EDPB response on cookies walls, EURid update on Brexit and eu. domain names, update on Future of Transport review, Statement on e-Privacy Regulation and more in this week’s round-up of techlaw news from the past fortnight.
EDPB responds to letter from News Media Europe and others regarding cookie walls
The European Data Protection Board has published a response to a letter from News Media Europe and others on the subject of 'cookie walls'. The EDPB said that despite what had been reported in the press, the French courts had not taken a position on whether “cookie walls” are lawful or not on the merits, but considered that French regulator CNIL could not set out a general and absolute ban of cookie walls in a soft law instrument like its guidelines on Article 82 of the French Data Protection Act. Further, the EDPB said that it hopes that that the future ePrivacy Regulation provides clear answers to stakeholders, data subjects and data protection authorities. Until then, the EDPB says that the 2002 ePrivacy Directive as amended remains the applicable legal framework, and that the consent under the ePrivacy Directive needs to meet the standards set by the GDPR.
EURid update on Brexit related .eu domain names
EURid has published an update about a recent change agreed with the European Commission on .eu domain names assigned to UK registrants. On 21 December 2020, EURid will notify by email all UK registrants who have not yet demonstrated continued compliance with the eligibility criteria and their registrars about the risk of forthcoming non-compliance with the .eu regulatory framework. On 1 January 2021, EURid will notify by email all UK registrants and their registrars that their domain name is no longer compliant with the .eu eligibility criteria and is moved to the “SUSPENDED” status until 31 March 2021. On 1 April 2021, EURid will notify again by email all UK registrants and their registrars that their domain name no longer complies with the .eu regulatory framework and is moved to the “WITHDRAWN” status. On 1 January 2022, all the domain names in the “WITHDRAWN” status, formerly assigned to UK registrants, will be REVOKED and become AVAILABLE for general registration. Domain names in the “SUSPENDED” category will no longer function or support any service. The registrar of such domain names can update the registration data, transfer or delete the domain name.
Future of Transport regulatory review: call for evidence on micromobility vehicles, flexible bus services and Mobility-as-a-Service
The UK government has published its response to its consultation on the Future of Transport regulatory review. As a result of the consultation, it will continue to engage with stakeholders on regulatory proposals relating to micromobility, alongside taking account of lessons learned from e-scooter trials. It will engage with demand responsive transport service operators and collate findings from Rural Mobility Fund schemes and services deployed in response to the pandemic, to inform the forthcoming National Bus Strategy. In addition, it will take forward a code of practice for Mobility-as-a-Service, and continue work to improve the quality, accessibility and discoverability of transport data. The government also plans to investigate ways to improve awareness of the Equality Act 2010, and work with the Cabinet Office Disability Unit ahead of the upcoming National Strategy for Disabled People. It will use findings and learning from trials of new vehicles and services to explore what approaches or guidance can be developed to support trialling. It will also explore what approaches or guidance can be developed to support local leadership of new transport services and alignment with the upcoming Devolution and Local Recovery white paper. Finally it will continue to engage with stakeholders to understand what regulatory changes may be needed to support innovation.
EDPB issues statement on e-Privacy Regulation
The European Data Protection Board has adopted a statement on the ePrivacy Regulation and the future role of supervisory authorities and the EDPB. It says that The ePrivacy Regulation must under no circumstances lower the level of protection offered by the current ePrivacy Directive 2002/58/EC, but should complement the GDPR by providing additional strong guarantees for confidentiality and protection of all types of electronic communication. The EDPB is concerned about the direction of the discussions in the Council related to the enforcement of the future ePrivacy Regulation, which would create fragmentation of supervision, procedural complexity, as well as lack of consistency and legal certainty for individuals and companies. The EDPB asks the member states to support a more effective and consistent ePrivacy Regulation as initially proposed by the European Commission and as amended by the European Parliament.
