This Week's Techlaw News Round-Up

Communications Act (e-Commerce) (EU Exit) Regulations 2020 made, Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 made, ICO fines for spam texts and calls, and more in this week’s round-up of techlaw news from the past two weeks.

Communications Act (e-Commerce) (EU Exit) Regulations 2020 made
The Communications Act (e-Commerce) (EU Exit) Regulations 2020 SI 2020/1420 made have been made. The Regulations are made under section 8(1) of the European Union (Withdrawal) Act 2018 to address deficiencies in retained EU law arising from the withdrawal of the UK from the EU. Regulation 2 provides that the directly effective provision of Article 3 of the E-Commerce Directive 2000/31/EC which would have continued to have effect in UK law after the end of the transition period (31 December 2020) under section 4(1) of the Act, ceases to have effect after the transition period in relation to sections 120 to 124 (which deal with regulation of premium rate telephone services) and sections 128 to 131 (which deal with persistent misuse of telephone networks) of the Communications Act 2003. The effect is that the “country of origin” principle established ceases to have effect and the provisions of the sections of the Communications Act 2003 above may be enforced by the enforcement authorities irrespective of the country in which the persons against whom enforcement is taken are established.
Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 made
The Electronic Communications and Wireless Telegraphy (Amendment) (European Electronic Communications Code and EU Exit) Regulations 2020 SI 2020/1419 have been made. The Regulations implement Directive (EU) 2018/1972 establishing the European Electronic Communications Code (“the EECC Directive”). Part 1 of Schedule 1 contains amendments of the Communications Act 2003 implementing the EECC Directive. These amendments include, in particular, amendments relating to: very high capacity networks; network access; end-user rights and bundled contracts; universal service obligations and social tariffs; and commitments that may be entered into by the provider of a public electronic communications network to address competition problems. Part 3 of Schedule 1 contains amendments to the Wireless Telegraphy Act 2006 implementing the EECC Directive, including relating to the efficient use of the radio spectrum. Part 1 of Schedule 2 contains related amendments of subordinate legislation. These include the omission of certain provisions of regulations previously made under section 8(1) of the European Union (Withdrawal) Act 2018 which were due to come into force at the end of the transition period (IP completion day) but are superseded by the amendments made by Schedule 1. The amendments implementing the EECC Directive come into force on 21 December 2020. The further amendments in Parts 2 and 4 of Schedule 1, Part 2 of Schedule 2 and Schedule 3 come into force on IP completion day. They are made under section 8(1) of the European Union (Withdrawal) Act 2018 to address failures of retained EU law to operate effectively arising from the withdrawal of the UK from the EU. Regulation 5 is a temporary provision implementing Article 87 of the EECC Directive until IP completion day by enabling certain universal service requirements to be reviewed. Regulation 6 is a saving provision relating to existing universal service conditions that require social tariffs.
ICO fines companies for spam texts and calls
The ICO has fined OSL Financial Consultancy Limited (OSL) £50,000 for illegally sending 174,342 nuisance marketing texts. Complaints were made about nuisance text messages received by the public about a drop in Buy to Let mortgage interest rates. The ICO investigation found 54,205 nuisance texts were sent during the pandemic, with 120,137 nuisance texts sent in the months earlier. Throughout the ICO’s enquiries, OSL relied on the previous consent it said it had obtained from its customers. The ICO’s investigation found OSL had gathered personal data from people who had contacted them via their website to obtain a quote and then used the data for marketing purposes. People were not offered the option to opt in or out of marketing, and the ICO concluded that valid consent had not been obtained. This breached the Privacy and Electronic Communications (EC Directive) Regulations 2003 SI 2003/2426 (PECR). In addition, another company has been fined £45,000 for making 39,722 connected unsolicited calls for the purposes of direct marketing in relation to occupational pension schemes or personal pension schemes contrary to regulation 21B of the PECR.
European Commission issues Democracy Action Plan
The European Commission has proposed a European Democracy Action Plan. In particular, the Commission proposes to deal with political advertising, addressing the sponsors of paid content and production and distribution channels, including online platforms, advertisers and political consultancies, clarifying their respective responsibilities. The Commission will also recommend measures to tackle safety of journalists and present an initiative to protect them from strategic lawsuits against public participation. Finally, the Commission will overhaul the existing Code of Practice on Disinformation, strengthening requirements for online platforms and introducing what it says will be vigorous monitoring and oversight.
European Commission publishes ranking guidelines under the P2B Regulation to increase transparency of online search results
The European Commission has published guidelines for online platforms on how to improve the transparency of their ranking parameters. The guidelines complement the ranking transparency requirements under the EU Platform-to-Business Regulation (P2B). The P2B Regulation requires online platforms and search engines to include a description in their terms and conditions of the main parameters which determine how prominently goods and services appear on their services. The guidance aims to help organisations comply with these requirements, making them an important step in ensuring businesses have the information they need to improve the presentation of the goods and services they sell through these intermediaries and to be more visible online. The guidelines are not legally binding, but they will assist platforms and search engines in complying with their obligation to be transparent on how ranking works on their services. The guidelines are relevant to the UK as the P2B Regulation came into force on 12 July 2020 and applies in the UK.
