CMA clears Visa/Plaid fintech transaction, Supreme Court refuses Ping permission to appeal in online sales case, European report on online counterfeiting and more in this week’s round-up of techlaw news from the past week.
CMA clears Visa’s anticipated purchase of fintech start-up Plaid
The CMA has cleared Visa’s anticipated purchase of fintech start-up Plaid. This follows a Phase 1 review in which it investigated if the deal could harm competition. Plaid offers payment initiation services so consumers can make real-time account-to-account payments directly from a merchant’s app or website, instead of using a card. Visa announced in January 2020 that it had agreed to buy Plaid in a deal worth $5.3 billion. While Plaid is currently a relatively small player in the UK, the CMA considered its prospects for future growth within the payment services sector. The CMA’s investigation primarily focused on how the deal could affect competition in the UK consumer-to-business electronic payments sector in which Visa, through its card-based payments and Plaid are both active. The CMA found that Plaid would have been an increasing competitive threat to Visa in future, but that it is only one of a number of providers already active in the UK, with several of these already possessing similar, or stronger, competitive capabilities than Plaid. Therefore, Visa would continue to face sufficient competition after the merger. The CMA also concluded that the combined Visa-Plaid business would not have the ability to push other providers out of the market, principally because customers often use multiple suppliers for their payment options. Rival providers would also be able to enter into arrangements, such as mergers or partnerships, with other payments providers to acquire customers.
Supreme Court refuses permission to appeal Court of Appeal Ping online sales ban ruling
The Supreme Court has refused Ping Europe Limited permission to appeal against the Court of Appeal's January 2020 judgment. The Court of Appeal had dismissed Ping's appeal against a ruling of the Competition Appeal Tribunal. The Tribunal had in turn upheld the Competition and Market Authority's decision that Ping's online sales ban was a restriction of competition by object under the Chapter I prohibition of the Competition Act 1998 and Article 101 of the TFEU. Permission to appeal has been refused because the application does not raise a point of law of general public importance which ought to be considered at this time bearing in mind that the case has already been the subject of judicial decision and reviewed on appeal.
Online counterfeiting: European Commission reports show industry co-operation has led to progress in tackling online counterfeiting and piracy
The European Commission has adopted two reports showing that industry-led memoranda of understanding have been a useful tool in addressing the online sale of counterfeit goods and preventing the placement of advertisements on websites infringing intellectual property rights. The published reports focus on the functioning of the 2011 memorandum of understanding on the sale of counterfeit goods on the internet and the 2018 memorandum of understanding on online advertising and intellectual property rights. They show that overall, these initiatives are valuable in ensuring effective cooperation between right owners, online platforms and industry associations on one hand, and advertisers, advertising intermediaries and associations on the other, to prevent the violation of IPR. The findings of these reports will also feed into the on-going evidence-gathering exercise on the Digital Services Act, and contribute to developing further actions to fight IP theft, which will be announced in the Commission's upcoming intellectual property action plan.
Ofcom consults on review of competition rules in the Electronic Programme Guide Code
Ofcom is consulting on its proposals to retain competition rules on electronic programme guide (EPG) providers to support fair and effective competition. On-screen TV guides, or EPGs, enable viewers to find and select TV programmes on broadcast or ‘linear’ TV. Ofcom’s EPG Code sets rules for EPG providers, including rules to protect fair and effective competition. The Digital Economy Act 2017 introduced a requirement on Ofcom to review the EPG Code before 1 December 2020. The consultation document presents Ofcom’s provisional conclusions following its review. The consultation ends on 25 September 2020.
Home Office issues revised guidance on making or renewing national security determinations allowing retention of biometric data
The Home Office has published revised guidance on retention of biometric data, giving direction to any police force in the UK and to any other law enforcement authority. It is made under the Protection of Freedoms Act 2012 and covers the making or renewing of a national security determination allowing the retention and use of biometric material for national security purposes.
PSA reviews its approach to vulnerable or at-risk consumers
The Phone-paid Services Authority has reviewed its approach to vulnerability, to make sure that it is aligned with best practice, supports consumers, and provides stakeholders with the right support and tools to do the same. As set out in the PSA’s Business Plan and Budget for 2020/21, at the end of 2019, the PSA commissioned a report which surveyed and assessed best practice across some key UK regulators in relation to vulnerability; assessed how the PSA’s approach to regulating in relation to consumers who are vulnerable or at risk compares to best practice; and provided recommendations on what the PSA could or should do differently. Building on the recommendations in that report, the PSA has developed a work programme to ensure its approach to vulnerability meets best practice.
ASA calls for zero tolerance approach to ads for age-restricted products appearing in childrens’ media
The ASA has published the findings from its latest online monitoring sweep, which has helped it to identify and tackle age-restricted ads appearing in children’s media. The UK advertising codes require advertisers to take care when targeting ads for age-restricted items. Over a three month period, using monitoring tools to capture ads served on a sample of over 50 websites and YouTube channels attracting a disproportionately high child audience, the ASA identified a number of instances where the ad rules were broken; is taking follow-up action to contact the advertisers whose ads broke the rules to secure the removal of the problem ads; and warned the advertisers to review and, as necessary, amend their practices to ensure they target future ads responsibly.
Scottish government publishes response to European Commission’s White Paper on AI
The Scottish government has published its response to the European Commission’s White Paper on AI, including its proposals for future regulation of AI products and services in the EU. Among other things, it covers the issues of facial recognition and bias in algorithms. The Scottish Government welcomes the publication of the White Paper. It says that it will continue to seek to collaborate with the EU across a wide range of issues, including mutually beneficial research and trade and investment, reflecting shared values and goals. Further, in recent years, it has made significant investments in data-driven innovation and AI, and is currently working to devise an AI strategy for Scotland.
Guardian takes legal action to shut down parody headline generator
According to Press Gazette, the publisher of The Guardian newspaper has taken legal action against a parody headline generator. The Guardian claimed that the headline generator had used photographs of its journalists and contributors, and in doing so, had infringed its copyright. Imitation headlines were shared on social media in December 2019, which parodied the Guardian’s online op-eds. They were accompanied by real author byline pictures alongside the hashtag #trollingtheguardian, which trended on Twitter. A take down notice has now been issued to the web hosting provider for the guardianmeme.com website, which produced the headlines. Website users could write their own headlines in the Guardian style and choose the byline of various Guardian and Observer journalists, along with real byline pictures.