European Parliament adopts text on circular economy to remove obstacles that prevent repair, resale, and reuse
MEPs have called on the European Commission to grant consumers a “right to repair” by making repairs more appealing, systematic, and cost-efficient, whether by extending guarantees, providing guarantees for replaced parts, or better access to information on repair and maintenance. They also call for more increasing support for second-hand goods markets, measures to tackle practices that shorten the lifetime of a product, and endorse sustainable production. MEPs have repeated an earlier demand for a common charger system to reduce electronic waste and want products to be labelled according to their durability (eg. a usage meter and clear information on the estimated lifespan of a product). To encourage sustainable business and consumer choices, MEPs are asking for more sustainable public procurement as well as responsible marketing and advertising. For example, when environmentally friendly claims are made in advertisements, common criteria should be applied to support such a claim, like ecolabel certifications. The resolution also calls for the role of the EU ecolabel to be boosted so that it is used more by industry and to raise awareness among consumers. Finally, the adopted text proposes new rules for waste management and the removal of legal obstacles that prevent repair, resale, and reuse. This would also benefit the secondary raw material market. According to a Eurobarometer survey, 77% of EU citizens would rather repair their devices than replace them, and 79% think that manufacturers should be legally obliged to facilitate the repair of digital devices or the replacement of their individual parts.
Marketing director disqualified after thousands of nuisance calls
A director of a marketing company which made over 75,500 unsolicited marketing calls has been banned by the Insolvency Service for six years. The ICO issued a fine of £100,000. The company was wound up in April 2019 with the fine outstanding. On 28 October 2020, the Secretary of State accepted a disqualification undertaking from the director after he did not dispute that he had caused his company to breach Regulation 21 of the Privacy and Electronic Communications Regulations 2003 SI 2003/2426 by making the marketing calls. Effective from 18 November 2020, he is disqualified for six years from acting as a director or directly or indirectly becoming involved, without the permission of the court, in the promotion, formation or management of a company.
Nominet and PIPCU tackle cyber crime with launch of new landing pages pilot for suspended criminal domains
Nominet has introduced law enforcement landing pages for domains suspended due to criminal activity to provide information for those who may have been affected by activity related to the domain name. In collaboration with the City of London’s Police Intellectual Property Crime Unit (PIPCU), Nominet will begin redirecting web users to a secure site providing consumer advice and education for potential victims of sales of counterfeit branded goods. PIPCU referrals account for the majority of UK domain names suspended for criminal activity. Since 2014 108,589 domains used for criminal activity have been taken out of action. In 2021 Nominet will extend the pilot to include the Medicines and Healthcare products Regulatory Agency. When the the pilot concludes, Nominet will assess the impact and report on its planned next steps.
European Commission issues IP Action Plan
The European Commission has issued its IP Action Plan discussing a range of reforms. In particular, it explores the use of new technologies such as AI and blockchain to improve the effectiveness of IP systems in the EU. The Commission takes the view that AI systems should not be treated as authors or inventors, referring to a study that was prepared for it by the Joint Institute for Innovation Policy and IVLR University of Amsterdam on the question. It also plans to clarify and upgrade the responsibilities of digital services, in particular online platforms, through the upcoming Digital Services Act. It will also establish an EU anti-counterfeiting toolbox to promote and facilitate effective cooperation between IP right holders, intermediaries (such as online market places) and law enforcement authorities, mainstream best practice and the use of adequate tools and new technologies. It will also propose ways to improve transparency and predictability in the licensing of standard-essential patents (SEPs) as these are key element for the digital transformation of Europe's industry, such as the roll out of connected cars and other IoT products.
UK government issues 5G supply chain diversification strategy
The UK government has announced its 5G supply chain diversification strategy. It sets out “targeted and ambitious” plans to diversify the global telecoms market, focussing on three key areas of activity. The first is supporting incumbent suppliers to ensure their resilience and ability to supply the market in the near term, while supporting their transition to the emerging market structure. The second is attracting new suppliers into the UK market to build resilience and competition, prioritising deployments in line with the government’s long term goals. The third is accelerating open-interface solutions and deployment so that the UK is not reliant on any single supplier and can begin to realise the government’s long term vision for a more open and innovative market. The delivery and implementation of the strategy will be guided by the Telecoms Diversification Taskforce which has been established recently.
