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Digital Business Lawyer

Volume: 18 Issue: 5
(May 2016)


The European Commission launched a public consultation on the review of the ePrivacy Directive, which governs the processing of personal data and privacy concerning the electronic communications sector, on 11 April. The Commission seeks comments on possible changes to the legal framework to ensure that it reacts to the new challenges presented by the changing digital market and to address inconsistent enforcement of the Directive and fragmentation across Europe. / read more

The European Commission (‘EC’) stated on 20 April that it has issued a Statement of Objections to Google and Alphabet, giving its preliminary view that Google has abused its dominant position by imposing restrictions on licensees of its Android mobile operating system (‘OS’). / read more

The European Commission (‘EC’) published on 19 April details of measures designed to help digitise industry, part of its Digital Single Market strategy and aimed at meeting the challenges of the digital sector. / read more

On 29 April 2016, the Australian Productivity Commission released a Draft Report, concerning ‘Intellectual Property Arrangements’ (‘Report’), which states that the restriction of internet content based on geographical location, also known as ‘geoblocking,’ results in Australians paying higher prices, often for a lesser service, than consumers overseas and that consumer rights to circumvent geoblocking should be ‘enshrined in the Australian Copyright Act.’ / read more

The European Commission released a proposal (the ‘Proposal’) to amend the Audiovisual Media Services Directive (‘AVMSD’) on 25 May 2016, as part of its Digital Single Market Strategy. The Proposal aims, amongst other things, to promote European content by requiring on-demand services providers to ensure that at least 20% of the content featured in their catalogues are European works. / read more


The new EU-wide General Data Protection Regulation (‘GDPR’) was adopted by the European Parliament on 14 April 2016, and will become applicable in two years’ time. This follows years of debate following the announcement of the new rules by the European Commission (‘EC’) at the beginning of 2012. Francis Aldhouse, Consultant at Bird & Bird, gives here his opinion on the resulting Regulation, analysing what the European Commission set out to do, what has been achieved, and the remaining concerns. / read more

The question of whether linking to a website containing unauthorised content constitutes copyright infringement under EU law has not yet been definitively addressed by the Court of Justice of the European Union (‘CJEU’). However, on 7 April 2016, Advocate General (‘AG’) Wathelet delivered his Opinion in GS Media v. Sanoma, advising the Court to rule that linking to such content does not infringe copyright. If the Court were to follow this advice, the effect would be to compromise the protection of copyright online by undermining not only enforcement activity but also the functioning of legal services. / read more

The GSMA published earlier in 2016 a report, ‘A new regulatory framework for the digital ecosystem,’ in which it urges regulators to rethink their approach to digital services regulation. Jon Fell, Head of Telecoms at Osborne Clarke LLP, discusses the Report and the wider issues relating to how the digital ecosystem is regulated, and evaluates the recommendations put forward by the GSMA. / read more

Tech giant Microsoft has filed proceedings against the US Department of Justice (‘DoJ’) and the US Attorney General seeking a change in law to allow it to inform its customers when the US government has accessed their emails and records. It has specifically challenged a provision of the US Electronic Communications Privacy Act 1986 (‘ECPA’) that allows courts to prevent data hosting providers from notifying its customers where there is a “reason to believe” that such notification would hinder an investigation. Microsoft argues that these ‘gagging orders’ are unconstitutional and has asked the Court to rule on the issue. This article summarises the key arguments made by Microsoft and looks at the potential impact to businesses. / read more

In a 18 March 2016 decision in England and Wales Cricket Board Limited and Sky UK Limited v. Tixdaq Limited and Fanatix Limited (England & Wales High Court, [2016] EWHC 575 (Ch)), the ‘fair dealing’ defence to copyright infringement failed for Tixdaq, whose service commercialised numerous eight second clips of cricket matches and was found not to be truly for the purpose of reporting current events. George Sevier of Gowling WLG (UK) LLP discusses the case, which, in his view, makes clear that the law in relation to fair dealing is far from settled, particularly away from traditional media channels. / read more

The Indian government has clarified its policy on foreign direct investment (‘FDI’) in e-commerce. The Department of Industrial Policy & Promotion (‘DIPP’), with the issuance of Press Note No. 3 (2016 Series)(‘Note’) on 29 March 2016, has permitted 100% FDI, under the automatic route (without the approval of India’s Government) in the e-commerce marketplace model. This Note brings overdue clarity; many e-commerce companies with foreign direct investment were already operating marketplace models in India, leading to allegations by brick-and-mortar stores that such companies were flouting existing policy to gain an unfair advantage. / read more

The Committee of Advertising Practice (‘CAP’) has released guidance1 on advertising rules surrounding pay-per-bid auction websites’ (‘PPBs’) marketing and administration (‘Guidance’). PPB participants must pay a non-refundable fee for each incremental bid they make, with the winner then paying for the goods won. / read more

The European Commission launched an open consultation on 23 March 2016 into the role of publishers in the copyright value chain and, in particular, whether publishers should be granted neighbouring rights under European law. This is the latest in a series of consultations issued in recent months and forms part of the Commission’s efforts to assess the need for new initiatives in order to modernise EU copyright rules under its Digital Single Market strategy. Julia Dickenson, Rachel Boakes and Gemma Jones-Parry of Baker & McKenzie LLP discuss the consultation and the challenges faced by traditional publishers in monetising their content online. / read more

About Digital Business Lawyer:

The monthly publication providing authoritative insights and thought leadership on the legal/regulatory issues affecting online business, covering distance selling, contracts, domain names, adblocking, advertising, cloud computing, net neutrality, e-privacy, data protection, cyber crime, the Internet of Things, social media, internet taxation and software / read more

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