The European Commission (‘EC’) published on 1 March 2018 its Recommendation on measures to effectively tackle illegal content online (‘Recommendation’)¹, which applies to hosting service providers such as YouTube and Facebook. The Recommendation follows the EC’s Communication of 28 September 2017 on tackling illegal content online (‘Communication’)². In the Communication, the EC announced it would monitor progress in tackling such content, and assess whether additional measures were needed to ensure the swift and proactive detection and removal of illegal content online. In this article, Dr Torsten Kraul, Associated Partner at Noerr, examines the Recommendation, which sets forth a set of operational measures to be followed by service providers and Member States, with the EC to monitor the success of these before determining whether to propose legislation in this area. / read more

Australia’s competition regulator, the Australian Competition and Consumer Commission (‘ACCC’), has launched a world-first inquiry into - according to its terms of reference - the impact of digital search engines, social media platforms and other aggregation platforms on the state of competition in Australia’s media and advertising markets. The most recent development in the Inquiry was the release of the ACCC’s Issues Paper on 26 February 2018, which outlined areas the ACCC will focus on, including the potential negative impact of digital platforms on diversity, journalism quality and accessibility in the media, and the competition issues created by the use of Big Data. Angela Flannery, Partner at Holding Redlich, and Dave Poddar, Partner at Clifford Chance, discuss the Issues Paper and the wider Inquiry. / read more

The US Federal Communications Commission (‘FCC’) moved on 14 December 2017 to reverse its 2015 Title II Order, which reclassified broadband internet access as a telecommunications service under Title II of the Telecommunications Act 1996. However, despite this repeal of the US ‘net neutrality’ rules, the situation is not entirely clear for digital businesses operating in the US. Firstly, a number of individual states have taken action - for example by introducing draft legislation at state level - in an attempt to recreate the protection previously offered by the net neutrality rules. Meanwhile it is also unclear as to how internet service providers (‘ISPs’) will change their practices following the repeal. Amanda D. Lotz, Fellow at the Peabody Media Center and a Professor at the University of Michigan, shares her opinion on the impact of the current uncertainty around net neutrality on digital businesses in the US, and what might happen next. / read more

The European Commission (‘EC’) published on 21 March 2018 two distinct legislative proposals aimed at reforming the taxation of digital business activities in the EU. The first proposal, indicated as a preferred long-term solution by the EC, would reform corporate tax rules so that businesses pay tax on their profits where they have significant interaction with users via digital channels, while the second proposal represents an interim tax to cover digital activities not currently taxed in the EU, for instance the selling of user-generated data. / read more

The UK Information Commissioner, Elizabeth Denham, announced on 24 March 2018 that the Information Commissioner’s Office (‘ICO’) has executed an investigation of the London offices of the data analytics company Cambridge Analytica (‘CA’), having obtained a search warrant to access records and data held by CA; Denham has explained that the ICO is investigating the circumstances in which Facebook users’ data may have been illegally acquired and used, as a part of its ongoing investigation into the use of personal data and analytics for “political purposes.” An earlier statement on 19 March confirmed that the ICO is looking into the acquisition and use of Facebook data by Cambridge University researcher Dr Aleksandr Kogan, CA and CA’s parent company SCL Group, the individual and organisations at the centre of allegations made by ex-CA whistleblower Christopher Wylie to a series of media outlets including The Guardian newspaper in March 2018. (article written on 26/03/2018) / read more

Almost a year and a half ago, the European Commission (‘Commission’) launched its ‘Copyright Package,’ a raft of proposed copyright reforms to further its aim of creating a fully functioning Digital Single Market (‘DSM’), where (among other things) digital content is able to flow freely from one Member State to another¹. In this article, Rebecca Swindells, Partner at Jones Day, comments on how, since the initial publication of the proposed reforms, the Commission has substantially amended its proposed reforms and taken a less draconian stance in respect of digital copyright, whose very nature of territoriality is at odds with a barrier-free single market. / read more

The Competition Commission of India imposed a fine on Google in February for abuse of a dominant position in relation to its online search and online advertising services. Shloka Vaidialingam and Kalindhi Bhatia of BTG Legal set out the findings of the investigation into Google’s activities in India and the consequences for digital businesses. / read more

The UK Law Commission announced on 6 February 2018 that it is to carry out an independent review, upon request of the UK Government as part of its Digital Charter, into the laws around offensive communications in order to assess whether they provide appropriate protection to victims online, and potentially embark on further work on options for reform if deficiencies are identified. The Law Commission states that any potential reforms will be informed by developing policy in the Digital Charter, which was launched on 25 January 2018 and lists making the UK ‘the safest place to be online’ as one of its priority objectives. “There are already a range of legislative tools available to prosecutors, under which it is possible to bring charges against culpable offenders,” comments Gregor Pryor, Partner at Reed Smith. “In fact, we saw a ten-fold increase in prosecutions under Part 1 of the Malicious Communications Act between 2004 and 2014, which largely reflects an increased uptake in social media over that period.” / read more

On 13 September 2017, the European Commission published its proposal for a Regulation on a framework for the free flow of non-personal data (COM(2017) 495 final). The Commission aims to facilitate the cross border flow of data within the European Union and includes new provisions for data storage and processing services (e.g. cloud services providers). The proposal that purely deals with non-personal data is part of the large scale Strategy for a Digital Single Market (‘DSM’). Just in time for the turn of the year, the European Council gave its view on the Commission’s proposal and published a revised version of the draft (2017/0228 (COD)). Dr Nils Rauer and Andreas Doser of Hogan Lovells International LLP outline the key aspects of the proposed Regulation and provide insight into the practical challenges for businesses. / read more

The European Commission (‘EC’) published on 19 January 2018 the results of its third evaluation of the Code of Conduct on countering illegal online hate speech by NGOs and public bodies; the EC stated that the Code of Conduct has “delivered steady progress in the removal of notified illegal content.” The progress made under the Code of Conduct, a voluntary initiative undertaken by multinational IT companies Facebook, Twitter, YouTube and Microsoft, was evaluated on 9 January 2018 and shows that the signatories to the Code of Conduct removed on average 70% of illegal hate speech notified to them by the NGOs and public bodies participating, which is an increase from the 28% that was found to have been removed after the first evaluation in 2016. / read more