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Digital Business Lawyer

Volume: 18 Issue: 8
(August 2016)


The United States Court of Appeals for the Second Circuit in Manhattan on 15 July 2016 handed down its judgment in Microsoft v. United States, with Judge Susan Carney, writing for the majority, finding that the US Stored Communications Act 1986 (‘SCA’) does not authorise the courts to “issue and enforce against U.S.-based service providers warrants for the seizure of customer e-mail content that is stored exclusively on foreign servers.” / read more

On 14 July 2016, the European Commission (‘Commission’) published supplementary Statements of Objections in the antitrust proceedings against Google, alleging that Google (owned by parent company, Alphabet) favours its own comparison shopping services over competitors in its search results, and secondly that Google’s apparent use of exclusivity or limitation agreements imposed on third party websites leaves them little choice but to display adverts almost entirely from Google. / read more

The UK Government introduced on 5 July 2016 the draft Digital Economy Bill 2016 (‘Bill’), which contains a number of measures relating to, inter alia, digital infrastructure, IP and access to digital services, with the intention of maintaining and expanding upon the UK’s position in the digital economy. / read more

The European Commission on 12 July 2016 adopted the Privacy Shield (‘PS’) framework for EU-US data flows, to replace the invalidated Safe Harbor. The final version of the PS reacts to criticisms levelled at the original including from the Article 29 Working Party (‘WP29’); the amended version includes clarifications on bulk data collection, for example. / read more

The Electronic Frontier Foundation (‘EFF’) launched a lawsuit in the US District Court for the District of Columbia on 21 July 2016, challenging the US Government over the anti-circumvention provisions of Section 1201 of the US Digital Millennium Copyright Act 1998 (‘DMCA’), alleging the provisions violate the rights to free speech of the First Amendment of the US Constitution on the basis that the provisions prohibit copying that would be acceptable under the ‘fair use’ doctrine found in copyright law. / read more

The European Data Protection Supervisor (‘EDPS’) published an Opinion on the ePrivacy Directive (2002/58/EC) (‘the Directive’) on 22 July 2016 as part of the European Commission’s review of the Directive, with the EDPS advocating reforms to the Directive to provide confidentiality for users of all types of electronic communication, the strengthening of consent requirements for location data, allowing the full use of end-to-end encryption and requiring consent for all types of unsolicited electronic communication. / read more

Facebook announced on 9 August 2016 changes to its adblocking policy, stating that it will continue to show ads on its desktop site, even where adblocking software that would ordinarily block such ads is being used. / read more


The sharing economy has altered the way in which consumers buy or rent services and goods. Yet EU law and policy towards the sharing economy is often fragmented and complex; concerns include liability of the platform owners. Guillermo Beltrà, Head of the Legal and Economic Department at BEUC - the European Consumer Organisation - argues here that these legal questions require swift resolution by EU and national policymakers in order to create a consumer-friendly sharing economy. / read more

In the latest development in the conflict between state governments and e-commerce retailers over states’ ability to force such retailers to collect sales tax from their customers, even where that retailer has no ‘physical presence’ in the customer’s state, a number of state governments are looking to get a case before the U.S. Supreme Court in order for the ‘physical presence’ standard set by the Quill case to be reexamined. There are a number of cases across various US states that could eventually be heard by the U.S. Supreme Court; here, Matthew P. Schaefer, Partner at Brann & Isaacson, examines a number of these cases, in the first installment of a two-part article. / read more

Following the launch of a consultation in summer 2015 on the proposed review of the Satellite & Cable Directive (‘Directive’), the European Commission (‘EC’) in May 2016 published its Report on the consultation responses. The consultation and Report cover a number of areas of interest to stakeholders, including on the country of origin principle and on geoblocking. Rebecca Swindells, Partner at Jones Day analyses key aspects of the consultation and the responses found in the Report. / read more

On 29 June 2016, the Brussels Court of Appeal reversed the decision of the Belgian Court of First Instance in a high-profile case involving the Belgian Data Protection Authority (‘DPA’) and Facebook in a matter relating to Facebook’s privacy policy and in particular its use of ‘datr-cookies’ to track Facebook visitors who subsequently visit third party websites that feature Facebook plug-ins. The Court of Appeal found against the Belgian DPA. Henriette Tielemans and Kristof Van Quathem of Covington & Burling LLP discuss the matter at issue and the reasoning behind the Court of Appeals’ judgment. / read more

The Protection of Personal Data Law numbered 6698 (‘Law’) was enacted in Turkey on 7 April 2016, with detailed provisions relating to the protection of personal data. It defines ‘personal data’ as ‘any type of information that relates to an identified or identifiable natural person.’ The main principle is that personal data can only be transferred abroad once the data subject has provided explicit consent. However, there are certain exceptions, such as if the processing is clearly mandated by law. This could be where data processing is directly related to the formation or execution of an agreement of which the data subject is a party, or if processing is mandatory for the establishment, use or protection of a right. Furthermore, on the condition that it does not harm the data subject’s fundamental rights and freedoms, the processing is mandatory for the legitimate interests of the data controller. / read more

On 11 February 2016 France adopted a reform of its law of contracts, to become effective on 1 October 2016. This is the first full overhaul of this area since the Civil Code was adopted in 1804. Here, Marc Lempérière, Partner at Almain, explains how these reforms are however in no way a revolution since most of the modifications and new provisions are actually a codification of current French case law, reflecting the difference of approach between the 19th century political philosophy of the Napoleonic Code, centred on the pre-eminence of the individual and its freedom, and France’s current values, which are centred more on protecting the weaker party in a contract. For this reason, the new wording of the Civil Code introduces notions that have been developed in France by the Consumer Code and the Commercial Code, such as the abuse of a dominant position, the standard form agreement, and abusive clauses, as Marc describes. / read more

A request from the Italian Council of State for a ruling from the Court of Justice of the European Union (‘CJEU’) has thrown light on the adequacy of the private copying levy in Italy. On 4 May 2016, Advocate General Wahl (‘AG’) issued his Opinion in the case, finding that the indiscriminate application of the private copying levy to digital reproduction devices and media acquired for purposes clearly unrelated to private copying does not comply with the EU Copyright Directive. Daniela De Pasquale, Partner at Studio Legale D&P, analyses the AG’s Opinion and what this might mean for private copying levies in Italy and potentially the rest of the EU. / 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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