD), recently published the results of a survey that indicate that Czechs have once again rejected the possibility of registering Internationalised Domain Names (IDNs) under .CZ.
IDNs are domain names that contain at least one non-ASCII character – for example, a character with diacritics like é, ü, ñ, or a Chinese character like 飛. Registering IDNs is already possible in many ccTLDs such as Belgium (.BE), Brazil (.BR), China (.CN), Hong Kong (.HK), France (.FR), Germany (.DE), Greece (.GR), Hungary (.HU), Spain (.ES) or Tuvalu (.tv), and in most generic Top Level Domains (gTLDs).
According to the published survey results, 88% of corporate respondents and 64% of ordinary Internet users were either strongly opposed, or would rather that IDNs under .CZ not be introduced. The survey was undertaken during the autumn of 2019 and 1,015 representatives of organisations and 1,206 individual Internet users took part.
The above figures represent a 2% increase in resistance to IDNs among corporate respondents and a 9% increase among ordinary Internet users when compared to the last survey in 2016. Moreover, this is the seventh time that CZ.NIC has undertaken a survey concerning the introduction of IDNs under .CZ and the seventh time that those surveyed have expressed their opposition to their introduction.
The CEO of CZ.NIC, Ondřej Filip, has stated in connection with the latest survey that:
“The repeated rejection of IDN in the .CZ domain zone is not surprising. Among other things, the survey also showed that for Internet users, IDN is not a desirable feature or a priority. The respondents stated that topics of Internet security, online protection or the availability of a quality Internet connection were more important to them.”
According to CZ.NIC, users who participated in the survey view the current situation with .CZ as satisfactory and, in turn, view the use of diacritics as confusing and unnecessarily complicated for foreign users.
Only time will tell whether Czechs will change their views in future with regard to registering IDNs under .CZ, but on the basis of the current trend, that does not look likely.
Authored by Anchovy News Team
Following-up from our previous blogs on Tech Tax, we thought it would be useful to take a whirlwind tour of what to expect in tax and transfer pricing related topics in 2020. But for those that are curious, why are such seemingly dry topics so relevant to tech companies? It’s because their dynamism and continual state of change almost inevitably have tax consequences, or attract attention from tax authorities. It is also relevant because of the importance of IP to their business models and value creation, the inexorable growth of the digital economy, and simply, because it’s where the money is.
Digital Services Tax (DST)
Reform of International Tax (OECD’s Pillar 1 & 2)
Transfer Pricing (General/Non-Financial Transactions)
Transfer Pricing and Financial Transactions
Disclosure – DAC 6
Anti-Avoidance – EU Anti-Tax Avoidance Directive II
The key messages are that in this area, tech companies need to stay vigilant, keep up-to-speed with what is happening, and strategise accordingly. They also need to get used to a world which is steadily becoming more transparent, and where the old ways of doing things often no longer work. It’s a time of change.
Digital Services Taxes (DST)
Despite U.S. threats to impose punitive tariffs on $2.4 billion worth of French goods in response to the country’s introduction of a digital services tax effective 1 January 2019, a number of other countries introduced their own versions of the tax on 1 January this year. These include Italy and Austria, whilst the UK (see here for an article on legal issues concerning the UK’s measure) and Turkey are to follow suit on 1 April. A host of other countries have either done the same, are in the process of doing so (e.g. Spain and the Czech Republic), or are considering it. Norway, for instance, has indicated that it will be prepared to introduce a similar unilateral measure if an international consensus is not reached at the OECD on global reforms to the international tax system. It’s also not inconceivable that the EU may try again in such circumstances. U.S. retaliation against France using tariffs is still possible (which is ironic given that the U.S. State of Maryland has proposed its own DST), even though the two appear for the time being to have stepped-back from a full-blown dispute (noting nonetheless that the new EU Commissioner for Trade has stated that the EU will stand firmly behind France in any dispute over its DST and retaliatory tariffs). The UK appears to be standing firm, at least for now, but given all the political maneuvering, a lot can be expected to happen on this topic within the next 12 months.
On January 27, 2020, an Eleventh Circuit panel released a landmark ruling in Glasser v. Hilton Grand Vacations Company, LLC. The key issue in the case was how to interpret ambiguous language in the Telephone Consumer Protection Act’s (TCPA) definition of “automatic telephone dialing system” (ATDS or autodialer). In recent years, imprecise statutory phrasing and the Federal Communication Commission’s (FCC) liberal reading of the legislative history empowered plaintiffs to assert TCPA claims based on a wide array of calling systems. The Eleventh Circuit panel’s decision in Glasser rejects that trend, joins the D.C. Circuit in adopting a much narrower view of the TCPA’s scope, and establishes a clear circuit split with the Ninth Circuit. Continue Reading
UK Government set to move forwards with regulation on consumer IoT device security
The UK Government has just announced that it intends to draw up legislation aimed at ensuring that all consumer smart devices sold in the UK adhere to rigorous security requirements for the Internet of Things (“IoT“).
