This Week’s Techlaw News Round-Up

September 1, 2023

UK law

High Court rules on trade mark case

In E-Accounting Solutions Limited and another v Global Infosys Ltd and another [2023] EWHC 2038 (Ch), the High Court held that the trade mark ADVANCE TRACK (which was registered for accountancy services) was infringed by the use of the keyword “advancetrack” in internet advertising for identical services. The court held that the keyword and mark were identical. It also said that the defendant’s advert that was generated by users inputting the keyword featured the word “advancetrack” prominently in the headline. This would not have made it possible or easy for an average accountant to work out if the services that were being advertised were offered by the claimant or a third party. The court also considered that there was infringement based on the appearance of the word “advancetrack” in the text of adverts that the defendant had established on the search engine (compared with the dynamic adverts created by the search engine). In addition, the court dismissed the defendant’s counterclaim for invalidity (based on descriptiveness) and partial revocation of the mark (based on non-use). The passing off claim was made out because of the finding of trade mark infringement.

ICO fines prize promotion company

The ICO has fined a prize promotion company for sending unlawful marketing emails. The company called “This Is The Big Deal Limited” sent or instigated the sending of 41,417,889 unsolicited direct marketing messages (39,906,342 emails and 1,511,547 text messages) to individuals who had not consented to receiving such messages, in contravention of regulation 22 of the Privacy and Electronic Communications Regulations 2003. 102,132 of the text messages were sent without the necessary opt-out information as required by regulation 23 of the Privacy and Electronic Communications Regulations. The company was fined £30,000 by the ICO.

JMLSG publishes new guidance on cryptoasset transfers

The Joint Money Laundering Steering Group has published new guidance on cryptoasset transfers. It contains final revisions to Sector 22 (Cryptoasset providers and custodian wallet providers) in Part II of its Guidance. This includes new Annex I to Sector 22 relating to cryptoasset transfers. The new guidance relates to the provisions of The Money Laundering Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 that implement the Travel Rule for cryptoasset transfers in the UK. The new obligations under Regulations 64A-64H came into effect on 1 September 2023.

Joint statement published by data regulators on data scraping and data protection

The ICO and eleven other data protection and privacy authorities from around the world have published a joint statement calling for the protection of personal data from unlawful data scraping taking place on social media sites. The ICO highlights that data scraping is an automated way to pull large amounts of information from the web. Scraping from social media creates privacy risks and potential harms, such as the information people post online being used for reasons they do not expect, exploited in cyberattacks or used for identity fraud. The joint statement sets expectations for how social media companies should protect people’s data from unlawful data scraping. It also recommends steps people can take to minimise risks when sharing information online. The joint statement is signed by twelve authorities brought together by the Global Privacy Assembly. Social media companies are invited to respond and demonstrate how they protect people from unlawful scraping.

Ofgem fines Morgan Stanley  & Co. International plc due to failure to record and retain electronic trading communications

Ofgem has levied a fine of £5.41m on Morgan Stanley & Co. International plc (MSIP) for not recording and retaining electronic communications between January 2018 and March 2020. The communications were made by wholesale energy traders, on privately-owned phones via WhatsApp, which discussed energy market transactions. It is the first fine issued in Great Britain under legal requirements to record and retain electronic communications relating to trading wholesale energy products. The Electricity and Gas (market Integrity and Transparency) (Amendment) (Eu Exit) Regulations 2019 are designed to protect consumers and ensure market transparency and integrity by providing Ofgem the powers to investigate and sanction against market manipulation and insider trading. The breach emerged following MSIP’s responses to information requests made by Ofgem. Ofgem found that MSIP had policies in place which prohibited the use of WhatsApp for trading communications, but MSIP did not take sufficient reasonable steps to ensure compliance with its own policies and the requirements of the regulations. MSIP has admitted the breaches and has taken steps to ensure the breaches do not happen again, including enhanced staff training and the strengthening of its internal systems and controls. MSIP fully co-operated with Ofgem’s investigation and has agreed to settle the case. The fine includes a 30% penalty discount for settling.

PSA updated Transparency Standard and Fairness Standard guidance

The Phone-paid Services Authority has updated its Transparency Standard and Fairness Standard guidance to support Information, Communication and Signposting Services (ICSS) providers with implementing the required changes to their services before 18 September 2023. This follows the PSA’s Statement on Code 15 changes to address issues in the ICSS market. The PSA has also said that it will employ limited regulatory forbearance until November, to give certain providers enough time to implement the changes.

UK government publishes Mobility As A Service Code of Practice

The UK government has published a Code of Practice on Mobility as a Service. It offers specific technical and regulatory advice, and guidance on the government ambition for MaaS. It covers issues such as accessibility and inclusion, enabling active and sustainable travel, data considerations, multi-modal ticketing, consumer protection and competition law. The content and recommendations in the code of practice will be regularly reviewed and updated so that it reflects the needs of the MaaS industry as it grows in the UK.