This week's Techlaw News Round-Up

High Court considers damage for online defamation and harassment, Compensation for harassment and defamatory tweets, another FRAND patent decision, Updated advice on .eu domain names, Scottish Government launches updated digital strategy and more in this week’s round-up of UK and EU techlaw developments.

UK law

High Court awards £100,000 in damages to former FA CEO in defamation and harassment claim

In Glenn v Kline [2021] EWHC 468 (QB), the former CEO of the Football Association had been subject to a campaign of tweets making unfounded claims relating to alleged criminal activity and claimed for harassment and defamation. The court ruled that the defendant should pay £25,000 in respect of the harassment claim and £75,000 (including £10,000 in aggravated damages) in respect of the defamation claim. The case is of interest to tech lawyers because the judge provided helpful guidance on how damages principles apply in the context of internet harassment and defamation cases. 

Patents Court issues another FRAND decision

In Mitsubishi Electric Corporation and another v Oneplus Technology (Shenzhen) Co Ltd and others (FRAND CMC Judgment) [2021] EWHC 493 (Pat), the Patents Court held that the methodology proposed to be employed in any essentiality review must be pleaded as soon as possible so that the evidence required to prove the results of such a review can be identified and suitable case management directions can be given in good time within the directions down to the FRAND trial already in place. FRAND means fair, reasonable and non-discriminatory. It arises in the context of cases where an IP owner refuses to grant a licence or refuses to grant a licence on FRAND terms.

Registering and renewing .eu domain names in the UK

The Department for Digital, Culture, Media & Sport has published updated guidance on registering and renewing .eu domain names in the UK. The guidance takes into account the latest information published by EURid on 10 February 2021.  The key points of the guidance deal with eligibility and what to do if you no longer meet the eligibility criteria.

Scottish Government launches updated digital strategy

The Scottish government has issued an updated digital strategy outlining an ambition to achieve ”world leading" levels of digital inclusion. The strategy plans to equip Scotland for the technological transformation of the post-coronavirus (COVID-19) world. It also highlights a commitment to deliver digital public services that are accessible to all and simple to use. On the economy, it recognises the potential for technology and digital ways of working to support Scotland’s post-pandemic recovery and its environmental targets. Setting out the vision for every business to become a digital business, the strategy makes clear that improved digital education for children and continued upskilling of the existing workforce will be crucial if Scotland is to keep pace internationally. The strategy also aims to support the success of Scotland's tech industry as an innovative and global player, fostering a network of digital and data talent and attracting inward investment.

Ofcom issues principal stage results of spectrum auction

Ofcom has announced the outcome of the principal stage of its auction to release more airwaves to improve mobile services and support 5G. A total of 200 MHz of spectrum was available to bid for in the auction, split across two bands: 80 MHz of spectrum in the 700 MHz band. Four companies – EE Limited, Hutchison 3G UK Limited, Telefónica UK Limited and Vodafone Limited – took part in the principal stage of the auction, which involved them bidding for airwaves in 34 ‘lots’ to determine how much of the available spectrum they each secured. Principal stage bidding has now ended, and Ofcom has published the results. The auction will now move to the ‘assignment’ stage. This process involves a single bidding round in which the companies can bid for the frequency positions they prefer for the airwaves they have secured in the principal stage. After submitting their assignment stage bids in the 3.6-3.8 GHz band, bidders will then have the opportunity to negotiate the frequency positions among themselves – if they want to join together the airwaves they have secured with spectrum they already hold in the wider 3.4-3.8 GHz band. This will be subject to whether the companies wish to enter the negotiation period. If they do, Ofcom will publish the dates for the negotiation period. The final results of the auction, including the total amounts paid, the specific frequencies secured for each bidder, and the outcome of any agreements reached in the negotiation period, will be published once all stages are complete.

EU law

EDPB issues statement on draft E-Privacy Regulation

The European Data Protection Board has published a statement about the draft E-Privacy Regulation (ePR). It welcomes the draft but also raises some concerns. It is concerned about effective ways to obtain consent for websites and mobile applications. The current situation should be improved by giving back control to users and address "consent fatigue". Article 4a should oblige browsers and operating systems to have a user-friendly and effective mechanism allowing controllers to obtain consent; the draft should explicitly include browser and operating system providers. The draft ePR may neither deviate from the EU Charter of Fundamental Rights nor recent case law on targeted data processing and retention. The EDPB also discusses so-called "take it or leave it solutions". Unfair practices which make access to services and functionalities conditional on a user consenting to the storing of information, or the gaining of access to information stored in their terminal equipment (so-called, "cookie walls") should be prohibited, so that users can accept or refuse profiling. The opinion also mentions general prohibitions with narrow exceptions for personal data processing. The exceptions need to be narrowed down to specific and clearly defined purposes and those purposes should be explicitly listed. Protection of privacy under the ePR cannot be applied in isolation; therefore, oversight of privacy provisions should be entrusted to supervisory authorities under the EU GDPR, to support consistency and guarantee a level playing field in the Digital Single Market. The EDPB also refers to ongoing discussions on the further processing of electronic communications metadata or data collected through cookies and similar technologies on the basis of compatible purposes, which it considers risks undermining the ePR. It supports the approach previously taken based on a general prohibition, followed by narrow exceptions and the use of consent.

