Wednesday 18 January 2017

Internet legal developments to look out for in 2017

A preview [updated with developments as at 7 October 2017] of some of the UK internet legal developments that we can expect in 2017. Any proposed EU legislation will be subject to Brexit considerations and so may never happen in the UK.

EU copyright reform In 2016 the European Commission published
proposals for a Directive on Copyright in the Digital Single Market (widely viewed as being in the main internet-unfriendly), for a Regulation extending the country of origin provisions of the Satellite and Cable Broadcasting Directive to broadcasters' ancillary online transmissions and for a proposal to mandate a degree of online content portability within the EU. The legislative processes will continue through 2017. [EU Regulation on cross-border portability of online content services in the internal market adopted 14 June 2017. Applies from 20 March 2018.] 

EU online business As part of its Digital Single Market proposals the European Commission has published a proposal for a Regulation on "Geo-blocking and other forms of discrimination". It aims to prevent online retailers from discriminating, technically or commercially, on the basis of nationality, residence or location of a customer. 

[Intermediary liability The European Commission has published a Communication on Tackling Illegal Content Online.  This is a set of (in name) voluntary guidelines under which online platforms would adopt institutionalised notice and takedown/staydown procedures and proactive content filtering processes, based in part on a system of 'trusted flaggers'. The system would cover every kind of illegality from terrorist content, through copyright, to defamation. The Commission aims to determine by May 2018 whether additional legislative measures are needed.]
UK criminal copyright infringement The
Digital Economy Bill is about to start its Lords Committee stage. Among other things the Bill implements the government’s decision to seek an increase in the maximum sentence for criminal copyright infringement by communication to the public from two years to ten years. The Bill also redefines the offence in a way that, although intended to exclude minor infringements, has raised concerns that it in fact expands the scope of the offence. [The Digital Economy Act 2017 received Royal Assent on 27 April 2017. The amendments to the criminal copyright offence come into force on 1 October 2017.]

Pending CJEU copyright cases Several copyright references are pending in the EU Court of Justice. Issues under consideration include communication to the public and magnet links (
BREIN/Pirate Bay C-610/15 [CJEU judgment delivered 14 June 2017]), links to infringing movies in an add-on media player (BREIN/Filmspeler C-527/15 [CJEU judgment delivered 26 April 2017]), site blocking injunctions (BREIN/Pirate Bay), applicability of the temporary copies exception to viewing infringing movies (BREIN/Filmspeler) and cloud-based remote PVR (VCAST C-265/16) [Advocate-General Opinion delivered 7 September 2017].

Online pornography The
Digital Economy Bill would grant powers to a regulator (intended to be the British Board of Film Classification) to determine age control mechanisms for internet sites that make ‘R18’ pornography available; and to direct ISPs to block such sites that either do not comply with age verification or contain material that would not be granted an R18 certificate. These aspects of the Bill have been criticised by the UN Special Rapporteur on freedom of expression, by the House of Lords Delegated Powers and Regulatory Reform Committee and by the House of Lords Constitution Committee[The Digital Economy Act 2017 received Royal Assent on 27 April 2017.  The DCMS has published surrounding documents including draft guidance to the Age Verification Regulator.]

Net neutrality and parental controls The net neutrality provisions of the
EU Open Internet Access and Roaming Regulation potentially affect the ability of operators to choose to provide network-based parental control filtering to their customers. A transitional period for existing self-regulatory schemes expired on 31 December 2016. The government has said that although it does not regard the Regulation as outlawing the existing UK voluntary parental controls regime, to put the matter beyond doubt it will introduce an amendment to the Digital Economy Bill to put the parental controls scheme on a statutory basis. [Enacted as S.104 of the Digital Economy Act 2017 'Internet filters', which came into force on 31 July 2017.]

TV-like regulation of the internet The review of the EU Audio Visual Media Services Directive continues. The
Commission proposal adopted on 25 May 2016 would further extend the Directive's applicability to on-demand providers and internet platforms.

Cross-border liability and jurisdiction
Ilsjan (Case C-194/16) is another CJEU reference on the Article 7(2) (ex-Art 5(3)) tort jurisdiction provisions of the EU Jurisdiction Regulation. The case concerns a claim for correction and removal of harmful comments. It asks questions around mere accessibility as a threshold for jurisdiction (as found in Pez Hejduk) and the eDate/Martinez ‘centre of interests’ criterion for recovery in respect of the entire harm suffered throughout the EU. Meanwhile significant decisions on extraterritoriality are likely to be delivered in the French Conseil d'Etat (CNIL/Google) and Canadian Supreme Court (Equustek/Google). [AG Opinion in Ilsjan delivered 13 July 2017. Canadian Supreme Court judgment in Equustek delivered 28 June 2017.  (For commentary see here.) In the French CNIL/Google case the Conseil d'Etat has referred questions on territoriality and remedies to the CJEU.]

Online state surveillance The UK’s
Investigatory Powers Act 2016 is expected to be implemented in stages throughout 2017 [and 2018]. The Watson/Tele2 decision of the CJEU has already cast a shadow over the data retention provisions of the Act, which will almost certainly now have to be amended. The Watson case, which directly concerns the now expired data retention provisions of DRIPA, will shortly return to the Court of Appeal for further consideration in the light of the CJEU judgment. [In September 2017 the Investigatory Powers Tribunal decided to make a reference to the CJEU asking questions about the applicability of Watson to national security.] The IP Act (in particular the bulk powers provisions) may also be indirectly affected by pending cases in the CJEU (challenges to the EU-US Privacy Shield), in the European Court of Human Rights (ten NGOs challenging the existing RIPA bulk interception regime) and by a judicial review by Privacy International of an Investigatory Powers Tribunal decision on equipment interference powers. [Judicial review application dismissed 2 February 2017; under appeal to Court of Appeal.] Finally, Liberty has announced that it is launching a direct challenge in the UK courts against the IP Act bulk powers.[The challenge also relates to the IP Act data retention powers. Permission to proceed granted.] [New revised and simplified mindmap of legal challenges as at 7 October 2017 (previous version here):

 [Updated 3 March 2017 with various developments and new mindmap. Further updated 9 August 2017 and 7 October 2017.]

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