This Week’s Techlaw News Round-Up

May 12, 2023

UK law

Court of Appeal reverses decision about Optis mobile phone patents

In Optis Cellular Technology LLC and other v Apple Retail UK Limited and others [2023] EWCA Civ 438, a majority of the Court of Appeal have reversed the Patent Court’s decision. This was the third technical trial in the mobile phone standard essential patent litigation between Optis and Apple in which it was alleged that certain Optis patents were invalid for obviousness. Two of the Appeal judges concluded one of the factual findings made by the trial judge was incorrect. This meant that the patents were not obvious in light of the prior art. However, the third Appeal judge disagreed, stating that, there was no ground for the Court of Appeal to interfere.

CMA approves satellite merger after investigation

The CMA has approved the merger of Viasat and Inamrsat. Both Viasat and Inmarsat supply businesses globally with satellite connectivity that enables services such as the internet, email, and video calling, including for use on aircraft. It says that while Viasat and Inmarsat compete closely, the merged company will be challenged by emerging and established competitors in coming years. Last October, the CMA referred the deal to a Phase 2 review after its initial Phase 2 review shows that, while Viasat and Inmarsat compete closely, specifically in the supply of satellite connectivity for WiFi on flights, the deal does not substantially reduce competition for services provided on flights used by UK customers. The evidence also shows that the satellite sector is expanding rapidly, a trend that is set to continue for the foreseeable future. This is due to increased demand for satellite connectivity, driven largely by the ever-growing use of the internet by business and consumers. Several new operators have recently entered, or are planning to enter, the satellite communications sector to offer connectivity services for aircraft. These include Starlink, operated by SpaceX. Since the start of the CMA’s Phase 2 review, the firm has launched a significant number of new satellites into space and secured its first contract with a European airline (airBaltic). Established players such as Panasonic and Intelsat are also investing and entering into new sector partnerships. For example, both companies have signed agreements with recent entrant OneWeb, which completed its global satellite constellation last month, allowing them to use OneWeb satellites to enhance their own offerings to airlines.

DRCF publishes 2022/23 annual report and 2023/24 workplan

The Digital Regulation Co-operation Forum (DRCF) has published its annual report for 2022/23, its second year of operation, and its workplan for 2022/23.

EU law

Court of Justice rules on right to receive a “copy” of personal data under GDPR

The Court of Justice of the EU has ruled in Case C-487/21|Österreichische
and CRIF that the right to obtain a “copy” of personal data means that the data subject must be given a faithful and intelligible reproduction of all the data. That right includes the right to obtain copies of extracts from documents or even entire documents or extracts from databases which contain the data, if that is essential to enable the data subject to exercise their rights under the GDPR effectively.

European Commission consults on rules for auditing VLOPs and VLOSEs

The European Commission is consulting on draft rules on how independent audits should be conducted under the Digital Services Act (DSA) for Very Large Online Platforms (VLOPs) and Very Large Online Search Engines (VLOSEs). The consultation ends on 2 June. After gathering public feedback, the Commission intends to adopt the rules before the end of the year. It says that independent audits are essential to help the Commission to assess compliance with all obligations under the DSA. Rigorous independent audits are an important accountability tool for the DSA and reflect best practices in many other regulated sectors, such as in financial services. The draft sets out the main principles that auditors should apply when selecting auditing methodologies and procedures and provides further specifications for auditing VLOPs’ and VLOSEs’ compliance with risk management and crisis response obligations. It includes templates for the audit report and audit implementation reports that will be made public and submitted to the Commission and Digital Services Coordinator in the country of establishment of the VLOP or VLOSE.

ENISA publishes report on AI

The European Union Agency for Cybersecurity (ENISA) has published an assessment of standards for the cybersecurity of AI and issued recommendations to support the implementation of upcoming EU policies on AI. Key recommendations include: resorting to a standardised AI terminology for cybersecurity; developing technical guidance on how existing standards related to the cybersecurity of software should be applied to AI; and reflecting on the inherent features of ML in AI. Risk mitigation in particular should be considered by associating hardware/software components across standards organisations’ technical committees on cybersecurity and AI so that potential cybersecurity concerns (e.g. on trustworthiness characteristics and data quality) can be addressed in a coherent manner.

European Commission recommends actions to combat online piracy of sports and other live events

The European Commission has adopted a Recommendation on how to combat commercial scale online piracy of sports and other live events, such as concerts and theatre performances. It encourages member states, national authorities, holders of rights and providers of intermediary services to take effective, balanced and appropriate measures to fight unauthorised retransmissions of such streaming, in full compliance with fundamental rights and personal data protection rules. By stepping up the fight against online piracy, the Recommendation aims to contribute to strengthening the competitiveness of the EU sport and creative industries. The Commission will closely monitor, together with the EUIPO Observatory, the effects of the Recommendation.

EDPS publishes annual report

The European Data Protection Supervisor has published his annual report. It provides an insight into the EDPS’ most significant activities as the independent data protection supervisory authority of EU institutions, bodies, offices and agencies.