EDPS publishes opinion on NIS 2.0 Directive and cybersecurity

The European Data Protection Supervisor has issued an Opinion welcoming the proposed NIS 2.0 Directive, which aims to replace the existing Directive on security of network and information systems (NIS). Its aim is to harmonise and strengthen cybersecurity practices across the EU and is part of the EU’s Cybersecurity Strategy to ensure a global and open internet with strong safeguards to mitigate the risks for individuals’ fundamental rights, including the right to data protection. The EDPS’ Opinion includes remarks and recommendations on both the Strategy and the proposed Directive. The EDPS appreciates that the proposed Directive envisages systemic and structural changes that will have a positive impact on the security of personal data, electronic communications and the security of the internet. The EDPS also strongly supports the additional initiatives that aim to improve cybersecurity practices in the EU and, more generally, technological sovereignty. To further enhance the Directive’s objectives, the EDPS reiterates that compliance of all practical measures, such as the use of cybersecurity systems to prevent, detect and respond to cyber threats, with EU data protection laws is imperative. The EDPS also stresses that the use of encryption, in particular end-to-end encryption, is crucial. Encryption is an irreplaceable technology to protect individuals’ personal data and right to privacy. Any weakening or circumvention of encryption (eg using mandatory backdoors, mandatory key escrow, and hidden communication channels) would remove any effective protection capability and result in a loss of trust. The proposed Directive should therefore be clarified: nothing in the proposal should be construed as an endorsement of weakening end-to-end encryption through “backdoors” or similar solutions. The EDPS also calls on the EU’s co-legislators to provide for a closer cooperation of cybersecurity actors with the EDPB, as well as a more comprehensive legal basis for the cooperation and exchange of relevant information with data protection authorities.

EPO publishes judicial cooperation report

The EUIPO has published a report on international judicial cooperation in online intellectual property (IP) infringement cases. The report takes an in-depth look at the legislative measures available for judicial cooperation in civil, administrative and criminal cases of IP infringement. The background to the study is the rapid evolvement of online IP infringement in which infringers are using the borderless nature of the internet to take advantage of the jurisdictional boundaries, competencies and mandates between the relevant courts, prosecution services, law enforcement agencies and public authorities. In addition, the constant innovation in technology fosters mobility, making it more difficult to track down electronic evidence of online IP infringement, as well as the infringers themselves. The dark net’s hidden services have become attractive to criminals, including online IP criminals, further complicating the process of identifying suspects and collecting evidence. Therefore, according to the report, combatting online IP infringement increasingly requires cooperation and an exchange of expertise and information among the judiciaries, regulators and agencies.

MEPs call for better cooperation between national authorities on taxation of digital trading

MEPs have recommended changes to draft legislation aiming to trace and tax the sales that people make through online platforms more effectively. The legislation aims to oblige digital platforms to report the income earned by those selling goods and services on their platforms. Tax authorities would also be obliged share this information with each other.  MEPs say that non-EU platforms should be required to register and report their activities in the single market in a single member state, and must have substantial economic activities in the chosen member state. Moreover, MEPs opted for regulations to provide for harmonised sanctions against platforms that do not fulfil their reporting obligations. A tax authority receiving a request for information should provide it no later than three months, rather than six months, from the date it receives the request. By the end of 2022, the European Commission should submit a report assessing country-by-country how well the system works, including how effective the information exchanges are. A tax authority should automatically communicate to the authority of another member state not only the information that is available but also that which could reasonably be made available. As from 1 January 2022, no new bilateral or multilateral advance pricing arrangements should be agreed by member states with third countries that do not permit their disclosure to the tax authorities of the other member states.