Over the last couple of years, the Government has been considering the need to develop a robust regulatory framework governing the cybersecurity of consumer IoT devices, to ensure that these devices are sufficiently secure from cyber-threats.
What will the new legislation look like?
The Government has indicated that the new legislation will focus on three key security requirements for the manufacture and sale of IoT devices:
- All consumer IoT device passwords must be unique and not resettable to any universal factory setting.
- Manufacturers of consumer IoT devices must provide a public point of contact so that anyone can report a flaw or vulnerability, and these reports are to be acted on in a timely manner.
- Manufacturers of consumer IoT devices must explicitly state the minimum length of time for which devices will receive security updates at the point of sale (both online and in stores).
What does this mean for businesses?
- The Government aims to deliver the legislation “as soon as possible” though it is currently unclear how this legislation will reflect the three key security requirements.
- It is likely to come as a relief that the Government has decided against launching a security labelling scheme at this time, recognising the potential disruption to businesses caused by affixing a label to physical products.
- The Government plans to conduct further stakeholder engagement in order to refine its regulatory proposals, and determine the most appropriate way for businesses to communicate important security information to consumers.
The Government has promised a “staged approach” to regulation, which will include:
- Inviting further stakeholder feedback to develop the regulatory proposals.
- Providing businesses with sufficient time to implement the proposals effectively and sustainably.
- Publishing a final stage regulatory impact assessment later in 2020, which we expect will shed further light on the regulatory proposals.
We are monitoring relevant updates in this area and encourage manufacturers to keep an eye on further invitations from the Government for stakeholder engagement, as their proposals develop.
You can find further information on the Government’s proposals here.
We regularly work with companies in preparing submissions to government on proposed legislation and regulation. Get in touch with our leading Global Products Law practice to hear how we can support you in making sure your voice is heard.
You can also keep up with news from our Global Products Law team by signing up for our quarterly publication, International Products Law Review – please contact Samantha Tharle.
The authors are part of a leading and internationally acclaimed network within Hogan Lovells that can support you and your products anywhere in the world. The Hogan Lovells Global Products Law practice is internationally renowned for their work in product liability, litigation, safety and compliance for universally recognised brands in every industry sector.
The CJEU in its Tom Kabinet judgment has ruled that the supply of e-books qualifies as “an act of communication to the public” under the InfoSoc Directive instead of “a distribution to the public” as is the case with physical books. It follows that copyright in e-books cannot be exhausted. This means that the resale of e-books requires the authorization of the copyright holders or else violates the author’s or publisher’s copyrights. The same reasoning is expected to apply to all digital formats of copyright protected works covered under the InfoSoc Directive, including audiobooks, music and also video games. This notably differs from the approach to the resale of software, which was deemed permitted under the Software Directive, in the CJEU’s UsedSoft judgment.
In its judgment of 19 December 2019 in Tom Kabinet (C-263/18), the Court of Justice of the European Union (CJEU) has ruled that the supply by downloading, for permanent use, of an e-book is not covered by the right of “distribution to the public”, but is covered by the right of “communication to the public”. This means there is no exhaustion of rights and thus the second-hand trade of e-books is not permitted without the authorization of copyright holders. This judgment provides guidance on copyright in a digital environment. Continue Reading
On January 15, the Court of Justice of the European Union’s (CJEU) Advocate General (AG) Manuel Campos Sánchez-Bordona delivered his Opinion on four references for preliminary rulings on the topic of retention of and access to communications data.
Of the four references, two originated from France, one from Belgium, and one from the Investigatory Powers Tribunal (IPT) in the United Kingdom. The latter arose from a challenge by Privacy International to the UK Security and Intelligence Agencies’ (SIAs) powers under the Telecommunications Act 2014 and the Data Retention and Investigatory Powers Act 2014. SIAs have the power to compel providers of electronic communications services, such as internet service providers, to retain and hand over bulk communications data. Communications data does not include the content of communications but does reveal traffic and location data, as well as information on users’ social, business and financial activities, communications, and travel.
The IPT found as a matter of fact, and specified in its reference for a preliminary ruling, that these powers are “essential to the protection of the national security of the United Kingdom.” The questions referred to the CJEU concerned:
- the applicability of the ePrivacy Directive (ePD) in the context of the use of these powers; and
- whether the requirements specified in the previous CJEU decision Tele2 Sverige/Watson also applied.
The IPT went so far as to specify that the imposition of such requirements would “critically impede” the SIAs’ bulk acquisition and automated processing techniques.