Techlaw News Round-Up

June 25, 2020

Online Intermediation Services for Business Users (Enforcement) Regulations 2020 made

The Online Intermediation Services for Business Users (Enforcement) Regulations 2020 SI 2020/609 have been made. Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services comes into force next month. In order to comply with Article 15 of the Online Intermediation Services Regulation, the UK is required to ensure adequate and effective enforcement and to set out the rules setting out the measures applicable to infringements of the provisions of that Regulation. The new Regulations set out those measures. Regulation 3 provides that a failure of a provider of online intermediation services to comply with certain articles of the Online Intermediation Services Regulation is a breach of an obligation owed to a business user so that, where loss or damage is caused to the business user, the business user may bring a civil action against the provider of online intermediation services with regard to that loss or damage. Regulation 4 provides that a qualifying organisation or association with the right referred to in Article 14(1) of the Online Intermediation Services Regulation may bring proceedings for an appropriate remedy to secure compliance by providers of online intermediation services or providers of online search engines with relevant requirements of the Regulation. Regulation 5 sets out the powers of the court in relation to an application for an appropriate remedy under regulation 4.

CMA revises provisional findings in Amazon/Deliveroo case

The CMA has provisionally cleared Amazon’s 16% investment in Deliveroo, on the basis that it is not likely to result in a substantial lessening of competition. The CMA says that it is not expected to damage competition in either restaurant delivery or online convenience grocery delivery. Were Amazon to acquire a greater level of control over Deliveroo, in particular by making a full acquisition of the company, this could trigger a further investigation by the CMA. The CMA is now asking for views on these provisional findings by 10 July 2020 and will assess all evidence provided before making a final decision. The statutory deadline for the CMA’s final report is 6 August 2020.

IAB issues guidance on special category data

As part of its work to address the ICO’s concerns about ad tech and real-time bidding, the Internet Advertising Bureau has developed guidance on special category data, to help companies understand their obligations, and how to comply with them in practice. The guidance aims to help educate the digital advertising industry about: what special category data is, as defined in the GDPR (including how it may arise from the way in which other data is processed); the legal provisions and requirements that apply to processing special category data; and factors to consider in reviewing whether there is a risk of special category data arising or being inadvertently processed as part of your activities, and how to minimise such risks.

Law Society updates virtual execution and e-signature guide during coronavirus

The Law Society has updated its position on the use of virtual execution and e-signature during the coronavirus pandemic. The guidance note was originally published in May and has now been updated to include a new section on tips on how to operate in practice. As technology advances there is sometimes uncertainty about how a new way of doing something fits in with accepted norms. Before deciding how best to proceed you should understand how the law views what you wish to do.

Petitions Committee launches new online abuse inquiry

The House of Commons Petitions Select Committee has launched a new inquiry on online abuse. The Committee’s new inquiry will look at the experiences of people who have faced online abuse, focusing on potential solutions for its reduction and prevention, legally, socially and technologically. The Committee will examine what progress has been made by the UK government since the conclusion of its previous inquiry into online abuse, which focused on online abuse and the experience of disabled people after Katie Price started a petition about online abuse. The new inquiry will see the Committee scrutinise the government’s response to online abuse, and press the Government on the action it needs to take. Many figures have raised concerns over the effect of coronavirus on mental health as people are spending more time online and on social media. 

European Commission issues consultation on Roaming Regulations

The European Commission is consulting on the Roaming Regulation (EU) 531/2012 as amended, which expires on 30 June 2022. The consultation aims at gathering information for the Impact Assessment of a Commission legislative proposal concerning the review of the Roaming Regulation. The consultation ends on 11 September 2020. On the basis of the responses, the Commission will prepare the Impact Assessment and the legislative proposal linked to the Initiative for reviewing and prolonging the Roaming Regulation.

European Commission consults on Broadband Cost Reduction Directive

The European Commission has launched a consultation on the Broadband Cost Reduction Directive (2014/61/EU). It says that it needs to be reviewed in light of current technological, market and regulatory developments. The new law aims to help foster a more efficient and fast deployment of very high capacity networks, including fibre and 5G and ensure alignment with the European Electronic Communications Code. Potentially, it will be complemented with measures introducing environmental sustainability considerations.

