Saturday 2 January 2016

Internet legal developments to look out for in 2016

A preview of some of the UK internet legal developments that we can expect in 2016, [updated with actual developments to 17 September 2016]. Some topics are perennial (see 2015 and 2014), some are new.

EU copyright reform In December 2015 the European Commission published, as part of its Digital Single Market initiative, a proposal for a Regulation on cross-border portability of online content services. In parallel it published a ‘political preview’ of proposals to amend copyright law, for which more detailed legislative proposals and policy initiatives will be worked up during 2016. This process will incorporate the pending review of the Satellite and Cable Broadcasting Directive, which has ventilated the possibility of extending the country of origin copyright rule for TV and radio programmes from satellite to the internet. Other areas of likely interest include copyright exceptions, enforcement (probably against a broader variety of intermediaries) and news aggregation services. [On 14 September 2016 the Commission published proposals for a Directive on Copyright in the Digital Single Market, regarded as internet-unfriendly overall, and a Regulation extending the country of origin provisions of the Satellite and Cable Broadcasting Directive to broadcasters' ancillary online transmissions.] 

Online consumer contracts In another strand of the Digital Single Market initiative the Commission in December 2015 published proposals for two Directives on online consumer contracts, one applicable to digital content and the other to goods. Member States would be prohibited from enacting either higher or lower levels of consumer protection than specified in the Directives.

Copyright and linking Three more linking cases are on their way to the CJEU, all from Dutch courts: C-160/15 GS Media (a reference from the Dutch Supreme Court concerning a link to an infringing copy of a photograph), C-527/15 Filmspeler (a site blocking case referred by the Central Netherlands District Court; the target site is alleged to have provided a downloadable media player with an add-on containing refreshable lists of links to infringing material; cf Popcorn Time) and C-610/15 Pirate Bay (a site blocking case with linking aspects, referred by the Dutch Supreme Court). [The CJEU issued its judgment in GS Media on 8 September 2016.]

Copyright and temporary copies The C-527/15 Filmspeler reference asks the CJEU whether the transient copies that a user makes when viewing an infringing movie can be excepted from infringement under the EU Copyright Directive’s temporary copies exception. The questions specifically address lawful use and the three step test (which were not covered in the Meltwater/PRCA ‘right to browse’ case).

Site blocking orders The Dutch Supreme Court has referred a site blocking question to the CJEU in C-610/15 Pirate Bay. Meanwhile in the UK the ISPs’ appeal to the Court of Appeal in Cartier v BSkyB (three judgments here, here and here) is pending. This was the first UK trade mark site blocking case and is the first site blocking case since Newzbin 2 to be contested by the ISPs. [The Court of Appeal issued its Cartier judgment on 6 July 2016, upholding the jurisdiction to grant a site blocking injunction in a trade mark case.]

Intermediary liability The mere conduit and injunction provisions of the Electronic Commerce 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.  [The judgment was issued on 15 September 2016.]  The European Commission has been conducting a public survey on the “regulatory environment for platforms, online intermediaries, data and cloud computing and the collaborative economy” including the intermediary liability provisions of the Electronic Commerce Directive. The survey closes on 6 January 2016. There is crossover with the Commission Communication "Towards a modern, more European copyright framework" issued on 9 December 2015.

The Investigatory Powers Bill Following the Anderson, ISC and RUSI reviews the draft Investigatory Powers Bill has been published and is undergoing formal pre-legislative scrutiny by a Joint Parliamentary Committee. The Committee is expected to report by 11 February 2016. The House of Commons Science and Technology Committee, the Joint Parliamentary Committee on Human Rights and the Intelligence and Security Committee of Parliament are also considering the draft Bill. The Bill itself is expected to be introduced in Parliament in March 2016. [The progress of the Bill can be tracked here.]

Questions arising out of David Davis and Tom Watson MPs’ legal challenge to the data retention provisions of DRIPA have been referred to the CJEU by the Court of Appeal. A reference from the Swedish courts (C-203/15 Tele2 Sverige) is also pending. [The Advocate General's Opinion issued on 19 July 2016. The judgment is expected in Autumn 2016.]

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. Amnesty International, Liberty, Privacy International and others have lodged a complaint following the decision of the Investigatory Powers Tribunal on bulk interception and receipt of US PRISM and UPSTREAM interception product. 

Investigatory Powers Tribunal challenges brought by Privacy International and seven ISPs around the world to equipment interference and by Privacy International to use of bulk personal datasets are pending. The latter includes a challenge to the use of national security directions under S.94 Telecommunications Act 1984. 

Mindmap of legal challenges (interactive PDF with links to key documents):

AVMS Directive Review The European Commission is reviewing the Audiovisual Media Services Directive. This raises once again the appropriateness (or not) of extending TV-like regulation to the internet.  [The proposal adopted on 25 May 2016 includes some extensions to on-demand providers and internet platforms.]

EIDAS Regulation The replacement for the Electronic Signatures Directive comes into force on 1 July 2016. As well as electronic signatures it covers ‘electronic identification schemes’ and ‘electronic trust services’.

Data Protection Political agreement on the new General Data Protection Regulation was reached at the end of 2015. The Regulation should be formally ratified early in 2016 and come into force in 2018 [Confirmed] . Google’s appeal in Vidal-Hall is pending before the UK Supreme Court [but is reported to have been subsequently withdrawn]. Permission to appeal was granted on all points other than whether the claim was a tort.

Net neutrality Revisions to EU telecoms legislation will impose net neutrality rules from 30 April 2016.

[Updated 3 January 2016 to include net neutrality; and 2 February 2016 to include CJEU hearing date in Davis/Watson case. Surveillance litigation mindmap updated 8 August 2016. Further updates 17 September 2016.]

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