ASA publishes advice on dark patterns and advertising regulations, Master of the Rolls gives speech on smart legal contracts, UK government consults on Online Sales Tax and more in this week’s round-up of UK and EU techlaw news developments not covered elsewhere on the SCL website.
ASA publishes advice on dark patterns and advertising regulations
The Advertising Standards Authority has published guidance which sets out what dark patterns are and how they affect advertising regulation. So-called dark patterns consist of various behavioural and design techniques which are used by platforms to influence consumer choice or use of personal information. The UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (CAP Code) regulates some of the issues such as ”drip pricing”, ad labelling and subscription traps. However, others are not regulated by the CAP Code, although the CMA regulates more general business practices. The ASA says that it will continue to monitor this area, especially regarding the way in which dark patterns can be tailored to groups or individuals (especially those who are vulnerable) and practices not included in the scope of the CAP Code.
Master of the Rolls gives speech on smart legal contracts
The Courts and Tribunals Judiciary has published a speech by the Master of the Rolls, Sir Geoffrey Vos, from the launch of LawtechUK’s Smarter Contracts report. The report sets out how smarter contracts and blockchain technology are currently being used. It also aims to counter the idea that blockchain is a niche technology limited to a small number of individuals.
UK government to assess whether Online Sales Tax could address tax imbalance reported by retail sector
As set out in the Autumn Budget, the UK government has published a consultation to consider an Online Sales Tax. As part of the three-month consultation stakeholders will be asked for their views on the challenges on the design of an Online Sales Tax, including which products and services would be in scope and whether it would be a flat-fee tax based on the number of transactions or deliveries, or a revenue-based tax. The consultation delves into what effect an Online Sales Tax would have on consumers and businesses alike, which will also be a key determining factor in policy decisions. The consultation ends on 20 May 2022.
ICO reprimands Scottish Government over need to be upfront about NHS Scotland COVID Status app’s use of people’s details
The ICO has issued a reprimand to the Scottish Government and NHS National Services Scotland over both organisations failure to provide people with clear information about how their personal information - including sensitive health data–is being used by the NHS Scotland COVID Status app. The ICO received the full details about the app on 27 September 2021. The ICO raised concerns with the Scottish Government and NHS National Services Scotland that this critical information was only supplied three days before mandatory status checks were due to be rolled out in Scotland. After reviewing the app, the ICO advised the Scottish Government and NHS National Services Scotland that they had a number of concerns about the way the app was going to use people’s information. The ICO was particularly concerned by plans to let the NHS Scotland COVID Status app share the images and passport details of Scottish users with the software company providing the facial recognition technology behind the app. The ICO advised that the app should not be launched until its concerns about potential non-compliance had been addressed. The Scottish Government and NHS National Services Scotland halted plans to share personal data with the software company, but the app was launched on 30 September 2021 as planned without fully addressing the ICOs wider concerns about compliance with data protection law. The ICO now expects the Scottish Government and NHS National Services Scotland to act swiftly on these findings and apply the wider learning from the roll out of the NHS Scotland COVID Status app to any similar activities in the future to make sure people can continue to have trust in the way both organisations use their information.
European Commission launches consultation on Horizontal Block Exemption Regulations
The European Commission has published the revised R&D and Specialisation Block Exemption Regulations and Horizontal Guidelines (HBERs) for consultation. The Commission aims to gather stakeholder feedback on the changes it proposes to address the issues identified in the evaluation of the current rules. Its previous evaluation showed that the HBERs, together with the Horizontal Guidelines, are useful instruments and remain relevant for stakeholders. The evaluation, however, identified areas for possible improvement in terms of effectiveness, relevance, and coherence. The evaluation also identified areas where the texts of the HBERs and Horizontal Guidelines are considered insufficiently clear, overly strict or otherwise difficult to interpret. Since the launch of the impact assessment in June 2021, the Commission has gathered further evidence on possible changes to the current rule. This evidence has been considered in the drafting of the revised HBERs and Horizontal Guidelines.
EUIPO publishes 2021 study on online advertising on IPR-Infringing websites and apps
EUIPO has published a study about websites and apps which infringe IPR. Internet websites and mobile applications that provide access to content, goods or services that infringe intellectual property rights on a commercial scale use the sale of advertising space as one of their revenue sources. In addition to providing a revenue stream to IPR infringers, the presence of advertising for legitimate brands on websites and mobile applications that infringe IPR can confuse consumers. The study looks at online advertising found on IPR infringing websites and mobile apps during 2021, evaluates the estimated amount and type of such advertising, and estimates the associated ad revenues. The total worldwide revenue generated by the monitored website was estimated at EUR 912.7 million, while the worldwide revenue generated by the monitored apps was EUR 57.1 million. These figures highlight a serious issue, namely that websites and apps that infringe IPR do not only derive revenue from their infringing activities, but also from advertising by legitimate brands that is placed on such websites unwittingly, partly as a result of the very complex internet advertising ecosystem.
EUIPO publishes study on the impact of AI on the infringement and enforcement of copyright and designs
EUIPO has also published a study on the impact of AI on the infringement and enforcement of copyright and designs. In 2019, the EUIPO established an Impact of Technology Expert Group (EG) composed of experts with knowledge of and practical experience in monitoring the impact of new and emerging technologies on the infringement and enforcement of intellectual property including copyright and designs. The EG has developed a unique method of analysing the impact of new technologies on IP bearing in mind the fact that use of a particular technology can facilitate both the infringement, and enforcement, of IP. The report applies this methodology on AI to two detailed storylines on the infringement and enforcement of copyright and designs in the production and marketing of physical goods and the sharing of digital content. The report concludes that the multifaceted AI applications offer numerous opportunities, drivers, limitations and concerns for the misuse of AI in the infringement of copyright and designs while, at the same time, offering opportunities for the legal use of AI in their enforcement.