This Week's Techlaw News Round-up

New ASA guidance aims to ensure in-game purchases are advertised responsibly, ICO publishes list of organisations eligible for UK binding corporate rules and more in this week’s round-up of UK and EU techlaw news developments not covered elsewhere on the SCL website.

UK

New ASA guidance aims to ensure in-game purchases are advertised responsibly

The Advertising Standards Authority has published guidance for advertisers to help them ensure that in-game purchases are marketed responsibly. The guidance aims to ensure consumers are better protected, against the background of concerns about the potential for in-game purchasing to mislead consumers. The guidance makes clear several means by which advertisers of games with in-game purchasing should aim to ensure that their ads are not misleading, including by making it easy for consumers to understand how much they are spending on in-game transactions; being clear before purchase or download of a game if it contains in-game purchases and whether that includes loot boxes; and ensuring that ads for games are clear about what content primarily relies on making extra purchases. Much of the guidance relates to in-game advertising and associated online or in-game storefronts through which digital items can be purchased. Other aspects of the guidance apply to ads for in-game purchases that are external to the game (eg an email announcing new items for sale) or for games that include in-game purchasing (eg a TV ad for a game). The ASA will give the industry three months to amend ads, and six months to amend gameplay; and then begin regulating the sector as normal.

ICO publishes list of organisations eligible for UK binding corporate rules

Holders of EU BCRs for which the ICO had issued an authorisation under Directive 95/46/EC are automatically eligible for a UK BCR under the DPA 2018 (as amended from 1 January 2021). These organisations have been permitted to rely on a UK BCR as a valid transfer tool since 1 January 2021, subject to producing a UK version of their BCRs by 1 January 2021, and providing it with other amended documentation to the ICO on or before the next annual update return date. The ICO has published a list of those organisations that were automatically entitled to a UK BCR under the DPA 2018 and which have confirmed that they seek a UK BCR. Any organisations which fit into the above category which do not appear on the list and want UK BCRs should contact the ICO. Where organisations have submitted the required documentation already, ICO is currently in the process of reviewing and will be in touch in due course regarding the amendments made. Where documentation has not yet been provided, it encourages organisations to submit this as soon as possible. If the amended documentation is not provided to ICO’s satisfaction or at all, it may revoke the authorisation.

EU

Court of Justice rules that "zero tariffs" are contrary to principle of equal treatment of internet traffic

The Court of Justice of the European Union has ruled in various joined cases that “zero tariffs” are contrary to the principle of equal treatment of internet traffic under the EU Open Internet Access Regulation 2015/2120. ISPs have applied zero tariffs to all or some of the data traffic connected with an application, or category of specific applications, offered by partners of access providers. They do not count that data towards the data volume purchased as part of the basic package. Such offers aim to make an internet access offer more attractive. The German courts referred various questions about zero tariffs to the CJEU. It said that a zero tariff option made a distinction within internet traffic, based on commercial considerations, as it did not count traffic to partner applications towards the basic package. This was not compatible with the obligation of equal treatment of traffic, without discrimination or interference in Article 3(3) of the Regulation. This is the second time CJEU ruled on the issue of net neutrality. In September 2020 it ruled in cases C-807/18 and C-39/19 Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke that Telenor’s 1GB data tariffs offering unlimited domestic data consumption for a number of social apps, and therefore restricting usage of all other apps/services, violated the Regulation.

France, Germany and Netherlands propose more changes to Digital Markets Act

Earlier this year, France, Germany and the Netherlands made proposals to improve the Digital Markets Act. They said they supported the DMA's goal to ensure a fair and contestable single market for digital services. However, they also made several proposals to amend both the substantive rules of the DMA and the way they are enforced. They have now issued a second joint position paper comprised of concrete draft amendments for two key elements of their proposal: the introduction of a tailor-made remediation provision and the reinforcement of the role of national authorities in the enforcement of DMA.  The proposals would change both the substance of the DMA and its enforcement.

Published: 2021-09-24T14:00:00

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