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Digital Business Lawyer

Volume: 18 Issue: 9
(September 2016)


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 when adblocking software that would ordinarily block such ads is being used. / read more

The UK’s Competition and Markets Authority (‘CMA’) announced on 11 August 2016 that it has secured undertakings from marketing company Social Chain, after the CMA found the company used its own social media channels to promote products, and arranged for social media personalities to do the same, without informing consumers that the content was paid-for advertising in both cases. / read more

The German Federal Court of Justice (‘BGH’) Civil Division issued its judgment (VIII ZR 182/15) on 24 August 2016 in favour of sellers using the e-commerce platform eBay, confirming the unenforceability of claims for damages brought by individuals partaking in so-called 'cancellation hunting' - a controversial practice whereby individuals that make low bids on auction items and then bring damage claims, months after a seller prematurely withdraws the item from sale most likely due to the low sale price achieved without adhering to eBay's terms and conditions, in order to make financial gain when the item is no longer available.  / read more

EU telecoms authority the Body of European Regulators for Electronic Communications (‘BEREC’) published on 30 August 2016 its finalised guidelines on the implementation and enforcement of the EU Regulation 2015/2120 on net neutrality (‘Guidelines’) for EU National Regulatory Authorities (‘NRAs’) assessing internet service providers, following adoption of the Regulation in October 2015. The Guidelines seek to reduce the ambiguities present in the final version of the Regulation and have been celebrated by net neutrality advocates for their support of the ‘Open Internet.’ / read more

The Court of Justice for the European Union (‘CJEU’) gave its judgement in Case C-160/15 GS Media BV v. Sanoma Media Netherlands BV (‘GS Media’) on 8 September 2016, deciding that posting a hyperlink to copyrighted content that has been published online without consent of the copyright holder does not constitute a ‘communication to the public’ unless the individual posting the link knew, or ought to have known, that the content was published illegally. However, where the posting of a hyperlink is done for profit, there is a presumption that the user posting the hyperlink knew of the work’s protected nature and possible lack of consent. In such a case, a communication to the public has taken place. / read more

The European Commission proposed on 14 September 2016 new rules designed to modernise copyright in Europe, which include measures aimed at supporting rightsholders in light of the challenges posed by the digital world and at creating ‘a fairer and sustainable marketplace for creators, the creative industries and the press,’ according to the EC media release. / read more

The European Commission (‘EC’) published a Preliminary Report as part of its E-Commerce Sector Inquiry (‘Preliminary Report’) on 15 September 2016, in which the Commission states that it may investigate possible anti-competitive clauses in selective distribution agreements that restrict online sales. / read more


The UK Court of Appeal handed down its judgment on 6 July 2016 in the case of Cartier International AG and others v. British Sky Broadcasting Ltd and others, upholding the High Court’s decision to grant the claimants a blocking order requiring the UK’s five largest internet service providers (‘ISPs’) to prevent access to a number of third party websites advertising and selling goods infringing on the plaintiffs’ trade marks. David Cran and Ben Mark of RPC report on the Court of Appeal’s rejection of the ISPs’ appeal and the implications of this case. / read more

The placement of content next to defamatory or infringing online advertising can have a detrimental effect on the content owner’s brand reputation, and yet content owners often do not insist on protection from such issues when they negotiate contracts with their online licensees. Tom Guida and Hannah Stiles of Fieldfisher suggest ways in which content owners can contractually protect themselves against risks associated with the placement of their content online. / read more

On 14 July 2016, the United States Court of Appeals for the Second Circuit released its decision in Microsoft Corp. v. United States, rejecting the US Government’s efforts to require Microsoft to turn over emails held overseas in its data centre in Dublin, Ireland, pursuant to a judicially authorised search warrant. Jeewon Kim Serrato, Agnes Dunogue and Christopher LaVigne of Shearman & Sterling LLP explain how this decision, while narrow, runs counter to a trend in which courts have generally accepted the US Government’s efforts to obtain evidence stored abroad, and discuss how the case may have meaningful implications for where corporations store their data in the future and on the US Government’s ability to use certain investigative techniques to obtain data stored overseas. / read more

Austria’s Council of Ministers passed on 12 July 2016 a draft law amending the Austrian Federal Act against Unfair Competition 1984 and the Austrian Price Labelling Act (‘Draft Law’), which would introduce a general prohibition on most favoured nation clauses (‘MFNs’) in contracts between providers of booking portals and hotel operators irrespective of whether they are block exempted or individually exempted from the cartel prohibition under EU law. Stefanie Stegbauer and Michael Woller of Schönherr Rechtsanwälte GmbH take a look at the Draft Law and the concerns it raises from an EU law point of view, and outline why the Draft Law could be detrimental to the Austrian online booking services sector. / read more

In the second installment of his two-part article on internet sales taxes in the US, Matthew P. Schaefer, Partner at Brann & Isaacson LLP, discusses what he terms the increasingly aggressive standards US states are adopting in their efforts to impose tax obligations on companies located beyond their borders. Matthew describes the potentially far-reaching implications of the imposition of such standards, should court decisions allow them to stand. / read more

China’s State Administration for Industry and Commerce (‘SAIC’) issued on 4 July 2016 its Interim Measures for the Supervision and Administration of Online Advertising (‘New Rules’), aiming to further clarify China’s rules in relation to online advertising, which until recently had been given limited regulatory coverage. The New Rules provide a Code of Conduct for businesses involved in online advertising to abide by, and emphasise a number of important ‘do-nots’ for such firms, as Dr. Michael Tan and Lynn Zhao of Taylor Wessing explain. / 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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