European Commission publishes first review of 2018 Geo-blocking Regulation
The European Commission has published its first review of the 2018 Geo-blocking Regulation. which prohibits unjustified geographical restrictions on the sale of goods and services within the EU. The conclusions show that a number of geo-blocking obstacles have diminished since the introduction of the rule, but there is a need to tackle remaining obstacles. The report concludes that certain geo-blocking related obstacles, such as cross-border access to, and registration on websites, diminished. It also announces that another stock-taking exercise should take place in 2022. The biggest limitation remains a lack of cross-border delivery to shoppers’ home countries. Although this is not part of the obligations currently imposed by the regulation, it limits the ability of shoppers in the EU to acquire products cross-border.
European Parliament publishes draft opinion on shaping the digital future of Europe
The European Parliament’s Legal Affairs Committee has published its opinion for the Committee on the Internal Market and Consumer Protection on shaping the digital future of Europe: removing barriers to the functioning of the digital single market and improving the use of AI for European consumers. The IMCP Committee will present a motion to the European Commission and the Legal Affairs Committee calls for it to include, among other things, a regulatory regime for AI and measures to improve the use of AI for consumers, and also calls for measures related to the functioning of the Single Market for digital content, including the use of smart contracts. Finally it urges the Commission to analyse the impact that the power of large platforms have on the rights of consumers and SMEs,
CMA launches investigation into electric vehicle charging
The CMA is launching a market study into electric vehicle charging. The UK government has brought forward the ban of new petrol and diesel vehicles to 2030. This makes the switch to electric vehicles more imminent for UK drivers. As a result, the CMA is taking a close look at the electric vehicle charging sector, which is crucial to the roll-out of electric vehicles, as part of its commitment on climate change. The sector is still in the early stages of development but is growing quickly. The CMA is therefore considering how to ensure the sector works well for people now and in the future, which will help to build trust in the service and address any competition issues. The CMA’s work will centre on two broad themes: how to develop a competitive sector while also attracting private investment to help the sector grow; and how to ensure people using electric vehicle charging points have confidence that they can get the best out of the service. The CMA intends to conclude its market study well within the 12-month deadline, so that it can help shape competition and boost consumer confidence in this developing sector. Comments are invited by 5 January 2020.
European Commission consults on improving fast broadband network rollout
The European Commission has issued a consultation, as part of the review of the Broadband Cost Reduction Directive (2014/61/EU). It wants to assess possible incentives for the rollout of fast broadband networks, including fibre and 5G. The Directive, introduced in 2014, aims to enable fast electronic communications networks for people across the EU by reducing the related costs. However, in the light of technological, market and regulatory developments, and in view of deploying very high-speed broadband, the rules need to be updated. In addition to enabling a quicker and more efficient roll-out of very high-capacity networks, including fibre and 5G, the review will ensure that the rules are aligned with the new European Electronic Communications Code) and explore potential environmental safeguards. The recent Recommendation of the Commission on Connectivity called on member states to boost investment in fibre and 5G networks and to agree by March 2021 on a toolbox of best practices for the timely rollout of fixed and mobile very high-capacity networks, including in those areas covered by the Directive. Fast and reliable network availability is also in line with the European Electronic Communication Code, which the UK and member states must transpose into national law by 21 December 2020. The consultation ends on 2 March 2021.
European Council adopts conclusions on cybersecurity of connected devices
The Council has adopted conclusions by written procedure that acknowledge the increased use of consumer products and industrial devices connected to the internet and the related new risks for privacy, information security and cybersecurity. The conclusions set out priorities to address this crucial issue, and to boost the global competitiveness of the EU’s IoT industry by aiming to ensure the highest standards of resilience, safety and security. The conclusions emphasise the importance of assessing the need for horizontal legislation in the long term to address all relevant aspects of the cybersecurity of connected devices, such as availability, integrity and confidentiality. This would include specifying the necessary conditions for placement on the market. Cybersecurity certification as defined under the Cybersecurity Act will be essential for raising the level of security within the digital single market. The EU Agency for Cybersecurity (ENISA) is already working on cybersecurity certification schemes.