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Digital Business Lawyer

Volume: 18 Issue: 6
(June 2016)


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 (‘EC’) released a 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 EU 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 UK Intellectual Property Office released on 10 May 2016 its four year IP strategy, which identifies as key objectives decreasing the amount of infringing content online and increasing education. “A well-educated public should reduce the pool of consumers who are willing to attempt to access illegal content in the first place,” said Gregor Pryor, Partner at Reed Smith LLP. / read more

The European Commission (‘EC’) presented its targeted approach to online platforms on 25 May 2016, as part of its Digital Single Market Strategy, which aims to ‘fix problems’ pertaining to the regulation of online platforms by, amongst other things, establishing the free flow of data initiative to facilitate switching and the portability of data among platforms and cloud services, and working with online platforms on a code of conduct for combatting hate speech. / read more

The European Data Protection Supervisor (‘EDPS’) issued an Opinion on the EU-US Privacy Shield, the new framework for transatlantic data flows, on 30 May 2016, calling for a more robust and sustainable solution. The EDPS’ Opinion comes amidst a number of criticisms, including those raised by the Article 29 Working Party (‘WP29’) on 13 April 2016 and follows the announcement that the Irish Data Protection Commissioner is to challenge model clauses - an alternative mechanism for data transfers - by asking the Irish High Court to refer questions concerning the use of model clauses to the Court of Justice of the European Union (‘CJEU’), in a case involving a challenge to Facebook’s data transfer arrangements. Lisa J. Sotto, Partner at Hunton & Williams, describes political discussion around the new Privacy Shield framework as a “mess” and along with the possible challenge to model clauses, points to “fundamental flaws in the entire EU data transfer framework.” / read more

The European Commission (‘EC’) published a Communication on the 2 June 2016 on the European agenda for the collaborative economy, which aims to support online services providers that utilise collaborative platforms, such as Uber and Airbnb. The Commission’s Communication provides guidance on the concerns raised by new collaborative platforms, how existing EU law should be applied, and advises Member States to relieve such operators’ of any unnecessary regulatory burden. / read more

India’s Committee of State Finance Ministers published the draft Goods and Services Tax Act 2016 (‘GST’) on 7 June 2016, which aims to simplify the tax structure in India and introduce uniformity across all States; a development that will have implications for e-commerce businesses in regards to the rate and structure of taxation. / read more

In an open letter on the 21 June 2016, the UK’s Competition and Markets Authority (‘CMA’) has provided information to retailers and suppliers on the practices it considers resale price maintenance and what companies should do, if they have or may have been involved in such anti-competitive practices. With the rise of e-commerce, new pressure on suppliers has affected pricing, leading to some illegally controlling prices at which products are sold and advertised, explains Simon Barnes, Partner at Shoosmiths LLP. / read more


The online publishing industry is greatly concerned about the impact of adblockers on its revenue models. A reaction to this is the use by some websites of adblocking detection software, which determines when a user visiting the site is utilising an adblocker and refuses to show content to that user while the adblocker remains active. Adblocking detection has however drawn privacy concerns. Liz Fitzsimons, Partner at Eversheds LLP, discusses the legal implications of such software and looks at UK Information Commissioner’s Office (‘ICO’) guidance on the issue. / read more

The British Phonographic Industry (‘BPI’) has called for urgent reform of existing measures to curb online IP infringement that it argues are ineffective. However, the volume of takedown requests raises issues of proportionality and manageability for information society service providers (‘ISSPs,’ e.g. ISPs) who have to implement such procedures. Jeremy Blum and Sarah Blair of Bristows LLP consider the issues raised. / read more

The European Commission (‘EC’) has now outlined numerous measures relating to enhancing the Digital Single Market (‘DSM’), releasing a draft Digital Content Directive (‘Directive’) on 9 December 2015 and a package of DSM proposals on 25 May 2016. Daniel Lloyd, Partner at TLT Solicitors, takes a look at the measures announced and argues that certain measures threaten to stifle innovation in the digital market. / read more

The European Commission (‘EC’) has put forward the EU-US Privacy Shield (‘PS’) to replace the Safe Harbor framework for trans-Atlantic data transfers. The PS documents and draft adequacy decision have been scrutinised by the Article 29 Working Party (‘WP29’), which delivered an Opinion on 13 April 2016. Dr. Jörg Hladjk of Jones Day analyses the WP29’s verdict. / read more

On 11 May 2016, before being temporarily removed from office, Brazil’s President Dilma Rousseff enacted Decree nr. 8.771 as part of a package of executive orders. The Decree will move into effect in June with the intention of regulating the country’s legal framework for the internet. The enactment of the Decree just a little over two months after the public consultation conducted by the Ministry of Justice on the wording of the Decree, seems to be a political move by Ms Rousseff to guarantee that the rules regarding the internet will be seen as an act towards social improvement, following the efforts made by her Government. In spite of the fact that the final Decree does not present many alterations as a result of the consultation, certain new provisions that have been included in the final text will certainly lead to new controversies within the sector. / read more

A federal district court has granted the US Federal Trade Commission’s (‘FTC’) motion for summary judgment against Amazon, holding it liable under Section 5 of the FTC Act for ‘unfair acts or practices’ involving in-app purchases where consumers did not receive proper disclosures or provide consent. Michelle Cohen of Ifrah Law PLLC analyses the Court’s finding, and the takeaways for businesses. / read more

On 12 April 2016, a young man, Zexi Wei, died of synovial sarcoma - a form of cancer - in a hospital in China. His death caused significant debate in China, because of his use of the Baidu search engine to find an experimental treatment for his illness. The debate saw questions asked about corporate social responsibility, the regulation of the internet advertising business, and the regulation of medical services in China. Vincent Wang, Partner at Davis Wright Tremaine LLP, provides the legal background to this very public incident that has posed very serious questions about the regulation of internet advertising in China. / 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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