BEREC publishes various document including updated strategy document

BEREC has published an updated strategy which covers a period of five instead of three years, namely 2021-2025. This extended period enables better alignment with the legislative cycle of the Commission, and the objectives and new priorities set out by President von der Leyen for the period of 2019 -2024. At the same time, the structure of the BEREC strategy is being kept so that it follows the strategic high-level priorities around connectivity, digital issues and end-users. BEREC will revisit its strategic priorities over the course of the period. BEREC has also published Guidelines on how to assess the effectiveness of public warning systems transmitted by different means. Finally it has published suggested measures which can be considered to promote the take-up of tracing applications as one area that has been identified as one of concern which may effectively discourage the use of such tracing apps is the potential fears on their effect on data usage.

MHRA issues guidance on apps as medical devices

The Medicines and Healthcare products Regulatory Agency has issued updated guidance to help identify the health apps which are medical devices and make sure they comply with regulations and are acceptably safe. The guidance is presented as a step-by-step interactive PDF. App users can use this guidance to check if their health app is a medical device, and what to look for to make sure the app is safe and works. Software and app developers can use the guidance to identify if their product is a medical device. It aims to help developers in navigating the regulatory system so they are aware what procedures they need to have in place to get a CE mark which indicates acceptable safety standards and performance, and what their reporting responsibilities are when things change or go wrong. Many apps and pieces of stand-alone software currently on the market are classified as medical devices. These are apps which gather data from the person or a diagnostic device, such as diet, heartbeat, or blood glucose levels and then analyse and interpret the data to make a diagnosis, prescribe a medicine, or recommend treatment. It is important that apps which are medical devices comply with medical device regulation and work as expected. Apps that give incorrect diagnoses or prescribe inappropriate treatments may have severe, potentially life-threatening consequences.

IMCO committee issues report on online platforms’ moderation of illegal content online

The European Parliament’s IMCO committee has issued a report on online platforms’ moderation of illegal content online. Online platforms have created content moderation systems, particularly in relation to tackling illegal content online. The study reviews and assesses the EU regulatory framework on content moderation and the practices by key online platforms. On that basis, it makes recommendations to improve the EU legal framework within the context of the forthcoming Digital Services Act. It says that the baseline regulatory regime applicable to all types of content and all categories of platforms could strengthen in an appropriate and proportionate manner the responsibility of the online platforms to ensure a safer internet. This could be complemented with stricter rules imposing more obligations, when the risk of online harm is higher, eg according to type of content and size of platform.

PSA launches new exemption to support the provision of phone-paid society lotteries

The Phone-paid Services Authority has launched a new exemption to support the provision of society lottery services paid for via phone-payment. The exemption will be available to Network operators in respect of rule 3.5.1 of the PSA Code of Practice (the ’30 day rule’) and will enable society lottery services to be provided in compliance with both Gambling Commission Licence Conditions and Codes of Practice, and the PSA Code of Practice. Full details of the exemption, including how to make a formal application to participate, are outlined in the PSA’s notification.

Ofcom consults on next steps for transition from copper to fibre network regulation

Ofcom has published a consultation on proposed next steps for transitioning its regulation from Openreach’s copper network to new fibre broadband services, as they are rolled out across the UK. 

As part of its review of the wholesale fixed telecoms market, it has set out proposals to support competitive investment in faster fibre networks. This includes shifting the focus of its regulation from Openreach’s copper network on to fibre services, including shifting the focus of the charge control in exchange areas where Openreach has completed ultrafast rollout. Ofcom recognises there may be limited circumstances that mean Openreach is unable to connect certain properties in an exchange area, despite best efforts, but would still be able to declare that exchange area as completed. Ofcom commits to consulting on what those circumstances should be, but is proposing to do this after it has published the final decisions from our market review in 2021. This would allow Ofcom to consider more detail from the experience of Openreach’s initial fibre rollout work. The consultation ends on 3 September 2020.