European Commission sets the course towards a digitally empowered Europe by 2030

The European Commission has presented a vision, targets and avenues for a successful digital transformation of Europe by 2030. This is also critical to achieve the transition towards a climate neutral, circular and resilient economy. The EU's ambition is to be digitally sovereign in an open and interconnected world, and to pursue digital policies that empower people and businesses to seize a human centred, sustainable and more prosperous digital future. This includes addressing vulnerabilities and dependencies as well as accelerating investment. It proposes to agree on a set of digital principles, to rapidly launch important multi-country projects, and to prepare a legislative proposal setting out a robust governance framework, to monitor progress – the Digital Compass. It coves four points: digitally skilled citizens and highly skilled digital professionals, secure, performant and sustainable digital infrastructures, digital transformation of businesses; and digitalisation of public services. The Commission also proposes to develop a framework of digital principles, such as access to high quality connectivity, to sufficient digital skills, to public services, to fair and non-discriminatory online services – and more generally, to ensure that the same rights that apply offline can be fully exercised online. The EU will also work within international organisations and through strong international digital partnerships.

BEREC issues opinion on proposed Digital Markets Act

The Body of European Regulators for Electronic Communications has published its Opinion on the European Commission's proposal for a Digital Markets Act (DMA) and a draft report on the ex ante regulation of digital gatekeepers. BEREC strongly supports the Commission's ambition and advocates making it a reality, ensuring that competition and innovation are encouraged, that end-users’ interests are protected and that the digital environment is open and competitive. It says ex ante regulation is the relevant way to do it. In the light of its two-decade experience in ex ante regulation, BEREC is putting forward key proposals for the DMA’s enforcement. For any regulatory intervention to truly reach its objectives, appropriate regulatory measures and enforcement are key. BEREC puts forward a number of key proposals for a swift, effective and future-proof regulatory intervention aiming to: create a framework to build sound knowledge and detailed understanding of the business models and technicalities of the sector(s); ensure a constant regulatory dialogue and repeated interactions with all types of relevant stakeholders; include, along with the directly-applicable obligations, remedies to be tailored on a case-by-case basis, for highly-technical, detailed and more intrusive measures; set up a dispute resolution mechanism to minimise negative effects on competition and innovation; avoid overlaps with existing regulatory frameworks on issues regarding number-independent interpersonal communication services; and establish an Advisory Board of National Independent Authorities to support the EU competent authority in effective enforcement. The report is open for consultation until 4 May 2021.

MEPs says that AI technologies must prevent discrimination and protect diversity

The Culture and Education Committee of the European Parliament has said that reducing gender, social or cultural bias in AI technologies is key. The use of AI technologies in education, culture and the audiovisual sector could affect “the backbone of fundamental rights and values of our society”. It calls for all AI technologies to be regulated and trained to protect non-discrimination, gender equality, pluralism, as well as cultural and linguistic diversity. To prevent algorithm-based content recommendations, especially in video and music streaming services, from negatively affecting the EU’s cultural and linguistic diversity, MEPs ask for specific indicators to be developed to measure diversity and ensure that European works are being promoted. The Commission must establish a clear ethical framework for how AI technologies are used in EU media to ensure people have access to culturally and linguistically diverse content. Such a framework should also address the misuse of AI to disseminate fake news and disinformation. The use of biased information that reflects already existing gender inequality or discrimination should be prevented when training AI. Instead, inclusive and ethical data sets must be developed, with the help of stakeholders and civil society, to be used during the “deep learning” process. MEPs finally stress that teachers must always be able to correct decisions taken by AI, such as students’ final evaluation. At the same time, they highlight the need to train teachers and warn that they must never be replaced by AI technologies, especially in early childhood education. The full House is due to vote on the resolution in April. The Commission is expected to propose a legislative framework for trustworthy AI in April 2021, as a follow-up to its White Paper on Artificial Intelligence.

Council adopts new rules on terrorist content online

The Council of the European Union has adopted a regulation on addressing the dissemination of terrorist content online. The aim of the legislation is a swift removal of terrorist content online and to establish one common instrument for all member states to this effect. The rules will apply to hosting service providers offering services in the EU, whether or not they have their main establishment in the member states. Voluntary cooperation with the hosting service providers will continue, but the legislation will provide additional tools for member states to enforce the rapid removal of terrorist content where necessary. Competent authorities in the member states will have the power to issue removal orders to the service providers, to remove terrorist content or disable access to it in all member states. The service providers will then have to remove or disable access to the content within one hour. Hosting service providers exposed to terrorist content will need to take specific measures to address the misuse of their services and to protect their services against the dissemination of terrorist content. The decision as to the choice of measures remains with the hosting service provider. The legislation also provides for a clear scope and a clear uniform definition of terrorist content to fully respect fundamental rights. It also includes effective remedies for both users whose content has been removed and for service providers to submit a complaint. The adoption of the Council's position at first reading follows a provisional agreement on the text reached between the Council presidency and the European Parliament on 10 December 2020. The legal act now needs to be adopted by the European Parliament at second reading before being published in the EU Official Journal. The regulation will enter into force on the twentieth day following its publication and will start to apply one year later.

Published: 2021-03-19T10:00:00

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