ICO launches tool to help police forces using data analytics
The ICO has designed and launched a toolkit designed to help the law enforcement sector comply with data protection law when using data analytics. The toolkit comes after the ICO undertook a project as part of its AI priority work to explore the use of data analytics in the law enforcement sector to develop an understanding of current activity. Data analytics can help police forces analyse large volumes of police-held data to assess the risk of someone committing a crime or becoming a victim. The ICO’s toolkit takes police staff through the data protection points they need to think about from the outset of any project their force is planning to undertake involving data analytics. If a police force is considering using data analytics they should be thinking about data protection from the start, that means getting the force’s data protection officer involved early on and, with their help, conducting a data protection impact assessment.
5G Supply Chain Diversification Strategy published
The 5G supply chain diversification strategy has been published. It aims to deliver lasting and meaningful change in the 5G supply chain and pave the way for a vibrant, innovative and dynamic market. Within it the UK government has set out its long-term vision for a healthy supply market, which is characterised by the principles of openness, flexibility and diversity. This means building an environment where competition and innovation bring forward new deployment models based on open interfaces and interoperable standards; where networks are flexible, built on a best of breed approach and made up of an array of suppliers; and where security standards are adopted by all operators and suppliers to ensure the robustness and resilience of  networks.
Ofcom publishes consultation on its spectrum management strategy for the 2020s
Ofcom is consulting on how it plans to manage use of the radio spectrum over the next decade. It is proposing action in three main areas. These build on its existing approach of relying on market mechanisms where possible and using regulatory levers where necessary. The first is supporting wireless innovation. Ofcom proposes to expanding its work to understand, assist and inform the wide range of organisations who may benefit from wireless technologies in the future. It also wants to make more spectrum available for innovation before its long-term future use is certain. It also plans to support innovation in new wireless technologies, including by influencing international standards and decisions so they are flexible enough to support new uses. It also wants licensing to fit local and national services. It proposes to support the growing diversity of wireless services and providers by considering further options for localised spectrum access when authorising new access to spectrum. Local access can suit a range of businesses and specialised services at sites like factories, airports and remote farms, which do not need to use spectrum across the whole of the UK. Larger, including national, licences can support wide coverage for public mobile services. Ofcom also plans to promote spectrum sharing. Spectrum is a limited resource, so as innovation stimulates greater demand for spectrum, it is important for users to share access with others. Technology can help by providing new sharing tools and by creating the opportunity for a fresh approach to sharing in higher frequencies. Building on existing work, Ofcom is proposing to encourage: use of better data and more sophisticated analysis when assessing the conditions for sharing; wireless systems to be more resilient to interference from their neighbours; and an efficient balance between the level of interference protection given to one service and flexibility for others to transmit. Ofcom also plans to promote such reforms internationally. The consultation ends on 26 February 2021.
Ofcom consults on future of public service broadcasting
Ofcom is consulting on its findings from its review of?UK public service broadcasting (PSB). The review examined how to strengthen and maintain public service broadcasting for the next decade and beyond, in the face of unprecedented changes to technology, financing and viewer behaviour. Ofcom has found that PSB content is still highly valued by audiences - with trusted, accurate news and programmes made about the UK holding particular importance. The PSBs also play a vital role in underpinning the UK’s creative economy. However, with funding under pressure and viewers turning away in favour of global streaming services, Ofcom has found that traditional PSB is unlikely to survive in the online world, unless broadcasting laws and regulation are overhauled, and broadcasters accelerate their transformation for the digital age. Ofcom’s review identifies what a new PSB framework could look like, along with options for a new model for stable funding. It also sets out how new providers could help deliver public-service media in future. The consultation ends on 16 March 2021.
PSA consults on its 2021/22 Business Plan and Budget 
The Phone-paid Services Authority is consulting on its 2021/22 Business Plan and Budget. It aims to build consumer trust in phone-paid services and ensure they are well-served through supporting a healthy market that is innovative and competitive. With this in mind, its draft Business Plan and Budget sets out its priorities, proposed activity and required budget for FY21/22. The consultation ends on 21 January.

Published: 2020-12-11T13:00:00

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