Sunday 4 January 2015

Internet legal developments to look out for in 2015

[Updated 28 May 2015]

Some EU and UK internet legal developments to look out for in 2015 (last year’s list here). (And see here for Cyberlaw Memes and Themes for 2015.)

        EU copyright reform The last European Commission closed its Public Consultation on EU copyright rules on 5 February 2014. The new Commission has announced that EU copyright modernisation will be a priority for 2015, as part of a Digital Single Market package. [The Commission published its Digital Single Market Strategy on 6 May 2015.] 

        Copyright Private Copying Exception On 1 October 2014 the UK introduced its new format shifting (‘personal copying for private use’) copyright exception. At the end of November three UK music industry bodies (The Musicians’ Union, The British Academy of Songwriters, Composers and Authors and UK Music) announced that they were mounting a judicial review court challenge to the legislation.   Their case is that the exception should have provided fair compensation to copyright holders and consequently does not comply with the EU Copyright Directive.

        Online copyright jurisdictionPez Hejduk (C-279/13) is a pending reference to the CJEU concerning cross-border jurisdiction over online copyright infringement under Article 5(3) of the Brussels Jurisdiction Regulation.  The Advocate General has proposed that the Court should lay down a different rule from any of those adopted in previous cases (eDate/Martinez, Wintersteiger and Pinckney): jurisdiction limited to the courts of place of the event causing the damage, with a possible exception for the place of damage where the site was clearly and incontestably targeted towards one or more other Member States.  Judgment is due on 22 January 2015. [The Court rejected the Advocate General's Opinion and adopted a mere accessibility criterion. Bad news for the internet.]

        Copyright and linking C More Entertainment (C-279/13) is the last of a trilogy of copyright linking cases to come before the CJEU (the others were Svensson and Bestwater). A date for judgment is not yet available. [It appears that the referring court has now withdrawn the questions about linking.  The CJEU gave judgment on a separate issue on 26 March 2015. However another linking case before the Dutch Supreme Court (Geenstijl) was referred to the CJEU on 7 April 2015.] 

        Site blocking orders 2014 saw the most significant UK site blocking case since Newzbin2, Cartier v BSkyB. It was the first UK trade mark site blocking case, the first since Newzbin2 to be contested by the ISPs and the first in which a third party (the Open Rights Group) intervened.  Numerous points were decided in three judgments and an injunction was granted. We can expect further site blocking applications in 2015. [A case brought by Cartier against Nominet, seeking an order that Nominet remove from its domain name registry (de-tag and lock) various domain names that resolve to websites alleged to infringe Cartier's trade mark, has been discontinued.] 

        Intermediary liability The pending Delfi reference to the European Court of Human Rights Grand Chamber concerns an online newspaper’s defamation liability for readers’ unmoderated comments on editorial articles. Various NGOs and media organisations have weighed in with interventions.  [Judgment will be given on 16 June 2015.] 

The mere conduit and injunction provisions of the ECommerce Directive are the subject of a German reference to the CJEU in Case 484/14 McFadden. It concerns injunctions against providers of open wi-fi networks to prevent copyright infringement by users.

        RIPA, DRIPA and the Counter-Terrorism and Security BillClause 17  [now Clause 21] of the C-TS Bill currently going through the UK Parliament will extend mandatory data retention to certain IP address resolution data, subject to the same 31 December 2016 sunset clause as DRIPA.  A legal challenge to S.1 of DRIPA by MPs David Davis and Tom Watson is under way. The High Court on 8 December 2014 granted permission to bring the judicial review application. Various current reviews of RIPA, DRIPA and other investigatory powers legislation will report during 2015. The reviews are conducted by: Independent Reviewer of Terrorism Legislation, RUSI, Intelligence and Security Committee of Parliament, and the Interception of Communications Commissioner (police acquisition of communications data to identify journalistic sources).  [Section 21 of the Counter-Terrorism and Security Act is now law. The ISC and IOCC reports have been published. The IRTL report has been submitted to the Prime Minister and is due to be published shortly. A new Investigatory Powers Bill has been announced in the Queen's Speech.]

Interception and surveillance complaints to the European Court of Human Rights include a case taken by Big Brother Watch, the Open Rights Group, English PEN and Dr Constanze Kurz and one by the Bureau of Investigative Journalism. See mindmap of legal challenges. Also look out for any further developments arising out of the Investigatory Powers Tribunal decision in December that, in the light of disclosures of interception practice made by the government in the proceedings, future use of Section 8(4) warrants and PRISM intelligence sharing would be ‘in accordance with the law’ under Article 8 of the European Convention on Human Rights. Legality prior to the government disclosures has still to be determined. [On 6 February 2015 the IPT adjudged that prior to the disclosures the PRISM sharing regime breached Article 8.]

        Social media offences The Criminal Justice and Courts Bill currently proceeding through Parliament will create a new ‘revenge porn’ offence.  It will also increase the maximum penalty under the Malicious Communications Act 1988 from six months to two years imprisonment. [Sections 32 to 35 of the Criminal Justice and Courts Act 2015 became law in April 2015.]

        Consumer Rights Act The Consumer Rights Bill currently before Parliament will, as part of a wholesale reform of consumer goods and services law, introduce a separate category of consumer contracts for supply of digital content, to which a self-standing set of implied conditions will apply. [Chapter 3 of the Consumer Rights Act 2015 is now in force.]

        Data protection A new General Data Protection Regulation (perhaps). The pending appeal in Vidal-Hall v Google. The CJEU reference in Case C-362/14 Schrems v Irish Data Protection Commissioner. [Google's appeal in Vidal-Hall was dismissed on 27 March 2015.]

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